The Coronavirus in the International Workplace – How do Multinational Employers React Appropriately? (Update #3)

Orrick - Global Employment Law Group

[co-author: Francesco Brandi]

This updated overview provides multinational employers practical advice to develop their coronavirus response strategy on an international level and to ensure a safe working environment for their employees under local employment and labor laws of UK, France, Germany, Italy, and Japan. Stay tuned for updates as new developments occur.

United Kingdom

On 16 March 2020, the UK government faced with stark realities of the coronavirus epidemic, embarked on a paradigm shift in its strategy to deal with the outbreak. As of 18 March 2020, the UK has 2,626 confirmed cases of Covid-19. Models suggest the true figure to be closer to 73,528 cases at present in the UK. As such, the UK government has changed from a policy of mitigation to suppression of the disease. In order to meet its public health goals, the government is now taking what many are describing as the most drastic interventions in peacetime. As a result, businesses will be impacted in a few crucial ways. We have set out below the key changes in policy to have in mind. Please note the nature of the events means advice is constantly under review, as such, please review government guidance on a daily basis.

Remote working

The government in its guidance has advised that businesses and workplaces should encourage their employees to work at home, wherever possible. For many employers, this will be the first time they have experienced remote working at this scale. It is understandable for employers and employees to feel slightly overwhelmed by the rapid change in government advice. For employers, it may be beneficial to set up an internal Covid-19 taskforce. This will allow employers to share the burden of unprecedented change, lean on each other’s expertise and ensure the most efficient approach is being taken to ensure employee safety and business continuity.

In normal circumstances, it would not be appropriate for an employee to work from home while also providing childcare. However, as the COVID-19 outbreak escalates, employers may need to take a pragmatic approach. With effect from Friday 20 March 2020, all nurseries and schools will close, except for the children of key workers or vulnerable children. Therefore the majority of parents in the workplace will face this issue and putting a blanket ban on working from home while also looking after children, may preclude a large proportion of the workforce from performing any duties. In these unprecedented circumstances, employers may want to take a more flexible approach to homeworking and allow employees to work around their childcare responsibilities.

Employees with younger children who require constant attention may not be able to work at all while responsible for looking after those children. However, they may be able to split the childcare with the other parent, so that both parents are able to, at least, continue working part-time. This can be a variation of contract that is agreed with the employee and pay can be reduced accordingly.

Employees in these circumstances may assert their right to time off to care for a dependent. Time off in these circumstances is unpaid. Given that school closures will happen in the next few days and could last a relatively long time, it is likely that many employees who consider that they can undertake some work while providing childcare would prefer to do so (rather than assert their statutory right to time off) if employers are willing to allow them to work flexibly and employees will likely accept some reduction in pay if they cannot provide full time service.

Health & Safety at Work Act (HSWA)

Employers may be considering what actions they must take to ensure they comply with their obligation to ensure, so far as is reasonably practicable, the health, safety and welfare of all its employees.

You are obliged to do risk assessments for your employees who are working from home, as you are still obliged to provide a safe working environment for them, even when they are working remotely. At the moment, the chances of you being able to achieve this for all of your employees is virtually nil. The options therefore are to push out an online assessment which can help identify individual risks/issues that you can then deal with or you could do something less formal and just let everyone know that risk assessments in their homes are not possible in the current circumstances but they should let you know if they have any concern they wish to discuss and then deal with those concerns on a case by case basis. Employer’s duties are qualified by what is reasonably practicable and what is under your control and as we know, little is under our control right now. However, as with everything, your assessment of this needs to evolve as things change.

Working remotely can be a lonely experience, so it is important for employers to facilitate social contact between them and their employees, if possible.

Self-isolation and statutory sick pay

From 13 March 2020, anyone with flu-like symptoms, defined as a high temperature or a new persistent cough is being asked to stay at home. Where a person lives alone, they should remain at home for at least seven days from when the symptoms first started – even if they start to feel better sooner before this period. Those who live with others should stay at home for 14 days from the date the first person in the household exhibited symptoms. The distinction in policy is designed to ensure those who are not first infected but then later become infected, are self-isolating and so do not pose a health risk to wider society.

It was already the case that medical evidence is not required for the first 7 days of sickness. After 7 days, employers may use their discretion around the need for medical evidence if an employee is staying at home. The government strongly suggests that employers take a relaxed line on this for all employees.

Those who follow advice to stay at home and who cannot work as a result will be eligible for statutory sick pay (SSP), even if they are not themselves sick. Further emergency legislation, dubbed the ‘Coronavirus bill’, will give the government the power to temporarily suspend the rule that currently means SSP is not paid for the first 3 days of work that an employee misses, because of sickness and for businesses with fewer than 250 employees, the cost of providing 14 days of SSP per employee will be refunded by the government in full. Please note that the Coronavirus Bill has not yet been published. Once the bill is passed, however, it is intended to have retrospective effect from 13 March 2020. Watch this space.

