Covid-19 and employment issues in the Cayman Islands

Covid-19 and employment issues in the Cayman Islands
March 16, 2020


With the first reported case in the Cayman Islands of the coronavirus disease 2019 (COVID-19) we have received an increasing number of enquiries from employers and employees about what they should be doing from an employment law/HR perspective and employment rights.

We set out below our answers to some of the questions we have been asked, together with some practical tips on how to deal with this issue. We will keep this note under review, as we appreciate that the situation is evolving and the government’s guidance to employers may change.

What are our obligations from a health and safety perspective in relation to our staff?

Employers have a duty to ensure “so far as is reasonably practicable the health, safety and general welfare at work of its employees.” This duty includes keeping the workplace clean, from becoming overcrowded and to provide suitable and sufficient sanitary conveniences.

In light of the spread of COVID-19 employers should, therefore, carry out a risk assessment and implement reasonably practicable control measures to either eliminate or mitigate the virus hazard. From a practical perspective, we would recommend that employers:

  1. Ensure staff are aware of the symptoms and the latest advice on how to minimise the risk of infection.
  2. Implement a reporting procedure for anyone with symptoms. Employees may be reluctant to self-report if they think that such reporting will adversely affect their pay or work. Therefore, you may wish to consider making some assurances to employees to encourage reporting.
  3. Implement a reporting procedure for individuals who have recently visited “high-risk” areas, such as China, Northern Italy, Syria and Lebanon, etc., and update this list regularly, given the risk areas are constantly evolving. This may mean that staff have to “self-isolate” if they have returned from a high-risk area (see below for further guidance).
  4. Make individuals aware of the latest government guidance – www.hsa.ky/public-health/coronavirus/
  5. Ensure any control measures identified by the risk assessment are aligned with the government’s advice.
In what circumstances are staff required to stay away from work?

The Cayman authorities have not yet issued any clear official guidelines on the circumstances in which an individual will be required to self-isolate. However, it appears that individuals will be required to self-isolate, or in some cases be quarantined, in the following circumstances:

  1. Where they have tested positive to the virus
  2. Where they have travelled to a high-risk country and they are displaying symptoms of the virus but a diagnosis has not yet been confirmed
  3. Where they have been in contact with someone diagnosed with the virus but a diagnosis has not yet been confirmed
Do we have to pay an employee if they contract the Covid-19 or are advised to isolate by a Doctor?

COVID-19 is no different from any other sickness and in those circumstances sick leave should be granted in line with statutory and contractual rights.

Do we have to pay an employee if they self-isolate?

The position becomes less clear if employees are self-isolating in line with what they believe is best practice, but are not (outwardly, at any rate) actually unwell and don’t have a sick note. Employers should obviously check their own policies/contracts concerning sick pay, but it would be unusual for employees to have a contractual right to pay/sick pay in these circumstances. Some employers may choose to treat such periods of absence as sickness for their own company sick pay purposes as even without an obligation to pay, or to treat this period as sick leave there is logic in this decision because otherwise employees may try to come into work, putting others at risk.

We would, however, recommend that employers take specific advice on this issue and each particular case before agreeing to anything, as there may be circumstances where it is not appropriate to adopt/continue with this approach. For example, it may not be appropriate to provide normal pay in circumstances where the employee has travelled to a high-risk area ignoring government guidance or a travel ban without a reasonable excuse. It may also lead to “copycat” absences, once employees are aware that company policy is that they will be paid as normal when absent due to self-isolation.

If an employee is able to work from home, this makes things simpler, as the employer could do this and continue to pay the employee as normal. However, this may not be practicable for all employees due to the nature of their roles or their personal circumstances.

What happens if an employee needs to take time off work or requests flexible working arrangements to care for children due to the closure of a nursery or school?

All schools in the Cayman Islands have temporarily closed as a precautionary measure to prevent the spread of the virus. The closure of schools and nurseries is likely to lead to additional requests for flexible work arrangements and/or leave requests from staff to care for children. Employers should check their employment contracts and internal policies to see if there are any contractual entitlements to allow remote work or leave in these circumstances (for example, emergency leave).

