How COVID-19 affects Jamaica's labour laws

How COVID-19 affects Jamaica's labour laws

BY KIMBERLEY HIBBERT
Senior staff reporter
hibbertk@jamaicaobserver.com

Sunday, March 22, 2020

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THE labour force is feeling the implications of quarantine measures outlined by the Government in an effort to stave off the spread of the novel coronavirus virus (COVID-19) on local soil.

Currently, the communities of Seven Miles and Eight Miles, Bull Bay, plus Cornpiece in Clarendon are under quarantine. In addition, Prime Minister Andrew Holness ordered that effective March 18 for seven days, with review after five days, all non-essential work must be done from home for both the public and private sectors.

Other restrictions include no gathering in public spaces with over 20 people, funerals and weddings should be limited to close family members, churches should have no more than 20 people gathered, and bars, nightclubs and other areas of entertainment must be closed.

This unprecedented state of affairs has taken a toll on the business sector as members of communities under quarantine cannot report to work and businesses have been forced to draw their shutters due to lack of customers.

As these events unfold, many companies have been caught flat-footed because the mass implications have never been contemplated. Likewise, employees have began to question their rights under the labour laws of Jamaica and what redress they can seek in the event they become unemployed as a result of these measures.

Carla-Ann Harris Roper, principal consultant and attorney-at-law at Employment Matters Caribbean told the Jamaica Observer that because of the atypical circumstances, individuals must first recognise that the law would not have taken into account a lot of what is currently happening.

Harris Roper further explained that all employment is governed by contract and the legislation within the country provides minimum standards below which contracts should not go.

In relation to employees' rights, Harris Roper said obligations vary depending on the scenario and explained step-by step how employers could determine payments.

“If somebody is actually ill, if they have contracted COVID-19 and have an illness that requires them to be off work, the Holiday With Pay Order speaks to sick leave. Of course, that is again minimum standard under the law that speaks to two normal working weeks. Depending on where you are in your work cycle you can get a maximum of paid sick leave of two normal working weeks if you are actually ill,” Harris Roper said.

But, according to Harris Roper, there are a number of variables that muddy the waters. These include the mandatory quarantine and whether individuals affected can work from home until the measures are relaxed.

“If you live out in Seven Miles, Eight Miles, Bull Bay and the Government instituted mandatory quarantine or isolation, in this case we use the provisions under the Disaster Risk Management Act to say because of the possible exposure and the risk of community spread out there, that people are not going to be allowed to leave,” she said.

Harris Roper said there may be people there who are not showing any symptoms and are ready and willing to work, but because of a particular Government edict they are unable to report to work and do what their contracts require.

In such situations, she said a lot of things can happen.

“They can say 'can you work remotely?' So, depending on what you're doing you stay out there and do the work. If you are able to do that, no problem. You are delivering on your contract, you are doing your work, your employer will still pay you. But, for example you work out at Harbour View at a food establishment as the cashier or the person who packages the food, you can't do that remotely. If you don't turn up for work, not withstanding that it is not your fault, in the absence of there being some company policy or some altruistic employer, then in law, what we call the No Work, No Pay policy exists. They could take the position to give you some special leave because you can't come to work. That special leave could be paid or unpaid. But, you're in uncharted territory.there is no law that is going to say because you are put under mandatory quarantine and you cannot get to work physically, and your work has to be done that way, that the employer is bound to pay you.”

Another scenario, according to Harris Roper, includes individuals who may not be under quarantine but have underlying medical conditions, and decide to self-quarantine because of the impact of contracting the COVID-19 virus.

“So you're 'fraid like puss and say listen I can't afford to get myself in this so I don't want to go to work. But work is still going on. If you can work remotely, again, you and your employer can work that out and you get to do your work. If, however, there is no such facility and this is a situation where you are saying to your employer, 'I am refusing to come to work because I have these medical conditions and I am in fear that something could happen to me', in that kind of situation you are withdrawing your services-albeit on the premise that you want to take care of yourself. But as the PM says, he is not locking down the country. In that sort of situation, unless there is some arrangement that can be reached with you and your supervisor or employer, then your employer cannot be forced to pay you,” Harris Roper said.

Further, she painted another scenario in which establishments that depend on visitors to generate revenue are forced to close and leave people without employment.

“If your employer is saying with all the will in the world, they are in an industry where they are not getting any customers, people are not coming to buy any sandwiches in the café, or there are no tourists coming to the museum — technically they will shutter that place. There is nobody who is going to come and do the tour. The people who do the sweeping up, those who collect the money for the tours, all that apparatus is there, but it is clear to a blind man that there is no way they can keep the door open,” she said.

In the same breath, Harris Roper pointed out that some establishments may decide to continue employing their workers for an interim period, at a reduced figure, but this has to be agreed on by both parties.

“They will put that to the employee because they can't unilaterally change the employment contract. If the employee doesn't agree they can't say I am going to give you 60 per cent of your salary and keep you on even though you are not coming to work. There has to be some degree of agreement between the employer and employee, for example, to do something like that,” she said.

On the other hand, there are establishments that do not have deep buckets and cannot afford such an arrangement. Harris Roper said they can consider doing layoffs.

“The law provides for layoff under the Employment Termination and Redundancy Payment Act. You put the person on layoff so that they don't come into work, they don't get paid; but they are still employed so their years of service would continue, but during the period up to 120 days they can be out, but not paid. Come the next three, four months and things start to stabilise and normalise, they can call back their people and say come back for your job. At the end of 120 days if they are not able to recall the people, those people can choose to be made redundant. They can make a claim and say I have been out for four months, you haven't recalled me, I want the position to be made redundant. At that stage an employer could be faced with paying a redundancy bill. But that is a choice to be made by the employee,” Harris Roper explained.

But, if the establishment has shuttered operations and is waiting to start over after the disruption has passed, Harris Roper said the company might consider an immediate redundancy exercise as opposed to a layoff and waiting on 120 days.

She said: “Outside of the Government making changes to the law it really comes down to what the minimum standards are. Depending on the nature of your operation, if you can do a layoff the persons would still have their jobs. It's just that during the periods of a layoff they wouldn't get paid or they would get short pay.”

In addition, Harris Roper said people may decide to take their vacation leave now, but she warned that employers cannot force their workers to do so.

“An employer can't force an employee to take vacation. It's a benefit to them. You are going to expose your company to legal process if you try to force people to take vacation,” she said. “But you see what is happening and recognise that maybe one of the things you can do to extend the amount of time you can get your pay [for] during this period is apply for vacation leave, and your employer pays you for your vacation.”

But if this route is explored by employees during the COVID-19 fight, Harris Roper asserts that employers must recognise that they cannot expect any work to be done.

“You can't call them for anything because they're on vacation,” she said.

Further, Harris Roper said these restrictions in the labour force are unprecedented and as a result, people should be reasonable.

“You see your employer, you see how they are operating and you know if nobody comes through that door there is nothing they can do and they don't have that money put down anywhere to continue paying people sustained, [then] you can't ask an employer to do anything more,” she said.


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