In recent weeks, Governments around the world have been grappling with how best to combat the spread of the Coronavirus (COVID-19). The Bahamas is no exception. To date the Prime Minister has issued two Emergency Orders aimed at ensuring the health and safety of persons within The Bahamas. Two of the primary consequences of the Emergency Orders are the suspension of operations to the general public of businesses, offices and stores not specifically exempted by the Orders, and the imposition of what is now a twenty-four-hour curfew. The spread of COVID-19 and the measures implemented in response present a number of challenges for both employers and employees.
In this article, we aim to highlight and address some of the potential employment related issues which may arise in light of the COVID-19 pandemic, having regard to the Employment Act as amended pursuant to the Employment (Amendment) Act 2017 and the Health and Safety at Work Act.
WHAT ARE MY OPTIONS?
There are a number of options available to employers as a result of a decline or cessation in business due to COVID 19 and the resultant Emergency Orders . The options available, include (i) Paid Vacation Leave; (ii) Unpaid Leave; (iii) Lay-off & Short-time; and (iv) Redundancy.
i. Paid Vacation Leave
It is open to the employer and employee to agree for the employee to take any accrued vacation leave.
ii. Unpaid Leave
Alternatively, the employer and employee can agree for the employee to take a period of unpaid leave. To the extent such an agreement would constitute a modification of the existing contractual relationship, any such arrangement should be documented and explicitly approved by the employee.
iii. Lay-offs & Short-Time
Section 28 of the Employment (Amendment) Act, 2017 (“the Amendment Act”) lists a number of conditions that must be complied with where an employer is seeking to lay-off or place an employee on short-time, including, among other things, consultation with the impacted employees and providing a statement to the employee and the Minister of Labour explaining the facts which give rise to the need for laying-off or placing the employee on short-time.
Where there are more than 20 employees to be affected, consultation with the Minister should commence at least two weeks prior to the contemplated lay-offs or placement on short-time, and where there are less than 20 employees, not later than one week prior.
Importantly, section 28C provides that where an employee has been laid-off for a continuous period of at least twelve weeks, such lay-off is then deemed to be a dismissal because of redundancy in accordance with section 26(2). Consequently, the employee becomes entitled to redundancy pay.
The Amendment Act provides that the Minister may, after consultation with representatives of employees and employers, make regulations with respect to the lay-off or placement on short-time for certain sectors of industry and specific categories of workers. Having regard to the prevailing circumstances, it is possible that the Minister may issue regulations with respect to lay-offs or placement of employees on short-time. Such regulations may address how persons laid-off for a continuous period of at least twelve weeks as a result of the Coronavirus Pandemic are to be treated and also the applicability of the relevant notice periods in the light of the Emergency Orders, particularly with respect to the order mandating the closure of businesses.
Similarly, the Amendment Act imposes a number of conditions to be followed when carrying out a redundancy inclusive of consultation with the Minister of Labour and the payment of redundancy pay. There are additional requirements which apply where the employees are represented by a trade union or other representative.
Where an employer fails to give the requisite notice to the Minister (at least two weeks where the number of employees to be made redundant is more than 20 and at least one week notice where the number of employees to be made redundant is less than 20), the Amendment Act makes the employer liable to pay each affected employee thirty days basic pay in addition to any pay that the employee is entitled to under the Act.
Further, section 27 of the Amendment Act provides that where an employee is made redundant and within twelve months (i) there is an additional demand for goods and services; and (ii) the employer has to recruit employees for the purposes of the business, the employer is required to give priority to the employees who were made redundant.
Redundancy pay may vary subject to the terms of an employee’s contract of employment, their position and the length of time they have been employed with the company.
WHAT ARE MY DUTIES?
The Health and Safety At Work Act imposes a duty on every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all employees. Without prejudice to the generality of the foregoing duty, the Act imposes a number of specific duties on employers which include:-
- the provision and maintenance of plant and systems of work that are, so far as is reasonably practicable, safe and without risks to health;
- arrangements for ensuring, so far as is reasonably practicable, safety and absence of risks to health in connection with the use, handling, storage and transport of articles and substances; and
- the provision of such information, instruction, training and supervision as is necessary to ensure, so far as is reasonably practicable, the health and safety at work of his employees.
Importantly, the Act also imposes a duty on employers to conduct their undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his/her employment, but who may be affected thereby are not thereby exposed to risks to their health or safety.
The Act also imposes a number of duties on employees, in particular (i) to take reasonable care for the health and safety of himself and of other persons who may be affected by his acts or omissions at work; and (ii) as regards any duty or requirement imposed on his employer or any other person by or under any of the relevant statutory provisions, to cooperate with him so far as is necessary to enable that duty or requirement to be performed or complied with.
Given the highly contagious nature of the COVID-19, employers that remain operational during this period should take time to educate employees on the importance of maintaining proper hygienic practices and social distancing, to avoid running afoul of the provisions of the Health and Safety at Work Act. Additionally, employers should consider what additional reasonable measures could be implemented to mitigate against the spread of COVID-19 and take steps to implement the same. These measures can include but are not limited to provision of masks, gloves, and the checking of temperatures.
For further information, please contact:
Dwayne Fernander, Partner – [email protected]
John Minns, Partner – [email protected]
Sydney Rolle, Associate –[email protected]
Please note that this publication is only a guidance note and as such is for reference purposes only, it does not constitute legal advice and should not be relied upon as such. Specific legal advice about your particular circumstances should always be sought, and our legal team is available to assist you with any questions or issues that you may have.