The coronavirus disease (COVID-19) has been declared a pandemic and is a public health emergency of international concern. Understandably, this may be creating great concern and unrest for you and amongst your workforce. Below we answer some key questions to clarify employers’ legal obligations and support you in protecting your business and people.
Whilst certain industries have been requested to stop or restrict their operations for some time, the UAE Ministry of Human Resources and Emiratisation (MoHRE) has issued further guidelines and recommendations on 15 March 2020 and 26 March 2020 respectively. As of 29 March 2020 and for a period of 2 weeks (that might be extended), the basic rule is that only a maximum of 30% of the workforce is permitted to physically attend the workplace and that the remainder of the employees should work remotely from home. Certain industries such as construction, telecommunications, power, banking, cleaning are exempt from these requirements. However, even if exempted there are other rules and regulations that apply and companies must to comply with those when carrying out their activities and operations.
The COVID-19 specific rules and regulations and also the various recommendations do change on a constant basis. Many decisions and resolutions taken by governmental authorities are currently announced and (extracts or summaries) published through media outlets and agencies. There is often a delay until the actual texts of the decisions or resolutions are available to the public.
Irrespective of any specific COVID-19 regulations, employers should ensure that they are taking reasonable and necessary measures to protect their employees and are complying with the general health and safety regulations provided for in the laws of the UAE.
All employers operating under Federal Law No 8 of 1980 on Regulation of Labour Relations (the “UAE Labour Law”) have an obligation to provide workers “with adequate protection means against hazards of occupational injuries and diseases that may occur during the work”. Employers with establishments in the financial free zones Dubai International Financial Centre (DIFC) or Abu Dhabi Global Market (ADGM)
have a general duty to ensure the health, safety and welfare of their employees at the workplace so far as is reasonably practicable.
The general statutory health and safety duties are relevant with regard to COVID-19 as they require employers to ensure that workplaces are safe from hazards and that precautionary measures are taken to control the spread of COVID-19 so that employees are protected. As such employers should carry out a risk assessment and consider any factors that may make employees particularly susceptible to infection. Employers are advised to provide proper training and education on COVID-19 to their employees, including how the virus spreads and how it can be prevented. Employers should also consider circulating up-to-date information on good hygiene practices and provide any necessary equipment to facilitate this, such as hand sanitisers. For example, we recommend issuing a reminder on actions employees can take to help stop viruses like COVID-19 spreading. We recommend that such advice as a minimum include:
We further recommend notifying employees of the latest government guidance and where they can access more information if they are concerned.
As the situation develops in the UAE, employers and employees alike are encouraged to work together to create pragmatic solutions to minimise the impact to business operations, employee income and customer service. In a special situation like this it is important to strike the right balance between rights, obligations, pragmatism and compassion.
In its circular to employers, the MOHRE urged employers to take serious precautionary and preventive measures such as adhering to public health rules, cleaning and disinfection of surfaces, and providing disinfectants and sterilisation tools within the reach of employees at their workplaces, housing (if employer provided), and when boarding buses. The guidelines also emphasise the need to sterilise buses or other means of transportation every day.
The MOHRE advised that if an employee shows any symptoms of a COVID-19 infection to immediately contact the competent health authorities (see reporting requirements below).
The UAE Supreme Council for National Security/National Emergency Crisis and Disasters Management Authority published The Business Continuity Readiness Guidelines for UAE Organisations – In the event of the Novel Coronavirus (COVID-19). It is classified as a guiding document to increase readiness of organisations in the UAE and explains ways to address the risks arsing form the outbreak of epidemics.
What are employers’ rights in respect of COVID-19 and reducing entitlements?
On 26 March 2020 and effective immediately, the MoHRE issued Ministerial Decision No. 279 of 2020 (MoHRE Decision No. 279 of 2020) that provides guidance to private sector employers and protection to employees during the period of the UAE government implementing precautionary measures to limit the spread of the COVID-19 causing virus. MoHRE Decision No. 279 of 2020 applies to employers registered with MoHRE and non-UAE national employees only.
There are two main take-aways from MoHRE Decision No. 279 of 2020:
Can employers request or require information from an employee about potential or actual exposure to the virus?
The question on whether an employee can be asked to confirm, verbally or in writing, about their potential or actual exposure to COVID-19 is not only an employment question but must also be considered in light of applicable privacy laws in the UAE.
Currently there is nothing in the laws of the UAE that prevents an employer from requesting travel or health information from an employee (such as requesting an employee to confirm where he /she has been and his/her exposure to the virus). Pursuant to the UAE Labour Law employers in the UAE are under a duty to provide a safe and secure working environment for its employees. It could be argued that the collection of data relating to employees actual or potential exposure to COVID-19 may be necessary to protect the health, safety and welfare of all other employees at the workplace. Employees have a statutory duty to comply with reasonable instructions or requests from its employer, and an employer may take actions, including disciplinary actions, where an employee fails to do so. Based on the aforementioned, employers should be able to ask an employee to confirm and specify where he/she has recently been (e.g. by country, region or city) in order to assess the level of risk to the workforce. As a principle it is possible for employers in the UAE to put the employee under a medical examination in order to verify any suspected or actual illness and /or request a medical certificate to confirm that the employee is or is not affected, in this case by COVID-19. Whether an employer also can request access to an employee’s medical records falls under the notion of data protection laws and it would generally be necessary to obtain an employee’s express written consent before accessing their medical records.