Andrew Bailey, the new Governor of the Bank of England urged UK firms to speak to the government or the Bank of England if they are in need of assistance to deal with the demand and supply side shocks to their businesses. The Office for Budget Responsibility has encouraged the government to move to wartime levels of spending in an effort to fight the COVID-19 economic downturn.

Essential cost cutting

Sadly, many employers will be looking at how they cut their costs in light of urgently revised business plans. Some of the options are:

  1. Employers can offer employees the option to take unpaid sabbaticals for a fixed period of time. This means that the employees will continue to be employed but will not be paid during a fixed period. At the end of the sabbatical, employers can reassess the situation and at that point, they may need to consider redundancies but it is possible that things will have improved. That said, it is not very attractive to take a sabbatical when you cannot go anywhere, but it may be more attractive than losing your job.
  2. Employers can offer shorter working hours/shorter weeks to their employees. This has to be done by consent, unless there is a contractual right to layoff which is unusual these days and not straight forward to implement, in any event. If the employees know that the alternative is redundancies, then they may be minded to agree to short term changes to their working days to help mitigate the current issues, especially if they have childcare responsibilities.
  3. If all else fails, you can make redundancies. There are individual and potentially collective consultation obligations (if there are 20 or more employees affected) if you do this.

Prepare for deeper, longer measures

The government has announced that by Sunday 22 March, those with the most serious health conditions – around 1.4 million with conditions such as heart disease, diabetes, or asthma – should be shielded from social contact for 12 weeks. We await further guidance on these proposals.

The Foreign & Commonwealth Office (FCO) now advises British people against all non-essential international travel, initially for a period of 30 days beginning 17 March 2020. The COVID-19 pandemic has led to unprecedented international border closures and other restrictions. All countries may restrict travel without notice. As such it is important to keep abreast with updates which can be found here on the FCO’s website. Employers should not send employees abroad and if they must, then they should ensure they are following the FCO guidance and should ensure the safety of those employees abroad.

Conclusion

We continue to learn more about the virus on a daily basis. It is therefore critical that employers continue to monitor and follow government guidance and work in a way which enables employees to be in a safe and calm environment.

France

In light of the recent surge in confirmed coronavirus cases in France (over 1400 confirmed cases as of March 10, 2020), and as companies are increasingly seeking to take measures to prevent the spread of the disease, the French Ministry of Labor issued new recommendations.

While our previous article remains largely relevant, the new governmental guidelines – in the form of a Q&A – take a step further by providing both employees (who are reminded of their duty to protect their health and that of their colleagues by complying with the employer’s instructions) and employers with detailed instructions to face the epidemic.

The key takeaways from the governmental Q&A are summarized below, along with some practical tips and data protection-related recommendations.

What measures should French employers implement to face the outbreak?

As stated in our previous article, French employers must take all necessary measures to ensure the health and safety of their employees. In particular, employers must anticipate and tackle the risk of COVID-19 coronavirus contagion by implementing prevention, information, training and protective measures in accordance with the French government’s instructions as well as the French Labor Code.

In order to establish the appropriate measures, employers are invited to conduct a COVID-19 risk assessment to identify their degree of exposure to the epidemic and make sure that their response is in line with the threat level faced by their employees. In particular, work situations in which the conditions for transmission of the virus (close contact with an infected person) may be present must be identified (e.g. employees working in contact with the public, employees coming back from trips in a high-risk area, etc.).

The results of the risk assessment must be reflected in the single risk assessment document (“DUER” – which, as a reminder, is a document that must be set up in all companies to record all relevant information as to the employees’ exposure to health and safety risks within the company) with regular updates.

In several cases addressed in the governmental Q&A, employees are merely invited to comply with the so-called “barrier” measures/governmental recommendations, which are accessible online (https://www.gouvernement.fr/info-coronavirus) and should be brought to the employees’ attention by any means necessary, following which the employees must notably:

  • warn their employer whenever necessary (e.g. employee coming back from a trip in a high-risk area, employee having a reason to believe that he/she is infected, etc.);
  • comply with the usual hygiene measures (frequent hand-washing using soap or hydro-alcoholic solution);
  • monitor their temperature twice a day;
  • watch out for symptoms of respiratory infection (fever, cough, shortness of breath, etc.);
  • adopt social distancing measures: greeting others without contact and avoiding close contact (meetings, workshops with children, etc.).
  • avoid contact with fragile people (pregnant women, the elderly, the disabled, etc.);
  • avoid any non-essential social activities (cinema, restaurant, etc.);
  • in case the employee shows signs of a respiratory infection within 14 days of returning from a high-risk area: contact the emergency medical service (SAMU).

Depending on the results of the risk assessment conducted by the employer, additional measures might have to be considered. Those may include professional travel bans, restrictions on meetings (internal and/or external, ban on meetings an entire department would participate, ban on large meetings, etc), increased use of videoconference and telework along with the implementation of specific trainings, strengthened hygiene measures, setting up of a specific coordination with the occupational doctor, creation of dedicated channels aimed at encouraging the employees to inform the employers of any risk of exposure, etc.).

