Temporary variations to the Hospitality and Clerks modern awards in response to the COVID-19 pandemic

The Fair Work Commission (FWC) has acted on applications made by employer associations and unions by varying a number of awards to introduce temporary flexibility provisions in light of the COVID-19 pandemic and the associated public health orders. These important measures aim to provide employers with the flexibility to resource their businesses appropriately in the current climate whilst maintaining compliance with the applicable modern award, allowing them to continue active operations and retain employees. Continue reading

Australian Human Rights Commission – Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces

The Australian Human Rights Commission (AHRC) has recently released its ‘Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces’ report (Report) in response to the decision in June 2018 by the Sex Discrimination Commissioner, Kate Jenkins, and the then Minister for Women, the Hon Kelly O’Dwyer, to launch the independent national inquiry into sexual harassment in Australian workplaces (Inquiry). Continue reading

US: Employer obligations for COVID-19 mandated remote work expenses (California and beyond)

To reduce the spread of COVID-19, many employers are requiring their employees to work remotely (either voluntarily or because several states, including California and New York, have imposed social distancing restrictions). The new work-from-home reality has implications for employers with workers employed in California and other states, as described in COVID-19: Working from home and employer reimbursement of remote-work expenses in California and beyond.  For more information, read COVID-19: Working from home and employer reimbursement of remote-work expenses in California and beyond, and for additional information about legal implications of COVID-19, see Coronavirus: Legal implications of a global pandemic.

US DOL issues new guidance on COVID-19 paid sick and family leave

The US Department of Labor (DOL) issued guidance which answers a number of key questions on the new federal coronavirus paid sick leave and emergency Family and Medical Leave Act leave, including when the law takes effect, how to count employees for purposes of the 500-employee threshold, how to treat related employers and other key questions. The DOL also issued model paid sick leave posters and announced limited amnesty for violations through April 17th.  For more information, read US DOL answers questions on new federal sick and family leave, issues new posters and announces limited amnesty and see our chart summarizing the DOL’s Q&As.

The UK Coronavirus Job Retention Scheme – An Update

As we noted in our previous blog post here the UK Government announced the new Coronavirus Job Retention Scheme by which employers can apply to HMRC for a grant to cover most of the wage costs (up to 80%) of salary of workers who are temporarily not working but kept on the payroll (furloughed workers) for up to a total of £2,500 per worker each month. The Government has now published further guidance on the scheme.

Which employers can apply under the scheme?

Any employer (regardless of size or sector type) who operates PAYE will be eligible for the scheme. In order to access the scheme an employer will need to designate affected employees as ‘furloughed workers,’ and notify the employees of this change.

Which employees can be furloughed?

All employees including zero hour workers who are paid on the employers PAYE payroll can be furloughed. However the employee must have been on the payroll on 28 February 2020. Any employee who has been made redundant since 28 February can be rehired and placed on furlough. Any new hires since that date cannot be placed on furlough.  In addition an employer cannot claim in relation to any employee who was already on unpaid leave on 28 February.  If an employee is on sick leave or self-isolating and is eligible for statutory sick pay then they should receive SSP for that period and then be furloughed at the end of the sick leave or self-isolation.

What work can an employee do during furlough leave?

A furloughed employee should not be performing any work for the employer during the period. This includes providing services or generating income. This means that if an employee is on reduced hours or days then the employer cannot claim for them under this scheme. The employer has a discretion as to which employees it can place on furlough and in applying any criteria the employer must have regard to equality and discrimination law.

The minimum period of time that an employee can be placed on furlough is three weeks. An employee cannot therefore rotate employees for any period of less than this time.

The guidance does make it clear that an employee can undertake voluntary work or training as long as it does not generate revenue for the employer. If the employee carries out any online training for the employer during the period then the employee must be paid at least the National Minimum Wage of the National Living Wage during the period of the training.

The guidance implies that employees who are on maternity or other forms of parental leave can also be placed in furlough. If the employer offers enhanced contractual earnings related maternity pay then this could also be claimed as a wages cost under this scheme.

What level of salary can the employer claim for?

The employer will receive a grant from HMRC to cover the lower of 80% of an employee’s regular wage or £2,500 per month, plus the associated Employer National Insurance contributions and minimum automatic enrolment employer pension contributions on that subsidised wage. This means that it will cover the wage costs such as NICs on top of the £2,500 or 80%.

In determining the level of salary this is the employee’s salary on 28 February 2020. Fees, commission and bonuses should not be included. Where the employee has variable pay, then if the employee has been employed (or engaged by an employment business) for a full twelve months prior to the claim, the employer can claim for the higher of either: the same month’s earning from the previous year or average monthly earnings from the 2019-20 tax year. Where the employee has been employed for less than a year, the employer should claim for an average of their monthly earnings since they commenced employment.

As an employee is not working during this time, the guidance has clarified that National Minimum Wage or National Living Wage will not apply to the payments to the employee’s during that period (unless they are carrying out online training).

