Of interest.

Impact of coronavirus (COVID-19) spread on employers

The media is currently full of reports regarding the spread of so-called coronavirus (more precisely COVID-19) around the world. The virus is now also present on the European continent, and the prognosis suggests further spread. The aim of this article is not to spread panic but rather to provide basic insight into the issue of virus spreading from the perspective of employer in relation to its employees and to outline what the Czech employers can do to minimise the risk of virus spread into their workplaces. 

Firstly, I think it is necessary to state that there are no drastic measures needed to be incorporated and succumb to panic at the moment. However, from the perspective of responsible corporate functioning, prevention, and proper set-up of general compliance and business continuity procedures within any company, I would recommend to any company management to already implement preventive procedures and reflect on resolution of crisis situations that might arise.

Coronavirus is transmitted from person to person after close contact. It is a so-called droplet infection that is transmitted by air. Most often it affects the mucous membranes of the upper and lower respiratory tract. The incubation period is seven (7) to fourteen (14) days. After a week of being infected, the disease manifests itself with fevers that do not subside. They may be accompanied by discomfort, pain in the joints and muscles, and symptoms of cough soon occur.[1]

The incubation period of fourteen (14) days for coronavirus and the fact that it is spreading through the air from person to person increases the need for preventive measures to be taken by the employer.

General prevention

In the first place, it is advisable to encourage employers to provide general information to their employees and, where appropriate, in particular according to the nature of their business and activities, to lay down basic rules of conduct for employees to prevent the risk of coronavirus being spread into the workplace.

In this regard, in particular the following measures and procedures may be recommended:

  • provide employees with basic information on coronavirus and inform them about the nature and reasons for the measures being implemented, i.e. not to spread panic and hysteria but to promote the “better safe than sorry” principle;
  • inform employees of the need for rigorous hygiene, including the provision of links to informative videos and, where appropriate, additional hygiene aids (hand disinfectant gels);
  • introduce procedures to promote increased hygiene at the workplace (regular disinfection, ventilation) and eliminate risk factors (common towels, dishes, etc.);
  • ask staff to monitor their health closely and introduce a pre-consultation procedure on arrival at the workplace in case of suspected disease;
  • inform employees about good coughing and sneezing habits, including providing informative links again;
  • to carefully consider employees’ business trips abroad, especially to the risky areas in order to avoid the areas affected by coronavirus in greater extent as well as to participate in events involving high number of people;
  • establish a process of assessing the access possibility to the workplace for employees who were in the risky area or is showing symptoms of coronavirus and inform employees accordingly (see below);
  • ask employees to consider private journeys to these areas and to introduce an information obligation about their travelling to the areas where coronavirus has been reported so that the employer could consider their return to the workplace;
  • prepare documentation and conditions for possible home office for employees with whom home office would be agreed as a precautionary measure during the incubation period;
  • discuss and prepare other measures according to the nature of the employer’s activities, such as withdrawing teams from abroad, reorganizing teams, rescheduling meetings and meetings of larger groups, or prepare special technical equipment to prevent or intercept coronavirus spreads (e.g. thermocamera or other temperature measuring devices, disinfection stations and gates, checkpoints, UV lamps, etc.);
  • think about the possibilities of the company to respond in case of a crisis situation of the coronavirus epidemic in the Czech Republic with regard to the nature of its activities and prepare adequate plans.

In all of the above procedures and measures, we recommend that companies consider not only the commercial but also the legal, social and moral impacts of these measures. They must therefore be accepted rationally, to an appropriate extent, and in such a way as to promote prevention, awareness and preparedness of employees, and not panic and hysteria.

For example, the websites of the Ministry of Health of the Czech Republic, the National Health Institute, the World Health Organization (WHO) and the European Centre for Disease Prevention and Control (ECDC) can serve as inspiration for preventive measures and as information source for employees.

An employee has returned from the area affected by coronavirus, what should she / he do?

