FAQS FOR KENYAN EMPLOYERS ON THE COVID-19 (CORONAVIRUS)

What are the local Government protocols set up in the country?

The total number of infections of COVID 19 (Coronavirus) in Kenya is, at the date of publication, fifteen.

In a press briefing on 15 March 2020, the President gave directives to stop the spread of the virus to remain in effect for the following 30 days or as varied by the National Emergency Response Committee (NERC). Additional directives were issued by the NERC in its press statement delivered on 22 March 2020.

These directives include the closure of learning institutions and suspension of all international flights effective Wednesday, 25 March 2020. Only Kenyan citizens and foreigners with valid residence permits will be allowed into the country before then. However, they have to proceed on self-quarantine or to a government-designated quarantine facility. All persons who violate the self-quarantine requirements will be forcefully quarantined for a full period of 14 days at their cost and thereafter arrested and charged under the Public Health Act.

The President urged Kenyans to avoid social gatherings (including places of worship and crowded transportation) and said where applicable, workers should be allowed to work from home. All religious gatherings were subsequently suspended on 22 March 2020 and social functions including funerals and weddings have been restricted to immediate family members only.

To further avoid the risk of transmission through physical handling of money, the President encouraged Kenyans to adopt cashless transactions using mobile money transfer services or debit and credit cards.

What are the legal obligations for employers?

Employers have a legal obligation to ensure the safety, health and welfare at work of their employees under the Occupational Safety and Health Act (the OSHA). Employers should conduct a risk assessment to identify the risks of a COVID-19 outbreak at work, and adopt preventive and protective measures to minimize that risk.

Some measures employers should implement include:

Employee sensitization – Employers should disseminate current information and resources on Coronavirus to its employees. As a starting point, employers should begin by following the current guidelines from the Ministry of Health and the National Emergency Response Committee on Coronavirus preparedness and response from the Ministry of Health website: http://www.health.go.ke/category/news/ and internationally, the World Health Organization’s Update on COVID-19 Outbreak.

Setting up preventative workplace behaviors - Employers should also explain expectations of proper handwashing and coughing etiquette and distribute/display factsheets and posters on how to stop the spread of the virus.

Avoid compelling employees to submit to a medical exam – While the Employment Act mandates employers to take all reasonable steps to ensure that he is notified of the illness of an employee as soon as reasonably practicable after the first occurrence of the illness, employers should avoid making unnecessary inquiries into an employee’s medical status and should not require employees to undergo medical exams.

Offer medical attention to Employees – Kenyan employers are obliged to ensure the sufficient provision of proper medicine for their employees during illness and if possible, medical attendance during serious illness.

What are some of the best practices for employers during this period?

Some of the best practices employers may adopt include:

Updating current policies and procedures - As a matter of best practice employers should create a plan that sets out the steps that they are taking to prevent and protect against an outbreak at the workplace and the steps to be followed if there is an outbreak.

Encouraging open lines of communication – Employers should require employees who become ill at work with COVID-19 coronavirus symptoms to notify their supervisor. Employers should encourage employees to self-isolate if they have been in a place where there is a spread of Coronavirus or if they have been in contact with someone who has been to a high-risk country regardless of whether they are manifesting symptoms.

Anticipate and address potential discrimination – Employers should be wary against engaging in conduct that may be viewed as treating employees less favorably or unfairly on the basis of an illness, impairment or disability. Employers may impose reasonable, and justifiable restrictions if there is a direct threat to the health or safety of others but not if they base decisions to restrict employees from work on any protected grounds including gender, race, age or disability.

Communicate with employees on leave and potential salary reductions – In a crisis situation, it may be necessary to require employees to take compulsory leave (paid) and even unpaid leave.  Where it is impossible to continue to have employees attend their places of work and where such employees cannot telecommute, employers may consider placing employees on compulsory leave for a definite period. Employees will be entitled to their full salaries during this entire period. Where an employer requires employees to take unpaid leave, the employer must obtain the employee’s consent.  However, it is important to highlight to the employees the fact that if they do not consent to such unpaid leave then the likelihood of loss of job would increase.  Where an employer intends to implement salary reductions, the employer should obtain the employee’s consent in writing.

Adhere to statutory requirements on redundancy – Ideally employers should first consider salary reductions, compulsory leave and unpaid leave.  Any salary reductions and unpaid leaveby employers should be done with the employee’s consent. However, employers may be required to make difficult decisions and lay off employees. In case of such eventualities, employers would ordinarily be required to comply with the mandatory redundancy provisions under the Employment Act  

What entitlements should be paid to employees?

There are different options available for employers in respect of their work force:

Consider adopting telecommuting measures – Telecommuting or teleworking refers to a work arrangement in which employees do not commute or travel to a central place of work and are mandated to work from home. It is recommended as one of the most effective approaches to reducing the spread of COVID-19. While many jobs cannot be performed remotely, if telecommuting is an option, employers should adopt policies to delineate the responsibilities of both parties to the arrangement including establishing compliance protocols for timekeeping and employee oversight for remote workers. Employees will be entitled to their full salaries throughout this period.

Administration of sick leave – Employers should require that employees who have developed symptoms of Coronavirus go on sick leave if the employer has a reasonable objective belief that the employee poses a direct threat to other staff. The employee’s sick leave entitlement from their employer will depend on the employer's policy.

How do we deal with an employee that has tested positive for COVID-19?

Where you suspect that an employee is exhibiting symptoms of the virus or has tested positive you should encourage the employee to contact a qualified health care provider as well as government health officials to seek immediate medical attention if they have not already. Employers should request such employees to stay home for a minimum 14-day period of time to limit the spread of the infection in the office.

The subject employee should be requested to identify all individuals who worked in close proximity with them in the previous 14 days to ensure you have a full list of those who should be sent home. The employer should also identify all areas in the office where the infected employees were physically present and liaise with government authorities from the Ministry of Health to have those areas sanitized immediately by a qualified professional.