For instance, as it regards employees whose duties imply contact with the public, the government points out that:

  • When the contacts with the public are brief, the so-called “barrier” measures (in particular very regular hand washing) should be sufficient;
  • If said contacts are prolonged and close, “barrier” measures should be supplemented by additional measures (e.g. setting up of at least one-meter “courtesy” zone, regular cleaning of surfaces with an appropriate product).

As the outbreak is rapidly evolving and in light of the current situation in Italy, it is crucial for companies to have business continuity plans ready.

What should the company do if one of their employees is at-risk or suspected to be infected?

Following an employee’s report that they may be at risk (e.g. they have been in contact with an infected individual or return from a high-risk area), the following steps should be taken within 14 days of the identified risk:

  • Provide the relevant adjustments to the workstation of the concerned employee, in the form of telework whenever possible (it being specified that, in the context of an epidemic threat, telework may be imposed without the employee’s consent).
  • If telework is not an option, ensure that the concerned individual employee avoids contact with fragile populations, stays away from confined or high-contact areas (lifts, cafeteria, etc.), and is excused from any non-essential meeting or event.

Alternatively, when the employee has requested days off, the employer may request that the approved leave period be moved to cover the 14-day vigilance period. However, the employer may not force employees who have not requested time off to use their paid leave in response to a suspected risk. The possibility to impose time off based on non-statutory entitlements (e.g. resting days, or so called “JRTT”) must be analyzed on a case-by-case basis.

In the event that no suitable arrangements can be made, the employer may request the employee to remain at home. In that case, the employee is entitled to statutory sick pay and employer top up (if applicable), upon presentation of a medical certificate. In the absence of such certificate, if the employer wants to uphold the containment measure, the employee is entitled to receive his full salary and all other benefits.

How to react if an employee is tested positive?

The main priority is to avoid further contamination by deep cleaning the workplace. Any staff on the premises need to be evacuated. The premises should then be left empty for at least three hours before proceeding with a specific cleaning procedure as per governmental instructions.

As regards the situation of any member of staff who may have been in contact with the contaminated employee, the guidelines for employees at-risk described above should be carefully applied, and all necessary adjustments should be implemented. Employers may request the assistance and advice of occupational health practitioners in this regard.

Is it still possible to send employees to “high-risk areas”?

A country or region is considered a high-risk area when it has crossed the epidemic threshold, i.e. when the COVID-19 coronavirus is actively circulating. At the moment, China, Singapore, South Korea, Iran and parts of Italy (Regions of Emilia-Romagna, Lombardy and Veneto) are listed as such.

As a precautionary measure, the Ministry of Europe and Foreign Affairs now advises postponing all non-essential travel abroad to limit the spread of the virus.

Thus, French employers must not send employees to high-risk areas unless they have an absolutely imperative reason (which might be hard to prove) for doing so. In this regard, the French government pointed out that, in the absence of such a reason, the employees may exercise their right to withdraw.

In the event of an imperative trip, the employer must make sure all the applicable health & safety measures are complied with and ensure that the governmental recommendations are complied with.

How to deal with an employee whose child is subject to a period of isolation?

Under such circumstances, telework should be the go-to option. If telework is not appropriate and no other option is available, the employee may be granted a derogatory leave for the period of isolation.

How to deal with an employee with a child under the age of 16 whose school has been temporarily shut down?

An increasing number of child-care facilities and schools are closing down, with children being asked to remain at home as a precaution. When telework (which should be the preferred option) is not appropriate, parents of children under 16 may benefit from a specific leave which has to be requested by the employer by filing an online form (https://declare.ameli.fr/).

In order to benefit from this leave, the employee must provide the employer with a certificate in which he/she undertakes being the only parent in the household to have requested such a leave. The certificate also mentions the name and age of the child, the name and location of the school as well as the period of closure of the school.

Can employees refuse to carry out their duties because of the virus (“right to withdraw”)?

The French Labor Code provides employees with a right to withdraw from their duties when they have reasonable grounds to believe they are facing imminent and serious threat to their health or survival. Employees who exercise their right to withdraw fairly may not be subject to sanctions or suffer deduction in wages. In case of “blatant misuse” of their right to withdraw by the employees, the employer may lawfully deduct the non-worked hours from salary and initiate disciplinary proceedings. It is unclear what may constitute a “blatant misuse” in the current context.

The government has confirmed that the right to withdraw should not be triggered as long as the employer has taken all preventive and protective measures as per the government’s recommendations and the French Labor Code provisions. This analysis is however subject to judicial assessment on a case by case basis (e.g. is the employee using his/her right to withdraw particularly vulnerable to the virus? What was his/her degree of exposure to the virus? etc.)

How to deal with a significant drop in activity as a result of the epidemic?

Under exceptional circumstances companies may rely on a state-funded partial activity scheme. This covers various scenarios, ranging from a decrease in working hours below the legal minimum to the temporary closure of the company or site.

