Coronavirus: A Cause for Sleepless Nights for Employers in Kenya or Not?

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^[1].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^[2]. 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 ^[3].

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:

1. Occupational Health and Safety
   Employers have a general responsibility to ensure the workplace is healthy and safe for all employees, customers and other people who visit the workplace. In addition, the law places responsibility on employees to ensure their own safety and health, and the safety and health of other people, who may be affected by the employee’s acts or omissions at the workplace.^[4] Therefore, employers need to put in place measures that would ensure the safety of their employees at the workplace in all situations, particularly now that there is a risk of the Virus breaking out in Kenya.
2.  Sick Leave
   The Employment Act provides that every worker is entitled to paid sick leave of up to thirty days per year, after completion of two months of service (employers have the discretion to provide for longer periods of sick leave).  The Employment Act does not anticipate whether the sick leave periods provided under one’s employment contract would apply in the event of an outbreak of the Virus and this presents a challenge to employers. In the event of a mandatory quarantine, for example, a quarantined employee could argue that the isolation period should not be deducted from their sick leave as it was not confirmed whether or not the such an employee was infected. In addition, where an employee is only entitled to thirty days of sick leave, what happens to the additional days that the employee is unable to come to work?Further to this, an employer is required to ensure the sufficient availability of proper medicines for employees during illness and, if possible, medical attention should also be provided during serious illness.  Most employers comply with this requirement by providing medical insurance for their employees. Employers, therefore, need to consider what their medical insurance packages currently offer and how this would apply in the event of an outbreak of the Virus.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.
3. Discrimination & Termination of Employees
   The spread of the Virus has seen an increase in the profiling of people of different races not only in Kenya but around the world. Kenya has seen an increase in the profiling of Chinese nationals due to the Virus. This has led to the Chinese Embassy in Kenya releasing a statement advising against racist remarks against its citizens. ^[5]An important question to consider is how an employee would be treated in the event they were to become infected with the Virus or are suspected of having been infected. Both the Kenya Constitution and the Employment Act prohibit discrimination on the basis of several factors, including race, nationality, and health status. ^[6] It is therefore important for employers, whilst putting in place policies to deal with the contraction and spread of the Virus, to carefully consider their actions in order to avoid any discrimination claims or discriminatory treatment of affected staff.  Employers should also consider how the health information of affected employees will be protected because such information is considered “sensitive personal data” that is protected under the Data Protection Act.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^[7] and we would advise that legal advice is sought beforehand.
4.  Work from Home Policies
   Kenyan Labour laws do not provide for ‘work from home’ guidelines. Taking into consideration the infectious nature of the Virus, employers in certain affected countries are being advised to encourage their employees to work from home. Since the law does not provide specific guidelines on this, it is up to employers to establish their guidelines that would need to conform to existing legislation.

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^[8] 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:

• Communicating to employees about the Virus, symptoms of illness, how it is spread and measures that staff should practice to avoid exposing themselves to contracting and spreading the Virus (for example washing hands, re-considering non-essential work travel, considering attendance at conferences and meetings that expose employees to large crowds). Care should, however, be taken not to cause panic.
• Limiting work travel, especially to high-risk areas and having employees who return from travel to such areas stay away from the workplace during the incubation period, which according to WHO ranges from 1-14 days, but most commonly around five days.
• Putting in place work-from-home policies that allow employees to work remotely in the event of an outbreak.
• Replacing e physical meetings with conference calls.
• Review of sick leave and insurance policies to confirm the requirements in the event employees are diagnosed with the Virus.

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:

• actively encourage sick employees to stay home;
• separate sick employees;
• emphasise respiratory etiquette and hand hygiene by all employees;
• perform routine environmental cleaning;
• advise employees to follow the guidelines set out by the Ministry of Immigration and Registration of Persons before travelling;
• an employer should inform the other employees if an employee is found to be infected by the Virus (whilst respecting the affected employee’s privacy rights); and
• encourage employees who have sick family members whom they have come into contact with to report any contact and seek guidance on minimising the risk to other employees and members of the public.

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:

• cross-training of personnel to perform essential functions so that the workplace is able to operate even if key staff members are absent;
• assessing the essential functions and the reliance that others and the community have on your services or products. Be prepared to change your business practices if needed to maintain critical operations (e.g., identify alternative suppliers, prioritise customers, or temporarily suspend some of your operations if needed);
• employers with more than one business location should provide local managers with the authority to take appropriate actions outlined in their disease outbreak response plan; and
• coordinating with local health officials so that timely and accurate information can guide appropriate responses in each location of their operations.

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): ^[9]

• house to house visitation;
• providing medical aid and accommodation, promoting cleansing, ventilation and disinfection to guard against the spread of disease;
• preventing any person from leaving any infected area without undergoing a medical examination, disinfection, inoculation, vaccination or revaccination and passing a specified period in an observation camp or station;
• creating hospitals and observation facilities;
• destruction of buildings, furniture, goods or other articles, which have been used by persons suffering from the disease;
• removing infected persons and anyone who has been in contact with them; and
• imposing any other rule on the prevention, control or suppression of infectious diseases.

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.^[10]

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.

Conclusion
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.

Footnotes

^[1] https://www.cdc.gov/coronavirus/2019-ncov/summary.html

^[2] https://www.who.int/docs/default-source/coronaviruse/situation-reports/20200308-sitrep-48-covid-19.pdf?sfvrsn=16f7ccef_4

^[4] https://www.the-star.co.ke/news/2020-03-02-coronavirus-rumourmongers-will-be-fined-sh5-million-oguna/

^[5] The Occupation Safety and Health Act (No. 15 of 2007) section 6 and 10.

^[6] https://www.standardmedia.co.ke/article/2001362232/china-warns-kenyans-against-discriminating-its-citizens-over-coronavirus

^[7] The Constitution of Kenya (2010) Article 27 and Article 32(3) and Employment Act (No. 11 of 2007) section 5.

^[8] Bernard Gonzale Lando v Mehta Electrical Limited [2015] eKLR.

^[9] https://www.cdc.gov/coronavirus/2019-ncov/summary.html

^[10] Public Health Act (Cap. 242) section 36.

^[11] Public Health Act (Cap. 242) section 29.

The content of this alert is intended to be of general use only and should not be relied upon without seeking specific legal advice on any matter.