The employer can choose to top up the payment so that the employee receives their full salary, but the employer will then be responsible for the National Insurance Contributions on that payment. In addition, if the employer pays more than the minimum contributions under the auto enrolment rules the employer will be responsible for making those payments.

Changing terms and conditions

Asking the employee not to work and changing the level of salary will be subject to existing employment law and, depending on the terms of the employment contract, an employer may have to obtain the employee’s consent to such change. The employer will also need to consider whether collective consultation obligations apply.

How does the employer apply?

The guidance sets out the information which the employer must provide in order to make an application. This includes: the ePAYE reference number; the number of employees being furloughed; the claim period (start and end date); the amount claimed; the employers bank details; and the employer’s contact details. The employer needs to calculate the amount it is claiming. The new online portal is not yet available for applications. The Government hopes to have the scheme up and running by the end of April.

What steps should employers be taking now?

Although the portal is not yet up and running employers should be taking the following steps in relation to their employees:

  • Determine which employees are to be placed as furloughed employees, ensuring that they are adopting non-discriminatory selection criteria;
  • Write to those employees confirming that they have been furloughed and keep a record of this communication;
  • Seek agreement to change to the employee’s terms and conditions of employment with regard to reduction in pay;
  • Consider entering into an agreement with the employee to cover this period; and
  • Gather together all information in relation to the employees on furlough leave so that it is able to calculate the amount to be claimed and submit it as soon as the portal is open.

Information on the Job Retention Scheme can be found here

 

 

UK Government support to self-employed individuals

On 26 March the UK Government announced a package of support to self-employed individuals. The main points of the proposal are:

  • Self-employed individuals can apply for grants of up to 80% of their profits up to £2,500 per month
  • The level will be calculated on the basis of the average monthly trading profit over the last three years.
  • The Scheme will be open to those with a trading profit of less than £50,000 in 2018/19 or an average trading profit of less than £50,000 from 2016-17,2017-18 and 2018-19. The chancellor has indicate that this accounts for 95% of the self-employed.
  • If an individual is self-employed and also has other income, more than half of their income in those periods must have come from self-employment
  • Only those who are already in self-employment and meet the above conditions will be eligible to apply. It also applies to members of partnerships
  • HMRC will contact the eligible participants directly and contact them with guidance on how to apply.
  • The grant will cover the three month period to end of May and will be paid in a single lump sum instalment covering all 3 months at the beginning of June. This may cause a cash flow issue for many individuals and through this period they should access the other measures previously announced by the Chancellor, including Universal Credit, income tax and VAT deferrals and also access to mortgage holidays.
  • This scheme does not cover those who provide services through their own company and who are paid a salary and dividends. They will be covered by the Coronavirus Job Retention Scheme if they receive their salary by PAYE.

Further information will be produced by HMRC.

Employment law under COVID-19 lockdown: 10 things to know

The government enforced 21 day lockdown raises many issues relating to employee rights, including concerns around whether leave (for workers who cannot work from home) will be paid or unpaid, whether UIF (Unemployment Insurance Fund) applies and what the rights of essential workers are.

Here are ten things to know about employment law during the COVID-19 lockdown.

  1. If employees are able to work from home, they should do so.
  2. If employees cannot work from home, employers can request that staff take their annual paid leave during this time. The Basic Conditions of Employment Act allows an employer to determine when leave can or must be taken, unless agreed otherwise in the employment contract.
  3. There is debate around whether, after an employee’s paid leave is exhausted, there is an obligation to pay the employee for the remaining days of lockdown if the employee chooses not to request unpaid leave, because under different circumstances the employee would have made themselves available for work – the common law requires employers to pay employees who tender their services but this will have to be balanced against the legal impediment or impossibility of performing work due to the lockdown. This unsettled debate will likely be determined by court action soon after the lockdown ends.
  4. Employees can apply for UIF, and employers are obligated to assist them in doing so.
  5. Employees who were under self-quarantine before the lockdown are also entitled to UIF, under the special leave provisions. However, employees who were self-quarantined for more than 14 days before the lockdown need a medical certificate to claim UIF benefits that exceeded the 14 day quarantine period before the lockdown. The lockdown period will be covered under UIF though.
  6. If a non-essential worker contracted COVID-19 as a result of work-related activities before the lockdown (such as a business trip that was in the course and scope of their employment), they can claim worker’s compensation under the Compensation for Occupational Injuries and Diseases Act (COIDA).
  7. Essential workers who contract COVID-19 during the lockdown are also entitled to compensation under COIDA.
  8. Essential workers cannot unreasonably refuse to work if they are in a position to do so. Employers can refuse to allow essential workers to work from home if there is a good reason for the refusal (such as, the work cannot be done from home).
  9. Employers designated as essential services during the period of lockdown must maintain a safe working environment and take the necessary precautions in terms of the Health and Safety Act and any other regulations issued by government during this time.
  10. Although the legal position allows for various scenarios, businesses should aim to achieve agreement with employees on workable solutions that ensure business sustainability while protecting the livelihood of their employees.