In practice, the implementation of a partial activity scheme is subject to various conditions, among which approval by the Labor Inspection. Upon receipt of a request, the Labor Inspection must authorize or deny partial activity within 15 days, it being specified that the government has been instructed to process coronavirus-related requests as a matter of priority.

The government has provided an indicative list of situations justifying the measure, including administrative site closure, the absence of multiple key employees, a government decision to temporarily suspend unessential activities and restrict travels, a government decision to shut down public transport preventing employees from commuting or a drop in activity caused by the epidemic (e.g. lack of supply, cancelled orders).

Once authorization is granted, the employment contracts of the concerned employees are suspended, either fully (in case of site or company closure) or during the hours not worked as a result of the partial activity. During non-worked periods, employees are not expected to remain available for work, and are not entitled to their normal salary. They are however entitled to a compensatory indemnity (with a specific social security regime) amounting to a minimum of 70% of their previous remuneration, which the employer may decide to top up. Companies pay such amounts and may get financial assistance from the state in the form of a flat rate allowance.

Other measures are designed to help companies deal with the impact of the virus on their activity, including:

  • specific government-backed professional training schemes with possibly part of the employees’ compensations taken in charge;
  • delays in the payment of social security contributions and/or taxes;
  • in the most difficult situations and on a case-by-case basis, direct tax rebates;
  • support from the State and the French central bank to negotiate a rescheduling of bank loans with the impacted company’s bank;
  • support from Bpifrance (French public investment bank) to guarantee bank lines of credit that companies may need because of the epidemic;
  • Support from the Ombudsman for Businesses (so-called “Médiateur des entreprises”, i.e. French public authority in charge of helping struggling companies in their relations with third parties) in handling of conflicts with customers or suppliers;
  • Recognition by the State of the Coronavirus as a case of force majeure for its public contracts. Consequently, for all State public procurement contracts, penalties for delays will not be applicable.

How about companies whose activity is boosted as a result of the virus?

While most companies expect negative consequences on their activities, some sectors are facing strong pressure to increase their production. This is particularly relevant for companies producing products, such as antibacterial gel or sanitary masks, but the spread of the virus may drive other sectors as well.

In such cases, companies may take measures setting aside some working time regulations. The Government guidelines contain a reminder that that those must normally be implemented by way of collective bargaining agreement. However, under certain circumstances, in case of emergency and for limited periods of time, they may be implemented upon information of the Labor Inspection. Those measures include:

  • Suspension of weekly mandatory rest (35h);
  • Derogation to daily mandatory rest (11h);
  • Derogation to daily cap on working hours (10h);
  • Derogation to daily cap on night time working hours (8h);
  • Derogation to weekly maximum working time (48), subject to authorization of the Labor Administration (rather than a simple information);
  • Derogation to weekly maximum working time of 44h on average over 12 consecutive weeks, subject to authorization of the Labor Administration.

What is the role of the Social and Economic Committee?

Given its mission to promote health, safety and the improvement of working conditions in the company, the Social and Economic Committee should be involved in the risk assessment process and in the process of designing and implementing the appropriate measures to face the outbreak.

Thus, depending on the company’s headcount, the Social and Economic Committee will notably have to be consulted on any major changes in the working conditions (e.g. important recourse to telework) or the recourse to partial activity, etc.

That being said, the government underlines that, in case of emergency, the employer may take precautionary measures and implement changes in the employees’ working conditions before having carried out the consultation process.

In addition, given the current situation, as for any meeting, meetings with the Social and Economic Committee should preferably be held using videoconference which might require the conclusion of a company-wide agreement.

What about data protection?

The French data protection watchdog (“CNIL”) has issued guidelines aimed at helping French employers handle the outbreak.

In particular, employers may not infringe on their employees’ right to privacy by collecting health data that would go beyond the management of potential exposure to the virus. In particular, they may not collect in a systematic and generalized manner or through individual inquiries information regarding the search for possible symptoms displayed by the employees or their relatives (e.g. general and mandatory body temperature measurement to be sent daily to the employer, collection of medical questionnaires from all employees/agents, etc.)

That being said, the CNIL points out that, in the event of a report, the employer may record the date and identity of the person suspected of having been exposed as well as the subsequent organizational measures implemented and communicate this information to the health authorities, upon their request.

Germany

As of March 10, 2020, 1139 individuals have been tested positive for coronavirus (COVID-19) in Germany. Two patients have died until now, both were suffering pre-existing conditions. The coronavirus outbreak in China has ultimately reached Europe and governments try to face the situation with quite radical measures (cancelling events, implementing border controls (e.g., in Austria) and cancelling flights to COVID-19 risk areas), though trying to find the balance between protecting the population’s health and not sliding into an economic crisis.

In the meantime, employers are trying to determine their coronavirus response strategy. Effects on working conditions currently seem to be unavoidable. Employers face many questions as to which measures are permissible or even obligatory under labor and employment law to prevent infections at the workplace. Here are our answers to the questions most commonly asked.

What are the general health and safety rules employers should observe in the wake of the coronavirus outbreak?

