Covid-19 Employment Q&A: Allen & Gledhill

4 April 2020

The Covid-19 outbreak has led to the promulgation of a number of advisories and regulations which have a direct impact on the employment landscape in Singapore. This Q&A addresses a number of issues that employers may be dealing with during this period.

1. The employer wishes to remain operational during the current Covid-19 situation. What measures must the employer put in place to ensure a safe workplace and compliance with the requirements of the Ministry of Health (“MOH”) and Ministry of Manpower (“MOM”)?

Following the Singapore Government’s announcement on 3 April 2020, all businesses that cannot be conducted through telecommuting from home will be suspended from 7 April 2020 to 4 May 2020 (both dates inclusive) (“Suspension”). Essential Services and their related supply chains, as well as entities that form part of the global supply chain, are exempted from the Suspension. The list of Essential Services may be found at covid.gobusiness.gov.sg/essentialservices.

For workplaces that are exempted and continue to operate during the Suspension, the employers must implement the safe distancing measures set out in the “MOM Advisory on Safe Distancing Measures at the Workplace” and in the Infectious Diseases (Workplace Measures to Prevent Spread of Covid-19) Regulations 2020 (“Workplace Measures Regulations”). Such measures include, but are not limited to:

Reducing the need for, and duration of, physical interactions;
Ensuring clear physical spacing of at least 1 metre apart for work stations, common areas, etc.;
Staggering working hours so as to reduce possible congregation of employees at common areas;
Deferring or cancelling all events which involve close and prolonged contact amongst participants;
Implementing or enhancing shift or split team arrangements.

The employer should obtain health and travel declarations from employees and cancel or postpone all employees’ travel until further notice.

Employers should clearly communicate their business continuity plans and other measures implemented to their employees.

On 3 April 2020, the Ministry of Trade and Industry published a press release titled “Suspension of Activities at Workplace Premises to Reduce Covid-19 Transmission”, including a Frequently Asked Questions at Annex B of the press release.

2. An employee is diagnosed with Covid-19.

(a) What are the employer’s obligations to the employee?

Ordinarily, the Employment Act (“EA”) provides that an employer is liable to bear or to reimburse the employee (who has worked for at least three months) the fees of an examination where the employee is certified to be entitled to paid sick leave by a medical practitioner from an approved public medication institution or appointed by the employer. The Employment of Foreign Manpower (Work Passes) Regulations 2012 also provides that an employer is responsible for the medical treatment of a foreign employee in Singapore. However, the Singapore Government is covering the cost of Covid-19 treatment unless the Singapore resident or Long Term Pass holder travelled from 27 March 2020 in disregard of prevailing travel advisories.

Employees undergoing treatment for Covid-19 will be certified as being on paid hospitalisation leave. For employees who have used up their paid hospitalisation leave while seeking treatment for Covid-19, employers are urged to exercise compassion and flexibility by granting additional paid hospitalisation leave.

(b) What are the employer’s obligations to the other employees?If the confirmed case had been in the workplace, the employer should:

If the confirmed case had been in the workplace, the employer should:

immediately vacate and cordon off all areas where the confirmed case has visited; and
carry out a thorough cleaning and disinfection of all such areas of the workplace premises in accordance with the guidelines established by the National Environment Agency of Singapore.

All employees who had worked closely with the confirmed case should be advised to wear a mask and self-isolate. These employees should monitor their health closely for 14 days from their last exposure to the confirmed case. The employer should co-operate with the MOH’s contact tracing officers to identify employees who may have had close contact with the confirmed case.

In addition, the employer should provide timely information to employees on the latest developments and reassure employees and other persons (such as customers and service providers, if applicable) of the measures being taken to ensure their well-being at the workplace.

3. An employee displays symptoms of Covid-19 (i.e. fever (37.5C/99.5F), cough, shortness of breath, etc.) but has not been diagnosed yet.

(a) What are the employer’s obligations to the employee?The employer should inform all employees of all the measures that are required to be implemented under the Workplace Measures Regulations, which include requiring workers to report, immediately upon the onset of symptom(s) or feeling physically unwell. If an employee displays symptoms while at work and notifies the employer, the employer should advise the employee to consult a doctor promptly and, as far as reasonably practicable, provide the employee with a face mask and require the employee to wear a mask to minimise any risk of transmission to others. The employee should leave the workplace immediately or if this is not possible, the employee has to be isolated.

