We have gathered information on what measures you can take as an employer in China to help preserve your employees while keeping your business intact. As more information comes in, we will update this post.
If you have any questions on the impact of Coronavirus on labor laws, visit our LinkedIn AMA post and leave us your questions in the comment section and we will reply.
Updated: March 26, 2020
26 March, 2359 hours till 30 April Singapore will impose stricter restrictions regarding where citizens can congregate.
Employer Responsibilities and Enhanced Precautions for Employees
Further restrictions have been placed for work pass holders and their dependents who will be arriving into Singapore from the United Kingdom and the United States. Those entering the country will be required to enter a 14-day quarantine at a designated facility that is not their home.
Employers must ensure that their foreign employees who are entering the country have a residence that is suitable for completing a 14-day Stay-Home Notice. (If the employee is arriving from the US or UK, they will serve their Stay-Home at the government designated facilities.) Transport must also be provided that can take them directly from the airport to the location where they will be staying. If the employee is staying at a private residence, the landlord must provide a written consent that they permit the stay, and if not, then the employer must find a hotel or dormitory for the employee. Employers should also provide employees who are not staying in a government facility with food and other provisions to assist them during the quarantine.
Also, employers must make sure that the employee has a Singapore phone number and WhatsApp that the Ministry of Manpower (MOM) will be able to contact them on if they need to be reached.
As an Employer, if you are able to meet these standards, you can submit your request for approval to allow foreign employee or dependent to enter Singapore here.
Employer and Employee Rights & Obligations Q&A
Source: Baker McKenzie
1. Are employees obliged to disclose themselves as a “risk-factor” to the employer? Yes.
- Employees may be a risk factor because they have symptoms of COVID-19 or have been in contact with a confirmed case, or because they have visited a high risk area.
- There is no express legislation or regulation requiring that employees disclose that they are a risk-factor to their employer in general. However, our view is that an employee is under an implied duty (and may be under an express duty) to tell their employer.
- Employees should tell their employer if they are unable to work whether because of sickness or have been advised to selfisolate, or because they are in quarantine, according to the employer’s usual absence procedures.
- To ensure employees understand their reporting obligations, employers should develop a clearly communicated policy on what and when an employee is expected to inform their employer of risk factors. This is especially important if the employee is a work pass holder, is currently overseas in a restricted country (as identified by the government), and wishes to re-enter Singapore. Employers need to apply to the Ministry of Manpower (MOM) for prior approval before such work pass holders reenter Singapore. A failure to comply with the re-entry requirements is likely to lead to the MOM taking enforcement action against both the employer and work pass holder.
- All employees returning from a restricted country will be served with a 14-day Stay Home Notice (SHN) and will not be permitted to leave their place of residence for the duration of the SHN.
2. Can the employer demand employees to disclose themselves as being a “risk-factor”? Yes.
- There is no strict legal obligation on employers to demand this information but employers have a common law duty to take reasonable care of their employees’ safety and to provide and maintain a reasonably safe place of work for their employees. Therefore, employers can make a lawful request for an employee to disclose themselves as being a “risk-factor”.
- In addition, employers should carry out a risk assessment if they become aware that an employee has been in close contact with a confirmed case or has visited a high risk area.
3. Can the employer issue an instruction (or a policy) requiring employees to report co-workers with flu symptoms (i.e., fever, cough, difficulty breathing, pain in the muscles, tiredness) to the employer? Generally, no.
- For data privacy reasons, we would not recommend this. This instruction/policy may, however, be permissible in certain circumstances, for example, if another employee in the workplace is confirmed to have COVID-19 and is not complying/has not complied with the Stay-Home Notice requirements. Any such policy in those circumstances would require a clear reporting channel within the employer organisation with limited access to the reported data, and a clear, limited retention period.
4. Can employees refuse to come to work? Generally, no.
- However, as employers have an implied duty to preserve trust and confidence in the employment relationship, employers should speak to employees to understand the reason for their refusal and whether they have genuine concerns.
- An employee may have a justified reason for not attending work e.g. if the employee is subject to an SHN. In such a case, the employee is not permitted to attend work and the employer must ensure that the employee complies with the SHN requirements, otherwise the MOM is likely to take enforcement action if the non-compliance comes to its attention. Noncompliance with the SHN requirements is also an offence under the Infectious Diseases Act, so employers should be aware that if the employee comes to work while on a SHN, the employer could be penalised for aiding and abetting an offence under the Infectious Diseases Act. The penalties may include a fine of up to SGD 10,000 or imprisonment for up to six months or to both; and for subsequent offences, a fine of up to SGD 20,000 or to imprisonment for up to 12 months or to both.
- Some groups of employees such as pregnant women, those with compromised immune systems and those identified by WHO as having a higher risk of developing severe COVID-19 may have good reason for their refusal, and the MOM has issued an advisory encouraging employers to permit these employees to work from home where feasible.
- It is important to remember that employees have a duty to comply with the reasonable instructions of their employer. If an employee refuses to come to work, this may amount to breach of the employment contract. If an employer directs its employees to work in the office and takes appropriate measures to provide a safe place of work for its employees (in accordance with the Workplace Safety and Health Act), we consider that a direction by the employer to require the employee to work from the office would be considered a lawful and reasonable direction by the employer.
- Practically, the employee may have a job which can be done from home and a solution would be to instruct them to do so. If they are not able to do so, you may be able to agree that they take annual leave. Alternatively, the parties could agree on a period of unpaid leave.
