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Global Employment and Labor Law Update - May 2020

Welcome to this special COVID-19 edition of our quarterly Global Employment and Labor Law Update.

Companies and their workforces are facing extraordinary challenges as a result of the COVID-19 pandemic. Governments around the world are introducing new measures and guidance on a frequent basis to seek to reduce the spread of the virus, protect public health and help businesses meet the challenges of continued operation. As lockdown measures are relaxed, employers are also taking steps to ensure that employees returning to work are protected.

The number of issues that are emerging across all jurisdictions and the interrelationship between those issues are exceptional. Working with lawyers from our global team, we have highlighted just a few of the key issues for employers dealing with COVID-19 in the workplace, to provide you with a country-by-country overview across the globe.

We hope you find the practical information useful in managing your global employment challenges during this exceptional time. Please do not hesitate to contact us if you wish to find out more. 

Diane Gilhooley Diane Gilhooley
Global Head of Employment, Labor and Pensions
dianegilhooley@eversheds-sutherland.com

Asia Global Update Banner

South Africa

Subject 

Employer duty of care

Summary Employers in South Africa must provide and maintain, so far as is reasonably practicable, a working environment that is safe and without risk to the health of its employees.
Employer Implications Employers in South Africa have a legal duty to provide and maintain, so far as is reasonably practicable, a working environment that is safe and without risk to the health of its employees and anyone else who may be affected by the employer’s business, including customers, suppliers, visitors and members of the public. Employers are required to undertake risk assessments annually regarding the risks to the health and safety of employees and anyone else who may be affected by the employer’s business. Employers should therefore consider whether their existing arrangements for protecting staff and visitors take account of the risks arising from CoVID-19 and they should regularly re-assess those risks as the situation develops or new guidance is issued by the government or the WHO. This would include conducting risk assessments to identify the likelihood of staff contracting CoVID-19 whilst at work and appropriate measures to control that risk. Some South African businesses have started to provide PPE to their staff, such as alcohol wipes and hand sanitizers, with additional measures for staff at higher risk of exposure to CoVID-19.
Links South Africa briefing
The Department of Health’s website
Employer Guide
Subject  Screening measures
Summary Health screening questionnaires and temperature checking may be carried out, taking account of data protection requirements.
Employer Implications Employers are obliged to maintain a safe place of work and should consider taking appropriate steps to prevent staff who are infected (or who are likely to be infected) from coming into the workplace. This may include, for example, health screening questionnaires for staff members returning to work and temperature checks. However, under data protection law, such information about an individual’s health counts as ‘special personal information’ which may only be processed in limited circumstances. The processing of this information (for instance what and how it will be used and with whom it will be shared – as strictly necessary) should be made clear and employers should ensure that the processing is necessary and appropriate for the stated purpose and is carried out in a proportionate manner. Maintaining the security of the personal data will be fundamental.
Links South Africa briefing
Employer Guide
Subject Matter Workforce planning
Summary Employees can be placed on short-time or be temporarily laid off, however this must be by consent. State support is available should companies close its operations for three months or a lesser period as a direct result of the CoVID-19 pandemic. In such circumstances companies may apply for relief from the Temporary Employer/Employee Relief Scheme (“TERS”).
Employer Implications Temporary lay-offs and/or the implementation of short-time due to the needs of the company is permitted if expressly provided for in the contract of employment. If not provided for in the contract, an employer must go through a consultation process with the employees, the outcome of which may be (amongst other things) agreed short-time, temporary lay-offs or permanent retrenchments. If employees do not agree to the implementation of short-time or temporary lay-offs following the consultation process, they may be permanently retrenched. Employee relief may be available through the TERS if placed on short-time/temporarily laid off, or through the Unemployment Insurance Fund if permanently retrenched. Employer relief may be available through the Debt Relief Finance Scheme, resilience facilities or tax relief mechanisms.
Links South Africa briefing
Global Comparative Guide
Employer Guide

Contact:

Sandro Milo
Partner
+27 834 4403 20
sandromilo@eversheds-sutherland.co.za

Africa Global Update Banner

China

Subject Matter Employer duty of care
Summary Employers in the PRC have a legal duty to ensure, so far as is reasonably practicable, the health, safety and welfare at work of their employees and anyone else who may be affected by the employer’s business, including visitors and members of the public.
Employer Implications One of the requirements for businesses re-opening in China, is for employers to provide personal protection equipment to their staff. This could include alcohol wipes, hand sanitizers and face masks, with additional measures for staff at higher risk of exposure to COVID-19, for example, those in contact with medical patients or visitors from high-risk regions. Following re-opening, employers should continue to regularly assess existing arrangements for protecting staff and visitors and inform employees about any ongoing measures, including social distancing and infection control measures.
Links
China briefing
Employer Guide
Global Comparative Guide
Multi-national employer podcast
Subject  Screening measures
Summary Employers may consider implementing measures to screen employees and visitors to their premises, for example requiring them to certify that they have not recently visited a high risk area. Measures taken should take account of employee privacy issues.
Employer Implications Employers should ensure that they are mindful of privacy issues when implementing measures to protect the health, safety and welfare at work of their employees, including in carrying out health screening. Considerations in this respect should include the security of personal information, ensuring that the collection of personal information adheres to the national standards and that personal information collected is not used or disclosed for purposes other than those notified. In addition, that data processed is secured against unauthorized use.
Links
China briefing
Notice by the Office of the Central Cyberspace Affairs Commission of Effectively Protecting Personal Information and Using Big Data to Support Joint Prevention and Control
Subject  Workforce planning
Summary Whilst there is no temporary layoff or furlough mechanism under PRC law, there is a business operation suspension mechanism.
Employer Implications Subject to local regulation, if a business is unable to continue or resume operations due to COVID-19 and it is not commercially feasible to arrange for employees to work from home, the employer may negotiate with employees to first arrange for employees to take paid annual leave or other discretionary leave and, once all applicable leave has been exhausted, it may apply the business operation suspension mechanism. This mechanism means that employees will continue to receive salary and living allowance and employers can apply for state support if making no redundancies or a low rate of redundancies.
Links
China briefing
Employer Guide
Global Comparative Guide
Multi-national employer podcast

Contact:

Jack Cai
Partner
+862161371007
jackcai@eversheds-sutherland.com

Hong Kong

Subject  Employer duty of care
Summary

Employers are under a duty to ensure the safety and health of their employees and may also have reporting obligations.

Employer Implications Under common law and the Occupational Safety and Health Ordinance, employers are under a duty to ensure the safety and health of their employees. Employers are required to provide a working environment that is, so far as is practicable, safe and without risks to health. Employers may also have reporting obligations under the Employees’ Compensation Ordinance. Employers should put in place measures to minimize the risk of employees being infected with COVID-19 in the workplace. Particular attention should be paid to vulnerable employees (such as older employees, those who are pregnant, have impaired immunity or have underlying medical conditions) in assessing COVID-19 workplace risk and putting in place protective measures. In certain workplaces (including all catering businesses), masks must be worn, body temperature screening conducted and hand sanitizers provided.
Links Hong Kong briefing
Employer Guide
Hong Kong Government COVID-19 website
Subject Matter Screening measures
Summary

As part of measures to protect the health of employees, it is generally justifiable for employers in Hong Kong to collect temperature measurements or use health screening questionnaires for staff returning to work. Employers must however ensure that data privacy requirements are adhered to.

Employer Implications Common practice in Hong Kong is to use heat-sensitive cameras at building entrances or infrared thermometers to detect fever.  Where personal data is not collected, there will be no data privacy issues and no notification is required.  Where data is collected, for example by employers using health screening questionnaires or temperature testing accompanied by the collection of personal data, data privacy requirements will apply, including notification of the reason for collection of data.  The Privacy Commissioner for Personal Data has provided guidelines for employers and employees.  Those guidelines make clear that it should be ensured that the collection and processing of employees’ personal data to help monitor and prevent the spread of COVID-19 is necessary, appropriate and proportionate and should be limited in both duration and scope as appropriate to the particular measure adopted.
Links PCPD Guidelines for Employers and Employees
Subject Matter Workforce planning
Summary

In the event of a temporary business closure due to COVID-19, employees must generally continue to be paid, unless agreed otherwise. Temporary lay-offs for hourly paid or piece rate employees during a shut-down period are possible in Hong Kong, but can trigger severance.

