The Covid-19 pandemic has significantly altered the global workplace and employer-employee relations. With the easing of restrictions in a rising corona crisis and the highest numbers recorded yet, it is important for employers to think carefully about formulating plans for resuming on-site operations in a safe and compliant manner while also refocusing on achieving business goals. Specially with the flouting of social distancing recommendations leading up to Eid-ul-Fitr, concerns about transmission of Covid-19 remain pivotal, and employers must act with caution to ensure employees' health and safety, both from a legal perspective and to ensure that the workforce has confidence that the site can be reopened safely.
As employers bring back workers from layoffs and work-from-home arrangements, they need to consider the size and layout of their facilities, the level of interaction with public, Covid-19 activity in the geographic area and other health and safety issues and laws.
As they navigate uncharted territory, the three questions employers should ask themselves are: (1) What governmental or other health and safety guidance is available? (2) What more should be done and how to prepare for inevitabilities? (3) What lessons can be learnt from the recent RMG experience of a month ago?
GOVERNMENTAL GUIDANCE. The Government, in easing the general holidays after a 66-day hiatus has advised resumption of operations of all government, semi-government and autonomous offices in a limited capacity and eased the prohibition on public movement until June 15 (by an official notification dated May 28 , 2020).
The notification provides that employees who fall in the vulnerable category, are sick or pregnant will not be required to attend office. For all others, wearing masks is mandatory at all times and also following the 12/13-point directives issued by the Ministry of Health. Relevantly, these directives require, amongst others, for - (i) offices and office vehicles to be disinfected before reopening; (ii) conducting temperature checks on employees using thermal scanner or thermometers; (iii) wearing masks - single use of surgical masks; (iv) regular sanitising; (v) maintaining social distance in cafeterias, office vehicles and overall physical distance; (vi) frequent hand washing; (vii) monitoring employees follow health guidelines; (viii) displaying directives conspicuously in the workplace; (ix) taking steps to place affected employees in isolation or quarantine.
The notification, therefore, imposes on employers a duty to ensure, so far as is reasonably practicable, the health and safety at work of employees. But what more needs addressing?
ADDITIONAL MEASURES AND AN OPEN MINDSET: Employers who are considering reopening will be faced with a dramatically different workplace and a worried workforce. Presently, although there is no Government guidance of 'phasing' in Bangladesh, employers may find it necessary to open their businesses in phases by staggering the timeline for returning employees to work.
In adapting workplaces, businesses located in office buildings must consider things such as how employees can maintain social distancing while taking the elevator and how long those elevator lines will be. Larger employers may consider forming "teams" of employees to come into work during alternating days or weeks.
But despite a company's best planning efforts, employers should still anticipate that a number of employees may be reluctant or may even refuse to return to work because of a general fear for their own health or the health of their aged or vulnerable family members or lack of childcare. As a best practice, employers should evaluate such instances on a case-by-case basis but the first step should be clearly communicating to employees the steps being taken to ensure their safety. Employers should listen to employees' concerns and, if genuine, explore alternative working arrangements with them. Employers should also assess whether employees' essential job functions require their working onsite or whether such employees may work remotely. In addition, employers should consider the disciplinary procedures that can be taken in the event that employees refuse to return to work. To the extent possible however, employers should continue to encourage flexible or remote work options. Where remote working is not viable, employees may be given the option to use their annual leave or allowed unpaid leave, even if they do not have a formal unpaid leave policy. Flexibility would be called for with employees who are experiencing childcare issues due to schools and day-care centres being closed.
Employers should also keep in mind that accommodations made for one employee may set a precedent regarding how other employees should be managed in similar situations, and where an alternative arrangement is agreed, it should be documented in writing. Mental health of employees should also be kept in mind, as such steps shall go towards alleviating employees' anxiety and fear.
In relation to onsite health screenings, such as temperature checks, employers have greater latitude to gather such medical information during the current pandemic. Employers will need to consider the issues of data retention and data security. Health screenings also raise the question of who will perform such checks and ensuring that health care screeners have adequate PPE and contactless thermometers. Masks are another important consideration, and employers should provide masks and even gloves and sanitisers to workers, particularly if they require them on the job and to ensure compliance. In using of masks, employees must be made aware that not wearing masks in public spaces is now also considered an offence under sections 24 and 25 of the Communicable Diseases (Prevention, Control and Eradication) Act, 2018 ("the Act, 2018").
There is no guidance in the notification on whether suspected cases should be referred to the health authorities. The Act, 2018 places the duty of reporting on physicians in charge of treatment to inform the concerned civil surgeon and deputy commissioner, which will thereafter be escalated to the Director General of Health Services; and although section 82 of the Labour Act, 2006 imposes a statutory duty of reporting on employers in case of certain diseases listed in the Second Schedule of the Act, the present virus is understandably not listed in the schedule - which begs the question, shouldn't the Second Schedule of the Labour Act be updated?
LESSONS LEARNT: Employers must take lessons from the RMG experience, so as not to repeat mistakes previously made. Health and hygiene protocols issued by the government and any industry-specific association must be implemented from day one. Employees travelling back from out-of-town should be questioned on mode of transport and maintenance of social distancing during travel, and if required/possible should be asked to work-from-home for the quarantine period. Employees who have recently taken the Covid-19 test should not return to work before receiving test results. Sector specific trade organisations and associations should assist and collaborate with member organisations to formulate guidelines and facilitate healthcare protocols.
In the end, it should be remembered that there is no "one-size-fits-all" answer. Employers should be pragmatic and flexible, but a good starting point is for organisations to develop re-entry protocols to guide all aspects of their operations during the return-to-work period. This guide should be shared with employees as soon as possible and employees should be trained on the new policies. Organisations should also establish governance practices to ensure safety and legal compliance and design a return-to-work plan that is sufficiently flexible to adapt to evolving recommendations, guidelines, and directives issued by the Government and remain up-to-date with the changes.
Anita Ghazi Rahman, Managing Partner of The Legal Circle, assisted by Chowdhury Albab Kadir. anita@legalcirclebd.com