On Wednesday, 11th March 2020, the World Health Organization (“WHO”) declared the novel coronavirus (“COVID-19”) a pandemic. In making its determination to declare covid-19 a pandemic, the WHO has cited the wide spread of COVID-19 (more than 10-fold in worldwide cases outside China) and the tripling in the number of COVID-19 affected countries in recent times. Although, this is the first pandemic caused by a coronavirus, the WHO highlights that this is also the first pandemic that can be controlled and one that requires a whole-of-society approach to prevent infections, save lives and minimize impact. Key among measures being promoted to assist the prevention of the further spread of COVID-19, is the adherence to social distancing. Inevitably, the means by which employers may wish to implement social distancing in the workplace and reduce exposure to COVID-19 (e.g. reducing hours, revocation/imposition of approved vacation, laying-off personnel, closing stores/businesses outright, etc.) have legal implications under Bahamian law. This bulletin is geared towards addressing the same and providing guidance to employers as to their obligations during this current global pandemic.
Duties of Employers
Employers under the provisions of the Health and Safety at Work Act, 2002 (“HSWA”) are under a duty to ensure, so far as is reasonably practicable, the health, safety and welfare of its employees in the workplace. This duty extends but is not limited to the provision of systems of work and maintenance of places of work that are safe and without risks to health so far as is reasonably practicable. Additionally, employers are required to provide (so far as is reasonably practicable), information, instruction, training and supervision as is necessary to ensure the health and safety of their employees at work.
The HSWA also imposes a duty on employers to conduct their enterprises in such a way so as to ensure that persons not in their employment who may be affected (including but not limited to patrons) are not exposed to risks to their health or safety, as far as is reasonably practicable. Employers are also mandated to establish a health and safety committee at every place of employment where twenty or more persons are employed. While the implementation of measures by employers to ensure adherence to their duties under the HSWA is likely to result in additional costs, employers are prevented from passing on such costs by way of levying on or permitting charges to their employees.
Duties of Employees
Employees are also obligated under the HSWA to:
- take reasonable care for the health and safety of not only themselves but also other persons who may be affected by their acts or omissions at work(including but not limited to co-workers and patrons of their place of employment);
- and to cooperate with their employer so far as necessary to allow the employer to perform its obligations under the HSWA.
Duties of All Persons
All persons are prohibited from interfering with or misusing (whether intentionally or recklessly) anything which is provided or implemented pursuant to the HSWA in the interests of health, safety and welfare at work. Any person who is found to have contravened any provision of the HSWA is guilty of an offence and shall be liable on summary conviction to a fine of five thousand dollars ($5,000.00).
The steps that employers may wish to implement, in adherence to their duties owed under the HSWA, are addressed specifically below.
Laying-off of Personnel & Reducing Hours
Employers may wish to limit or cease their hours of operation to the public to reduce potential COVID-19 exposure of their employees from the public and vice versa. This may, by extension, have the effect of leading to a reduction or cessation of employee hours. The Employment Act (“EA”) provides that unless otherwise agreed by contract, an employer shall not lay-off or place an employee on short-time without consulting with the employee, his trade union (if any) and the Minister responsible for Labour in writing of the applicable reasons and surrounding facts. Such consultation is to take place at least one week in advance when less than twenty employees are involved and two weeks in advance when twenty or more employees will be affected. Where an employee is temporarily laid off by an employer, such period is not to be treated as interrupting the employee’s continuous employment.
Revocation of approved vacation
The EA entitles employees who have been employed for one year or more to paid vacation leave.
The unilateral revocation of an employee’s scheduled paid vacation leave or compulsory use of an employee’s paid vacation leave entitlement by an employer is a novel issue in the context of determination by Courts in The Bahamas. However, the issue of unilateral variation generally is well settled in this jurisdiction. In the Bahamian case of Morris (in a representative capacity) v. Paradise Enterprises Limited –  1 BHS J. No. 10, Winder, J at paragraphs 16-17 thereof, cites with approval the speech of Lord Denning in a decided case, which held that in order for an employer to be found liable for unilateral variation, the employer’s conduct must represent a significant breach going to the root of the contract or which demonstrates that the employer no longer intends to be bound by an essential term or terms of the contract. In addition to the breach being significant, for an employee to be successful in a claim for unilateral variation, he must not have affirmed / condoned the variation and instead leave his employment shortly after the unilateral variation complained of.
While the revocation or mandatory use of an employee’s vacation time if not agreed would in effect be unilateral, an employer may most likely avoid liability in the context of the current circumstances in respect of which such action is being imposed. This is so, as the cancellation of scheduled vacation and imposition of paid vacation may be argued as not being in breach of an essential term of a contract of employment nor demonstrative of an unwillingness on the part of an employer, to no longer be bound, given the circumstances in which such actions are being implemented.
Other points to consider
Under the EA, employees who have been employed for at least six months are entitled to one week of paid sick leave and are required to produce to their employer a medical certificate for and on their second consecutive day of sickness. However, to avoid abuse of this procedure, employers are allowed to require such an employee to be examined by an independent physician and may refuse such leave if the employee is deemed fit for work. Conversely, employees are protected from termination by employers during legitimate sick leave.
It must be borne in mind that the EA serves as a minimum standards Act, which sets out the minimum obligations owed by employers to their employees. As such, to determine the specific rights of an individual employee and conversely the contractual obligations of a particular employer, regard must always be had to the specific terms and conditions of an employee’s employment (which may be more favourable than those imposed by Bahamian statute law.)
Oscar N. Johnson, Jr. – Global Managing Director and chair of the Litigation practice group
Keith O. Major, Jr. – Associate in the Litigation practice group
David J. Hanna – Associate in the Litigation practice group
The information contained in this article is provided for the general interest of our readers, but is not intended to constitute legal advice. Clients and the general public are encouraged to seek specific advice on matters of concern. This article can in no way serve as a substitute in such cases. Copyright ©2020 Higgs & Johnson. All rights reserved.