Employer Implications In the event of a temporary business closure due to COVID-19 and where employees are paid monthly, the employer may not require employees to take unpaid leave without the employees’ consent. Many employers in Hong Kong have agreed flexible periods of unpaid leave with staff to allow business continuity. State subsidies to help continue to pay wages to employees may now be available to employers through the Employment Support Scheme, subject to conditions and limits. Temporary lay-offs during a shut-down period are possible for hourly paid or piece rate employees in Hong Kong, but can trigger severance. An employee who is laid off continues to be employed, but an entitlement to a statutory severance payment may be triggered, depending on the number of days on which no work is provided and no wages paid.
Links Hong Kong briefing
Employer Guide
Global Comparative Guide

Contact:

Jennifer Van Dale
Partner
+852 2186 4945
jennifervandale@eversheds-sutherland.com

Singapore

Subject  Employer duty of care
Summary

Employers have a statutory duty to ensure the health and safety of all their employees at work to the extent reasonably practicable.

Employer Implications Under the Workplace Safety and Health Act (Cap. 354A), employers have a statutory duty to ensure the health and safety of all their employees at work to the extent reasonably practicable, failing which they may be liable for committing a criminal offence. Employers should therefore stay abreast of current status and advisories issued by international and local health organizations and clearly communicate to their employees any newly implemented contingency plans. Employers must implement safe distancing workplace measures. Additional precautions such as temperature screenings, increased sanitization of common areas and provision of protective equipment (e.g. hand sanitizers, masks, and alcohol wipes) should also be implemented to ensure compliance with legal obligations. In particular, food and beverage establishments must conduct temperature screening and health declarations for staff each time they report for work, provide hand sanitizers to frontline staff who handle cash and other devices and who are unable to wash their hands frequently and place hand sanitizers in close proximity to high touch surfaces like door handles.
Links Singapore briefing
The Singapore government’s website
Employer Guide
Subject Matter Screening measures
Summary

Health screening questionnaires and temperature checking are permitted in Singapore.

Employer Implications Employers are obliged to take appropriate steps to safeguard the health and safety of their employees at work. They could require employees to fill in health screening questionnaires upon returning to work and may also conduct temperature checks. Such measures are permitted on the basis that they are necessary in response to the COVID-19 crisis, which is an emergency situation threatening the life, health or safety of individuals. Consent is not required for such measures, although employers who collect personal data must comply with the Data Protection Provisions of the PDPA, such as ensuring reasonable security arrangements to protect the personal data in their possession from unauthorized disclosure or access and ensuring the data is expunged when no longer needed.
Links Singapore briefing
Employer Guide
Subject Matter Workforce planning
Summary

Unpaid leave and adjustments to work arrangements or wages can only be implemented with employee consent.

Employer Implications There is no concept of statutory furlough in Singapore. However, other available measures to manage excess manpower include adjustments to work arrangements, adjustments to wages; and unpaid leave. Temporary layoff and unpaid forced leave are only permitted with employees’ consent. To help Singapore businesses, a government subsidy is available for wages paid to Singapore citizens and permanent residents and a rebate for foreign workers levy is available for employers employing work permit and S pass holders.
Links Singapore briefing
Global Comparative Guide
Employer Guide

Contact:

Sze-Hui Goh
Partner
+65 6 36 19 82 8
sze-huigoh@eversheds-harryelias.com

Europe Global Update Banner

Austria

Subject Employer duty of care
Summary Employers in Austria are legally obliged to take protective measures for the life and health of their employees and to minimise corresponding health risks. This legal requirement is derived from the Austrian Employee Protection Act (ArbeitnehmerInnenschutzgesetz - ASchG) and employers’ general duty of care requirements
Employer Implications Employers should evaluate whether there is any health risk to employees and what measures can be taken to mitigate any such risk. This may include providing additional information or training to employees on compliance with hygiene regulations and /or requiring personal protection equipment such as the wearing of face masks. In evaluating risk, particular attention should be paid to vulnerable staff, including older employees and those who are pregnant.
Links

Austria briefing - 4 March
Austria briefing - 9 April
Austria briefing - 8 May

Employer Guide 
Global Comparative Guide
Subject  Screening
Summary Measures taken by employers should take account of employee privacy issues.
Employer Implications Protective measures taken by employers for the life and health of their employees should take account of employee privacy issues. Whilst employees can be requested to visit an occupational health and safety doctor, tests for COVID-19, including temperature tests, can only be undertaken with the consent of employees. Note however that where there is a concrete suspicion of infection or if an employee is actually infected, the employer has a duty to report to the competent authorities, including providing appropriate information.
Links
https://www.sozialministerium.at/Informationen-zum-Coronavirus/Coronavirus---Hotlines.html
Subject matter Workforce planning
Summary In the case of a government imposed shut-down or a reduction in demand as a result of COVID-19, companies may be required to temporarily reduce or close their business operation and either put employees on short-time or agree a dissolving suspension. State aid may be available in the case of short-time.
Employer Implications According to the Unemployment Insurance Act (Arbeitslosenversicherungsgesetz) a mutual termination agreement can be combined with a promise of re-employment. This is called a dissolving suspension (Aussetzungsvereinbarung) of the employment relationship and can be used to agree to temporarily cease the employment contract with employees in the case of reduced demand. However, under the Labor Market Improvement Act (Arbeitsmarktförderungsgesetz), the employer must notify the local office of the Labor Market Service (Arbeitsmarktservice) in writing of any (mutual) termination intended to be implemented within a 30-day period, if specific thresholds are met. Short-time work is a reduction in working hours for a limited period of time, where employees will be entitled to receive short-time remuneration and a short-time allowance. The employer can apply to the Labor Market Service (Arbeitsmarktservice) for aid based on short-time work.
Links

Austria briefing - 4 March
Austria briefing - 9 April
Austria briefing - 8 May
Employer Guide
Global Comparative Guide

Contact:

Silva Palzer
Partner
+43 15 16 20 12 5
silva.palzer@eversheds-sutherland.at

Czech Republic

Subject Employer duty of care
Summary Employers must comply with requirements concerning occupational health and safety and also comply with the general obligation of prevention.
Employer Implications Employers should assess work-related risks and take appropriate measures to eliminate or minimise any such risks. Measures could include, for example, disseminating awareness information to the workforce and allowing them to work from home during forced operation restrictions. Further, for employees continuing to work from business premises or returning to work following forced operation restrictions, reducing face-to-face meetings, encouraging the use of video/teleconferencing and providing personal protection equipment, where appropriate. Special consideration should be given to vulnerable employees
Links Czech Republic Briefing
Employer Guide
Global Comparative Guide
Subject Data Privacy
Summary

Measures taken by employers should take account of employee privacy issues.

Employer Implications Protective measures taken by employers to comply with occupational health and safety obligations and the general obligation of prevention should take account of employee privacy issues. Employees may be required to provide information to identify COVID-19 risks, such as whether they have been abroad or have met an infected person. However, the employee is not obliged to provide this information. Employers cannot enforce COVID-19 testing or temperature checks without employee consent.
Links Czech Republic Briefing
https://www.uoou.cz/en/
Subject Workforce Planning
Summary Under the Antivirus Program, the Labor Office will provide employers whose operations have been impacted by COVID-19 with a partial unemployment allowance, compensating them for the wages which continue to be paid to their employees, and therefore limiting the need to dismiss employees.
Employer Implications Czech law does not include the concept of temporary lay-off/furlough and employees will therefore continue to be entitled to their full salary in the event of their hours being reduced as a result of a downturn in demand. Employers may however consider options to reduce the financial impact, such as ordering leave, the taking of compensatory leave or rescheduling shifts. Further, the Antivirus Program scheme applies in the situations of (1) forced operation restriction and quarantine or (2) COVID-19 related economic difficulties, enabling employers to apply for state support. The amount of contribution per employee the employer is able to apply for is dependent on the applicable category and is subject to a number of conditions being met.
Links Czech Republic Briefing
Employer Guide
Global Comparative Guide

Contact:

Radek Matouš
Managing Attorney
radek.matous@dhplegal.com

Estonia

Subject  Employer duty of care
Summary

Employers in Estonia have a legal duty to ensure working conditions meet occupational health and safety requirements.

Employer Implications General recommendations from the Estonian Government include social distancing and use of personal protective equipment. Employers should ensure that workplace arrangements take account of such recommendations and, where appropriate, implement appropriate additional measures. There are no special considerations for vulnerable staff from an occupational health and safety requirement perspective.
Links Estonia Briefing
Employer Guide
Subject Data Privacy
Summary

Measures taken by employers should take account of employee privacy issues.

