Employment Law: General advice applicable to employers, businesses and companies in view of COVID-19.
The first coronavirus case was detected in Kenya on the 13th of March 2020.The Office of the President has issued a mandatory directive suspending all public gatherings with immediate effect.
It is a new disease which is threatening the very fabric of all communities and societies globally.It raises a number of questions regarding the legal relationship between an employer and an employee.
For Kenya employers, bespoke legal advice should be sought as each employer and company have specific requirements for their employees.The following three areas of general advice are applicable for all employers and companies in Kenya.
1. Employee entitlement.
2. Health and safety of employees.
3. Data protection regulations and health data of employees.
1. Employee entitlement.
Section 30 of the Employment Act states an employee is entitled to sick leave after two consecutive months of service with his employer of not less than seven days with full pay and thereafter to sick leave of seven days with half pay. An employer has the right to ask for a sickness certificate of sickness by medical practitioner.An employee must notify as soon as is reasonably practicable of the sickness to the employer.
However, it may not always be possible to obtain a sickness certificate. For example, if an employee is feeling unwell due to coronovirus as he may not be allowed or advisable to visit to medical professional, except for designated public health surgeries where to obtain a certificate may take several days given the current situation. In such circumstances, it may not be reasonable or feasible for an employer to ask for a medical certificate.The employer also needs to decide on what happens in the instance if an employee has not worked for two consecutive months.In this instance, an employer will need to check with their HR department if there is a written agreement for discretionary sick leave. The employer may need to make exceptions for certain employees.
Unless it is stated otherwise in the employment contract, an employee taking time off for self-isolation according to government guidance will most likely be on basis of full pay by the employer. Should the employee remain away from the company without notifying or discussing with the employer, this may be good reason to consider such leave to be unpaid, depending on the circumstances.
2. Health and safety of employees.
Employers must be careful not to knowingly allow, who has been advised to self-isolate to attend their place of work or allow them to come into contact with other employees, as it may be in breach of the employer’s health and safety duties under The Occupational Safety and Health Act. This is more so where there are some employees vulnerable to infection who may have underlying health conditions.
Where an employee has been advised to self-isolate but declines to do so, this may give rise to suspension of the employee as this is widely detrimental to all employees. Employers must bear in mind they cannot summarily dismiss the employee as coronavius can be termed as a temporary ‘disability’ under the Employment Act. Section 46(g) of the Employment Act states that dismissal for “HIV status or disability” is not a fair reason for dismissal or for the imposition of a disciplinary penalty.
3. Data protection regulations.
Under section 46 of the Data Protection Act, health data is ‘sensitive data’. Employers must be careful that no data of an employee who is suffering from coronavirus is released except in accordance the strict principles of the Data Protection Act. For example, releasing any form of data (ID, date of birth) which will identify an individual, directly or indirectly, will who is suffering from coronavirus may be a breach of the Data Protection Act. An exception to the rule is where it the data is released to public health officials as it is necessary for reasons of public interest.
Breach of data protection principles carry a fine of up to KES 5 million or 1% annual turnover – whichever is lower.
Amit Gadhia
Advocate of the High Court of Kenya.
Solicitor of England and Wales (practicing, freelance).
Certified International Privacy Professional-Europe (CIPP/E).
Certified Company Secretary (Kenya).
Corporate Governance Professional (ICSA – UK).
