Guidance for Employers during Covid-19
Barbados, like the rest of the world, is grappling with the effects of the Covid-19 pandemic. Tourism is our lifeblood, yet we have no tourists and we do not know when they will be able to return. The economic impact of the pandemic is just one of its terrible side-effects, and we appreciate that the human and societal impact is far more concerning. Nevertheless, we thought it might be helpful to answer some of the questions that employers have been asking.
Please note, this article seeks to provide general information about the current situation as we see it in Barbados and it does NOT constitute legal advice. If you require legal assistance then we recommend that you consult with a suitably qualified Attorney.
1. Curfew Directive
On 28th March 2020 the Government passed the “Emergency Management (COVID-19) Curfew Directive, 2020”. The said Directive imposed a mandatory curfew on all individuals from 28th March – 14th April 2020 between the hours of 8 pm and 6 am. Additionally, it required that every non-essential service remain closed except for specified exempted services during certain hours. It is worth noting that the Directive stipulated that private businesses and offices (presumably those which are non-essential or non-exempted) may continue their operations provided that the employees work exclusively from their homes.
On 1st April 2020 the Government announced additional measures under the Emergency Management Act including (but not limited to): (i) a mandatory 14-day quarantine in a government facility to be placed on all persons entering Barbados; (ii) from 3rd April 2020 until midnight on 14th April 2020 every non-essential service shall remain closed except listed exempted services during certain hours that have been specified; (iii) government ministries, departments and statutory corporations to be closed from 3rd April to 15th April at 6:00am; and (vi) additional restrictions on persons leaving their homes or congregating with others.
Notably, with respect to essential and exempted services, the directive and subsequent announcement specified that those businesses must restrict the number of persons within or outside the establishment to ensure a distance of at least 6 feet is maintained between each person.
The effect of the Directive is that the majority of Barbadian businesses (those which are non-essential, non-exempted, or cannot operate remotely) have been forced to close until at least 14th April 2020. Those businesses will have to assess their continuing obligations to their employees (such as paying wages) whilst they remain closed to the public. Whereas the businesses who can continue operating (i.e. those which are essential, exempted, or can operate remotely) will have to ensure that they comply with the Directive and their obligations to their employees in these turbulent and challenging times.
2. Occupational Health and Safety
At this time, the health and safety of all persons should be the utmost priority of any business. Employers who operate within the essential or exempted space must continue to abide by the relevant provisions of the Safety and Health at Work Act (2005). Under the Act, occupiers1 have a general duty to ensure, so far as is reasonably practicable, the health, safety and welfare of all employees at work.2
The Act sets out some of the duties on an occupier, many of which appear particularly relevant at this time. Some of the most relevant duties are: (i) the provision and maintenance of the plant and systems of work that are, so far as is reasonably practicable, safe and without risks to health; and (ii) the provision and maintenance of a working environment for employees that is, so far as is reasonably practicable, safe, without risks to health, and adequate as regards facilities and arrangements for their welfare at work.3
Under the Act, an occupier is required to keep their workplace so that the safety of persons in the workplace is not likely to be endangered, take such precautions as are reasonable in the circumstances to ensure the safety of every person in the workplace and ensure that all employees with special needs shall be given any directions, notices, information and instructions or training that are required to be given to employees under the Act, by any method of communication that readily permits the employees to receive it.4 Many of the duties imposed under the Act also extend to persons who are not employed by the company (eg. customers and other visitors).
The Act requires every occupier to prepare and, as often as may be appropriate, revise a statement of general policy with respect to workplace, safety, health and welfare, and the organisation and arrangements for the time being in force for carrying out the policy, and to bring the policy and any revision of it to the notice of all employees.5 Where 10 or more persons are employed the statement of policy must be in writing.6
Notably, the Act specifies that a workplace shall not be so overcrowded as to cause risk of injury to the health of persons employed therein. Essentially, each person must have 8.5 cubic meters of space measured no more than 3.4 meters from the floor, excluding any gallery and any materials that are not required by the person for whom the space is required.7 This existing legal requirement will have to be complied with in parallel to the new requirement of maintaining 6 feet between persons set by the Directive.
The Act also requires that, except where the Chief Labour Officer otherwise allows, a notice shall be posted in every workroom specifying the number of persons who, having regard to the provisions of this section, may be employed in such a room.8 As mentioned previously, it may be worth considering whether these notices need to be altered/adjusted to conform with the new 6 foot requirement set out in the latest Directive.
