The Singapore government has introduced additional control measures to minimize the risk of further transmission of the 2019 Novel Coronavirus in the community. Employers in Singapore must take proactive steps within the legal boundaries to ensure the workforce remains safe and productive and to minimize disruption to operations.
Singapore is currently facing the outbreak of the 2019 Novel Coronavirus (COVID-19) and the risk assessment issued by the Ministry of Health (MOH) has recently been increased from Disease Outbreak Response System Condition (DORSCON) Yellow to DORSCON Orange. The Singapore government has issued various advisories and guidelines with a view to stemming the outbreak. In light of this urgent situation, businesses should take steps to review and implement these advisories, which contain both mandatory and nonmandatory steps for businesses and individuals. In addition, the outbreak also poses other legal issues for businesses, particularly in terms of employment and immigration issues.
In this update, we will take a forward-looking view to see what the outbreak could mean for businesses in the next six to 12 months. As the situation is fluid and evolving, companies should check the MOH website and the Ministry of Manpower (MOM) website for the latest available information and seek advice where necessary.
In summary, the Singapore government has issued the following mandatory guidelines:
What is a quarantine order?
A quarantine order is a directive under the Infectious Diseases Act with legal force. It has severe penalties for noncompliance.
Employees who are served a quarantine order will be deemed to be on paid sick leave. The period of absence from work will be treated as paid hospitalization leave, as part of the employees’ hospitalization leave eligibility under their employment contracts, collective agreements, or the Employment Act. For employees who have used up their paid hospitalization leave, employers are urged to exercise compassion and flexibility by granting additional paid hospitalization leave, as the employees concerned may face financial hardship during this time.
Under the Quarantine Order Allowance (QOA) scheme, the following two groups may claim $100 per day:
What is a leave of absence?
A leave of absence (LOA) is a precautionary measure to prevent the possible transmission of infections. All employers must report to the MOM when their workers are returning, so that their return dates can be staggered. Such reports must be submitted online. Employers must inform affected employees that they will be on a 14-day LOA and obtain their written acknowledgment. The MOM has revoked the work passes of two workers after they entered Singapore without approval from the ministry, and suspended the work pass privileges of their employers.
There is no legal specification on how an LOA is treated, e.g., as paid hospitalization leave, annual leave, or otherwise. Employers should follow the employment contract and human resources handbooks or may mutually agree on an arrangement with the employee. Employers are encouraged to implement flexible work arrangements. If remote working is not possible, employers are encouraged to provide additional paid leave on top of employees’ annual leave entitlements for the LOA, especially if the travel was work related.
The MOM has stated that employers have a duty to ensure that the employee behaves responsibly during the leave of absence. The MOM may revoke the work passes of and withdraw work pass privileges against errant employers or employees. The MOM has revoked the work passes of four people and suspended the work pass privileges of six employers for breaching LOA requirements.
What is a stay-home notice? How is it different from an LOA?
A stay-home notice (SHN) is similarly a precautionary measure to prevent the possible transmission of infections. Employees who are served with SHNs are prohibited from leaving their homes at all for 14 days. From February 18, 2020, at 11:59 pm, Singapore residents and long-term pass holders returning from the PRC will have to abide by SHNs.
A SHN is stricter than the existing LOA regime, under which such employees returning from the PRC are advised to stay at home for 14 days, but are still allowed to leave home briefly; for example, to buy meals or household supplies. Similar to an LOA, all employers must report to the MOM when their workers are returning. Should employers require assistance, they may contact the MOM to request to be linked with hotels or dormitory operators where their workers can serve out their SHNs. Those who disobey the SHN may face penalties and be prosecuted under the Infectious Diseases Act, and the MOM may revoke the work passes of and withdraw work pass privileges against errant employers or employees.
There is no legal specification on how an SHN is treated and accordingly the analysis above relating to LOAs will be similarly applicable to SHNs.
With the introduction of the SHN, the MOM will no longer issue LOAs to returnees from the PRC. Employees currently subjected to the LOA requirements are expected to serve out their LOAs.
What general obligations does a company owe to its employees?
Under the Workplace Safety and Health Act, employers must protect the safety and health of their employees. Employers must conduct risk assessments to identify hazards and implement effective risk control measures, make sure the work environment is safe, and develop and implement systems for dealing with emergencies. The Workplace Safety and Health Act imposes penalties for employers that fail to comply with the Act.
Employers should further note that employees may in certain circumstances seek to claim compensation under the Work Injury Compensation Act (WICA) on the basis that their contracting COVID-19 was due to an exposure to a biological agent arising from and in the course of work. However, WICA does not cover diseases such as COVID-19 if they were contracted through nonwork activities or exposure. If an employer provides private medical insurance for its employees, the employer should check with the specific insurance provider on whether the private medical insurance would cover COVID-19–related claims.