Unfortunately, the area affected by coronavirus is still expanding, and during the spring break it also spread to the popular destinations of northern Italy. According to the Ministry of Health of the Czech Republic, persons who have been in the area of coronavirus infection in the last 14 days or who had layover at large international Asian airports[2] are at risk of being infected with coronavirus. However, employee may become at risk even if she / he comes into contact with a person meeting the above requirements.

Below is a summary of recommendations on how employees should proceed if they meet the above requirements.

An employee without symptoms of the disease should:

  • stay calm, contact the employer and discuss further steps together;
  • for the entire incubation period, i.e. fourteen (14) days after leaving the affected area, not going to the workplace, staying at home and minimising contact with other people;
  • observe increased hygienic habits (frequent hand washing, disinfection);
  • contact by telephone the workplace of the anti-epidemic department of the locally competent regional hygiene station which will decide on the necessary anti-epidemic measures, including any quarantine;
  • consult the situation with general practitioner;
  • if symptoms such as fever, cough and shortness of breath occur, contact the appropriate clinic for infections by telephone;
  • in case of invitation for examination to the clinic for infections, do not to use public transport, limit contact with other people when travelling, use oral masks, or call emergency services;
  • inform the employer about the situation by telephone or e-mail on an ongoing basis and communicate with the employer about the labour law regime and performance of work (for more information see below).

An employee with symptoms of the disease (fever, cough and shortness of breath) should:

  • stay calm, contact the employer and discuss next steps;
  • avoid going to the workplace, rather stay at home and minimise contact with other people;
  • stick to increased hygienic habits (frequent hand washing, disinfection) and good sneezing and coughing habits;
  • contact the local clinic for infections by telephone;
  • in case of invitation for examination to the clinic for infections, do not to use public transport, limit contact with other people when travelling, use oral masks, or call emergency services;
  • inform the employer about the situation by telephone or e-mail on an ongoing basis and communicate with the employer about the labour law regime and performance of work (for more information see below).

What options does the employer have?

Depending on the nature and severity of the above situation, there are basically six basic labour-law regimes that can be applied to the relationship between the employer and the employee who meets the risk specifications, namely:

  1. taking leave or sick days;
  2. excused absence from work – unpaid leave;
  3. home office;
  4. an obstacle to work on the part of the employer;
  5. temporary incapacity to work;
  6. quarantine.

Taking leave or sick-days, or excused absences at work, do not seem to be an appropriate solution to the nature of the situation, although, of course, these measures may be applied on the basis of agreement between the employee and the employer. It is worth remembering that neither of these options can be effectively used (ordered) by the employer to achieve the desired effect immediately, i.e. the absence of the employee at work.

In the case of professions that can perform their work anywhere else than at the workplace or at home, and if the employee is of course able to perform the work (no health restrictions, only being a risky employee without symptoms of infection), the work from home (home office) seems to be an effective solution. However, the employer and employee must agree on the work from home and its specifics and conditions, preferably in writing. In such case, the employee performs his / her work in full according to the employment contract and agreement on work from home and is entitled to a wage. If it is not possible to agree on working from home, the following option will apply.

This is more complicated in the case of professions that cannot carry out their work from home and at the same time the employee is able to work from a health point of view (does not show signs of infection) and also wants to work. If the employer introduces the above preventive measures, or their essential aspects, they should not allow such a risky employee to access the workplace, precisely because of the possible spread of coronavirus in the workplace. In my opinion, such a situation must be regarded as creating an obstacle to work on the part of the employer, which will qualify as a so-called other obstacle (impediment) to work on the part of the employer under Section 208 of the Labour Code. An employee who will be “forced” to stay at home and not work is entitled to compensation in the form of wage or salary equal to the average earnings (this does not apply if the working time account has been applied). In this mode, the employee can be called at any time to work in accordance with the employment contract.

If the employee is ill, i.e. not fully able to perform work for health reasons, he / she can visit a general practitioner and ask him / her to join the regime of temporary incapacity to work where the employee no longer performs work and in the first fourteen (14) days receives wage or salary (60% of the adjusted average earnings to be paid by the employer), and thereafter from the 15th day shall receive sickness benefit paid by the state. However, entering the regime of temporary incapacity to work entails the personal visit of the general practitioner which is contrary to the above recommendations and should therefore not be used. The employee is not obliged to perform any work for the employer during this period, but if he / she did the work, he / she would be entitled to an appropriate wage.

