The COVID-19 outbreak has the world on high alert. On 7 February 2020, due to heightened risk, the Singapore government raised its outbreak alert to Disease Outbreak Response System Condition (“Doscorn”) orange. As governments ramp up efforts to contain the spread of the virus, employers also need to be aware their obligations and take necessary precautionary measures at the workplace to protect the safety and health of their employees. In this article, we discuss some frequently asked questions.
What are employers’ key legal obligations in respect of the health and safety of their employees?
Generally, common law imposes a duty of care on employers to take all reasonably practicable measures to ensure the safety and health of their employees.
Under the Workplace Safety and Health Act (Chapter 354A of Singapore), employers are also required, so far as reasonably practicable, to ensure the safety and health of their employees in the workplace.
In this challenging time, employers are also reminded to continue to comply with their obligations under their employment contracts and the Employment Act (Chapter 91) (“Employment Act”). This includes continuing to pay wages.
With the number of confirmed cases in Singapore on the rise, employers are required to comply with isolation measures in the workplace implemented by the government authorities. Since the outbreak, the Ministry of Manpower (“MOM”) has implemented quarantine and leave of absence (“LOA”) measures. Most recently on 17 February 2020, the Ministry of Health (“MOH”) announced a new Stay-Home Notice (“SHN”) for Singapore residents and long-term pass holders returning to Singapore from mainland China. This replaces the LOA. With effect from 23:59, 18 February 2020, the SHN will apply to all returnees with recent travel history to China (outside Hubei) within the last 14 days. The SHN is stricter than the previous LOA scheme. Unlike under the LOA scheme, where returnees were allowed to briefly leave their homes (i.e. to attend to personal matters), returnees are required to remain in their homes at all times during the 14 days SHN period. Employees on LOA as of the implementation date of the SHN shall continue to serve out their LOA.
Employers and employees have a joint duty to ensure that employees behave responsibly during the LOA/SHN. If either party fails to discharge their duty, MOM may take action against them. To date, MOM has revoked the work passes of 4 work pass holders and suspended the work pass privileges of 6 employers, who have been found to be in breach of the LOA requirement.
Employers should also make timely declarations as and when mandated by MOM from time to time. To date, MOM has required employers to submit declarations, including regarding the travel history of their employees to mainland China and information on Mainland Chinese employees with approved work pass applications but have yet to enter Singapore.
As developments over COVID-19 in Singapore are rapidly changing and further advisories from the Singapore government are released and updated, employers are encouraged to monitor the situation and stay updated on requirements imposed by the Singapore government.
Do employees need to have in place guidelines or workplace plans to deal with COVID-19?
While there is no legal obligation imposed on employers to have in place guidelines to deal with COVID-19 in Singapore, we recommend that employers prepare and have in place clear guidelines or a workplace plan.
MOM and Enterprise Singapore have released advisories for employers and businesses to take the appropriate precautionary measures, which can be used as a starting point for such plans. Circulars and advisories issued by the MOH are very helpful and should be monitored regularly to keep abreast about affected countries and best practices.
Generally, precautionary measures should cover general workplace cleanliness, ensuring sufficient supplies of masks, and deferring non-essential work travel for employees to mainland China and other affected areas. The travel history of employees should also be monitored closely. This can be in the form of a health and travel declaration on whether employees have travelled to mainland China recently, or if they have any upcoming travel plans to mainland China. MOM has introduced templates, available for download on its website, for employers’ internal use for travel declaration trips to mainland China.
Employers are encouraged to also take the proactive steps to review their existing medical and insurance policies, including business interruption insurance.
Are employees who are served a quarantine order and employees under LOA/SHN entitled to salary and other employment-related entitlements?
In Singapore, the policy is that individuals who are considered high-risk (such as individuals with Hubei travel history within 14 days prior to arrival in Singapore and those with close contact to confirmed affected patients) will be served quarantine orders by MOH and put under quarantine, while lower-risk groups (such as travellers returning from other parts of mainland China) will be required to take a 14 days SHN (this recently replaced the LOA).
Employees that have been served quarantine orders are entitled to salary and other employment-related entitlements. They will be deemed to be on paid sick leave. The period of absence from work would be treated as paid hospitalisation leave, as part of the employees’ hospitalisation leave eligibility under their employment contracts, collective agreements or in accordance with the provisions under the Employment Act.
Employees under LOA/SHN should also be entitled to salary and other employment-related entitlements. Employers may adopt flexible work arrangements to allow affected employees to work from home. If remote working is not possible, employers are encouraged to provide paid additional leave over and above employees’ annual leave entitlements, according to MOM advisories. However, if that is not feasible, employers can treat employees’ LOA/SHN as paid hospitalisation leave or paid outpatient sick leave or allow employees to apply for annual leave.
Are employees who are infected with COVID-19 entitled to salary and other employment-related entitlements?
Yes, such employees are entitled to salary and other employment-related entitlements as long as their contract of service is still subsisting. Employers are not permitted to withhold such payments on the ground of sickness. Sick leave is an entitlement. Employees can appeal to MOM if they are covered under the Employment Act and feel that they have been treated unfairly. If an affected employee has used up his medical benefits provided for under his employment contracts, collective agreement and/or under law, we urge employers to maintain flexibility and consider providing additional medical coverage or work towards mutually agreed arrangements with such employee.