What measures should businesses take during this period?
Employers have been advised by the Singapore government to step up their business continuity plans (BCPs) and prepare for widespread community transmission. This includes plans for continuity of leadership, flexible working arrangements, and review of employee management policies. For further details regarding BCPs for COVID-19, employers may consider the Guide on Business Continuity Planning for 2019 Novel Coronavirus issued by Enterprise Singapore.
Employers should obtain a health and travel declaration from employees on whether they have traveled to the PRC or if they have any upcoming travel plans to the PRC. Employers should also ensure that employees conduct regular temperature-taking and check whether they have respiratory symptoms such as a cough and/or runny nose. Temperatures should be taken at least twice daily, and anyone with a fever or who is unwell should leave the office immediately to see a doctor.
Employers should remind employees who are unwell to stay at home, and to wear a mask if they must go out, such as to see the doctor. In particular, such persons should avoid coming into close contact and sustained proximity with others. Advise employees who come across customers who are unwell to immediately advise such customers to leave and go see a doctor, and arrange for such customers to reschedule their appointments or be served via alternative means such as teleconferencing.
Can employers require employees to travel during this period?
Employers may require employees to travel but if the risk from traveling is high, the employer may be in breach of its obligation to ensure the safety and health of the employee.
Employers should adhere to all travel advisories issued by government agencies. The MOH has issued an advisory for Singaporeans to defer all travel to Hubei Province and all nonessential travel to mainland China. If business travel to known affected countries or areas is unavoidable and alternative options such as teleconferencing and videoconferencing are not possible, employers should arrange for their employees to consult a doctor for travel health advice prior to travel. For employees whose work is performed in known affected countries or areas, employers should ensure that employees are adequately protected or monitored in accordance with MOH guidelines. In the event that employees reject work trips to places that have travel advisories issued against them due to public health concerns, employers should not penalize such employees for their safety and health concerns.
What should an employer do if an overseas employee wishes to travel to Singapore?
The employer should assess the risk of travel and ensure that the employee is adequately protected or monitored in accordance with MOH guidelines.
What should an employer do if an employee insists on traveling to and from mainland China?
The employee may risk being quarantined and will likely be issued at least an LOA or SHN. If the employee is insistent on traveling and the company wishes to suspend the employee, or if it believes there is conduct that constitutes grounds for termination, the employer should adhere to the contractual terms set out in the employment agreement.
Can an employer force an employee to take unpaid leave or be suspended from work?
The COVID-19 outbreak does not change an employer’s obligations to its employees, which will continue to be governed by employment contracts and the Employment Act.
Can employers retrench employees in light of the outbreak?
Given the upcoming impact on the economy, employers may feel the need to embark on downsizing exercises. Employers are encouraged to do so responsibly in line with MOM guidelines and the Tripartite Guidelines on Fair Employment Practices (TGFEP). Employers should conduct such exercises without discrimination.
Employers are to be mindful that any employee may lodge a complaint for wrongful dismissal to the MOM and/or the Tripartite Alliance for Dispute Management (TADM). If the wrongful dismissal claim cannot be solved at the TADM, it will be referred to the Employment Claims Tribunals (ECT). If the ECT judges that the dismissal was wrongful, the employer may be ordered to reinstate the employee to his or her former position and pay him or her for income lost due to the wrongful dismissal, or to pay a sum of money for compensation.
Are employers allowed to collect and disclose employees’ personal data and health details?
Employers may do so with the consent of the employee. Such consent may already be provided for in the employment contract or employment handbook. However, if no consent is obtained, employers may collect and disclose such personal data if it is necessary to respond to an emergency that threatens the life, health, or safety of the individual or another individual pursuant to the Personal Data Protection Act. Disclosure is also allowed if it is to a public agency and such disclosure is necessary in the public interest. For instance, if the management of the office building seeks such information, the employer should not disclose unless it is pursuant to a direction by a public agency or necessary to deal with an emergency.
How should employers plan ahead for manpower needs?
It is anticipated that there will be prolonged issues relating to manpower and work passes out of the PRC. Employers should take into account such restrictions in planning ahead for their manpower needs.
What should an employer do if an employee has a fever in the office?
In order to ensure the safety and health of all employees, the employee should be placed in an isolation room immediately. The employer should arrange transport for the employee to a clinic or hospital for medical assessment. The employer should notify management and record the contact details of all others working in the same place as the unwell person.
What should an employer do if an employee is infected with COVID-19?
It is likely that the MOH will issue quarantine orders and/or other directives to the employer. The employer should comply with such instructions.
If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers, who are solicitors of Morgan Lewis Stamford LLC, a Singapore law corporation affiliated with Morgan, Lewis & Bockius LLP:
Singapore
Wai Ming Yap