Covid-19 | Q&A

GENERAL INFORMATION

YOUR QUESTIONS

Q&A Human Resources / Legal / Staff Management

Is short-term working legal in Kenya?

19/03/2020
Nigel Shaw, Managing Partner at ENSafrica’s answer:

Yes. An employer may provide flexible arrangements on working hours. The working hours should be contained in the employment contract and any changes to the employment contract can only be done in writing and in consultation with the employee. Employees on a part time contract are afforded the same rights as those on full-time contracts.

What can an employer do if an employee doesn't want to come to work because he/she is afraid of being infected/ contaminated at the work place?

19/03/2020
Nigel Shaw, Managing Partner at ENSafrica’s answer:

Employers are under an obligation under the Occupational Safety and Health Act 2007( the “Act”)  to keep their place of work safe which includes taking the necessary preventative measures to combat COVID-19. As such an employer can reassure the employee that he has discharged his duty in accordance with the Act and the health guidelines from the government.

An employer may also opt to adopt flexible working arrangements and allow employees where possible to work from home, with the exception of employees working in critical or essential services.  Where employees are working from home, an employer would be required to provide the necessary resources to facilitate the employees to work from home.  Employers should also inform the employees working from home that the same rights, obligations and responsibilities arising from their employment contract will continue to apply. As such, the employees are expected to commit themselves to discharging their work responsibilities as much as possible under the circumstances lest they be in breach of their employment contracts.

Legally, how is forced or partial unemployment managed?

19/03/2020
Nigel Shaw, Managing Partner at ENSafrica’s answer:

If an employee is in quarantine for 14 days then it may be necessary to enter into an addendum to ensure that the employee is paid for this period or provide for whatever measure that is fair in the circumstances. Salaries may not be reduced unless in agreement with the employee.

Where it is not feasible for an employee to work at the place of business or alternatively from home or any other location, due to the nature of the employees’ work, the absence would ordinarily be treated as paid time off.  However, given that the absence from work is necessitated by factors beyond employee’s doing, this time off work would not automatically be deducted as part of the employees’ annual leave entitlement.

What does the Gatherings Prohibition mean for companies and shareholders' meeting?

19/03/2020
Nigel Shaw, Managing Partner at ENSafrica’s answer:

Companies will need to examine their Articles of Association to establish if they allow for alternative means of convening and holding directors board meetings or shareholder meetings. For example the Articles may provide for circulating notices to the board of directors (if a directors’ meeting) or publishing notices of meetings on company website (if a general meeting), sending documents relating to the meeting electronically and holding meetings (entirely or in part) electronically. If the Articles of Association do allow for such meetings, the appropriate arrangements need to be made to ensure that all persons invited to the meeting are in a position to communicate to all those attending.  For example such as skype, video or teleconferencing.

What are employer responsibilities in the face of the COVID-19 crisis?

19/03/2020
Nigel Shaw, Managing Partner at ENSafrica’s answer:

The employer’s responsibilities in the face of the Covid-19 crisis remain the same as contemplated under the Employment Act, no. 11 of 2007 (the “Employment Act”). These responsibilities as set out below do not change even where the employee works remotely.

 

Discrimination in the workplace

The Employment Act and the Constitution prohibit direct discrimination arising from any disability within the workplace. This therefore creates an obligation on the employer to make reasonable adjustment to the workplace to ensure that employees who are diagnosed with Covid-19 are not discriminated against.

 

Provide Resources to Work Remotely

The employer is required to provide employees with the necessary resources to work from home. An employer should evaluate whether they have the necessary infrastructure to enable a large number of employees to work from home and whether the IT system is able to accommodate a high number of employees working remotely.  The employer may also update the current working from home  policy to ensure that the employees are aware of their obligations while working remotely.

Leave

Employers are required to notify the employees on how Covid-19 will affect the employees annual leave plans. An employer may allow their employees to take their statutory annual leave provided that the employee gives the required level of notice under the employment contracts.

