On 3 April 2020, the Ministry of Trade and Industry in Singapore (“MTI”) announced an unprecedented order requiring all non-essential business premises to close effective 7 April 2020.
The COVID (Temporary Measures) Act was passed by Parliament on 7 April 2020. Under s34(1) of the Act, the Minister may make regulations (called “control orders”) for the purpose of preventing, protecting against, delaying or otherwise controlling the incidence or transmission of COVID-19 in Singapore.
The COVID-19 (Temporary Measures) (Control Order) Regulation 2020 (“COVID-19 Regulations”) kicked in immediately on 7 April 2020 and will remain in force till 4 May 2020. It may also be extended, as needed to combat the virus.
The Regulations dealt strictly with the movement of people, including restrictions on leaving or entering residential premises, prohibitions on social gatherings and maintenance of safe distancing.
More importantly for MNCs and other businesses, the COVID-19 Regulations imposed restrictions in relation to workplaces and the conduct of work:
1. Closure of premises
An owner or occupier of any premises, other than residential premises, must ensure that the premises are closed to entry by any individual.
2. Essential services
An essential service provider is permitted to continue to operate
(a) at the permitted premises of the essential service provider;
(b) with the prior permission of the MTI; and
(c) in accordance with the conditions or restrictions for that type of business, undertaking or work prescribed by MTI.
The prior permission of the MTI may be obtained via an application or under the "general exception" that applies to pre-determined categories of business that MTI considers essential, such as:
• Emergency and Chronic Health and Social Services, excluding elective and optional treatments
• Food takeaway and delivery
• Water, Waste and Environmental Services
• Transportation and Storage
• Critical IT Services
• Defence and Security
• Construction, Facilities Management and Critical Public Infrastructure
• Manufacturing and Distribution Related to Other Essential Services
• Banking and Finance
• Certain Legal Services
All other non-essential services that do not fall under the above general exemption must be closed, and we have urgently assisted clients in Singapore over the past weekend with submissions to MTI to seek cover under the General Exemption. For instance, we have assisted various suppliers and manufacturers obtain clarification from the authorities that they fall under the general exemption, where operations relate to key essential services as part of wider global supply and transport networks.
If a company has made an unsuccessful application for exemption, the authorities have expressed that appeals on rejected applications will not be entertained. Whether this might be appealable as a matter of administrative law is presently unclear, and companies who are deeply dissatisfied with the outcome may consider next steps in this regard particularly if a critical activity has been denied the opportunity to remain open.
The owner or occupier of the permitted premises may allow employees, contractors, customers or other individuals to enter the premises only for the purpose of working for or dealing with the essential service provider (including procuring the provision of the essential service).
Even with allowance to continue operating essential services, owners or occupiers of permitted premises must take steps to ensure social distancing is practised within the premises, and that workers involved in non-essential aspects of a business do not come to work.
By way of illustration, if an MNC manufactures critical pharmaceuticals, the pharmaceutical manufacturing line may continue to operate. However, non-essential staff such as those in the HR or Accounts departments should not go to work even if the plant itself remains open. This is because those who can adequately perform their work from home via tele-commuting should not visit the office under the COVID-19 Regulations.
3. Non-essential services
Non-essential service providers may only work from home.
Under s34(7) of the COVID-19 (Temporary Measures) Act 2020, flouters who, without reasonable excuse, contravene a control order, will have committed an offence and shall be liable on conviction to a fine of up to S$10,000 or to imprisonment up to 6 months or to both; or, in the case of a second or subsequent offence, to a fine of up to S$20,000 or to imprisonment up to 12 months or to both.
It has been reported that the relevant agencies conducted enforcement checks on the suspension of activities at workplace premises and safe distancing measures, covering close to a 10,700 businesses across Singapore on 7 April 2020. 10 businesses were instructed to cease their operations for remaining open despite providing non-essential services.
4. Short Term Exemptions from Closure for Non-Essential Businesses
All non-essential businesses are now required to, and most if not all must have closed their offices and physical operations. At this stage, non-essential employees should be working from home and limiting contact with individuals outside the home.
However, the government has made provision under the COVID-19 Regulations for companies to apply for short term exemptions from closure of their offices as needed in critical situations. Based on our evaluation, such applications would likely apply to:
- Performing sensitive work that must be done in the office as it is not possible to perform such work confidentially via telecommuting;
- Instances where property destruction is imminent or occurring;
- To maintain a minimum level of operations required for critical functions, safety or security;
- To retrieve necessary materials, documents or to perform crucial tasks that cannot be performed remotely; or
- For urgent work arising from catastrophe or emergency elsewhere in the world, requiring deployment of assets in Singapore to provide coverage.
Non-essential MNCs and businesses facing the above situations must apply with the authorities for a "Time Limited Exemption" via the appropriate channels in order to open.
MNCs must consider and should, in making such applications, satisfy the authorities that if awarded the Time Limited Exemption, safe distancing measures at the workplace will be practised and vulnerable individuals (such as the immunocompromised and elderly) will be shielded from exposure or not called back to work.
This article is produced by our Singapore office, Bird & Bird ATMD LLP, and does not constitute legal advice. It is intended to provide general information only. Please note that the information in this article is accurate as at 9 April 2020. We will continue to monitor the situation and provide updates on any changes as soon as these are communicated to us. Please contact our lawyers if you have any specific queries.