Employer Implications Protective measures taken by employers to ensure working conditions meet occupational health and safety requirements should take account of employee privacy requirements. Where there is a suspicion of an infectious disease, employers are entitled to ask employees to undergo an occupational health check. However, employers cannot enforce temperature checks without employee consent.
Links Data Protection Inspectorate of Estonia
Subject  Workforce planning
Summary

Employers have the possibility of unilaterally reducing wages by reducing the volume of work if the employer’s ability to pay normal wages is impaired due to COVID-19.

Employer Implications There is no concept of temporary lay-off/furlough in Estonia. However, the Estonian Employment Contracts Act provides that if an employer, due to unforeseen economic circumstances beyond its control, is unable to provide an employee with work to the agreed extent, the employer may, for up to three months during a calendar year, reduce the wages to a reasonable extent, but not below the minimum wage established by the Government of the Republic. Temporary subsidies are available to employees through the Unemployment Insurance Fund in certain circumstances where their employer is not able to provide them with work or whose wages have been reduced. Such subsidies are subject to conditions and limits.
Links Estonia Briefing
Employer Guide

Contact

Tambet Toomela
Partner
+37 2 61 41 99 0
tambet.toomela@eversheds-sutherland.ee

Finland

Subject  Employer duty of care
Summary Employers must ensure the health, safety and welfare at work of their employees.
Employer Implications Employers have a legal duty to ensure, so far as is reasonably practicable, the health, safety and welfare at work of their employees and anyone else who may be affected by the employer’s business, including visitors and members of the public. Workplaces should update their hazard analysis and risk assessment in the light of the COVID-19 epidemic. Employers should also draw up the necessary instructions and procedures regarding the COVID-19 situation. In the risk assessment, the employer must, for example, assess whether the risk of employees contracting COVID-19 at work is elevated. Particular attention should be paid to risk groups. Based on the risk assessment, the employer should take the necessary measures to prevent exposure to COVID-19, for example evaluating the need for workers to be present at the workplace. If it is not possible to work remotely, the workplace conditions shall be organized to minimize the risk of exposure, for example by limiting social contact. If there is a significantly increased risk of infection, for example for work involving continuous human contact, PPE must be used. The Ministry of Social Affairs and Health has provided workplace guidelines on how to assess COVID-19 risks. The Finnish Institute of Occupational Health has also provided guidelines for workplaces on the prevention of COVID-19 infection and has classified risk groups.
Links Employer Guide
Finnish Government Website
Ministry of Social Affairs and Health Guidelines
Finnish Institute of Occupational Health Guidelines
Finnish Institute of Occupational Health Risk Group Guidelines
Subject  Screening measures
Summary Measures taken by employers should take account of employee privacy issues.
Employer Implications Protective measures taken by employers ensure the health, safety and welfare at work of their employees should take account of employee privacy issues. In addition to the GDPR, Finland’s Act on the Protection of Privacy in Working Life sets conditions on how an employer may process an employee’s health data. Considerations of whether the information has been collected from the employee or from elsewhere with the employee’s written consent, who will be processing an employee's health data, whether the processing is necessary for specific reasons and the security of the data will all be relevant. General questions to the workforce to assess risk of exposure to COVID-19 are likely to be acceptable subject to data privacy safeguards. Confidential health data of employees may only be processed when necessary and by people whose job description includes such processing. The employer has the right to require employees to have a health examination or their temperature tested when coming to work, but health care professionals must be used for carrying out health examinations.
Links Office of the Data Protection Ombudsman
Subject  Workforce planning
Summary Reducing the working hours may be applied by lay-offs where there is a reduction in the demand for staff.
Employer Implications An employer may be entitled to unilaterally lay-off employees (on a full-time or part-time basis) due to the business impact of COVID-19. Lay-off can be implemented for a fixed period (where the situation is estimated to last a maximum of 90 days) if work or employer’s potential for offering work has diminished temporarily or implemented until further notice on the ground that the employer has financial or production-related reasons for terminating employment contracts. On the employer’s initiative, it is also possible to agree lay-offs with employees, but such lay-off agreement must be for a fixed term. A co-operation procedure to effect lay-offs will be required where the employer regularly employs at least 20 employees. Employers employing less than 20 employees should provide an explanation of the grounds for lay-off and allow employees to respond before implementation. Laid off employees are entitled to unemployment benefits.
Links

Employer Guide

Contact:

Timo Jarmas
Partner
+35 81 06 84 15 14
timo.jarmas@eversheds.fi

France

Subject  Employer duty of care
Summary Employers in France have a legal duty to ensure the health, safety and welfare at work of their employees and should regularly consider appropriate measures to address any identified risks.
Employer Implications Employers in France have a legal duty to ensure the health, safety and welfare at work of their employees and anyone else who may be affected by the employer’s business, including visitors and members of the public. Regulations require employers to “take the necessary measures to ensure the safety and protect the physical and mental health of employees." Employers should therefore regularly carry out risk assessments (and record those assessments), taking account of guidance issued by the government and the Regional Health Agencies (“Agences Régionales de Santé”). Where appropriate, employers should implement appropriate measures to address any risk, explain those measures to their employees in collaboration with the employee representative body and explain the steps they are taking to monitor the situation.
Links France briefing
Global Comparative Guide
Employer Guide
Subject  Screening measures
Summary Employers in France cannot require employees to undergo tests (including temperature checking and health questionnaires) to search for possible symptoms of COVID-19.
Employer Implications Employers should note that it is not possible to implement, for example, mandatory body temperature readings of each employee/visitor to be sent daily to the management or collect medical records or questionnaires from all employees. Instead, employers may raise awareness and invite employees to report if they are infected or may have been exposed to COVID-19 and facilitate the transmission of such information by setting up dedicated communication channels. Employers must be careful to avoid unlawful discrimination which might arise if (for example) employees with a particular nationality or ethnicity are requested to report any potential symptoms of COVID-19.
Links

CNIL statement (In French)

Subject  Workforce planning
Summary In the case of a downturn in activity resulting from COVID-19 or the impossibility of maintaining production due to the absence of staff, employers may be able to utilize the partial activity scheme.
Employer Implications It is possible for companies, under French law, to implement partial unemployment in case of exceptional circumstances. In the context of COVID-19, this includes a downturn in activity resulting from COVID-19 or the impossibility of maintaining production due to the absence of staff. These exceptional circumstances also must meanthere is either a reduction of the collective working hours or the closure of the company or part of the company. In the event of partial unemployment, the employer must maintain a prescribed proportion of the employee's gross remuneration. State support is then available to the employer, subject to conditions and limits. 
Links France briefing
Global Comparative Guide
Employer Guide

Contact:

Deborah Attali
Partner
+33 1 55 73 42 17
deborahattali@eversheds-sutherland.com

Germany

Subject  Employer duty of care
Summary

Employers in Germany have a legal duty to ensure, so far as is reasonably practicable, the health, safety and welfare at work of their employees and anyone else who may be affected by the employer’s business, including visitors and members of the public.

Employer Implications Regulations require employers to undertake a “suitable and sufficient assessment of the risks to the health and safety ” of employees and anyone else who may be affected by the employer’s business. This duty is a continuing one and assessments must be recorded. The regulations contain specific provisions in relation to young employees and pregnant women. Employers should therefore consider whether their existing arrangements for protecting staff and visitors take account of the risks arising from COVID-19 and they should regularly re-assess those risks as the situation develops or new guidance is issued by the government, the RKI or the WHO.
Links

Germany briefing
Robert Koch Institut (RKI)
Employer Guide

Subject  Screening measures
Summary

Employers may consider implementing measures to screen those entering their premises, for example requiring them to certify that they have not recently visited a high risk area. Measures taken should take account of employee privacy issues.

Employer Implications Employers may consider implementing measures to screen employees and visitors, for example requiring them to certify that they have not recently visited a high risk area. However, employers cannot require employees to undergo a medical examination (including temperature checks), as this would be contrary to the individual’s personal privacy rights. The DSK (Joint Committee of all Independent German Data Protection Authorities on Federal and State Level) has released information for employers on how to handle personal data of employees, guests and visitors in light of the ongoing COVID-19 pandemic, including making clear that the principle of proportionality and the legal basis for processing must always be observed.
Links

Germany briefing
DSK

Subject  Workforce planning
Summary

 In the event of a shortfall of work, employers can apply for short-time work, asking their employees/works council to agree a reduction in working time and a corresponding reduction in pay. State support is available for employers.

