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26 March 2020
In January 2020 the coronavirus (COVID-19) – which originated in Wuhan, China in December 2019 – was declared a Public Health Emergency of International Concern by the World Health Organisation. The situation continues to develop rapidly. Given the transient nature of the Bermuda workforce, Bermuda-based employers should consider taking steps now to manage risks both proportionately and sensibly. This article provides guidance to help Bermuda employers address some of the key queries and concerns.
Bermuda-based employers should generally consider the following guidance.
Keep monitoring situation
The coronavirus situation is dynamic and continues to develop at a rapid pace. Ensuring that information comes from a reliable source is critical to being able to respond appropriately and proportionately to the situation. Official guidance and updates on the coronavirus and Bermuda can be found on the Bermuda government's website. The UK government has also published guidance for employers and businesses on its website. Guidance is also available from the Centres for Disease Control and Prevention 2020.
Involve the right stakeholders
Bermuda-based employers should ensure that someone within their business has overall responsibility for coronavirus issues. This may be a team of people from across the business and (in the case of a multinationals) may be in multiple locations. Employers will need to involve:
Understand legal obligations
The primary focus of occupational health and safety legislation in Bermuda requires every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all employees. While employers will be judged by reference to the official guidance, in the event of an issue, the courts and tribunals may also consider what other employers have done. Bermuda-based employers should also think about the health and safety of clients, customers and counterparties, particularly where such individuals visit business premises. Employers will also have contractual, employment law and privacy obligations to employees which must be complied with.
Talk to employees
Employers should communicate regularly with employees and ensure that they update them as circumstances and policies change.
A serious outbreak may interrupt the supply of goods and services to businesses and make it more difficult to provide goods and services to customers and clients. Reviewing contracts now and developing a plan to deal with such issues may pay dividends in future.
Check regulatory position
Regulated financial services businesses will be expected to have documented business continuity and other contingency plans if disruption to business is likely. These should be checked now and updated if necessary. If a business or its activities are caught by the new economic substance requirements, it should consider whether it has sufficient local directors able to meet on the island in order to demonstrate compliance with this regime and potentially consider appointing alternate directors if off-island directors may be affected by travel restrictions or similar issues.
Consider outsourced services
Outsourcing service providers' ability to provide services may be compromised in certain circumstances.
Examine business continuity plans
Most business continuity plans are geared to responding to natural disasters. The outbreak of disease is less often thought about, but may lead to business continuity issues.
Employers should ensure that they understand their insurance position, both from a business perspective and for employees (ie, health insurance).
Maintaining normal operations may be a challenge, depending on the severity of any outbreak and where it occurs. Preparing now may pay dividends in future.
Consider directors' duties
Under Bermuda law, every director must act honestly, in good faith and in the company's best interests and exercise the care, diligence and skills that a reasonably prudent person would exercise in comparable circumstances. As a result, directors should have regard towards the interests of their company's employees. Therefore, boards of directors will need to show that they acted in the best interests of the company, honestly and in good faith when dealing with any response to a coronavirus outbreak by considering the steps identified above.
Bermuda-based employers should consider undertaking a risk assessment in relation to the coronavirus (or updating their existing risk assessment) and implementing appropriate measures to deal with the risks identified. This will involve thinking about:
Managers will be a critical first line of response both internally and externally. They should understand the situation and how they should be communicating with employees, clients and third parties (where applicable).
Talk to employees
Employers should communicate regularly with employees and ensure that they are updated as circumstances change.
Employees should be guided towards reliable sources of information rather than potentially unreliable (or positively unsafe) material on social media.
If employees are asked to self-isolate or work from home, this should be properly understood and appropriately resourced. Recording the instruction in writing is advisable as this avoids any confusion or misunderstanding over the terms of the instruction.
Consider contracts and policies
In the event of a serious outbreak, employees may need to be asked to perform other duties (or no duties), remain at home or work remotely. Employers should be aware of their contractual and commercial position ahead of time and check their policies relating to:
Where there is a need to depart from published policies and procedures, the explanation for doing so should be recorded.
This may particularly apply to sick pay where employees have exhausted entitlements.
There is a risk that employees in such circumstances may, despite being potentially infected or actually unwell, be incentivised (or otherwise feel compelled) to come into work. Avoiding such a scenario should be a priority.
Employees have the right to refuse dangerous work. In such circumstances, an employee who believes that the condition of a place of employment presents an imminent and serious danger to their health or life has a right to refuse to work. It is doubtful that such a provision will be relied on in the case of a coronavirus outbreak in Bermuda, but employers should be mindful of it nonetheless. In addition, employees are protected from unjust disciplinary measures taken against them for exercising their rights under Bermuda's occupational health and safety legislation. An employee will also be considered to have been unfairly dismissed if they are dismissed as a result of removing themselves from a work situation which they reasonably believed presented an imminent and serious danger to life or health.
Employers should be mindful not to discriminate against another person because of their race, place of origin, colour or ethnic or national origins. All policies and procedures implemented by an employer as a result of coronavirus should treat everyone equally across the board, regardless of their nationality or ethnicity.
Focus on business travel
If their employees undertake significant amounts of travel (particularly to areas where the coronavirus is known to be active), employers should consider alternatives such as teleconferences, webinars or videoconferences. If travel is unavoidable, employers should have contingency plans should medical treatment or quarantine become necessary.
For further information on this topic please contact Michael Hanson, Cheri Minors or Jay Webster at Carey Olsen Bermuda by telephone (+1 441 542 4500) or email (email@example.com, firstname.lastname@example.org or email@example.com). The Carey Olsen Bermuda website can be accessed at www.careyolsen.com.
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