24 May 2021 by and Employment Law Alert

Returning to work: Opportunities and challenges

Following the reporting of the first COVID-19 case in Kenya in March 2020, employers were encouraged to allow their employees to work from home. More than a year on, Kenyan employers have endured lockdown restrictions and an on-going curfew and emerged to find a different employment landscape, one that presents both opportunities and challenges for employers going forward.

Obligations

Not only did the COVID-19 pandemic restrict the freedom of movement of employers and employees alike, but it enhanced protocols and policies in the workplace. The Occupational Health and Safety Act, 2007 places an obligation on employers to ensure the safety, health and welfare of their employees. Following the declaration of COVID-19 as a pandemic in Kenya, the Government issued the Occupational Safety and Health Advisory on Coronavirus which issued various recommendations to employers for them to apply various hygiene measures at the workplace. These recommendations were later codified into law by the passing of Public Health (COVID-19 Restriction of Movement of Persons and Related Measures) Rules 2020.

In addition, the Memorandum of Understanding (20 April 2020) signed by the Tripartite Social Partners - Ministry of Labour and Social Protection, the Central Organisation of Trade Unions and the Federation of Kenya Employers sought to address emerging labour and employment issues during the COVID -19 pandemic by requiring employers to provide adequate protective clothing and protective equipment at no cost to the employees.

Further, it is now mandatory for employers to ensure that there are permanent social distancing measures of at least 1.5 metres at the workplace. All these new obligations have made it vital for employers to review their employment infrastructure and make alternative and feasibly costly arrangements thereto.

Opportunities

For some employers and for some industries however, the pandemic has demonstrated that work can still be done, and results achieved without the confines of an office set up.

During the two lockdowns and the continuous curfew that Kenya has experienced, employees working from home have demonstrated a new normal to employers and businesses. Businesses have been able to keep their operational costs low and stay afloat. Employees have not been required to come into the office – saving transportation costs and time spent in traffic, employers have not been required to provide “lunch” or other social amenities or catered to social events, thus saving on those costs and emptier offices have meant a reduction in utility bills overall. Employers have taken full advantage of these changes and looked further at how to increase productivity while not compromising quality. Flexible working arrangements, shift work and moving from permanent to consultancy arrangements have slowly crept into company policies, and employment handbooks as employers try to embrace this new employment landscape. While Kenyan labour laws do not expressly deal with part-time employees and flexible working arrangements, employers have been seeking advice on how to amend HR policies and individual employment contracts in a jurisdiction that is very employee friendly.

Challenges: Employers’ liability

These “opportunities” are however doubled edged swords. The obvious and first challenge for employers during this pandemic has been - Can an employer be held liable when an employee is infected at the workplace? The Work Injuries and Benefits Act (WIBA) expressly provides that injuries covered and subject to compensation by an employer are those that are sustained in the course of employment. Injuries includes “any other disease that arose out of and in the course of the employee’s employment”.

While COVID-19 is not expressly provided for under WIBA it can be argued that if an employee contracts COVID-19 while at the workplace or while carrying out their work then they are entitled to compensation. The burden rests on the employer to demonstrate that they took all the reasonable precautions to reduce or minimise the risk of infection. Associated with this challenge is the concept of “whilst in employment” and this is especially the case where policies and handbooks have extended employment to working at home.

In implementing return to work policies, employers are faced with the additional challenge of how to allow employees to return to work. Lying dormant are potential discrimination claims for those coerced into vaccinations or worst still those refusing to wear masks. Open and transparent communication with employees will be key in this regard.

Conclusion

All in all, we anticipate that employers will embrace the changes brought by the pandemic and the shift from the traditional employment approach to a more flexible employment landscape in Kenya. We can only await with anticipation to review the jurisprudence that may emanate from the employment challenges brought about by the COVID-19 pandemic and the precedents they will form in the future.

The above alert is meant for general information and does not constitute legal advice. In case of any inquiries or if you require any further information or advice, please feel free to contact Desmond Odhiambo and Njeri Wagacha.

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