Employer Implications Based on an operational decrease of work, short-time work is possible with works council consent. If no works council is in place, individual employee consent is required. State support requires approval of the labor authorities, however Regulations have simplified the approval process where this is related to the COVID-19 crisis. Where approved, short-time work employers are eligible to receive public subsidies (“Kurzarbeitergeld”) from the employment agency for up to 80 or 87% of the net income difference, capped by the thresholds for social security contributions.
Links Global Comparative Guide
Germany briefing
Employer Guide

Contact:

Frank Achilles
Partner
+4948 54 56 52 7
frankachilles@eversheds-sutherland.de

Hungary

Subject Employer duty of care
Summary Employers must ensure a safe and healthy working environment for employees.
Employer Implications Labor law in Hungary does not contain specific employer requirements in the case of an epidemic. While there are no considerations legally applicable specifically for vulnerable staff, the Labor Code provides a general requirement that employers must ensure a safe and healthy working environment for employees.
Links The website of the Hungarian Government
Employer Guide
Subject  Screening measures
Summary

Measures to ensure the safe and healthy working environment for employees must take account of data privacy obligations.

Employer Implications As part of regulations introduced in light of the state of emergency, the employer is entitled to take necessary and justified measures in order to check employees’ state of health at workplaces. However, the Hungarian National Authority for Data Protection and Freedom of Information has issued information on processing data related to COVID-19, making clear that it regards as disproportionate the requirement of screening tests with any diagnostic device (in particular, but not exclusively, with a thermometer) or the introduction of mandatory measurement of body temperature generally involving all employees. Further, that data to be processed must be absolutely necessary and proportionate for the purpose to be achieved. Data controllers must also provide for the transparency of data processing as well as the accuracy and security of the data.
Links National Authority for Data Protection and Freedom of Information
Employer Guide
Subject  Workforce planning
Summary In the event of a government-prescribed closure of a business, salary payments to employees may be withheld. However, where an employer decides (without government determination) to reduce hours due to a shortage of work, salary payments will continue to be due to employees in full.
Employer Implications The Labor Code specifies that in the event of the employer’s failure to provide employment as contracted during scheduled working time (‘down time’), employees are entitled to their base wage plus supplements, unless this is due to unavoidable external reasons. It is anticipated that a government decision that a business must temporarily close based on COVID-19 may be deemed as an unavoidable external reason, meaning that employees are most likely not entitled to any payment for this period. However, payment to employees will be due in full in the event of a reduction of hours due to a shortage of work, unless part-time hours and a corresponding reduction in pay is agreed for a fixed or unfixed period of time (in which case modification of the employment contract is required).
Links Employer Guide

 Contact:

Katalin Varga
Partner
+36 (1) 394 31 21
varga@eversheds-sutherland.hu

Ireland

Subject  Employer duty of care
Summary All employers in Ireland have a duty of care toward staff and should consider what special measures may be required to protect vulnerable employees.
Employer Implications Employers in Ireland have a statutory duty of care toward staff under the Safety Health and Welfare at Work Act, 2005. This means that employers must consider whether their existing arrangements take account of the risk of harm arising from COVID-19. That will entail conducting a risk assessment to identify the likelihood of staff contracting COVID-19 whilst at work and what measures could control that risk. Employers must consider what special measures are required for vulnerable employees (e.g. those over 65 years of age and/or with a long-term medical condition for example, heart disease, diabetes or liver disease). After conducting a risk assessment, employers should implement a proportionate response and review it regularly.
Links Employer Guide
Subject  Screening measures
Summary

Measures taken by employers should take account of employee privacy issues.

Employer Implications Many employers in Ireland have chosen to implement screening measures, such as temperature checks, as a means to safeguard the health and safety of their employees. In determining whether this is an appropriate step to mitigate the risk of COVID-19, employers must take account of their obligations under the GDPR and Data Protection Acts 1988 – 2018, which govern the processing of personal data in Ireland. Guidance has been issued by the Irish Data Protection Commission, which makes clear that measures taken should be necessary and proportionate, having regard to the guidance and directions issued by the government and health services. At present, “employers would be justified in asking employees and visitors to inform them if they have visited an affected area and/or are experiencing symptoms.” However, the “implementation of more stringent requirements, such as a questionnaire, would have to have a strong justification based on necessity and proportionality and on an assessment of risk.” Although many employers in Ireland have chosen to implement general screening of employees, this may not be considered proportionate under data privacy legislation.
Links DPC guidance
Data Protection Implications briefing
Subject 

Workforce planning

Summary Lay-off or short-time are possibilities, with state support available in some circumstances.
Employer Implications Employers in Ireland may use lay-off (i.e. where an employer is unable to provide work for a temporary period) or short-time (i.e. where an employee’s normal weekly pay or hours are reduced, from a full time basis to 3 days per week or less) where it is forced to temporarily close or faces a downturn in work due to the COVID-19 crisis. In both cases, the employer must have a reasonable belief that the lay-off/short-time will be temporary and must provide employees with notice. Whether or not employees are entitled to be paid during a period of lay-off depends on their contract/position implied through custom and practice. The COVID-19 Pandemic Unemployment Payment scheme/Short Time Work Support is available to help employees whose employer is unable to continue to pay them, or who have had their hours reduced. Further, employers are encouraged to try to find ways of continuing to pay their staff and state support is available to employers through the COVID-19 Wage Subsidy scheme, subject to limits and conditions.
Links

Ireland briefing
Wage Subsidy Scheme briefing
Global Comparative Guide

Contact:

Joanne Hyde
Partner
+35 31 66 44 25 2
joannehyde@eversheds-sutherland.ie

Measures taken by employers should take account of employee privacy issues. 

Italy

Subject  Employer duty of care
Summary

Employers in Italy must adopt all necessary measures to ensure the health and safety of its employees, even when employees are working remotely.

Employer Implications An employer is generally legally obliged to adopt all necessary measures to ensure the health and safety of its employees. Employers have a statutory “responsibility to protect workers from exposure to biohazard”. More specific provisions are set out in separate legislation, such as decrees issued to address the COVID-19 outbreak in Italy. Requirements include that until 30 July 2020, masks as well as other PPE such as gloves, jumpsuit and glasses must be provided to employees who are unable to respect the safety distance of one meter in carrying out their tasks. Employers are also required protect the health and safety of their employees even when they are working remotely. Employers should seek to reach agreement with unions and those responsible for health at the workplace prior to implementation of measures and give special consideration to vulnerable workers (such as those with particular health conditions or pregnant workers). In addition, on 14 March 2020, employers and unions entered into a “shared protocol regulating the measures aimed at containing the spreading of COVID-19 in the workplace” (14 March Protocol).
Links Employer Guide
Italy briefing; 14 March Protocol
Avoiding chaos for global employers podcast – Italy
Subject  Screening measures
Summary The 14 March Protocol gives rise to the possibility of temperature checks, however employers should take account of employee privacy requirements.
Employer Implications The 14 March Protocol provides that before entrance onto an employer’s premises, employees/providers/other subjects can be subjected to temperature checking and, if absolutely necessary, the collection of declarations on contacts and movements to identify possible contamination risks. The 14 March Protocol makes reference to data protection principles, and it is clear therefore that such screening must take account of data protection laws and regulations. The Italian Data Protection Authority (Garante per la protezione dei dati personali) has also made clear that data privacy rules should be adhered to during the COVID-19 crisis, including that employers should not directly collect information to identify symptoms/signs of COVID-19, and that such collection should be undertaken by the company doctor (if any) or a doctor of the competent health authority.
Links Italy briefing
14 March Protocol
The Italian Data Protection Authority
Subject  Workforce planning
Summary Currently, employers may not dismiss staff for economic reasons, even where they have seen a downturn in activity. However, state support may be available.
Employer Implications Where possible, employers should give priority to smart working, meaning working remotely from home. Employers may require employees to work remotely, even where this is not set out in individual employment agreements. Since a number of businesses remain suspended, this may be the only way in which such business activity can be performed. In Italy there is currently a statutory ban on dismissals (individual as well as collective) for economic reasons. This applies from 17 March 2020 until 16 May 2020. Only dismissals for just cause are allowed during this period. Employers may apply to the supplementary salary scheme where they have been impacted by reduced business activity as a result of COVID-19 and therefore struggling to pay salaries. The supplementary salary scheme is payable for a period of 9 weeks from 23 February until the end of August 2020.
Links Italy briefing
Global Comparative Guide
Avoiding chaos for global employers podcast – Italy Employer Guide

Contact:

Marcello Floris
Partner
+39 02 892 871
marcellofloris@eversheds-sutherland.it

Valentina Pomares
Partner
+39 02 892 871
valentinapomares@eversheds-sutherland.it

Lithuania

Subject  Employer duty of care
Summary

Employers have a legal duty to ensure appropriate, safe and healthy working conditions.