- However, if it is not possible to reach a satisfactory solution with an employee who is not at high risk, the employer may choose to begin disciplinary proceedings against the employee. In the current climate, we think it is quite unlikely that employers would take this step given the PR / ER implications, and we would recommend that employers be as accommodating as possible during this period. However, as the situation develops, and if many employees are perceived as using COVID-19 as an ‘excuse’ not to attend work but to request payment, a more assertive approach to managing refusals to work may be required.
5. Can employees refuse to attend meetings or to travel? Generally, no, if this is required as part of their duties.
- However, please note our general comments to question no. 4 above and the need to preserve the relationship of trust and confidence. Employers should discuss any refusal with the employee. In light of the global spread of COVID-19, an employee may be justified in refusing to travel or attend physical meetings. Employers are encouraged to seek out alternative ways to conduct the meeting such as conducting the meeting through teleconference or video conference.
- All employers should assess whether travel to affected areas is essential. As a practical matter, most employers are banning non-essential travel. The Singapore government has also strongly urged for all non-essential travel to any country to be deferred. Employers should avoid sending those at higher risk of serious illness to any area where the virus is spreading. Risk assessments should be carried out.
6. Can the employer send employees on suspension from work?
- Employers may have a contractual right to ask employees to work from home or not to attend work at any point during their employment. This will depend on the wording of their employment contract.
- Even if they do not, it may be a reasonable instruction based on a risk assessment in the current circumstances to either instruct their employees to work from home if they have a job that can be done remotely and if not, to ask them not to attend work.
- An employee who has been told not to work by their employer but is otherwise able and willing to do so should receive their usual pay and benefits (unless the employee has contractually agreed to go on unpaid leave). For information on paying other categories of employees, please see question no. 10 below.
7. When is the employer forced to shut down its operations?
- The employer would be required to shut down its operations if the authorities so require. The Minister of Health is empowered to declare that the whole of or a specific area in Singapore is a restricted zone and in such order prohibit the entry or persons in such place or the holding of, or the attendance of any persons at, any public meeting or other gathering within the restricted zone, if the Minister of Health is satisfied that there is an outbreak or imminent outbreak of an infectious disease (including COVID-19) that poses substantial risk of a significant number of human fatalities in Singapore.
8. Does the employer have the obligation to report infections occurring in the business to the health authorities?
- No. There is currently no requirement for employers to report a confirmed case, since whether or not someone has COVID-19 will be confirmed by the attending doctors. This information will be fed to the Ministry of Health (MOH) and the MOH tracing officers will reach out to the employer on the confirmed case’s close contacts at work. The MOM’s advisory states that employers should cooperate with MOH tracing officers.
9. Can the employer require an employee to see a doctor?
- If the contract of employment contains a clause providing the employer with the direct authority to do so, the employer could direct the employee to see a doctor in accordance with that clause. However, even if the employer has a contractual right to ask the employee to see a doctor, an employer should not force the employee to do so. That said, in line with the employer’s obligations under the Workplace Health and Safety Act, the employer should take reasonable steps that are necessary to ensure the health and safety of all employees at work, which arguably includes directing employees with flu-like symptoms not to come to work.
10. If employees are sent on suspension from work, or refuse to come to work or if an operation is being shut down, do the employees still need to be paid?
- Whether the employee is entitled to be paid will depend on the reason why they are not working:
- Wherever possible, where risk factors are present, or an employee is awaiting the outcome of a test for COVID-19, but is otherwise able to work, employers may instruct employees to work from home and they should be paid usual pay.
- If an employee is displaying symptoms, they can be treated as being on paid sick leave and should be paid according to the employer’s usual policy (which must not be less generous than an employee’s sick leave entitlements under the Employment Act).
- If the employee has been asked not to attend work by the employer and they do not have a job that can be done remotely, they are entitled to be paid their usual pay.
- If a doctor advises an employee to self-isolate the employee should be able to use his/her paid sick leave entitlement (which must not be less generous than an employee’s sick leave entitlements under the Employment Act).
- If an employee who refuses to come to work without good reason, this may be treated as an unauthorised absence.
- Employees who deliberately visit a high risk area with the intention that they will then be told to isolate or quarantined should be warned that if they do go and do not have a job that can be done remotely, they will not receive any pay (other than statutory sick pay if eligible) for the period that they are unable to work due to quarantine/self-isolation or inability to return to Singapore. They will receive annual leave pay for their booked period. The employer may require them to take annual leave for the additional period they are unable to work if they have sufficient untaken annual leave, or it will be unpaid (save for statutory sick leave entitlements). If an employer intends to take this approach it should issue a clear policy of its position on pay in these situations.
- If an employee is currently in a country that is subsequently listed as a restricted country while he/she is in that country, then upon their return to Singapore, the employer would need to treat the duration of the SHN as paid hospitalisation leave.
11. If kindergartens and schools are being closed and employees need to stay home and cannot work, does the employer need to pay them and – if so – for how long?
- The employer may allow the employee to work from home if their job is one that can be done remotely. As a practical matter it would be possible to direct an employee to take his/her annual leave.
- If the employee is not able to work, we consider that there would not be an obligation to pay the employee. It would be prudent to document the time off as an agreed period of unpaid leave with the employee, if the employee refuses to use his/her annual leave entitlements.