The Working Conditions Act (Arbeitsschutzgesetz – ArbSchG) and the employer’s general duty of care towards employees requires employers to provide a safe working environment for employees which includes protection against infectious diseases. Employers must carry out a hazard assessment in order to determine the necessary health and safety measures. With regard to the current COVID-19 outbreak, it is advisable to inform the staff and conduct employee awareness training, adopt strengthened hygiene rules as recommended by the Federal Ministry of Health, instruct employees to report symptoms and positive diagnoses, conduct medical examinations within the company, change the working organization, etc.

In special sectors where the risk of coronavirus infection is increased (e.g., healthcare industry, airline and other travel industry), the employer may take further protective measures which are appropriate to prevent a coronavirus infection (e.g., instructing employees to wear a protective mask, provide protective equipment, etc.).

In case of an employee’s infection or suspicion of an infection, employers are advised to inform the local public health department which will provide recommendations for further measures.

With a view to the works council’s co-determination rights, it is also advisable to involve the works council, if any, if decisions have to be taken regarding the implementation of health and safety measures.

Can an employer screen the employees for fever?

Employers may consider fever screening employees, especially in sectors where there is an increased risk of a coronavirus infection. Only if there is a direct threat of coronavirus infection at the workplace, the employer’s instruction to employees to undertake a medical examination is recommended. This would be the case if, for example, one of the employees was diagnosed the coronavirus or the likelihood of coronavirus exposure is given because employees return from the officially declared risk areas (e.g., China, Iran, Republic of Korea, Northern Italy).

Can the employer send employees home if they display coronavirus-like symptoms and if so, must the employer continue remuneration for sick leave?

Employers can place employees on a leave if they show obvious symptoms of an illness (fever, cough, etc.). In this case, the Continuation of Remuneration Act (Entgeltfortzahlungsgesetz – EFZG) applies according to which the ill employee does not lose the claim to remuneration for a period of up to six weeks. The employer’s right to send the employee home results from the obligation to protect the health of the employee concerned, but also the health of all other employees working at the operation.

Also, if the employee does not demonstrate any symptoms but returns from an area which has officially been declared as a coronavirus risk area or had personal contact with individuals who have been tested positive the employer can order the employee as a precautionary measure to stay at home to avoid possible infection of other employees. Even though it might not be possible to work from home, remuneration must be continued in cases the employer releases the employee from work temporarily.

More and more individuals in some of the risk areas in Germany are ordered quarantine by the public health department even though they are not tested positive but because they have been identified contact persons from individuals who have been tested positive with COVID-19. If, in such cases, an employee cannot go to work, employers still must continue remuneration. However, the employer may likely have a claim for reimbursement towards the local public health department which ordered the quarantine.

Can the employer still request employees to go on business trips to risk areas?

There is no general right of the employee to refuse a business trip due to the current coronavirus outbreak. However, by asking an employee to go on a business trip, the employer must observe the general duty of care towards its employees. The employer should, at its reasonable discretion, weigh the employees’ interests against the company’s interests and assess every case by its individual circumstances. Additionally, the employee’s individual situation, such as a pre-existing illness, may play a role in the weighing process and result in the employee being able to refuse the business trip.

Either way, employers should observe the Federal Foreign Office’s travel warnings. The arrangement of business trips to such regions would therefore not be appropriate and the employee would have the right to refuse without risking sanctions under labor law.

Can employees ask to work from home or even stay home because they fear a coronavirus infection?

The fear of an infection at the workplace or on the way to work does not entitle the employee to stay home, even if the employee offers to work remotely instead. If the employee does not appear, the employer can issue a warning letter and ultimately even terminate the employment contract. Whether or not its employees have the right to work from home during the coronavirus outbreak is at the employer’s own discretion.

And can the employer order work from home?

There may be cases where an employer wants employees to work from home because there is a known or suspected case in the environment of the employee, the employee has been travelling in a declared risk area or he/she lives with infected family members. However, work from home should be agreed between the employer and the employee because employees cannot be obliged unilaterally to work from home if such obligation is not regulated in the employment contract.

Can the employer order overtime work if many employees are absent?

If the coronavirus spreads increasingly wider throughout Germany and causes a significant part of the workforce to be absent from work, overtime for the remaining employees is practically unavoidable. In exceptional cases, employers can oblige employees to work overtime with the consequence that the permissible maximum working time is exceeded according to section 14 of the Working Time Act (Arbeitszeitgesetz – ArbZG). An exceptional case could be that understaffing results in significant economic disadvantages for the employer. This will have to be assessed on a case-by-case basis.

Must employers protect their employees from corona-related discrimination?

According to current media reports, more and more Asian looking people report to be victims of racial discrimination and even physical assaults have been reported. The General Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz – AGG) prohibits discrimination on the basis of race, ethnical origin, gender, religion or ideology, disability, age or sexual identity. Therefore, coronavirus protection measures should focus on all employees and not just individuals from China unless the unequal treatment can be justified by a reasonable ground. This would be the case if, for example, an employee travelling back from Hubei Province would receive special instructions by the employer as described above. Since employers are also obliged to prevent employees from any discrimination by other employees or customers, employers should respond to any racial or origin-based harassment of individuals belonging to certain nationalities where the coronavirus is most prevalent.