Employer Implications Employers in Lithuania have a legal duty to ensure appropriate, safe and healthy working conditions, as established in the Law of Republic of Lithuania on Safety and Health at Work. Safety and health at work measures must be funded by the employer. An employee is entitled to refuse to work if there is a risk to the employee’s safety or health, if collective protective measures are not in place or if the employee has not been provided with the necessary PPE. General recommendations from the Ministry of Health include social distancing and use of PPE. Employers should consider, and where appropriate implement, appropriate additional measures, explain those measures to their employees, and explain the steps they are taking to monitor the situation.
Links Lithuania briefing
Employer Guide
Subject  Screening measures
Summary Health screening questionnaires may be used, subject to data privacy requirements, however general temperature screening is unlikely to be legally compliant.
Employer Implications Employers are obliged to maintain a safe place of work and should consider taking appropriate steps to prevent staff who are infected (or who are likely to be infected) from coming into the workplace. This may include, for example, health screening questionnaires for staff members returning to work. In certain sectors, medical checks are required. The Lithuanian State Data Protection Inspectorate has issued guidance on the processing of personal data during the COVID-19 crisis, making clear that while the processing of such data is not in itself prohibited, data controllers must consider and maintain a balance between their own interests, those of third parties and data subjects. Further, that they must take account of the requirements of the GDPR and that such requirements may be incompatible with measures such as the collection and processing of medical certificates and processing of personal temperature readings or other evidence of illness.
Links Lithuania briefing
Lithuanian State Data Protection Inspectorate Notice
Subject Workforce planning
Summary Employees can be put on idle time where the employer cannot provide them with work due to the COVID-19 crisis, however they must continue to be paid at least the national minimum monthly salary. Subsidies may be available to assist employers, subject to conditions.
Employer Implications If an employer cannot provide employees with work due to the quarantine and the state of emergency declared by the Government of the Republic of Lithuania, the employer may put employees on idle time where the employee cannot perform the agreed work remotely or where the employee does not agree to perform a different job offered. Employees remain employed during idle time and the employer must pay them a monthly salary of at least the national minimum monthly salary (currently gross 607 EUR, pro-rated for part-time employees), however state subsidies may be available. Employers may choose from two subsidy options: 1) subsidy of 70% of idle time pay, but not to exceed gross 910,5 EUR/month for full-time employees; or 2) subsidy of 90% of idle time pay, but not to exceed 607 EUR/month for full-time employees. The subsidy is paid (until the end of the state of emergency or quarantine, not to exceed three months) subject to the condition that the employer keeps at least 50% of employees employed for at least three months after the end of payment of the subsidy. If an employer dismisses more than 50% of employees within three months after the subsidy is ceased (subject to certain exceptions), the employer will be prohibited for a period of 12 months from participation in the implementation measures of supported employment, subsidizing of job creation / adaptation and implementation of local employment initiative projects.
Links

Global Comparative Guide
Employer Guide

Contact:

Jonas Saladzius
Partner
+370 5 239 2391
jonas.saladzius@eversheds.lt

Netherlands

Subject 

Employer duty of care

Summary Employers are responsible for the physical and psychological health and safety of its employees. Employers should assess the risks faced by employees and visitors and implement measures to mitigate those risks, paying particular attention to vulnerable staff (such as those who are pregnant; with impaired immunity; on secondment or working away from home).
Employer Implications
In Dutch law, an employer is responsible for the physical and psychological health and safety of employees in the workplace and in this respect is expected to give instructions and take safety measures. Employer measures should therefore include monitoring and following advice and guidance from relevant authorities such as the Dutch National Institute for Public Health and the Environment, providing information to employees and adjusting workplace arrangements and policies to mitigate risks.
Links

Employer Guide
Dutch National Institute for Public Health and the Environment
Netherlands briefing

Subject Screening measures
Summary Asking about symptoms and/or temperature screening by employers may only take place if the symptoms and/or temperature result information are not recorded.
Employer Implications

The GDPR governs the processing of personal data. Measures taken to mitigate any workplace risk as a result of COVID-19 should therefore take account of the requirements of the GDPR, including ensuring that any processing of data is necessary and proportionate. Employers may be justified in asking employees to inform them if they are experiencing symptoms. However, the symptoms may not be recorded. If the answer to this question indicates a risk of infection, then employees can be asked to visit the company doctor. In so far as temperature testing is concerned, whether this is permitted depends on whether the actual temperature is recorded by the employer. If not recorded, then taking a temperature is allowed. If, however, temperatures of employees are recorded, this is only allowed if carried out by or executed under the authority of a medical practitioner.

Links Netherlands briefing
Subject  Workforce planning
Summary It is not possible to unilaterally place employees on unpaid leave or reduce working hours. However, employers may be able to access state support through the NOW scheme to pay employees’ salaries.
Employer Implications

In the event of a downturn in work, it is not possible to unilaterally place employees on unpaid leave or apply for a statutory reduction of working hours. However, employers who expect to suffer a loss of revenue of at least 20% during a consecutive period of 3 months between 1 March and 31 July 2020 may be able to utilize the Temporary Emergency Measure for Job Retention (Tijdelijke noodmaatregel overbrugging voor werkbehoud or “NOW”) scheme. Under that scheme, employers can apply for a contribution to wage costs for March, April and May 2020 of up to 90% of the total salary for its employees. There are a number of requirements of the scheme, including that employers continue to pay their employees 100% of their salary if possible and refrain from filing an application to request a dismissal permit for business-economic reasons between 17 March 2020 and 31 May 2020.

Links Netherlands briefing
Global Comparative Guide
Employer Guide

Contact:

Ingrid van Berkel

Wijnand Blom

Partner Partner
+31 10 24 88 04 6 +31 20 5600 608
ingridvanberkel@eversheds-sutherland.com wijnandblom@eversheds-sutherland.nl

Poland

Subject  Employer duty of care
Summary Employers must seek to ensure the health, safety and welfare at work of their employees.
Employer Implications Employers in Poland have a legal duty to ensure, so far as is reasonably practicable, the health, safety and welfare at work of their employees and anyone else who may be affected by the employer’s business, including visitors and members of the public. The Labor Code requires employers to “protect health and life of employees by ensuring safe and hygienic working conditions for them” . This duty includes suitable and sufficient assessment of the risks to the health and safety of employees and anyone else who may be affected by the employer’s business, taking account of guidance issued by the government, the Chief Sanitary Inspector and the State Labor Inspection. As a minimum and where possible (if not possible other personal protection measures must be provided), all employers are required to organize workspaces in such a way that will guarantee employees at least 1.5 meters space between them, require employees to wear protective gloves and to have access to disinfectants. Further, there is an obligation on individuals to cover their mouth and nose when in a public place, which extends to employees that have direct contact with third parties and shared office areas of a workplace.
Links Chief Sanitary Inspector website
Poland briefing
Employer Guide
Subject  Screening measures
Summary Screening measures are permitted, subject to compliance with GDPR.
Employer Implications Employers are allowed to implement measures to screen visitors entering their premises, for example requiring them to certify that they have not recently visited a high risk area, have not contacted any person infected with COVID-19 and do not have fever or other COVID-19 symptoms. Any measures taken should however comply with the GDPR. The Polish DP Authority has made clear that GDPR should not be used as an obstacle to the implementation of activities in connection with COVID-19 prevention. However, the processing of personal data should meet the general rules of the GDPR, in particular ensuring necessity and proportionality.
Links Poland briefing
Polish DP Authority
Subject  Workforce planning
Employee Capital Plans
Summary It is generally not possible to reduce worker’s hours or pay, unless agreed with trade unions or employee representatives. However, this may be possible under new emergency law in some circumstances and employers may be able to access state support.
Employer Implications Employers have a number of options where there is a turnover decrease caused by COVID-19, including shutdown of a site (demurrage), reduction of working time and change in the working time system to a balanced system. All options generally require agreement with trade unions or, in their absence, with employees’ representatives (individual employee consent is not required). Where agreement is reached, individual terms of employment are suspended for the agreed period. However, employers who suffer a decrease in sales of goods or services in certain specified volumes or values, have the additional option of reducing the working time and pay of employees, subject to limits and conditions. State support may be available through the Guaranteed Employee Benefits Fund.
Links Poland briefing
Global Comparative Guide
Employer Guide

Contact:

Ewa Łachowska-Brol
Partner
+48 22 50 50 79 7
ewa.lachowska-brol@eversheds-sutherland.pl

Romania

Subject  Employer duty of care
Summary

Employers must seek to ensure the health, safety and welfare at work of their employees.