If an employee displays symptoms but is not at work, the employee should be advised not to enter the workplace and to consult a doctor promptly.

In the event that the employee is given a medical certificate by a registered medical practitioner from an approved public medical institution or appointed by the employer, the employer is obliged to reimburse the employee for the consultation fee, under the EA.

(b) What are the employer’s obligations to the other employees?

Apart from the above measures in paragraph 3(a) above, there is no other public health action required of the employer. Nevertheless, the employer should remind all staff to:

monitor their health, including doing temperature checks at least twice a day;
adopt good personal hygiene; and
see a doctor immediately if they are unwell, and inform their supervisors or HR departments immediately.

The employer should provide timely information to employees on the latest developments and reassure employees and other persons (such as customers and service providers, if applicable) of the measures being taken to ensure their well-being at the workplace.

4. An employee has a household member diagnosed with Covid-19.

(a) What are the employer’s obligations to the employee?

All Covid-19 patients are treated in government facilities and only discharged when they are completely well. If the employee has a household member who is diagnosed with Covid-19, it is likely that he or she will be quarantined if assessed to be a close contact.

The employer should inform the employee that he or she must comply with the Quarantine Order. The employer must also not prevent or restrict the employee from complying with the Quarantine Order and must not assist the employee in breaching the Quarantine Order or give the employee any instruction which is inconsistent with the Quarantine Order.

If the employee is served with a Home Quarantine Order, i.e. a Quarantine Order that is to be served out at home, he or she shall be deemed to be on paid hospitalisation leave. If the employee has used up his or her paid hospitalisation leave, the employer is encouraged to exercise compassion and flexibility by granting additional paid hospitalisation leave.

(b) What are the employer’s obligations to the other employees?

Please refer to our comments under paragraph 3(b) above.

5. An employee travelled overseas for work before the Singapore Government issued travel advisories against travel overseas. He cannot return to Singapore for now because of travel restrictions imposed by Singapore.

(a) What are the employer’s obligations to the employee?

All Singaporeans and Permanent Residents are allowed to return to Singapore. If the employee is a work pass holder, the employer must obtain approval from MOM and the Immigration and Checkpoints Authority before arranging for the pass holder to enter Singapore. However, the chances of getting an entry approval are very slim and the employer must ensure that it can fulfil the additional responsibilities to bring the work pass holder in.

(b) Can the employer deduct annual leave from the employee?

There is generally no statutory right under Singapore law which authorises an employer to direct an employee to utilise his or her annual leave entitlements. Any such requirement or restriction would be determined by reference to the employee’s terms of employment (e.g. the employee’s employment contract and/or any applicable policies or terms incorporated as part of the employment contract).

In the absence of an express provision giving an employer the right to unilaterally direct its employee to utilise his or her annual leave entitlement, the employer and the relevant employee will have to mutually agree on the deduction of the employee’s annual leave.

6. An employee travelled overseas for personal reasons after the Singapore Government issued travel advisories against travel overseas. He cannot return to Singapore for now because of travel restrictions imposed by Singapore.

(a) What are the employer’s obligations to the employee?

Please refer to our comments under paragraph 5(a) above.

(b) Can the employer deduct annual leave from the employee?

Please refer to our comments under paragraph 5(b) above. The same principles relating to the utilisation of annual leave entitlements apply. If the employer had, prior to the employee’s travel, notified all employees of any policy against travel overseas and the reasonable consequences arising therefrom (such as being put on unpaid leave or requiring the employee to use his or her own annual leave entitlements to cover the duration of any mandatory Stay-Home Notice (“SHN”) or any extended period of travel in the destination country), the employer may be able to take the necessary action against the employee.

7. An employee who returned to Singapore from overseas is now on a14-day SHN.

(a) What are the employer’s obligations to the employee?

The employer should remind the employee that he or she will have to remain in his or her place of residence at all times during the 14-day SHN and must not leave the residence even if he or she wishes to purchase food and essentials.