Information about an employee’s health (such as whether the individual has been diagnosed with the COVID-19 or is suffering from any symptoms) is sensitive personal data and must therefore be processed in line with applicable privacy requirements. It is worth noting that information on an employee’s whereabouts, and thus potential exposure to COVID-19, however, may not necessarily constitute sensitive personal data.
In the UAE, there is currently no general data protection law with the exception of ADGM and DIFC which have their own data protection laws. The general provisions on the right to privacy contained in the UAE Constitution and the UAE Penal Code protect an individual’s right to secrecy and to the protection of their “private or familial life”. There are other provisions in the Cybercrime Law and the Telecommunications Law that can be used to claim a right to privacy. In light of the unclear legal framework regarding privacy in the UAE and irrespectively of COVID-19, we would recommend employers to always seek express consent from employees to the collection, processing and transfer of their personal data and putting appropriate measures in place to protect personal data. This is a matter of best practice and may – at least in normal circumstances – also prevent being subject to legal consequences if an employee was to file a criminal complaint under the UAE Penal Code.
Self-isolation / self-quarantine
The UAE authorities are constantly updating their guidelines on the circumstances in which an individual will be required to self-isolate / self-quarantine. For example, as of 17 March 2020 all travellers who enter the UAE must undergo 14 days of mandatory self-quarantine or risk legal action. This was advised by the UAE's attorney general and is based on a law that criminalises anyone who carelessly or deliberately spreads a disease or harms public health. Furthermore, as of 19 March 2020 the UAE announced that for a period of at least 2 weeks even UAE residents (except UAE nationals) will no longer be able to enter the UAE.
These developments are relevant in relation to an employer’s right to require its employees to stay away from the workplace without their consent based on, for example, that they have travelled to a particular country. Until the above mentioned changes came into place, individuals in the UAE were required to self-isolate / self-quarantine if:
There are currently no laws or guidelines in the UAE on an employer’s obligation to pay an employee who self-isolate but who is not officially unwell. Theoretically, if an employee is not sick, no sick pay is payable. The employment contract and internal policies should be viewed for any relevant provisions relating to, for example, emergency leave or unpaid leave but generally there is no legal obligation to pay an employee for not attending work unless the contract or policies provide otherwise. From a practical perspective however, employers do not want to risk employees attending the workplace in circumstances where there is a risk that they have come into contact with someone infected with COVID-19 or visited a high-risk area. Therefore, employers should consider either to choose to class the absence due to self-isolation as sickness and apply normal sick pay rules or pay the employee his / her normal pay. We recommend employers to take into consideration if the absence was caused by business related travel and, in general, apply a pragmatic approach and to try to find flexible working arrangements with the employees who find themselves in this situation. This could, for example, include permitting the employee to work from home for a period of time (if the nature of the works allows), agreeing that the employee will take a period of paid annual leave or permitting the employee to take a period of unpaid leave. For those employees who can work from home while undergoing self-isolation it is clear that they should be able to receive their salary as normal. The relevant arrangement between the employer and the employee should be documented in writing and ideally signed by both parties.
If the employee cannot work from home, for example, if the employee works in a factory or warehouse where he / she can only do the job on the site then strictly speaking the employer is under no obligation to pay the employee under the period of self-isolation. However, we encourage employers to be generous and flexible to ensure that potentially affected employees stay home so that the workplace remains safe and healthy.
Request by employer for employee to be absent
If an employer determines that there is a need for an employee to remain away from the workplace for example in case, he / she has come into contact with someone who is infected with COVID-19 or has travelled to a country that is deemed to be at high risk, the employer should as a first option require the employee to work from home. Generally the strict immigration and employment laws in the UAE only permit working from an employer's premises, however in the current circumstances with the imminent threat of COVID-19 these limitations do currently not apply and the authorities have requested businesses to introduce work from home. The Business Continuity Readiness Guidelines for UAE Organisations published by the UAE Supreme Council for National Security/National Emergency Crisis and Disasters Management Authority specifically provide for the introduction of a remote work strategy.
As a second option an employer could use its rights under the UAE Labour Law to determine the time and periods of annual leave and hence impose a period of forced annual leave on its employees, assuming the employee has sufficient annual leave balance. Employers operating in the ADGM and DIFC have an obligation to give an employee seven days prior notice before starting any (imposed) annual leave.
In a situation where the annual leave entitlement is exhausted and an employee cannot return to work due to the ongoing spread of COVID-19, employers may have to request the relevant employee to take unpaid leave, assuming they cannot work remotely. It is however important to note that there is no legal right to unilaterally place an employee on unpaid leave in the UAE and doing so could give rise to a breach of contract claim against the employer. This has not changed under the new MoHRE Decision No. 279 of 2020.
