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In December 2019, Wuhan, Hubei province in China, became the centre of an outbreak of a respiratory disease of unknown cause, which has raised intense attention not only within China but internationally.
By 7 January 2020, Chinese scientists had detected a novel virus named “SARS-CoV-2” in patients in Wuhan, which causes “coronavirus disease 2019”, (abbreviated “COVID-19”) (the Virus). To date, the Virus is reported to have spread to approximately 90 countries including Thailand, Japan, Korea, the USA, Vietnam, France, Italy, the Philippines, Pakistan, Iran and Singapore.On 11 March 2020, the World Health Organisation (WHO) characterised the Virus as a pandemic.
As of 9 March 2020, approximately 105,586 people around the world were reported to be infected with the Virus, mostly in mainland China. The death toll is estimated at 3,100 in China and 484 deaths outside China. As of 12 March 2020, eleven African countries, namely, Algeria, Senegal, Cameroon, South Africa, Nigeria, Burkina Faso, Morocco, Egypt, Tunisia, Democratic Republic of Congo and Togo have confirmed cases of the Virus. The worst-hit African country to date is Egypt which has over 50 confirmed cases .
As a regional transit hub, the Government of Kenya has so far reported and confirmed three cases of persons infected with the coronavirus. This article aims to outline the current legal framework for employers dealing with the Virus in Kenya as well as proposed measures that employers should have in place in the workplace.
Coronavirus and its Effects on the Workplace under Kenyan Law
Employers need to take measures to minimise the risk of contamination and spread of the Virus in the workplace to ensure business continuity. Kenyan labour laws are silent on the procedure to be followed by employers in case of an outbreak of an infectious disease. However, there are issues addressed in Kenyan legislation that is important for employers to consider. Some of these issues include the following:
In summary, employers need to review and consider whether their employees would be covered under their current medical insurance packages in the event that the Virus was to break out, whether the sick leave periods would apply and the measures to put in place to ensure business continuity.
In addition, while employers are entitled to terminate one’s employment on the ground that an employee is too ill to work, due care and sensitivity must be exercised before this is done and due process for termination as a result of incapacity has to be followed. Termination of an employee because they have contracted an infectious disease may amount to discrimination and we would advise that legal advice is sought beforehand.
Best Practice by Employers in the Event of an Outbreak of the Virus
Although Kenyan labour laws offer some insight on issues that may be faced in the event of an outbreak of the Virus, it does not offer clear guidelines for employees to comply with.
The Centre for Disease Control and Prevention (CDC), has recently established a best practice manual titled: Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease 2019 (COVID-19), February 2020 which provides guidelines that may be relied upon by Kenyan employers when responding to the Virus. Some of the measures that employers should consider based on recommended best practices are:
In implementing such measures, care should be taken to avoid singling out employees from a specific race or territory as that can lead to discrimination claims.
The following strategies proposed by the CDC are useful reference points for employers:
In developing a response plan, employers should be flexible and should account for the severity of the outbreak, and account for possible increased numbers of employee absences. This may be done through:
Other Relevant Laws
Infectious disease means “any disease (not including any venereal disease except gonorrhoeal ophthalmia) which can be communicated directly or indirectly by any person suffering therefrom to any other person”.
Kenyan law already establishes the diseases that are to be considered as an infectious disease; however, the Minister for Health (the Minister) has the power to declare the Virus as an infectious disease through a gazette notice. As of the date of publishing this article, the Minister had not made any such declaration.
Even though the Virus is yet to be considered as an infectious disease, it can be presumed that in the event of an outbreak, it would be declared as such. Therefore, in discussing the Virus in a workplace context we shall also discuss legislation on infectious diseases.
The main laws that deal with infectious disease-related issues in Kenya are the Public Health Act the Health Act.
The Minister is empowered by the law to make rules on an outbreak of an infectious disease in any part of the country, including on the below (the list is not exhaustive): 
The law gives medical officers as well as health authorities’ powers to inspect any premises when they have reason to believe that any person suffering from any infectious disease is or has recently been present in; cleanse and disinfect any building after giving notice in writing to the owner or occupier of such building; direct the destruction of any building or other articles which have been exposed to infection from any infectious disease; and maintain carriages suitable for transporting people suffering from any infectious disease to a hospital or other place of destination.
In the event of a breakout of an infectious disease, non-medical officers are also granted certain responsibilities, for example, the person in charge of a building or a building occupant is required to notify a medical officer as soon as they become aware of a patient suffering from an infectious disease; people letting for hire or showing for purposes of letting any dwelling premises, should, if questioned, provide truthful information to the relevant party on whether there is or has been any person suffering from any infectious disease in such premises; and every owner or driver of any means of transport should immediately disinfect the means of transport when it comes to their knowledge that it has transported a person suffering from the disease.
Penalties for Non-Compliance with the Law
The Public Health Act enforces a fine of up to KES 30,000 (approx. USD 300) or to imprisonment for a term not exceeding three years or to both for wilful exposure of a person suffering from an infectious disease; a fine of up to KES 40,000 (approx. USD 400) for failing to disinfect a means of transport after coming to the knowledge that an infected person has been transported by it; and a fine not exceeding KES 80,000 (approx. USD 800) to any owner or keeper of a hotel or boardinghouse, who knowingly lets for hire any dwelling or premises in which any person has been suffering from infectious disease without having the dwelling place and all articles efficiently disinfected to the satisfaction of a medical officer of health as testified by a certificate signed by him. It is not clear at this stage whether the national and county governments have adequate resources to inspect or monitor compliance with these requirements in the transportation or hospitality sectors.
The current legislative framework in Kenya around the regulation of infectious diseases does not expressly provide for the conduct of employers. However, in the event of an outbreak of the Virus, in accordance with the laws and best practices discussed above, employers should ensure that: they comply with the requirements to ensure that the workplace is safe for all employees; the employees have access to sufficient medication; their conduct does not cause discrimination against those infected or those from affected areas; and that they adhere to any other rules provided for by the Minister of Health.
Employers should further ensure that they establish a Business Infectious Disease Outbreak Response Plan as part of their business continuity planning as well as a work-from-home policy to ensure business continuity.
 The Occupation Safety and Health Act (No. 15 of 2007) section 6 and 10.
 The Constitution of Kenya (2010) Article 27 and Article 32(3) and Employment Act (No. 11 of 2007) section 5.
 Bernard Gonzale Lando v Mehta Electrical Limited  eKLR.
 Public Health Act (Cap. 242) section 36.
 Public Health Act (Cap. 242) section 29.