Where the employee is a work pass holder, the employer is responsible for ensuring that the work pass holder fully complies with the SHN requirements. The employer is also responsible for the well-being of such employee and is required to:

arrange for the work pass holder to be sent from the airport or any other place of disembarkation directly to his or her place of residence to serve the 14-day SHN immediately upon arrival in Singapore, unless the work pass holder is flying from the UK or US and serving his or her SHN at designated facilities;
ensure that the work pass holder downloads WhatsApp on his or her mobile phone and responds to MOM’s phone calls, WhatsApp video calls or SMSes within one hour during the 14-day SHN period. This includes ensuring that the work pass holder’s prepaid cards are sufficiently topped up and that he or she is able to make video calls using WhatsApp;
arrange to provide the work pass holder with food and other daily necessities during the 14-day SHN period, unless the work pass holder is flying from the UK or US and serving his or her SHN at designated facilities; and
arrange for non-emergency medical needs (such as follow-up visits for chronic conditions and refiling of prescription) so that the work pass holder does not leave his or her residence during the 14-day SHN period.

(b) Can the employer deduct annual leave from the employee?

Please refer to our comments under paragraph 5(b) above. The same principles relating to the utilisation of annual leave entitlements apply.

Please note that eligible employers who provide additional paid leave to their employee serving an SHN or treat the period of SHN as hospitalisation leave will be able to apply for assistance under the SHN Support Programme as well as foreign worker levy waiver for the SHN period, unless the employee had travelled on or after 11:59 pm on 20 March 2020.

8. Employees who usually commute between Malaysia and Singapore have elected to stay in Singapore. They cannot return to Malaysia because Malaysia has closed its borders. What are the employer’s obligations to such employees?

The employer may encourage the affected Malaysian employees to stay with their relatives, friends or colleagues, who may be willing to accommodate them for a short period. Alternatively, the affected employees may stay at hotels, hostels or dormitories.

The employer may wish to refer to MOM’s 17 March 2020 press release titled “Accommodating Workers Affected by Lockdown in Malaysia” for the range of options available to employers to accommodate these employees. A list of hotels, serviced apartments, dormitories and rental options in the open market may also be found on the relevant MOM webpage. An employer may also apply to temporarily convert its factory or workplace premises as temporary housing for its employees.

9. Employees who usually commute between Malaysia and Singapore have elected to stay in Malaysia. They cannot come to Singapore for work because Malaysia has closed its borders.

(a) What are the employer’s obligations to such employees?

An employee who is unable to work in Singapore due to the lockdown in Malaysia is technically absent from work. An employer technically has the right under the EA to make deductions from such employee’s salary in respect of such absence. However, employers are encouraged to exercise compassion in such circumstances and to reach alternative arrangements with the employee (e.g. grant of additional annual leave to the employee to cover such period or to place the employee on no-pay leave). Further, please note that in respect of foreign workers, the employer can only make deductions to the salaries with the written consent of the employee and has to notify MOM (for work permit holders) or submit the request to MOM one month before the salary is reduced (for employment pass or S pass holders). The employer is not allowed to make a deduction to the salary as a condition for employing or continuing to employ the employee.

(b) Can the employer deduct annual leave from the employee?

Please refer to our comments under paragraph 5(b) above. The same principles relating to the utilisation of annual leave entitlements apply.

There is generally no statutory right under Singapore law which authorises an employer to direct an employee to take no pay leave. Any such requirement or restriction would be determined by reference to the employee’s terms of employment (e.g. the employee’s employment contract and/or any applicable policies or terms incorporated as part of the employment contract).

In the absence of an express provision giving an employer the right to unilaterally direct its employee to take no pay leave, the employer and the relevant employee will have to mutually agree to the employee taking no pay leave.

(d) Can the employer reduce the employee’s salary?

Please refer to our comments on paragraph 9(a) above.

10. What relief measures are there for an employer whose workforce is affected by Covid-19?

In view of the evolving Covid-19 situation, the Government has implemented various measures to help companies and employees cope with the situation. Such measures include:

implementing a Leave of Absence (“LOA”) / Stay-Home Notice Support Programme under which eligible employers may apply for S$100 daily per affected employee for the duration of mandatory LOA / SHN imposed on such employee. More information on the support programme can be found on this MOM webpage.
a Stabilisation and Support Package, and a Resilience Package, to support firms by defraying their wage costs and addressing short-term cash flow needs and additional support for certain sectors directly affected by Covid-19, including tourism, aviation, retail, food services and point-to-point transport services. More information can be found on Enterprise Singapore’s website.