Can employers still hire employees from mainland China? What should employers with new and/or returning work pass holders from mainland China take note of?
Singapore employers can no longer hire new employees from mainland China. With immediate effect from 31 January 2020, MOM will reject all new work pass applications for foreign workers from mainland China until further notice. However, renewal applications for existing work pass holders will not be affected.
The newly introduced 14 days SHN also applies to returning workers from mainland China (outside Hubei) on work passes (including those with Letter of Consent). Employers of such foreign employees who have travelled to mainland China (outside Hubei) within the last 14 days and arrive in Singapore from 23:59, 18 February 2020 are subject to the following obligations:
- To first ensure that they can fulfil the additional obligations imposed by MOM to bring such employees into Singapore. Some examples include ensuring a place of residence in Singapore has been secured for such employees to serve their SHN before they enter Singapore and ensuring that such employees download WhatsApp on their mobile phones and respond to MOM’s phone calls, WhatsApp, video calls or SMSes within 1 hour after they enter Singapore.
- To then request for MOM’s prior approval to allow such foreign employees to enter Singapore. Submissions to request for approval are open daily from 12:01pm and close at 12:00pm the following day. Requests received during this period are for employee arrivals within 7 days after the submission closes.
Are there any allowances or reliefs from the government that employees can benefit from to deal with shortage of employees affected by quarantine orders?
The Singapore government has set up the Quarantine Order Allowance Scheme. Singapore-based employers with employees under quarantine and self-employed Singaporeans / Permanent Residents placed under quarantine are eligible to the allowances under the scheme. Subject to various conditions set out below being met, employers and self-employed persons can qualify for a S$100 per day allowance for each affected employee:
The Singapore government has also extended the S$100 per day allowance to cover businesses and self-employed persons affected by LOA / SHN requirements. Eligible employers can apply for the S$100 daily allowance per affected worker for the duration of LOA/SHN granted to workers, subject to various conditions.
For all other sectors (excluding healthcare, education and eldercare), affected workers include Singapore Citizens, Permanent Residents and work pass holders who have travelled to mainland China on or before 31 January 2020, and who were placed on LOA/SHN upon returning to Singapore on or after 31 January 2020. Eligible employers will also qualify for levy waiver for affected foreign workers for the LOA/SHN period. Such support is also available for Singapore Citizens and Permanent Residents who are self-employed.
However, please note that such support is not open to employers and self-employed persons in the event telecommuting arrangements are available for affected persons to perform work remotely.
Can employees screen employees before allowing them to enter the workplace?
Given the current climate, we are of the view that such screening may be reasonable, especially in the event of a major outbreak within the workplace (i.e. if numerous employees are subject to quarantine orders or there are confirmed cases of affected employees). We recommend that written statements be issued to the employees before such screening exercises are implemented with reasonably detailed purposes for such exercises.
In fact, we note that MOM has advised employers to check and monitor closely the health condition of employees who had been in mainland China for 14 days upon returning to Singapore, where temperature checks should be made twice a day during such period. MOM has introduced templates, available for download on its website, for employers’ internal use for temperature tracking of such employees.
If such information is collected by employers, employers are reminded to maintain confidentiality of such information and comply with applicable personal data protection laws and regulations.
Can employers order employees to leave the office or stay home if there is an outbreak?
Generally, we are of the view that if employers have reasonable concerns that an employees’ health would have an adverse impact on such employee’s capacity to be safe while at work, or that other employees may be at risk if such employee continues to work, employers may make such an order.
In particular, we note MOM advisories that in the event of a confirmed case in the workplace, upon being notified, employers should immediately vacate and cordon-off the immediate section of the premises where such employee worked and carry out cleaning and disinfecting of such section.
In such circumstances, employers should consider flexible work arrangements or consider a variety of options as advised by MOM, such as allowing employees to apply for annual leave, to use advanced paid leave or apply for no pay leave.
Can employers demand that an employee visit the doctor?
Generally, unless an employee’s employment contract expressly provides an employer with such a right, employers cannot demand so. However, given that current climate, if employers have reasonable concerns that an employee is visibly unwell and/or that the health of the other employees will be affected, we are of the view that it is reasonable for them to make such a demand on the basis that they have an obligation to take reasonably practicable measures to ensure the safety and health of their employees. Alternatively, employers may direct the affected employee to work from home and consider flexible work arrangements.
Can an employee refuse to show up to work for fear of contracting COVID-19?
Generally, unless prior authorisation for leave was obtained, an employee is contractually obliged to turn up for work, failing which, such employee is likely to be in breach of his employment contract. We are of the view that if employers have undertaken reasonably practicable measures to ensure the safety and health of their employees and there are no suspected or confirmed affected cases at the workplace, there is no strong basis for an employee to refuse to show up to work for fear of contracting COVID-19.
However, we urge employers to exercise flexibility and support during this difficult time by exploring mutually agreed arrangements with such employees, instead of resorting to extreme measures such as termination of employment.