If an employee is capable of fulfilling their work duties remotely then as matter of best practice, employers should accommodate requests for flexible working arrangements and/or paid leave where possible.

If the employee is not capable of working remotely then the decision whether to pay or to insist on unpaid leave or vacation becomes more difficult and involves balancing the competing interests of staff welfare and personal finances, civic duty and commercial needs.

Do we have to pay employees if we close the business temporarily?

This is a matter of contract and you need to review these but as a rule of thumb, if the employee is paid a monthly or yearly salary then you are obliged to pay them. If the financial viability of the business becomes a concern then discussions with staff in order to save jobs can be entered into, these may involve agreement of paid leave/unpaid leave and temporary salary reductions. Agreements made outside strict legal rights should be documented in writing and be consensual.

If the contract is an hourly rate contract without an agreement that the employer will provide a set minimum number of hours, then the contract is effectively a “zero hours” contract and if the employer doesn’t work, they don’t get paid. If you provide no work for an employee for in excess of 30 days, then the employer shall be liable to pay severance pay and will be regarded as having terminated the employment. Again, the specific terms of the contract need to be reviewed in each case and for employees with a long history of working a set number of hours, arguments can be made that they have a right to pay based on those hours even absent express provision in the contract.

Ultimately the issue of payment of employees is a difficult subject for employers as Covid-19 is going to result in not only health issues but financial hardship for both employers and employees and in this unique situation we suggest there has to be consideration given to the ethics of enforcement of strict legal rights before decisions are made.

How should we deal with a member of staff who refuses to come to work because they are concerned about the risk of infection?

In light of the current threat level it is unlikely to be reasonable for an employee to refuse to come to work on this basis, especially if there have been no cases in their specific workplace, and such a refusal would likely constitute an unauthorised absence. Clearly, however, employers need to take a practical approach and they should take steps to understand an employee’s concerns before taking any action, especially if they may be at greater risk from developing the virus. In light of the current media coverage of the virus, it is not surprising that some individuals are worried about contracting the virus and are keen to take steps to minimize the risk of infection.

If you are communicating with your staff about the virus and what steps the company is taking to protect the health and safety of its staff, the risk of employees refusing to come to work is likely to be reduced. If there is some basis for their concerns, you may want to think about allowing them to work from home for a period of time, taking some annual/ unpaid leave, etc.

What should we do if a member of staff is confirmed as having the virus and has recently been in the workplace?

You should immediately report the incident to the Cayman Islands Health Services Authority and take immediate steps to contain the spread and to ascertain those individuals who have been in contact with the infected individual.

Practical Tips for Employers
  1. Stay up to date with the latest guidance – The situation is obviously changing quite quickly, so employers should ensure they stay up to date with the latest government guidance and advice from public health authorities. Employers should continuously review their approach in light of the latest guidance.
  2. Avoid knee-jerk reactions – Employers should ensure they adopt a proportionate response to the virus outbreak, based on the current level of risk here, the nature of their business, available medical opinion etc
  3. Communicate with your staff – While the risk in the Cayman Islands is not as high as some of the high-risk countries, the situation is changing quickly and the extensive media coverage is making many people concerned about the risks, especially if they are more vulnerable to infection (for example, the elderly and those with certain health conditions). Employers should, therefore, ensure they are communicating with their staff about the virus, letting them know what they can do to protect themselves against the risk of infection, together with the steps the company is taking to deal with the risk (for example, suspending business travel, travel reporting requirements etc.). Employers should clearly be careful about the tone of their communications to avoid any unnecessary panic.
  4. Have contingency plans in place – It would be sensible to review your business continuity plan to ensure you know what to do if the threat level increases. In addition, ensure that you have up-to-date contact details for your staff emergency contact details, etc. Consider what you can do in advance to facilitate home working and to maintain trading functions. For example, require employees to take home their laptops each night to ensure they will be able to continue to work remotely should the need arise.

If you have any questions about employment issues and the virus, please contact James Kennedy at jameskennedy@ksglaw.ky

The contents of this update are not intended to serve as legal advice related to individual situations or as legal opinions concerning such situations, nor should they be considered a substitute for taking legal advice.