Are there employee privacy rights to be observed?

Employee privacy rights should be considered when evaluating whether and how to notify other employees about ill co-workers. Employees are generally not obliged to disclose any health information or specifically explain their illness neither to employer nor co-workers. However, in exceptional cases employees may be obliged to disclose such information if there is a true risk of an employee infecting others with coronavirus. Since the Public Health Department in Germany must be notified by doctors in case of any (suspected) coronavirus infection, it may be assumed that employers may be informed of the infection as well to be able to take protective measures.

Conclusion

Depending on the individual circumstances, employers have numerous possibilities to respond to the coronavirus outbreak. Should an employer become aware of a particular risk, it is obliged to take protective measures and can exercise its right to give special instructions to employees.

The current situation with coronavirus in Germany does not entitle employees to stay at home. However, where possible, business trips should be postponed or replaced by video conferences. Employers are advised to consult with their liability insurance association (Berufsgenossenschaft) as well as with the local public health department if they want to take further health and safety measures, or in cases infections occur.

Italy

On 14 March 2020, pursuant to the Prime Minister Decree («DPCM») dated 11 March 2020, the main Unions and National Employers’ Organizations at national level virtually entered into a «Protocol on measures at the workplace to prevent and contain of the Covid-19 virus spreading» (the «Protocol») providing general guidelines for Covid-19 security protocols to be adopted by the companies.

Basically, the Protocol confirms the standard measures widely recommended in the DPCMs adopted last week, aimed at encouraging companies to minimize presence in the workplace and to implement remote working procedures as well as to make use of Wage Integration Funds (including the special ones which will be shortly provided for by the Italian Government). Furthermore, the Protocol recommends a constant dialogue with the Union representatives at company and territorial level (in respect of small companies), «so that every safety measure can be agreed and made more effective by the experienced contribution of the employees […] taking into account the characteristic of each situation».

Having said that, please find below a brief summary of the main provisions set forth by the Protocol.

Please note that, even if – on the one hand and under a technical point of view – such Protocol is not binding for those companies which are not registered with any of the contracting associations, on the other hand and under an actual standpoint, its prompt implementation is strongly recommended to each employer considering that companies’ compliance with their H&S obligations could be evaluated (in case of claim filed by the employees or other third parties) on the basis of the Protocol parameters.

What is the obligation to provide information to the employees?

The employer must inform, also by «delivering and/or posting brochures at the company’s entrance and in the most visible places within company premises», all employees (and anyone having access to the company) that:

  • they must stay at home in case of body temperature (higher than 37.5°) and/or other flu symptoms;
  • is forbidden to access (and/or remain) to the workplace in case they exhibit «dangerous conditions» (i.e. flu symptoms, fever or if they returned from risk areas or stayed in contact with people tested positive for coronavirus in the previous 14 days, etc.);
  • they must comply with all company and Authority regulations in relation to access to the workplace and, more specifically, maintain interpersonal safety distance and comply with hygiene rules;
  • they must inform immediately the employer about any flu symptoms during the working time.

How to manage the access to the workplace? Is it possible to scan employees’ body temperature?

The Protocol clarifies some doubts arisen in such emergency in relation to the employees’ personal data protection regulation. Such doubts were not even clarified by the communication of the Italian Data Protection Authority dated 2 March 2020. Now, the employer is entitled to scan employees’ body temperature before they access to the workplace.

Please note that this data collection measuring the body temperature constitutes a data processing and therefore it must comply with privacy regulation (see below). In case of temperature higher than 37.5°, employees shall be forbidden to access to the workplace and the employer must temporarily isolate such sick employees providing them with a face mask. In addition, such employees shall not be allowed to go to the company’s infirmary, but they shall immediately contact their doctor and follow instructions the latter will give.

In such procedure, the employer shall:

  1. not record the collected data. In fact, it is possible to identify the relevant person and record the relevant temperature threshold (see below) only if strictly necessary to prove the reasons that prevented the employee from the access to the workplace (i.e. in the event of claims related to his/her removal from the workplace or to the compensation of such absence);
  2. provide specific information pursuant to GDPR on the processing of personal data (including information provided orally);
  3. identify the persons in charge of data processing and provide them with the necessary instructions to ensure data security; and
  4. in case of isolation of an employee, arrange certain measures in order to guarantee his/her privacy and dignity.

In addition, access to the workplace is forbidden «to persons who have had contacts with individuals tested positive for COVID-19 in the last 14 days or who come from risk areas according to WHO guidelines».

In the event that the employer wants to request the employees to issue a declaration certifying the absence of the above conditions, the receipt of such declaration consists in a data processing and therefore it is necessary to comply with the above indications and more specifically, «it is suggested to collect only the relevant data in order to prevent contagion from COVID-19».

How to manage the access of suppliers and/or visitors?

