28 February, 2020
In Singapore, 40 people have been diagnosed with novel coronavirus 2019-nCoV (Coronavirus) to date and the Government has upgraded its risk assessment of the outbreak to DORSCON Orange (i.e., "heightened risk"). To mitigate the spread of Coronavirus, the Singapore government has imposed a series of travel restrictions and quarantine measures which apply to all businesses in Singapore.
Employer's duties when there is an outbreak of illness
Generally, employers have a duty under statute and common law to take reasonably practicable measures to ensure the safety and health of their employees. Employers also have a duty not to expose their employees to unnecessary health risks. These duties are particularly applicable in the event of an outbreak of illness such as Coronavirus.
At the minimum, employers should comply with the various advisories issued by the Ministry of Manpower (MOM) which set out precautionary measures which should be taken in the workplace to minimise the risks posed by Coronavirus (MOM Advisories). The MOM Advisories require a 14-day quarantine period for employees who have travelled to the Hubei province within 14 days prior to their arrival in Singapore (Quarantine Order) and a 14-day mandatory leave of absence (LOA) for employees arriving from mainland China (excluding Hubei province) from 31 January 2020. These measures may be supplemented by more internal stringent measures contained in company policy.
The MOM Advisories impose additional measures specifically for foreign employees. Employers must obtain written acknowledgement (in a form provided by the MOM) from all foreign employees who are placed on LOA and make an online declaration to the MOM that they have informed their foreign employees of the LOA requirements.
Additionally, employers are required to defer the return of certain categories of employees with travel history to mainland China in the last 14 days. From 9 February 2020 work visa holders (including those holding In Principle Approval) with recent travel history to mainland China cannot re-enter Singapore without permission from the MOM, which can be applied for through a dedicated online facility. The approval requirement applies to all work visa types and all nationalities. Upon return to Singapore the relevant visa holder must serve the 14 day LOA as described above.
Employers should ensure strict compliance with the MOM Advisories as severe penalties may apply. The MOM has already made clear that the onus is on employers to keep employees on LOA out of the workplace. In that regard, the MOM has suspended for two years the work pass privileges of six employers who had allowed their employees on LOA to return to work, while repatriating and permanently banning four foreign employees found working during their LOA. In addition, non-compliance may be seen as an employer derogating from its duties in respect of workplace health and safety and may result in liability particularly if an employee contracts Coronavirus at the workplace.
Leave entitlements and alternative work arrangements
Singapore law provides for a fairly generous paid sick leave entitlement of 60 days' hospitalisation leave (inclusive of 14 days' outpatient leave). Employees who contract Coronavirus will be able to access their paid sick leave entitlement. For employees who have been served with a Quarantine Order, the MOM has directed that they will be deemed to be on paid hospitalisation leave (and the Singapore Government will pay employers SGD 100 for each day an employee is serving a Quarantine Order).
Employees may also need to absent themselves from the workplace for other reasons, for example if they have been placed on LOA or to care for a family member who has contracted Coronavirus. Ideally, such employees will be allowed to work remotely during their period of absence. If an employer decides to direct employees to work remotely, they should check relevant employment contracts and internal policies to determine whether this is possible.
Otherwise, employers can consider other arrangements under which employees can continue to be paid, such as providing special leave outside of existing entitlements (particularly appropriate if an employee is on LOA as a result of travel for work), annual leave, childcare or other personal leave. In that regard, the Singapore Government has announced that it will pay employers SGD 100 for each day an employee is on LOA, and will also waive any applicable foreign worker levy during such period.
Some employers may also need to place their employees on unpaid leave during the LOA period, particularly where remote working is not practicable and where there is no appropriate paid leave arrangement that can be made. Directing employees to take unpaid leave during an LOA may present complications and this should only be done after careful consideration of the employer's rights. Given that the Singapore Government will be providing financial compensation to employers for employees on LOA, a decision to place employees on unpaid leave may be scrutinised by the MOM and employers who do so must be prepared to provide cogent justification.
Medical benefits
There is likely to be an increase in the number of employees who are unwell during this time. Employers are reminded that they have a statutory obligation to bear (or reimburse) the employee his or her consultation costs with a company or government doctor if the employee is certified by that doctor to be unfit for work. More generous benefits may be set out in company policy or under the terms of the company insurance policy. Employers should also take this opportunity to remind their employees of the proper procedure for using a company doctor and for reporting their absence.
Requesting for health and travel information
The MOM Advisories recommend that employers obtain a declaration from their employees regarding travel to China (recent or upcoming) as well as to have their temperatures tested where appropriate. Personal data privacy issues are relevant here and employers should bear in mind the requirements of the Personal Data Protection Act 2012 when making such requests, in particular the requirement to seek informed consent. Employees should be informed of the purpose behind such requests at the point in time of seeking consent, and employers must not use the information for a purpose other than that notified to employees.
Temperature taking
The Government has asked employers to conduct temperature taking of employees at least twice a day. Employees whose temperature is found to be above 38 degrees or who are otherwise unwell should be asked to leave the workplace.
While it is generally permissible for employers to conduct temperature taking in a situation such as the present, i.e., where it is required by the Government and is a reasonable response to the threat posed by Coronavirus, employers should nonetheless bear in mind personal data privacy issues and implement similar measures as those taken when requesting for health and travel information.
Managing returns to work
Employers should carefully manage employees who are returning to work from illness, whether as a result of Coronavirus or otherwise. Noting the workplace health and safety duties imposed on employers, employers might request that employees to provide medical documents certifying them as being fit to return to work before permitting them to return to the workplace.
Lessons to learn
Coronavirus is a stark reminder of how disruptive large-scale viral outbreaks can be to business. We recommend that employers take this opportunity to revisit (or implement) their remote working policies, business travel rules, workplace hygiene protocols, and general contingency plans for dealing with business disruptions.
For further information, please contact:
Dawn Tan, Partner, Ashurst
Dawn.Tan@ashurst-adtlaw.com