11. A prospective employee refuses to sign a Covid-19 health declaration required by the employer prior to commencing employment. What can the employer do?

The employer may wish to consider whether the employment contract provides that the commencement of such employee’s employment is subject to the employee’s submission of information and/or documents to the employer (and the employer’s satisfactory verification of the same). If so, it may be possible for the employer to withdraw the offer of employment on the basis that such condition had not been fulfilled.

12. An existing employee refuses to sign a Covid-19 health declaration required by the employer. What can the employer do?

Employers should carefully review internal policies and contracts of employment to check whether there are any provisions enabling them to take action against the employee, including warning the employee for insubordination or failure to comply with lawful directions of the employer and/or denying the employee entry to the workplace and regarding this as an unauthorised absence from work.

13. A prospective employee makes a false declaration in a Covid-19 health declaration required by the employer prior to commencing employment. What can the employer do?

Please see paragraph 11. Depending on the wording of the employment contract, it may be possible for the employer to withdraw the offer of employment on the basis that a condition precedent had not been fulfilled.

In addition, it may be possible for the employer to seek to rescind the employment contract on the basis that the employee’s false declaration amounts to a misrepresentation which had induced the employer’s entry into the employment contract.

14. An existing employee makes a false declaration in a Covid-19 health declaration required by the employer. What can the employer do?

15. An employee insists on returning to Singapore from overseas, notwithstanding that no prior approvals are sought from the authorities. Is the employer at risk of any action by the regulators?

Entry approval from the authorities is required only for travellers who are not Singapore citizens and permanent residents. If the employee is a work pass holder and does not obtain prior approval, it is likely they will not be allowed to check-in at the departure airport. If they arrive in Singapore without the approval letter of entry, they will not be allowed to clear immigration and will be required to fly out of Singapore within 48 hours. If they fail to comply, their work pass will be cancelled. Assuming the employer did not make arrangements for the employee to return and had informed the employee not to return to Singapore, it is unlikely that the employer will be subject to enforcement action by the regulators.

16. A foreign employee has entered Singapore, notwithstanding that no prior approvals are sought and the employee’s work pass is revoked by the authorities.

(a) What action can/should the employer take against the employee?

The employer should instruct the employee not to perform any work while in Singapore without a valid work pass. The employer may choose to terminate the employee in accordance with the terms of the employment contract. Depending on the facts and circumstances surrounding the foreign employee’s entry to Singapore without prior approval, an argument could be made that there has been a fundamental breach of the terms of employment, entitling the employer to terminate the employee summarily.

(b) What other steps can the employer take?

The employer could consider whether there are any mitigating factors present to apply for an appeal to MOM in respect of their decision to revoke the work pass.

17. An employer fails to implement telecommuting and/or provide safe distance working arrangements in the workplace. What likely action will the regulators take?

The Director of Medical Services may issue an order for closure of the premises if there is reason to believe that there are conditions that are likely to lead to the outbreak or spread of Covid-19 and/or MOM may issue remedial orders and/or stop-work orders to workplaces which fail to implement telecommuting and/or provide safe distance working arrangements. An employer who is issued with such an order shall be required to take such measures as may be specified on the order (and, in the case of a stop-work order, to cease work until such remedial measures have been taken).

The failure to implement telecommuting and/or provide safe distance working arrangements may constitute an offence under the Workplace Measures Regulations. In the event that the employer’s failure to take reasonably practicable measures leads to the transmission of Covid-19, the MOM may also press charges for breaches under the Workplace Safety and Health Act.

Further information

Allen & Gledhill has a Covid-19 Resource Centre on our website www.allenandgledhill.com that contains knowhow and materials on legal and regulatory aspects of the Covid-19 crisis.

In addition, we have a cross-disciplinary Covid-19 Legal Task Force consisting of Partners across various practice areas to provide rapid assistance. Should you have any queries, please do not hesitate to get in touch with us at covid19taskforce@allenandgledhill.com.

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