Uncertainty and long-term impact
General counsel should remember that in dynamic situations, such as a global health crisis, regulatory regimes may change at short notice. Governments utilize emergency powers, new legislation is introduced and key influencers, such as trade bodies and insurance companies, lobby authorities to respond in certain ways. It is important to have an ability to keep your operating framework up-to-date across every jurisdiction.
In addition, how the organization deals with the first phase of a crisis will then shape the position longer-term. For example, if a health crisis affects balance sheets, the organization may need to consider redundancies and contingent workforce options. Obtaining a comprehensive view of their obligations at the beginning of a crisis response, and planning and communicating accordingly, will help minimize a stressful process for employees and subcontractors facing this difficult situation.
Six key questions to consider include:
1. What is an employer’s obligation to employee health during a health crisis?
An employer has an obligation to continuously evaluate the work environment and act on potential risks. If a health crisis, such as a global pandemic, is apparent, appropriate occupational health and safety measures must be taken. Examples of this include providing disinfectants, hand-washing guidance and technical alternatives to physical meetings (e.g., video conferencing).
2. Does an employee need to answer his or her employer’s questions on whether the employee has recently spent time in high-risk or restricted areas?
Yes. Despite rights to privacy, the employer bears the ultimate responsibility for a healthy and safe working environment for all employees. Thus, this type of question must be raised by the employer, and the employee must reveal this information in accordance with his or her underlying duty of employment.
3. Is there a general duty for the employer to alert government authorities if an employee tests positive to an infectious health condition?
There is no general duty, but specific countries may require notification.
4. Which steps need to be taken by the employer to alert other employees if an individual at their workplace is diagnosed with an infectious health condition?
The employer is responsible for providing a safe and healthy working environment. Adequate actions must be taken in order to safeguard all employees at their workplace. An individual’s health information must always be handled carefully. Information regarding the health status of individuals (e.g., an individual who has been diagnosed with an infectious health condition) is highly sensitive, and the organization must not disseminate such information other than to individuals and systems that are directly required for managing the response.
This does not prevent the employer from sharing the individual’s health status, with adequate reason. For example, an employer may need to disclose the health status to understand which other employees have been in contact with the infected individual.
In almost all jurisdictions, however, data-protection legislation (e.g., the General Data Protection Regulation and the Health Insurance Portability and Accountability Act) confirms that health data must be treated with the utmost sensitivity. This includes sufficient security measures for secure storage, access restrictions and transfer of this data, and it must be deleted as soon as the need to collect expires. There may be certain requirements about intragroup or intercountry processing and transfer, which also means that sufficient security measures need to be taken, including control of data access and deleting the data when it is no longer required.
5. Can an employer prohibit entry to the workplace by an employee who may be infected?
As the employer is responsible for providing a safe and healthy working environment, denying a potentially infected employee access to the workplace, if it is solely to protect other employees, is a valid reason for prohibiting access. If your organization permits, and the employee’s work is appropriate to do, one easy solution is to ask the infected employee to work from home. If this is not possible, the employee should be put on leave with full benefits.
6. Which paid leave considerations are relevant?
Depending on the nature and scale of the health crisis, certain countries may take measures to supplement employee sick pay when their health is affected. When a crisis emerges, employers should continue to monitor regulatory developments on this point in countries where their workforce has a presence.
Employees can be asked, but not usually forced, to use accrued compensatory leave or vacation days during a health crisis. Accrued leave entitlements can be enforced unilaterally by the employer without notice, but this varies from country to country, and it also depends on applicable policies and any collective bargaining agreements.