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.
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:
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:
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.
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.
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.
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.
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.
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.
If you have any questions about employment issues and the virus, please contact James Kennedy at firstname.lastname@example.org
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.