Employer Implications Romanian employers have a legal duty to ensure, so far as is reasonably practicable, the health, safety and welfare at work of their employees and anyone else who may be affected by the employer’s business, including visitors and members of the public. Regulations require employers “to carry out and be in possession of a risk assessment for occupational safety and health,” for the employees and for anyone else who may be affected by the employer’s business. Employers should assess the risks faced by their employees and visitors and implement measures to mitigate those risks, taking account of guidance from the World Health Organisation, the Ministry of Health, the Ministry of Foreign Affairs, the National Institute for Public Health and the Government.
Links Romania briefing
MH guidance
MAE guidance
NIPH guidance
Government guidance
Employer Guide
Subject  Screening measures
Summary Screening measures must be approached with caution. General COVID-19 screening exercises may not be carried out and testing in suspected cases of COVID-19 may only be carried out by medical professionals.
Employer Implications Any screening of employees, whether in the form of asking employees whether they have travelled to a high-risk area or temperature testing, should be approached with caution. The Romanian Data Protection Authority has given guidance on the processing of health related data for COVID-19 purposes, making clear that there needs to be legitimate grounds for such processing. Even where there is a legitimate ground, other data privacy requirements should be complied with, such as ensuring an adequate level of security and informing the data subject of the purpose of the processing. Employers are prohibited from carrying out medical checks on employees – only a medical professional may assess the health of an employee. Further, COVID-19 tests may only be carried out for suspected cases of COVID-19 infection and not as a general screening exercise.
Links Romania briefing
Subject  Workforce planning
Summary It is generally not possible to reduce worker’s hours or pay, unless agreed with trade unions or employee representatives. However, this may be possible under new emergency laws in some circumstances and employers may be able to access state support.
Employer Implications Employers have a number of options where there is a turnover decrease caused by COVID-19, including shutdown of a site (demurrage), reduction of working time and change in the working time system to a balanced system. All options generally require agreement with trade unions or, in their absence, with employees’ representatives (individual employee consent is not required). Where agreement is reached, individual terms of employment are suspended for the agreed period. However, employers who suffer a decrease in sales of goods or services in certain specified volumes or values have the additional option of reducing the working time and pay of employees, subject to limits and conditions. State support may be available through the Guaranteed Employee Benefits Fund.
Links Romania briefing
Global Comparative Guide
Employer Guide

Contact:

Mihai Guia
Partner
+40 21 31 12 56 1
mihaiguia@eversheds.ro

Russia

Subject  Employer duty of care
Summary

Employers must seek to ensure the health, safety and welfare at work of their employees.

Employer Implications Employers are under a statutory duty to ensure that occupational health and safety regulations are met. Employers should therefore consider whether their existing arrangements for protecting staff and visitors take account of the risks arising from COVID-19 and they should regularly re-assess those risks as the situation develops or when further guidance is issued from the Government of the Russian Federation, the state agency on supervision of sanitary protection of population or local governments in the Russian regions. Employers should also consider providing PPE to their staff, such as protective masks, gloves and hand sanitizers, with additional measures for staff who are at a higher risk of exposure to COVID-19.
Links Russia briefing
Employer Guide
Subject  Screening measures
Summary

Screening (travel/health questions or temperature screening) is generally permitted in Russia in the current circumstances.

Employer Implications Employers may consider implementing measures to screen employees on entry to their premises, for example requiring them to certify that they have not recently visited a high risk area or measurement of employees’ body temperature. Employers can also request staff to report if they are infected or have been exposed to infection. In certain regions, it is a requirement that employers measure employees’ body temperature and exclude those who have a fever from attending work. The Federal Service for Supervision of Communications, Information Technology, and Mass Media (Roskomnadzor) has clarified that in the case of measuring body temperature to detect COVID-19 in the workplace, consent from employees is not required, although it recommends erasing the results within 24 hours of collection. However, employees must be duly notified that they will be subject to temperature measurements.
Links Russia briefing
Federal Service for Supervision of Communications Information Technology, and Mass Media
Subject  Workforce planning
Summary

In the event of a reduction in work, downtime may be utilized as a way of reducing salary costs. Alternatively, with employee consent, unpaid leave or reduced working time may be applied.

Employer Implications There is no concept of furlough under Russian law, although employees can be put on downtime (i.e. a temporary suspension of work for economic, technological, technical or organizational reasons). However, employees in this situation will still be entitled to some pay, the amount determined in accordance with the Labor Code of the Russian Federation. Downtime for reasons beyond the control of the employer and employee is paid in the amount of at least two-thirds of the tariff rate salary (official salary), calculated in proportion to the downtime. Unpaid leave or reduced working time are also options, however require the employees’ consent.
Links

Global Comparative Guide
Russia briefing
Employer Guide

Contact:

Victoria Goldman
Partner
+78 12 36 33 37 7
victoria.goldman@eversheds-sutherland.ru

Spain

Subject  Employer duty of care
Summary Employers have a legal duty to ensure, so far as is reasonably practicable, the health, safety and welfare at the workplace of their employees.
Employer Implications Employers (in coordination with the prevention service) in Spain have a legal duty to ensure, so far as is reasonably practicable, the health, safety and welfare at the workplace of their employees and anyone else who may be affected by the employer’s business, including visitors and members of the public. Regulations require employers to undertake a suitable, proportionate and sufficient assessment of the risks to the health and safety of employees and anyone else who may be affected by the employer’s business. This duty is a continuing one. As employees return to work under a loosening of lockdown restrictions, employers must provide appropriate protective equipment and ensure employees have space to be at least two meters apart.
Links Spain briefing
The Health Ministry
Employer Guide
Subject  Screening measures
Summary Health screening questionaires and temperature testing may be used only in limited circumsrtances and subject to data privacy requirements.
Employer Implications Employers are obliged to maintain a safe place of work and should consider taking appropriate steps to prevent staff who are infected (or who are likely to be infected) from coming into the workplace. This may include, for example, health screening questionnaires (without asking for special protection data or private and confidential information) for staff members returning to work. In terms of temperature testing, this may only be carried out in limited circumstances. Employees’ express freely given and informed consent is required for such testing and the circumstances must be such that there is a confirmed case of an infection in the workplace or a risk of infection and employees have been informed of the reason for the checks. The Spanish Data Protection Agency has highlighted that if health data (for instance, employee temperature checks or reporting of other COVID-19 symptoms) is processed for preventing the spread of the pandemic, this may be legitimate if it is pursuant to a legal obligation and for performing a task in the public interest in connection with employers’ obligation to care for the health of employees. However, employers must ensure the processing is necessary and that obligations under both GDPR (including, for example, transparency and security) and employee health and safety laws are met.
Links Spain briefing
Spanish Data Protection Agency
Employer Guide
Subject  Workforce planning
Summary Employers can temporarily suspend employment contracts due to objective reasons by following a specific formal statutory procedure. During such suspension, employees are entitled to unemployment benefit, paid by the Social Security.
Employer Implications Many employers in Spain are workforce planning as a result of COVID-19, implementing measures such as offering for annual leave to be taken, other paid leave, unpaid leave and home working. Employers can temporarily suspend employment contracts due to objective reasons (economic, organizational, productive, technical or force majeure) by following a specific formal statutory procedure. If that temporary suspension is approved by the Labor Authority (in cases of force majeure) or an agreement is reached with the employees´ legal representatives (in cases of objective grounds), the employees are entitled to unemployment benefit, paid by the Social Security. The employer must pay Social Security contributions, although exemptions may apply in certain circumstances.
Links Spain briefing
Global Comparative Guide
Employer Guide

Contact:

Jacobo Martinez
Partner
+34 91 429 43 33
jmartinez@eversheds-sutherland.es

Sweden

Subject  Employer duty of care
Summary Employers in Sweden have a legal duty to ensure, so far as is reasonably practicable, the health, safety and welfare at work of their employees.
Employer Implications General provisions on “systematic work environment management” from the Swedish Work Environment Authority require employers to investigate, carry out and follow up on activities in such a way that ill-health and accidents at work are prevented and a satisfactory working environment is achieved. This duty is a continuing one and assessments must be recorded. Employers should therefore assess the risks faced by their employees and implement measures to mitigate those risks, paying particular attention to vulnerable staff (such as those who are pregnant; with impaired immunity; on secondment or working away from home). Special provisions from the Swedish Work Environment Authority are in place, including in respect of pregnant employees, that contain information on what employers must consider when making their risk assessment.
Links

Sweden briefing
The Swedish Public Health Agency webpage
Employer Guide

Subject  Screening measures
Summary Health screening and temperature checks are unlikely be considered proportionate.
Employer Implications The processing of employee data, including health data, is governed by the GDPR. The data arising from health screening and temperature checks is sensitive personal data and it is generally prohibited to process such data under the GDPR. Although there are no explicit rules on temperature checks under Swedish employment law, any measures taken by the employer must, furthermore, be proportionate and necessary. Where there are other, more adequate methods for ensuring a safe work environment and reducing the risk for spreading the virus, it is unlikely that health screening and temperature checks would be considered proportionate. For the purpose of ensuring the health and safety of other employees it is, for example, sufficient to ask employees to work from home if they experience symptoms or suspect that they may be infected.
Links
A court can declare a termination of
employment before the retirement age
invalid and hold the employer liable for
damages.