 

Sick Leave

The Kenyan Employment Act provides that after two consecutive months of service with his employer, an employee is entitled to seven (7) days sick leave with full pay and thereafter to sick leave of seven (7) days with half pay, in each period of 12 consecutive months. The Regulation of Wages (General) Order on the other hand provides for thirty (30) days sick leave with full pay and thereafter to sick leave of fifteen (15) day, in each period of 12 consecutive months. It is more likely that employees will rely on the maximum sick leave days provided in the Regulation of Wages General Order. Therefore, for an employee to qualify for statutory sick leave with full pay, the employee must be absent from work due to incapacity. An employer will therefore require a medical certificate from the employee as proof of incapacitation from the Covid-19 virus. An employee who is on self-quarantine is unlikely to qualify for sick leave with full pay given that they are not incapacitated, and therefore required to work in self-isolation in accordance with the Government of Kenya directive.  An employer would therefore be required to provide and update the sick-leave policies during this period.

 

Duty to Protect the Health and Safety of their Employees

The employer has a responsibility to protect the health, safety and welfare of their employees and must do whatever is reasonably practicable to achieve this. The Occupational Safety and Health Act 2007 requires that employers put certain measures in place to ensure the safety of employees in the workplace. The employer is required to put sufficient notices in different sections of the workplace to notify employees on safety standards and procedures. The employer is also required to conduct trainings, prepare manuals for employees that contain health and safety information and provide necessary resources in the workplace.

Can employers lawfully conduct temperature checks on employees, workers or visitors?

19/03/2020
Nigel Shaw, Managing Partner at ENSafrica’s answer:

As a general rule an employer cannot compel an employee, a visitor or any worker to undergo a medical examination without their consent. If an employer requires that all employees undergo a medical examination including taking their temperatures to ensure that none is infected by Covid-19 and an employee refuses to do so, then the employer can always refuse admission to the workplace on the basis that the workplace is now an unsafe place to work. The employer should reassure the employees that the health checks are necessary for their safety and to safeguard the workplace.

If an employee falls into the categories in which the Kenyan government has "strongly advised" to work from home, can the employer require them to come into work if their role cannot be carried out remotely?

19/03/2020
Nigel Shaw, Managing Partner at ENSafrica’s answer:

On 15th March, the Kenyan President gave a speech outlining a raft of measures to manage the Coronavirus outbreak. In his speech, he stated that all persons who entered Kenya within fourteen (14) days prior to the announcement must self-quarantine. This also extended to persons coming into Kenya from countries with the Coronavirus outbreak.  If any person exhibits symptoms such as cough or fever, they should present themselves to the nearest health facility for testing. Further the government provided that the public should report any person not adhering to the Presidential directive.

In our view, an employer should consider carefully its position to require an employee to come to work where there is Presidential directive requiring the employee not to come to work. To do so may be considered a breach of employers duty of care to the employees and a further breach of mutual trust and confidence. An employer may also  be considered to be in breach of a government directive and government sanctions may be imposed on the employer for putting the other employees at risk. Further, if  an employee subsequently contracts COVID-19 due to their employer’s actions, they may have a claim for personal injury against the employer.

At what point should an employer close the workplace?

19/03/2020
Nigel Shaw, Managing Partner at ENSafrica’s answer:

There are currently no guidelines issued by the government on whether employers should close the workplace if there is a suspected case of Covid-19 infection amongst the employees. In our view, the employer may take the following into consideration before closing the workplace:

  1. have a discussion with the employees about the suspected case;
  2. identify all the employees who have come into contact with the sick employee and advise them to get checked at the nearest health facility;
  3. carry out a risk assessment; and
  4. advise on any actions or precautions to take

 

The employer should also get into contact with a health officer to consider the risks  and allow the health officer to advise on isolation. The employer should also consider disinfecting the offices and all areas to ensure that there is no exposure of the virus in the workplace.

Q&A: Travel / Flights

It is rumoured that flights to France will soon be cancelled, is this true?

19/03/2020
Air France KLM’s answer:

The information we have now is that Air France will operate till 23rd March from Nairobi thereafter we will have no flights for an indefinite period.

Our customers in Kenya can reach our call center via email or phone:
·         Esales.KE@airfrance.fr
·         +254 20 3893722
·         Or visit the website for up to date information on schedule changes as information changes quickly. https://www.airfrance.ke/

KLM so far has 3 flights in the coming days i.e. 20th Mar, 25th Mar and 28th Mar. The plan is to keep 2 weekly flights.

Contact details:
·         Esales.KE@klm.com
·         +254 20 3893722
·         Or visit the website for up to date information on schedule changes as information changes quickly. https://www.klm.com/home/ke/en

Q&A Suppliers / Procurement / Contracts

How can "Force majeure" be used in link to Coronavirus crisis?