  • entrance, transit and exit procedures should be assessed in order to reduce contagion risks for the employees;
  • when it is possible, «truck drivers must remain on board their vehicles»; in addition, they are forbidden to access to the company’s offices, while «for the necessary activities of loading and unloading goods» they shall respect the interpersonal distance of at least one meter;
  • specific restrooms should be reserved to suppliers and visitors, if the case may be;
  • access to visitors shall be limited as much as possible; otherwise, «visitors must comply with all company rules, including those for accessing to company workplaces» (see above).

These provisions also apply with reference to «contractors which can arrange permanent and temporary sites and workplaces within the production areas».

Cleaning and sanitization of the workplaces

  • it is necessary to daily clean the workplaces and periodically sanitize these latter (including the related tools such as, for instance, keyboards, touch screens, mouses, etc.) and leisure areas with appropriate cleansers;
  • if an infected person had accessed to the workplace, it is necessary to clean, sanitize and ventilate the workplace in accordance with the Circular letter of the Ministry of Health dated 22 February 2020, no. 5443.

In addition, the employer may «organize special cleaning interventions» making use, where appropriate, to Wage Integration Funds set forth by the law.

Precautionary Measures and Personal Protective Equipment («PPE»)

The employer must make hand-cleansing equipment available to its employees or in case of shortage of such equipment, prepare the cleaning liquids in accordance with the instructions provided by the WHO.

With reference to personal protective equipment («PPE»), the supply of such equipment should be reasonably linked with stock availability, therefore, it should be noted that face masks should be used in accordance with the indications provided by the WHO.

In any case, it is necessary to provide employees with «face masks and other protective equipment (gloves, overalls, etc…)» if work conditions do not allow observance of the interpersonal safety distance of one meter, «and other organizational solutions are not possible».

In the light of the above, employers that (due to the features of its business and/or its workplace) are unable not only to guarantee the observance of the abovementioned interpersonal distance, but also to provide its employees with the above protection equipment, are not likely entitled to require its employees to perform their work (precisely, employees shall have the right to refuse the performance of their duties pursuant to art. 1460 of the Italian Civil Code).

How to manage shared leisure spaces?

The employer must provide for:

  • restricted access to all common areas (canteens, smoking areas, changing rooms etc.);
  • regular spaces ventilation;
  • time limit access to all common areas;
  • observance of interpersonal distance of one meter;
  • presence of hand sanitizers, also handmade (see above) dispensers, which should be easily visible;
  • a daily cleaning and periodic sanitization of such spaces as well as of accessories and devices widely used (e.g. beverage and snack dispenser keypads, cooking devices possibly available in the break areas, etc.); and
  • create specific accesses intended exclusively for the entry and exit of employee.

Company organization

For the entire emergency period (i.e. until July 31, 2020), companies may in agreement with the companies trade union representatives):

  • use smart working tools for all those activities that can be carried out remotely; and therefore
  • close «all departments other than production»;
  • change production levels;
  • provide for a production turn plan for employees;
  • in case of use of social safety net implementation (including extraordinary one), «consider ensuring that they cover the entire company structure, including, where appropriate, relevant rotations»;
  • ensure the abstention from production unit for those employees which cannot work remotely due to the feature of their duties, through the institutional tools provided for this purpose (e.g. PAR, rol, hour bank); only if the use of such tools is not sufficient;
  • to use periods of «backlogged and not yet taken holidays» (thus seriously questioning the possibility, which was already doubtful before, of assigning employees periods of so-called credit holidays, i.e. periods not yet accrued by the employees at the time of their use to be deducted from what has accrued in the continuation of the relationship).

For the entire emergency period (i.e. until July 31, 2020), also through the negotiation of agreements with trade union representatives at company level, companies may:

  • use smart working tools for all those activities that can be carried out remotely; and therefore
  • close «all units other than production»;
  • change production levels;
  • provide planning shifts to employees of production unit;
  • in case Wage Integration Funds are implemented (including extraordinary one), «consider the possibility that they cover the entire company structure, including, where appropriate, relevant rotations»;
  • ensure the abstention from production unit for those employees which cannot work remotely due to the feature of their duties, through the institutional tools provided for this purpose (e.g. paid leaves, banked hours); only if the use of such tools is not sufficient;
  • to use «banked vacation days and not yet enjoyed» (thus seriously questioning the possibility, which was already doubtful before, of assigning employees periods of so-called credit holidays, i.e. periods not yet accrued by the employees at the time of their use to be deducted from what holidays accrued in the continuation of the relationship).

Travel/business trips

All national and international travel/business trips must be suspended and cancelled without any exception.

How to manage the entrance and exit of employees?

To the maximum extent, the employer must:

  • provide for staggered entrance and exit times as much as possible; and
  • create reserved entrances and exits for employees to workplace.

How to manage movements within the company premises?

Limit as much as possible movements within the company premises.

Meetings

Meetings should only be held remotely, i.e. by conference call or video-conference. However, if urgent meetings need to be held in person, «the necessary attendance must be reduced to a minimum». In any case the observance of the interpersonal safety distance must be guaranteed as well as adequate cleaning and ventilation of the areas.