Additional Health and Safety Guidance
On 17th March 2020 the Ministry of Labour published a document titled “Covid-19 Guidance for Business Places” prepared by the Medical Officers of the Ministry of Health and Wellness which provides some general information on the virus and some guidelines for cleaning offices and public spaces.9 Some of the useful measures suggested by the Ministry of Labour in their guidelines include the recommendations that businesses identify a space which could be quickly repurposed as an isolation space if needed, provide tissues, no-touch bins, soap, water and hand sanitizer and routinely clean all frequently touched surfaces. While the Ministry’s Guidance is not strictly law, businesses should be careful to follow this guidance as it could be seen to reflect ‘best practice’. In any event the steps proposed by the guidelines are likely to have already been required by the above sections from the Safety and Health at Work Act.
3. Paid Sick Leave
There is no statutory entitlement to paid sick leave in Barbados. Companies must be guided by their employment contracts and are encouraged to exercise reasonableness and compassion in these uncertain times. It is worth noting that the Employment Rights Act 2012 stipulates that a sick employee who has been certified by a medical practitioner as being incapable of work and who, as a result of the sickness, misses work for a period of less than 12 consecutive months, has the right not to be unfairly dismissed.10
4. Vacation Leave
As you would have likely seen in the news, many businesses have enquired about whether they can require their employees to take their annual vacation over the curfew period.11
The Holidays With Pay Act Chap. 348 provides that an employer can determine the dates of an employee’s annual holiday. However, the Act also expressly stipulates that the employer must provide the employee with at least 14 days notice before doing so.12
The Honourable Attorney General recently fielded questions regarding this issue and stated as follows:
“The Holidays with Pay Act stipulates that you cannot compel a person to take holiday unless you give them 14 days’ notice. So, anybody who compels an employee to take holiday because their business is closed, they could not have given them the 14 days’ notice, because the Prime Minister only announced the curfew on Thursday.So, it is a breach of the law”. 13
However, one could reasonably assume that any employer who foresaw that they might be required to close their business as a result of the spread of the virus, and gave their employees the requisite notice that they would be required to take vacation during this period, would have conformed with this provision of the Holidays with Pay Act. Similarly, from a plain reading of the provision in the Act, any employers who assume that the curfew period will extend beyond the 14th April 2020, should be able to give the requisite notice at this stage so long as it is at least 14 days in advance of the period during which they expect the employees to take their vacation.
It is also worth noting that the Act stipulates that an employee’s annual holiday shall run for one continuous period unless there is an alternative agreement reached between the employer and employee.14 Therefore, an employer cannot make an employee break up their annual holiday leave without their consent.
4. Short-Time and Laying off
While we hope that employers do their absolute best to retain their employees during these difficult times, we understand that sometimes an employer will have to make difficult decisions to keep their businesses afloat (which will hopefully keep others employed). In this regard, it is advised that an employer explore its options for limiting the hours that their employees work or laying off employees before considering permanently terminating their employment.
Short-time occurs where reduced working hours result in an employee earning less than half of their normal weekly earnings. A lay-off occurs when employees are not provided with any work by their employer and the situation is expected to be temporary.
Pursuant to the Employment Rights Act 2012, and subject to any terms which may be in the contract of employment, an employer may put on “short-time” or “lay-off” employees if they have temporarily ceased to carry on business.15 However, the Act stipulates that the employer must engage in consultations with the affected employees not later than 6 weeks before any of the affected employees is laid off.16 It is acknowledged that there may be special circumstances which render it not reasonably practicable for the employer to comply, in which case the employer should immediately consult with the Chief Labour Officer.17 Given the provisions of the Act, employers who have no choice but to put on “short-time” or “lay-off” employees should contact the Chief Labour Officer and take all steps towards compliance with the legislation as is reasonably practicable in these uncertain times.
5. Termination
Whilst we should remain optimistic about the future of the Barbadian economy, if the virus continues to disrupt business activity, some businesses will have to take more permanent steps to reduce their staff. In these circumstances, the most applicable ground of terminating a contract of employment is for redundancy.