Sweden Data Protection Authority

Subject  Workforce planning
Summary Employees can be laid-off or put on short-time, however will remain entitled to salary.
Employer Implications

In case of, for example, a temporary shut-down of a site, employees can be laid-off (i.e. temporarily released from performing any work). However, in case of a temporary lay-off, employees are entitled to their regular salary and employment benefits as if they had been allowed to continue to work. Generally, lay-off should not be used where the situation is likely to be long-term and where termination of employment due to redundancy is a more appropriate option. This must be assessed on a case-by-case basis.

The Swedish government has introduced a number of measures in response to the COVID-19 pandemic and one of these measures is state funding for shortening of working hours by 20, 40 or 60%. In simplified terms, the financial support from the state amounts to three quarters of the costs for shortening of working hours. Employers must continue to pay the employees their regular salary minus the applicable amount in salary reduction set out by the government (4-7.5%, depending on how much the working hours have been reduced). To be able to apply for financial support, a number of requirements must be met. One of these requirements it that the employer must enter into written agreements for shortening of working hours with at least 70% of the workforce (unless the company is bound by a CBA, in which case other rules apply).

The government has proposed a bill which will allow employers to reduce working hours by 80% under the above scheme (and not just 20, 40 or 60% which is the current rule) during May, June and July 2020. The applicable percentage in salary reduction for 80% shortening of working hours is 12%. This bill will likely enter into force on 1 June 2020.

Links
A court can declare a termination of
employment before the retirement age
invalid and hold the employer liable for
damages.

Sweden briefing
Global Comparative Guide
Employer Guide


Contact:

Per Westman
Partner
+46 85 45 32 28 8
perwestman@eversheds-sutherland.se

Switzerland

Subject  Employer duty of care
Summary Employers must ensure, so far as is reasonably practicable, the health, safety and welfare at work of their employees, with additional requirements for vulnerable employees.
Employer Implications The main obligation for employers is to ensure, so far as is reasonably practicable, the health, safety and welfare at work of their employees and anyone else who may be affected by the employer’s business, including visitors. Specific obligations apply in different industries. The employer has a particular protection duty towards vulnerable staff (any individual who is 65 years old or older or who has an underlying health condition like cancer, diabetes, high blood pressure, cardiovascular diseases or chronic respiratory diseases or who is immunocompromised), who must be offered to work from home as much as possible. If home office work is not possible due to operational reasons (neither for the performance of the regular tasks nor by assigning different tasks), vulnerable employees are allowed to work on-site in their original activity with additional protections depending on whether the workplace enables the employee to keep sufficient distance from other individuals (at least two meters). If close contact with other individuals cannot be avoided, the employer must provide sufficient PPE (gloves, masks, disinfectant, protection shield, etc.) and implement all possible technical and organizational measures to minimize close contact with other individuals in terms of frequency and duration.
Links Swiss briefing
Employer Guide
Subject Screening measures
Summary Health questions can be asked in response to an identified risk, subject to data privacy requirements.
Employer Implications If an employer is aware that an employee has recently returned from a high risk region, health questions on a high level are acceptable in order to protect other employees. The processing of employee data, including health data, is governed by the Federal Act on Data Protection.
Links The Federal Data Protection and Information Commissioner
Subject Workforce planning
Summary

Employees can be put on short-time or laid off, however full salary will generally still be due, unless a reduced working hours indemnity is applicable. Emergency economic aid and reduced working hours compensation for the payment of salaries may be available.

Employer Implications A company has the possibility to apply for reduced working hours compensation from the unemployment insurance if the company has to temporarily reduce hours due to economic reasons by at least 10%. This also applies in case of a shut down. The reduction of working hours needs to be unavoidable and the purpose must be the preservation of jobs. Furthermore, the employees need to consent to reduced working hours compensation. The compensation covers 80% of the eligible salary for a maximum of twelve months during a two year period. However, the working hours reduction may not exceed 85% during more than four months. If the reduced working hours compensation is granted, it will be paid in arrears. This means that the company has to pay the salary to the employees in advance and will be refunded by the unemployment insurance.
Links Global Comparative Guide
Partial unemployment briefing
Employer Guide

Contact:

Peter Haas
Partner
+41313287530
peter.haas@eversheds-sutherland.ch

UK

Subject  Employer duty of care
Summary

Employers must ensure, so far as is reasonably practicable, the health, safety and welfare at work of their employees.

Employer Implications Employers in the UK have a legal duty to ensure, so far as is reasonably practicable, the health, safety and welfare at work of their employees and anyone else who may be affected by the employer’s business, including visitors and members of the public. Regulations require employers to undertake a “suitable and sufficient assessment of the risks to the health and safety” of employees and anyone else who may be affected by the employer’s business. Employers should therefore consider whether their existing arrangements for protecting staff (whether working on-site, remotely or returning to work) and visitors take account of the risks arising from COVID-19 and they should regularly re-assess those risks as the situation develops or new guidance is issued. This would include conducting risk assessments to identify COVID-19-releated risk and appropriate measures to control that risk.
Links UK briefing
NI briefing
Podcast
Employer Guide
Subject Screening measures
Summary

Measures taken by employers should take account of employee privacy issues, including guidance issued by the Information Commissioner’s Office (ICO).

Employer Implications Employers should implement policies to minimize the risk of employees contracting COVID-19 as a result of working and may consider, for example, health screening questionnaires for staff members returning from abroad and possibly temperature testing. If personal data is processed in connection with such screening measures, employers will need to ensure they comply with applicable data protection laws and regulatory guidance – the assessment will need to be conducted on a case by case basis. Among other things, the employer will need to have an appropriate lawful basis for the processing (noting that health related information is special category data, for which additional safeguards apply) and ensure that the processing is necessary and proportionate. Other data protection principles, including data minimization and purpose limitation will also need to be factored in. To date, the ICO has not issued guidance specifically on employers health testing for COVID-19 symptoms. However, its guidance acknowledges that employers have an obligation to ensure the health and safety of employees, as well as a duty of care, and that data protection law doesn’t prevent them from doing this. The ICO has also made clear that it is there to help organizations and that it will act proportionately, balancing the benefit to the public of taking regulatory action against the potential detrimental effect of doing so, during the COVID-19 crisis.
Links UK briefing
NI briefing
ICO Guidance 12 March
ICO guidance for controllers
ICO regulatory approach document
Data Protection briefing UK
Subject 

Workforce planning

Summary

In the case of a downturn in activity resulting from COVID-19, employers may consider reducing hours, lay-off, furlough or redundancies. State support may be available in the case of furlough under the UK Coronavirus Job Retention Scheme (CJRS).

Employer Implications Where an employer has no contractual entitlement to impose measures such as reduced hours or lay-offs, any such measures should be agreed with employees (and, where relevant, recognised unions) in advance to avoid legal risk. Further, even where lay-off or reduced hours is pursuant to an existing contractual right or is with fresh agreement, a trigger point could be reached which would entitle employees to leave and claim redundancy payments. This is a complex area and careful planning will be key to ensure that the intended cost savings can be effectively realized. The CJRS enables employers to access government funds, via HMRC, to reimburse them for specified employment costs for certain “furloughed” workers who are temporarily not required to work as a result of COVID-19. However, changing the status of staff to “furloughed” remains subject to existing employment law. Employers accessing the CJRS will be able to claim a grant to cover up to 80% of workers’ wage costs, up to a cap of £2,500 per month.
Links

UK briefing
NI briefing
Coronavirus – Job retention scheme - UK
Global Comparative Guide
Podcast

NB: This update covers England, Wales and Scotland. It does not cover developments that apply only in Northern Ireland

Contact:

Diane Gilhooley
Partner
+44 161 831 8151
dianegilhooley@eversheds-sutherland.com

Middle East Global Update Banner

Qatar

Subject  Employer duty of care
Summary

Employers have legal obligations to protect the health of staff, including to take necessary precautionary measures in order to protect workers from any disease that may result from the workplace and to take necessary measures to ensure the hygiene of workplaces.