Events and Training

All internal events, as well as «all classroom training activities, even compulsory» must be suspended and cancelled. Distance learning is of course still allowed.

Failure to complete training for all occupational health and safety roles/functions due to the current emergency does not prevent the continuation of that specific role/function.

How to handle someone who shows Covid-19 symptoms?

If an employee experiences symptoms of Covid-19 (i.e. temperature and respiratory infection symptoms) he/she is required to report it immediately to the office personnel, which must:

  • isolate the person concerned and other employees operating on the same premises;
  • notify immediately the relevant Health Authority and the regional or national COVID-19 emergency numbers.

If a person in the workplace is tested positive for the coronavirus, the employer must cooperate with the Health Authorities in order to identify any person who may have come into «close contact» (as defined in the abovementioned Circular letter of the Ministry of Health dated 22 February 2020) with the employee concerned. During the relevant investigation phase, the employer «may ask any person who may have come into close contacts to leave the company premises cautiously, according to the indications of the Health Authority».

Health Surveillance

  • health surveillance must continue in accordance with the hygiene measures specified by the Ministry of Health;
  • priority must be given to preventive, on-demand and re-entry basis visits;
  • periodic health surveillance should not be interrupted «because it is an additional preventive measure»;
  • the relevant doctor must cooperate with the employer and the RSL/RSLT «in integrating and proposing all regulatory measures related to COVID-19»;
  • upon notification of the relevant doctor, the employer must provide for the protection of employees affected by «situations of particular fragility and current or past pathologies», always in compliance with privacy regulations.

Update of the Regulatory Protocol

«A Committee is set up in the company for the application and verification of the rules related to the regulatory protocol with the participation of the company trade union representatives and the RLS»

Japan

Government Guidance / Requirements

Effective February 1, 2020, the Japanese government identified the COVID-19 virus as a designated infection under the Infectious Disease Law. Now, ministries of all prefectures may order employees who have been infected to be hospitalized and to be suspended from work, and the general rules for sick employees under the Industrial Safety and Health Act does not apply to the extent that the Infectious Disease Law is applicable. If employees are suspended from work under the Infectious Disease Law, absence is treated the same as ordinary absence for sickness. Paid sick leave is not mandatory in Japan, and if no paid sick leave is granted at a company and employees are unpaid, the employees’ health insurance pays accident and sickness benefits to the employees at the rate of 2/3 of their daily base salary. If the employees desire to use their annual vacation days during such absence so that they are fully paid, employers may apply annual vacation days for such absence. However, it is employees’ option whether to use their annual vacation days or not and employers are not allowed to force employees to use their annual vacation days for such absence. This may come into play all the more for employees with childcare obligations based on the Japanese government’s announcement that all public elementary schools, junior high schools, and high schools will be closed from March 2 to the beginning of spring break in early April. On February 26, 2020, the Japanese government announced that large scaled sports and cultural events should be cancelled or postponed until March 10, 2020, and on March 10, the government announced extension of this measure until March 19, 2020.

If doctors confirm that such employees are not infected and able to work in the workplace but employers choose to keep them suspended, employers must pay them the statutory leave allowance at a rate of 60% or more of base salary during suspension, as this situation falls under the statutory leave allowance requirement of “suspension due to reasons attributable to companies.”

Additional Best / Common Practices

The Ministry of Health, Labour and Welfare also issued a Q&A with respect to COVID-19 virus workplace contamination on February 7, 2020 and the Q&A has been updated frequently. This also accords with the government’s latest announcement that the country’s main objective is to delay the widespread transmission of the COVID-19 virus and minimize the number of critically ill patients and death. Some specific measures based on that Q&A are:

  1. Foreigners who have been in Hubei in the last 14 days and people who have Chinese passports issued in Hubei are generally barred from entering Japan. Effective from March 9, all persons (including Japanese citizens) who are entering Japan from China and South Korea must self-quarantine themselves at designated places (home or hotels) for 14 days and use of public transportation is prohibited.
  2. It is an employee’s responsibility to contact a local healthcare center and see a doctor if they have had contact with people who have been infected or if infection with coronavirus is otherwise suspected. Employers must ensure that sick employees do not report to work and if employees who may have been infected report to work, employers must refuse to permit such employees in the workplace so as not to put other employees at risk of infection. Many companies make public announcements when their employees are infected to alert people about possible contact with infected people.
  3. The government has recently asked companies to take measures to keep employees away from congested public transportation and gatherings by using remote working, shifting work hours, and allowing employees to take annual paid vacation to the extent possible. These requirements are not mandatory at the moment, though. Due to elementary school closure, many employers become unable to work to look after their children and the government is providing subsidies to companies which give special paid vacation days to those employees.

Summary

The right response to the coronavirus outbreak depends on the specific circumstances and should be tailored to the company’s needs. Employers are advised to monitor government guidance, consult competent bodies for more information and involve legal counsel as needed.

Written by:

Orrick - Employment Law and Litigation
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