An employee is taken to be dismissed by reason of redundancy if the dismissal is attributable wholly or mainly to the fact that, his employer has ceased, or intends to cease,18 to carry on the business for the purposes of which the employee was employed by him. This may be because the employer has ceased, or intends to cease, to carry on that business in the place where the employee was so employed, or for employees to carry out work of a particular kind in the place where the employee was so employed, have ceased or diminished or are expected to cease or diminish.19
The specific requirements governing terminations for redundancy in Barbados are more technical and are beyond the scope of this guide. It is important to note that under the Employment Rights Act 2012 employees are specifically protected from “unfair dismissal”.20
6. Miscellaneous
Termination of Services/Lay-off Certificates
Those employers who are left with no choice but to lay off, short-time or to terminate the service of employees should be mindful of the requirement to provide employees with a Termination of Services/Lay-Off Certificate within one week from termination. Employers are expected to issue a termination of services or lay-off certificate to the respective employee within a week so that the employee can claim their NIS benefit in a timely manner. Failure to submit on time could result in penalties for the employer.
Severance
Employers should note that keeping employees laid-off or on short-time for extended periods may trigger the provisions of the Severance Payments Act which require the employer to pay severance. The Severance Payments Act stipulates that an employee who is laid off or kept on short-time for 13 or more consecutive weeks, or a series of 16 or more weeks (of which not more than 12 were consecutive) within a period of 26 weeks, his employer is liable to pay him a sum calculated in accordance with the Act.21
Also, where an employee has been laid off or kept on short-time and the employee elects within 4 weeks to give notice in writing to his employer indicating his intention to claim a severance payment in respect of the lay-off or short-time, the employee is, entitled to a severance payment for being laid off or kept on short-time.22
Assistance
It has been reported that on 20th March 2020 the Honourable Prime Minister announced the following incentives for employers:
“For those employers who are prepared to retain three-quarters of their workforce even if some are on short-week, we are going to defer the obligation for them to pay the employers’ contribution for three months in the first instance with a preparation to extend for another three months if the crisis goes beyond the first three months so that those employers who keep three-quarters of their workforce on full or short week we will remove from you the obligation for immediate payment of the employers’ contribution for NIS thereby reducing your statutory amount.”23
While we have not yet seen the official Order which would confirm that the said measures have been put into law, the Honourable Prime Minister’s announcement should encourage employers to take the necessary steps to retain at least three-quarters of their employees throughout this difficult period.
Finally, please note that employment law in Barbados is nuanced and many issues you may face may be fact specific. Through this general guide we have attempted to set out, albeit in broad strokes, the general principles that would apply to employers in Barbados during these unprecedented times. Please contact a qualified Attorney before relying on the contents of this guide, or if you require any specific assistance.
This Guide for Employers has been prepared by:
David Hamel-Smith
Hamel-Smith Caribbean
david@caribbeanlaw.com
Paul Hamel-Smith
Hamel-Smith Caribbean
paul@caribbeanlaw.com
1 “Occupier” is defined as ‘the person who has control over a workplace and the work that is done there’.
2 Section 6(5) of the Safety and Health at Work Act (2005)
3 Section 6(6) of the Safety and Health at Work Act (2005)
4 Section 7 of the Safety and Health at Work Act (2005)
5 Section 7(4) of the Safety and Health at Work Act (2005)
6 Section 7(5) of the Safety and Health at Work Act (2005)
7 Section 54(1) of the Safety and Health at Work Act (2005)
8 Section 55 (5) of the Safety and Health at Work Act (2005)
9 https://labour.gov.bb/wp-content/uploads/2020/03/Information-for-Business-Places-Ver-2.0.pdf
10 Sections 27 and 30(1) of the Employment Rights Act 2012
11 https://www.cbc.bb/2020/03/30/government-issues-warning-to-employers/
12 Section 4(5) of the Holidays With Pay Act Chap. 348
13 https://gisbarbados.gov.bb/blog/ag-urges-employers-employees-to-compromise/
14 Section 4(4) of the Holidays With Pay Act Chap. 348
15 Section 38 of the Employment Rights Act (2012)
16 Section 38(7)(a) of the Employment Rights Act (2012)
17 Section 38(7)(c) of the Employment Rights Act (2012)
18 “Cease” means cease either permanently or temporarily and from whatever cause, and “diminish” has a corresponding meaning.
19 Section 31(2) of the Employment Rights Act 2012
20 Section 27 of the Employment Rights Act 2012
21 Section 3(1) of the Severance Payments Act
22 Section 6(1) of the Severance Payments Act
23 https://www.barbadosadvocate.com/news/business-monday-laid-workers-receive-unemployment-benefits