19/03/2020
Nigel Shaw, Managing Partner at ENSafrica’s answer:

On March 11, 2020, the World Health Organisation declared Coronavirus a pandemic. Most contracts with a force majeure clause will list instances amounting to a force majeure (may include a pandemic such as Covid-19) and in what way a party may rely on the clause. Therefore a review of contracts to establish if they contain any force majeure clauses and if these cover a pandemic should be done. Where force majeure provisions are present and covers a pandemic, careful consideration should be given to any specific timing and notice requirements. Where no force majeure exists or where it doesn’t cover a pandemic, it is important that other remedial or mitigation steps are explored at an early stage.  For instance, contract variations and appropriate extensions etc. by mutual consent.

In the absence of an express force majeure clause, the parties may review the contract to establish whether the common law doctrine of frustration may apply. Frustration only applies in certain restricted circumstances where performance has become impossible i.e. where a serious event occurs after the formation of a contract which is both unexpected (so that any contractual force majeure provisions do not cover it) and beyond the control of the parties, which renders it physically or commercially impossible to fulfil the contract, or transforms the obligation to perform into a radically different obligation from that undertaken at the moment of entry into the contract. This is a common law principle and the courts apply it as narrowly as possible.

What are the legal implications on booking repayments?

19/03/2020
Nigel Shaw, Managing Partner at ENSafrica’s answer:

A consumer is entitled to a refund under section 80 of the Consumer Protection Act (the “Act”) on cancelation of a consumer agreement. Therefore, the specific booking policy and the underlying terms and conditions will need to be reviewed and weighed against the provisions of the Act and general contract law to determine effects of cancellations as a result a force majeure and/or frustration event.

Q&A: Questions from French Companies

En quoi consiste le plan de soutien de l'Etat aux PMEs françaises?

16/03/2020
Romain Bauret, Area Manager – Africa @Bpifrance vous répond:

“Bpifrance se mobilise pour soutenir les entreprises.
Un plan exceptionnel est mis en place pour accompagner les dirigeants d’entreprises et soutenir leur trésorerie.

En effet, nous mettons à la disposition des PME et ETI françaises une gamme de garanties bancaires, de prêts Court Terme et Moyen Terme, portée par des procédures d’urgence pour une mise en place rapide :

  • Nous garantissons votre banque à hauteur de 90% si elle vous fait un prêt de 3 à 7 ans
  • Nous garantissons à hauteur de 90% votre découvert si votre banque le confirme sur 12 à 18 mois
  • Nous vous proposons un prêt sans garantie sur 3 à 5 ans de 10 mille à 5 millions d’euros pour les PME, et plusieurs dizaines de millions d’euros pour les ETI, avec un différé important de remboursement
  • Nous mobilisons toutes vos factures et rajoutons un crédit de trésorerie de 30% du volume mobilisé
  • Nous suspendons les paiements des échéances des prêts accordés par Bpifrance à compter du 16 mars
  • Enfin nous vous rappelons que vous pouvez demander le report des échéances fiscales et sociales et des remises d’impôts aux administrations et services concernées.”

Existe-t-il des directives concernant les VIEs?

16/03/2020
La réponse de Business France ci-dessous:

Voir>>>Businessfrance.fr

Contacter 
Mme Marie-Gabrielle Rosenblieh : Tél. ou message WhatsApp +254 736 365 320 – Mèl : marie-gabrielle.rosenblieh@businessfrance.fr  

Q&A Clients & Customers / Legal / Retail

Can a customer who looks sick be refused entry?

19/03/2020
Nigel Shaw, Managing Partner at ENSafrica’s answer:

If in relation to the entry of a customer into any business premises, then yes, the owner of a business may refuse such a person entry. The Covid-19 virus raises a public health risk issue. The Public Health Act, Chapter 242 (the “ Public Health Act”) requires that any person is required to give a notice of an infectious disease.  In this regard, where the owner of the business notifies an officer of the Ministry of Health (“MOH”) that they suspect a person to have an infectious disease, then the customer may be denied entry into the premises and the MOH must be notified. In relation to threat to public health, the infection should be air borne or transmitted through casual contact for it to be considered a threat to public health.

Have further questions?

Contact us via contact@frenchchamber.co.ke