The recent Wuhan coronavirus (2019-nCoV) has brought into sharp focus the need for the government and employers to be able to take swift and robust measures to contain the potential spread of the virus at the workplace. In this article, we examine one key aspect of the Singapore government's containment measure, namely the Ministry of Health's (MOH) leave of absence advisory issued on 1 February 2020. Under this advisory, all residents and long-term pass holders arriving from mainland China (other than the Hubei province) on or after 6 pm on 31 January 2020 will have to go on leave of absence for 14 days upon their arrival in Singapore.
The legal effect of the advisory
Compulsory leave of absence from work is to be distinguished from a quarantine order (which now applies to all persons coming from the Hubei province). Both measures serve the same purpose of trying to limit the spread of the virus in the community, but they target different degrees of risk, and are legally distinct.
The advisory on leave of absence, in itself, has no real legal effect. That said, where the workforce is concerned, the Ministry of Manpower (MOM) has stressed that employers and employees have a joint duty to ensure that employees behave responsibly during the leave of absence period, failing which MOM may take action against them. MOM did not specifically spell out the details of that duty and its power to enforce. However, we note that in the context of employers, section 12 of the Workplace Safety and Health Act (WSHA) imposes a statutory duty on employers "to take, so far as is reasonably practicable, such measures as are necessary to ensure the safety and health of [its] employees". A breach of this duty constitutes an offence under section 20 of the WSHA, and in the context of corporate entities, they shall be liable under section 50 to a fine up to S$500,000 for the first infringement.
In contrast, a quarantine order is a statutory directive issued to individuals under the Infectious Diseases Act (IDA) and carries with it the full force of law. Under section 65 of the IDA, a breach of a quarantine order would render the quarantined individual liable to a fine up to S$10,000 or to imprisonment up to six months or both for the first infringement.
The cost and considerations involved
While employees served with a quarantine order are deemed to be on paid hospitalisation leave, and their employers are entitled to make monetary claims under the Quarantine Order Allowance Scheme, it is less clear what entitlements employees placed on forced leave of absence have recourse to. Such employees' rights will generally fall to be determined based on the employment contract or employment terms between the specific employer and employee.
There is inherently a tension between the interests of the employer and employee. From the employer's perspective, the cost to businesses of employees going off on a 14-day leave of absence can be great, particularly in industries which rely heavily on physical manpower (such as the construction and service industries).
This cost, however, needs to be considered against many other factors. These include the serious risk of community spread, and the amplified cost to the employer and society at large if the virus spreads.
At the heart of it, there is also the need to be fair to employees who find themselves placed in a situation that both the employer and the employees were unlikely to have envisaged at the time of the employment agreement.
Striking the balance
There are several ways in which employers can seek to strike the balance, as advised by MOM.
As a starting point, employers should consider if the nature of an employee's role allows flexible work arrangements. With today's workplace technology, most white-collar jobs should be able to accommodate some degree of remote working. If flexible work arrangements are feasible, it is in the interests of both the employer and the employee that the employee is allowed to continue to work from home. In this situation, the employee's physical absence from the workplace should not count towards any of his or her leave entitlement.
If flexible work arrangements are not possible (examples include construction workers and frontline service staff), MOM has encouraged employers to provide paid leave of absence over and above employees' annual leave entitlements. This implicitly recognises that employers have greater resources than individual employees, and that the hardship to the employer is unlikely to be as great as that to the employee.
If paid leave of absence is not feasible, MOM then suggests the following options, whether singly or combined:
- Treat employees' leave of absence as paid hospitalisation leave or paid outpatient sick leave (Option 1);
- Allow employees to apply for annual leave (Option 2);
- Allow employees to use advanced paid leave or apply for no pay leave, for employees who have used up their leave entitlements (Option 3); and/or
- Other mutually agreed arrangements between the employers and employees / unions (Option 4).
If employers adopt Option 1, employees are unlikely to feel any direct impact. However, particularly if paid outpatient sick leave (instead of the longer paid hospitalisation leave) is fully utilised at such an early time of the year, employees may worry about having to go on no pay leave if they fall sick later in the year.
Options 2 and 3 are probably the most favourable to the employers but need to be managed tactfully. Issues of unfairness may arise if the employee had visited mainland China for work purposes. There may also be push-back from employees who may try to obtain a certificate or medical report saying that they are healthy and free of infection from the virus. This certification has been reported to be recognised by some countries (for example, Thailand), but this idea has recently been rejected by the Minister for Health in Parliament.
Turning to Option 4, employers and employees may explore more bespoke options that essentially tread the middle ground and allow the costs to be borne more equitably, if not equally, by both sides. At a practical level, such options may include:
- Paid leave over and above the employee's usual leave entitlement at an agreed proportion of the employee's usual gross rate of pay;
- Paid leave without an employee's annual wage supplement component (which is usually paid at the employer's discretion); and
- Paid leave in consideration for an employee's agreement to work an additional number of hours in the period following the forced leave of absence.
Going forward
Since the last major health scare of the Severe Acute Respiratory Syndrome (SARS) outbreak in 2003, there has also been the H5N1 bird flu outbreak in 2004, the H1N1 swine flu pandemic in 2009, the Middle East Respiratory Syndrome Coronavirus (MERS-CoV) outbreak in 2012, the H7N9 avian influenza outbreak in 2013 and the deadly Ebola outbreak that has plagued Africa since 2014. A recent article reported that the Global Virome Project's research has revealed that we can expect around five new animal-borne pathogens to infect humanity each year.
In today's globalised world, epidemics have a much higher likelihood of transcending physical boundaries and the ripple effects will increasingly be felt by all. Businesses should prepare for such contingencies, and put in place mitigating measures.
As part of these preparations, businesses should also consider the need to update their Human Resource policies to set out a framework for dealing with forced leave of absence. Depending on the specific employer and the industry in which it operates, there may be different regulatory and business considerations. Depending also on the type of employee concerned and the operational needs of the business, the best approach may also differ.
Given the myriad of considerations, businesses are strongly encouraged to seek professional legal advice. At Dentons Rodyk, we provide tailored advice to suit your business needs.
Editorial Note: The authorities have since announced that employers will also receive S$100 a day for each employee serving leave of absence. The foreign worker levy for those on leave of absence will also be waived for the period that employees are on such leave of absence.
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