Employer Implications

Under Qatari Labor Law N.14 of 2004 (“Labor Law”), employers have a statutory duty to: inform workers of any risks related to their work and the related preventive measures to avoid any such risks; provide instructions in connection with health measures aimed at protecting them of any risks to which they may be exposed in the workplace; take necessary precautionary measures to protect against disease that may result from work carried out at the workplace and to take necessary measures to ensure the hygiene of workplaces. Further, under Qatari Ministry of Administrative Development, Labor and Social Affairs (MADLSA) guidelines, preventive measures must be taken by employers to counter the spread of COVID-19,including limiting the number of daily working hours to six (between 7am - 1 pm); informing workers of personal hygiene basics; treating sewage and intensifying cleaning at workplaces comprising high numbers of workers; providing disinfecting and disposable wipes; restricting gatherings to the minimum necessary and adopting social distancing wherever necessary. MADLSA is operating inspections to ensure workplace arrangements are compliant with applicable laws and regulations.

Links

http://www.diwanamiri.gov.qa/
http://www.gco.gov.qa/
http://www.adlsa.gov.qa/
Employer Guide

Subject  Screening measures
Summary

Taking temparatures and checking symptoms is currently a requirement at workplaces in Qatar.

Employer Implications

MADLSA guidelines include implementing preventive measures such as using “thermometer guns” in order to detect the elevated body heat of workers, and the duty to monitor any respiratory symptoms related thereof. MADLSA guidelines also invite private sector companies to make use of clinics available to the Ministry in order to provide health checks, diagnosis and any other protective measures for the most vulnerable staff with chronic diseases (i.e. diabetes, heart diseases, respiratory illnesses and others).

Links

Employer Guide

Subject  Workforce planning
Summary

Restrictions on workplace worker numbers and hours are currently in place. There is no concept of temporary lay-off and businesses facing economic difficulties may only apply permanent lay-off in respect of employers on unlimited duration contracts and subject to complying with notice requirements.

Employer Implications

Whilst many businesses, sectors and employees are excluded from its scope, Qatar’s Council of Ministers has directed that all workers who are required to be present at the workplace must not work for more than six daily hours. Employees remain entitled to full pay. Further, that the number of workers present at the workplace of governmental agencies and the private sector must be limited to 20% of the total number of workers, whilst the other 80% are required to work from home.

MADLSA has issued instructions applying to both employers and workers which emphasize the need for cooperation between employers and workers in order to mitigate losses and to support the sustainability of businesses and employment in the long-term. Accordingly, the MADLSA has requested that businesses that have not ceased to operate due to precautionary measures continue to pay basic salaries and other allowances in accordance with existing arrangements. For businesses that have ceased to operate, workers’ agreement should be obtained for any application of unpaid leave, annual leave, the reduction of working hours or the temporary reduction of salaries (with restrictions on what can be agreed).

Under any employment agreement subject to Labor Law, there is no concept of “temporary lay-off”. Employers may resort to permanent lay-offs (i.e. termination of employment) only in the case of unlimited duration contracts and subject to complying with notice requirements, notably paying salaries for the corresponding notice period and any related benefits. Under the instructions issued by MADLSA, if any employment contract is terminated during the current crisis situation, the employer shall remain liable for providing the worker with food and housing (or the financial equivalent) until the employee is able to return to the employee’s home country at the employer’s expense.

Links

Employer Guide

Contact:

Dani Kabbani
Partner
+97 4 44 02 59 11
danikabbani@eversheds-sutherland.com

UAE

Subject  Employer duty of care
Summary

Under UAE Labor Law, employers have a general legal obligation to provide appropriate safety measures to protect its workers from the hazards of occupational injuries and diseases that may occur while they are at work. Further legislation has been issued in light of COVID-19 which sets out the appropriate safety measures employers must take to protect its workers from COVID-19.

Employer Implications

Ministerial Resolution No. 281 of 2020 issued by the Ministry of Human Resources and Emiratization (MOHRE) on 26 March 2020, provides that employers in certain sectors must minimize the number of workers physically present at their premises to the minimum necessary for business processes, subject to a maximum cap of 30% of the total number of workers. It also provides that priority for remote working arrangements must be given to the following: pregnant women, workers who are over fifty-five years old, people with disabilities, workers with respiratory or chronic diseases and workers with children in ninth grade or below. Further, Additional requirements also apply, including ensuring that when transporting workers to and from the workplace, capacity of vehicles does not exceed 25% of vehicle seating and safe distancing measures are maintained.

Links

UAE podcast
Employer Guide

Subject  Screening measures
Summary

Taking temparatures and checking symptoms is currently a requirement at workplaces in UAE.

Employer Implications

There are specific screening requirements which apply across all industries, which include providing screening points at entrances and taking temperatures and checking symptoms twice per day. Suspected cases are prohibited from going to work or entering labor accommodation and must be referred to the relevant health authorities.

Links

UAE podcast
Employer Guide

Subject  Workforce planning
Summary

Employers should progressively take workforce planning steps and make use of the Virtual Labor Market where it has employees surplus to current demand.

Employer Implications

Ministerial Resolution No. 281 of 2020 issued by the Ministry of Human Resources and Emiratization (MOHRE) applies to MOHRE private sector registered establishments and applies in respect of all non-UAE national employees. It provides that employers faced with economic difficulties as a result of the COVID-19 crisis should progressively take workforce planning steps, namely implement remote working; grant paid leave; grant unpaid leave (with consent); temporary salary reduction (with consent); and permanent salary reduction (with consent and MOHRE approval). A “Virtual Labor Market” has also been established to enroll employees who are otherwise surplus to an employer’s current business requirements, however employers remain responsible for employees’ basic rights.

Links

UAE podcast
Employer Guide

Contact:

Geraldine Ahern
Partner
+9712 494 3632
geraldineahern@eversheds-sutherland.com

North America Global Update Banner

USA

Subject 

Employer duty of care

Summary Employers must provide a workplace that is free from recognized hazards that are causing or are likely to cause death or serious physical harm.
Employer Implications Employers in the US have a general duty to furnish to each of their employees a workplace that is free from recognized hazards that are causing or are likely to cause death or serious physical harm. Therefore, when assessing risks to employee health and safety, employers should consider the vulnerabilities of individuals as well. Employers should, therefore, consider whether their existing arrangements for protecting staff and visitors take account of the risks arising from COVID-19 and they should regularly re-assess those risks as the situation develops or new guidance is issued by the government, the Centers for Disease Control and Prevention (CDC), OSHA, or the WHO. This would include conducting risk assessments to identify the likelihood of staff contracting COVID-19 whilst at work and appropriate measures to control that risk. The CDC now recommends wearing cloth face coverings in public settings where other social distancing measures are difficult to maintain, in response to which some states now legally require employers to provide employees with face coverings to wear when in direct contact with customers or members of the public.
Links

Podcast-Employers' response to the coronavirus
US briefing
Employer Guide

Subject Screening measures
Summary Health screening questionnaires are permissible, temperature and medical examination may also be permissible.
Employer Implications

In maintaining a safe place of work, employers should consider taking appropriate steps to prevent staff who are infected (or who are likely to be infected) from coming into the workplace. This may include, for example, health screening questionnaires for employees. Employers may ask employees about COVID-19 symptoms and if they have any underlying conditions that make them vulnerable to COVID-19 (without trying to identify the specific condition). However, employers must be careful to avoid unlawful discrimination, which might arise if, for example, employees with a particular nationality or ethnicity are singled out for checks. Further, taking an employee’s temperature is permissible; however, employers have a duty to keep such information confidential.

Links US briefing
Podcast: Employers' response to the coronavirus — Part II: Application and interview process
Subject Workforce planning
Summary Temporary changes to working arrangements, layoffs or furloughs may be applied in the case of business closures or downturn in work. State aid may be available.
Employer Implications

Permitted workforce planning actions will depend on the terms of the written agreement with staff. Generally, employment in the US is “at will” and the company will be permitted to change the terms and conditions of employment prospectively without requiring consent of the employees. Such changes could include temporary layoffs or furloughs. Normal state benefits will apply in relation to temporarily laid-off staff. Financial assistance may also be available to employers under the Coronavirus Aid, Relief, and Economic Security Act of 2020 (the CARES Act) and other assistance initiatives.

Links US briefing
Global Comparative Guide
Podcast: Employers' response to the coronavirus — Part II: Application and interview process
Employer Guide

Contact

Scott McLaughlin
Partner
+11 71 34 70 61 55
scottmclaughlin@eversheds-sutherland.com