The employer also has right to send the employee to an “emergency” medical examination in case of doubt about the medical fitness of the employee.

The most serious option in terms of possible coronavirus infection is to order employee quarantine. The quarantine can usually be ordered by a doctor and is treated in the same way as the regime of temporary incapacity to work. Like temporary incapacity to work, quarantine is considered as an obstacle to work on the part of the employee, during which the employer has to excuse the employee’s absence at work, and the employee is entitled to the same conditions during that period. The employee is not obliged to perform any work for the employer during the period of quarantine, but if he / she does, he / she would be entitled to an appropriate wage or salary.

Protection of employees’ privacy and personal data

Given the above measures, in particular as regards increased information requirements for employees (private travel destinations, health and symptoms, etc.) and the introduction of new employee monitoring procedures (database of risky employees, temperature measurement and recording, thermo cameras such as automated systems, etc.) , the protection of employees’ privacy in particular pursuant to Section 316 para. 2 of the Labour Code and regulation of personal data protection of employees and conditions of their processing especially according to the general regulation on personal data protection (GDPR).

As a general rule, the interference with the privacy of employees in the form of their monitoring must be proportionate, must not be carried out without a serious reason given the special nature of the employer’s activity and the employer must inform the employee in advance of its scope and manner of implementation. I believe that “a serious reason for the special nature of the employer’s activity” can be replaced by the severity of the situation in the event of increased occurrence or epidemic of coronavirus in the Czech Republic, provided that the adequacy of the measures is respected.

Regarding the introduction of new processes for processing of personal data of employees in connection with obtaining information from employees that are not primarily necessary for standard human resources management (destination and holiday period in the risk area, travel itinerary, information about ongoing health status, or introduction of thermo meters, etc.), it is necessary to observe the basic principles and rules of personal data processing according to the GDPR. These are in particular:

  • preliminary analysis of the risks and impacts of such processing and assessment of its legitimacy and legality (general data protection impact analysis – DPIA or formalised DPIA according to the GDPR);
  • act in accordance with Privacy by Design and Privacy by Default;
  • compliance with basic processing principles (legality, fairness, transparency, purpose limitation, data minimisation, accuracy, retention limitations, integrity and confidentiality);
  • fulfilment of obligations related to the processing of personal data, in particular the creation of adequate documentation and implementation of appropriate processes.

Conclusion

To conclude, I would recommend that employers and their management should now calmly consider the necessity and appropriateness of introducing at least some of the measures described above and be prepared to deal with the possible occurrence of coronavirus or only a risky employee.

The occurrence and spread of coronavirus serve as an exemplary situation that demonstrates the need to think about risk management, compliance and prevention, as its effects may exceed the company’s business losses.

At the time of the publication of this article, no case of coronavirus was confirmed in the Czech Republic. Unfortunately, given the gradual spread of coronavirus in Europe, this cannot be excluded.

 

Mgr. Jakub Málek, partner – malek@plegal.cz

 

www.peytonlegal.cz

 

28. 02. 2020

 

[1] COVID-19: information for citizens. Ministry of Health of the Czech Republic [online]. Copyright © 2010 [cit. 27.02.2020]. Available from: http://www.mzcr.cz/dokumenty/koronavirus-2019-ncov-informace-pro-obcany_18432_4122_1.html

[2] COVID-19: information to physicians. Ministry of Health of the Czech Republic [online]. Copyright © 2010 [cit. 27.02.2020]. Available at: http://www.mzcr.cz/dokumenty/koronavirus-2019-ncov-informace-pro-lekare_18433_4122_1.html or Recommendations on individuals with a travel history – What to do if you have arrived in the last 14 days from the area of infection coronavirus, EAA. EAA [online]. Copyright © 2007 [cit. 27.02.2020]. Available from: http://szu.cz/tema/prevence/doporuceni-k-jedincum-s-cestovatelskou-anamnezou

 

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