From an employer's perspective, it is important that employees promptly report any suspected contact with someone infected with COVID-19 so that precautionary measures can be taken. Employees may be reluctant to make such reports if they believe it may have an impact on their work, pay, employment etc. Employers should therefore consider providing employees with some assurances in this regard.
Where there is a reason to believe that an employee poses a risk to the health of other employees, for example because they have been in a high-risk area or have had close contacts with a person infected by COVID-19, the employer should request the employee to undergo a medical examination. Until the results are available, the employee could be either instructed to work form home or where working from home is not an option, released from work duties with full pay.
The employer/the direct superior of the employee shall report a probably infected employee in the same manner as an infected employee (see below).
If an employee is confirmed to be infected with COVID-19 the employer (the direct superior of the employee) is required to immediately report the incident in writing, by phone or any electronic means to the UAE Ministry of Health and Prevention (800 11111) or the nearest health authority such as Dubai Health Authority (800-342), Estijaba Service at the Operation Centre of the Department of Health Abu Dhabi (800 1717).
Employers in the UAE should consider what actions they will take in the event an employee tests positive for COVID-19. An infected employee will require the employer to take immediate steps to contain the spread of the virus amongst the workforce and to ascertain those individuals who have been in contact with the infected employee. In order to be prepared to take prompt actions in this situation we recommend employers to consider having an emergency response procedure in place so that management have a clear action plan. The plan should cover:
If an employer becomes aware that one of its employees is infected with COVID-19, there is currently no obligation for the employer to inform all employees, customers and any third parties of this information. However, the employer may voluntarily decide to disclose internally and/or externally about the confirmed case(s) of COVID-19 to anyone other than the authorities. In such case it is important that any communication made is taken with due regard to the balance between protecting the privacy and data of the infected employee involved with the public interest in avoiding the spread of the virus. The identity of the employee should in so far as possible not be disclosed.
If an employee is infected by COVID-19 this can be treated in the same way as any other sickness absence in terms of payment. Under the UAE Labour Law an employee is entitled to 90 calendar days of sick leave in any 12-month period and the first 15 days are payable at full pay, the next 30 days at half pay and the remaining 45 days are unpaid. In a situation with COVID-19 employers should consider enhancing the sick leave provisions for an employee infected (for example by providing infected employees with full pay throughout their period of sickness) in order to encourage employees to notify the employer when they have symptoms of COVID-19 and not return to work before they are no longer contagious.
The UAE Labour Law sets out a list of occupational injuries and diseases which makes the employee eligible for compensation if contracted at work. Whether or not an employee could claim compensation for contracting COVID-19 at work would depend on the individual circumstances and whether the employee can conclusively establish the link between work and contracting the virus. For most employers in the UAE in the event that an employee becomes infected with COVID-19 it is unlikely that it would be deemed to be an occupational disease under the provisions of the UAE Labour Law. The exception would be employers in the medical field and potentially to organisations that work at or come in contact with medical facilities such as waste disposal from a medical facility or coffee shops operated by third parties at hospitals etc.
Infected family member
An employee who wants to stay home due to that a family member / relative is sick in general or in specific with COVID-19 does not have a statutory right to paid sick leave in the UAE. If the employment contract or internal policies do not provide for any other leave under these circumstances, such as emergency leave, employers should consider requiring employees to take time away from the workplace (either working from home or mandatory leave) to allow the employee to care for their family member/ relative and to prevent the spread of the virus.
Refusal to work or attend work
An employee is required to comply with his/her employer’s reasonable instructions such as attending the workplace during the employee’s working hours and unless there is a valid basis for refusing to attend the workplace, such a refusal would likely constitute an unauthorised absence and amount to a breach of contract. Provided an employer has taken reasonable measures to provide for the health and safety of its employees, in the absence of any specific grounds for refusing to attend the workplace other than general concerns about the presence of the COVID-19 in the UAE an employer should legally be able to require an employee to attend the workplace. On the other hand, if the employee has a legitimate and concrete concern which directly relates to the work environment (for example a COVID-19 case) and does not simply refer to the general national circumstances, then an employee should be able to refuse to attend the workplace without any reprimands.
In the current situation with a national spread of the COVID-19 employers should consider their approach to dealing with employees who want to stay at home to avoid being infected, especially if they may be at greater risk from COVID-19. Employers are also required to take into consideration the regulations issued by MoHRE on the maximum percentage of the workforce permitted to physically attend the workplace and working remotely from home.
Employers should take whatever measures are reasonable to mitigate the spread of the disease and keep its employees safe. They are also required to follow instructions from the competent authorities.
If an employer closes its business/work premises in the UAE (irrespective of the closure being voluntarily or mandated by the competent authorities) the employer remains obliged to continue complying with their contractual obligations towards their employees (e.g. paying their employees’ salaries) even when the workplace is closed. This is because the non-performance of duties will in any event not be due to a cause attributable to the employees. Lastly there is no right to lay off employees without pay in these circumstances, and any period of unpaid leave or reduction in salary would need to be agreed with the employees.
Where can employers and employees access local and national advice?
The above information is for general guidance only and does not constitute legal advice. Employers are encouraged to seek special legal advice.
Last reviewed on 31/03/2020