This article was written by Mohammed Chavoos, Director, Norton Rose Fulbright South Africa Inc

Permits required for persons leaving home to perform essential services during South African lockdown

Submitted by Christina Pretorius, Director, Norton Rose Fulbright South Africa Inc

Further regulations regarding the implementation of South Africa’s COVID-19 lockdown were released on the evening of 25 March, just over a day before the lockdown takes effect at 24:59 on 26 March. The lockdown applies to everyone within the borders of South Africa, and seeks to slow the spread of the COVID-19 virus.

The new regulations require every person to confine themselves to their place of residence unless strictly for the purpose of:

  • performing an essential service,
  • obtaining essential goods or services,
  • collecting a social grant, or seeking emergency, life-saving, or chronic medical attention.

A long list of essential goods and services is included as Annexure B to the regulations, and includes the production, transport and sale of food, cleaning products, medical supplies, pharmaceuticals, airtime & electricity, and other essential items, as well as financial services like banking and insurance.

The head of an institution must determine what essential services must be performed by that institution in order to remain operational (even if on a remote basis), and the essential staff who will perform these services.

The identified staff will be permitted to carry out the identified functions, although they must, at all times, carry a permit issued by the head of the institution. The general form that this permit must take is Annexure C to the regulations. It is essentially a document that sets out the full names and contact details of the head of the institution issuing the permit, as well as the full names and identity number of the person to whom the permit is issued and it must be produced with identification on request.
Businesses must ensure that any of their personnel carrying out essential services are issued with a permit in terms of the regulation, before the lockdown begins.

France combats the pandemic

Since January 2020, Coronavirus COVID-19 has spread rapidly around the world, causing massive disruption to business and everyday life as well as thousands of deaths.

The French Government has reacted in several stages. After issuing recommendations for barrier measures, it decided to close schools and more recently, it ordered the general confinement of French people and the closure of many establishments deemed non-essential in order to protect public health. The Government’s latest recommendations for employers can be found here (available in French only).

Consequently, for companies operating in France, three types of employees can be distinguished (excluding sick employees, who are on sick leave, or establishments forced to close):

  • Employees are, in principle, working from home. Homeworking has now become the requirement for all jobs which allow it, until further notice;
  • For those employees whose job does not allow homeworking, a number of requirements must be complied with in order to limit physical contact;
  • Employees, even if not sick, can benefit from a specific sickness leave compensated by the social security authorities under certain conditions (if they care for one or more children under the age of 16, or if they have a specific health condition which is renders them an enhanced risk). This leave is considered to be sickness leave, and companies may be required to maintain all or part of the salary of the employee concerned.

1. What rights and obligations do employers have?

 

All companies with employees in France have a safety obligation towards them. This obligation aims at protecting the physical and mental health of employees at work.

In practice, this obligation implies the following measures in relation to the Coronavirus threat:

  • Inform employees about the usual hygiene and prevention measures in case of symptoms;
  • Update the single risk health and safety assessment document in the company;
  • Implement protective measures for employees;
  • Comply with the obligations laid down by the French Government in terms of health and safety.

Where they exist, employee representatives must be involved in these actions.

In operational terms, companies that have implemented a Business Continuity Plan (BCP) are naturally better able to deal with the Coronavirus crisis and must refer to the instructions in that plan.

To compensate for the decrease in business activity, a company can take the following steps:

  • Ask employees to take paid leave (with their agreement), or possibly require them to take leave (this is only available for employees who have already set leave dates, in accordance with the provisions of the Labour Code);
  • Use partial activity schemes. These schemes allow the employer to reduce the working hours of employees or to temporarily close down the business establishment or part of it, while at the same time partially compensating employees for the loss of salary due to hours which are not worked.

Certain options may also be considered in the event of an increase in activity (in particular for employees who would be required to work on site): and these include overtime and reduced rest periods.

Termination of employment contracts is not envisaged in the short term in France, not only in view of the limitations in French legislation regarding economic dismissals, but also because of recent Government announcements concerning the prevention of dismissals.

The Government has announced measures to support businesses, including :

  • Softening conditions to benefit partial activity schemes;
  • Spreading tax and social security charges.

2. And for employees?

 

In some cases, employees can make use of their right to withhold their services, i.e. the right for employees to cease work where they have reasonable and legitimate grounds to believe that the workplace presents a serious and imminent danger to their health.

If the company demonstrates that it has taken all necessary preventive and protective measures, based on official recommendations, the exercise of the right of withdrawal will not be available.

 

The French Parliament has just passed an emergency law to deal with the epidemic, authorising the Government to put in place rapid measures through ordinances. These include adapting labour law to enable companies to cope with the organisational difficulties they face (using sector-wide or company collective agreements authorising the employer to impose dates for taking days off up to a maximum of six days and the possibility for the employer to unilaterally impose or modify the number of days worked or reduce working hours, etc.). The situation in France is continually changing and should therefore be monitored closely.

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