1. What options do employers have and/or what are you seeing in terms of re-opening the workplace e.g. phased returns, rotating shifts, staggered working hours, etc.?
On 15 March 2020, the president issued a directive encouraging employers to allow their employees to work from home, with the exception of people working in critical or essential services sectors, who would still be expected to go to work. Subsequently, with effect from 27 March 2020, a nationwide night curfew was imposed between the hours of 7pm and 5am. On 6 June 2020, curfew hours were revised to between 9pm and 4am. The enforcement of the curfew has since been extended at intervals of 21 or 30 days, with the current extension expected to end on 26 September 2020.
During the pandemic, several businesses have continued to operate while others have shut down. Those that have continued to operate have adopted different measures to allow employees to continue working, including remote working, flexible hours and rotational work patterns and shifts to ensure business continuity.
The government has indicated that the economy will be reopened soon but only subject to some conditions being met, including a decline and containment of new infections and country preparedness to handle any reinfection surges.
If and when employees return to work, the employer must observe the mandatory obligations under the Occupational Safety and Health Act, to ensure the workplace is safe and does not pose any risks to the health and safety of employees and all other people visiting the workplace.
The Public Health (Prevention, Control and Suppression of COVID-19) Rules, 2020 also require employers to allow access to their workplace for COVID-19-related inspections and, if necessary, to permit the decontamination of the workplace by medical officers.
- carry out health and safety risk assessments on employees and submit a report within 30 days of re-opening to DOSH;
- develop a COVID-19 Preparedness Policy Statement that addresses all aspects of the coronavirus and submit it to DOSH within 30 days of re-opening;
- assess all the work activities and determine those that can still be conducted from home to minimise the risk of transmission at the workplace;
- inform employees on safety measures while in private and public transportation systems. Where possible, provide safe travel to and from work;
- ensure that insurance taken out in compliance with the Work Injury Benefits Act covers occupational exposure to COVID-19;
- obtain a certificate of registration as a workplace and clearance on self-assessment on COVID-19 preparedness from DOSH. Workplaces that hold valid certificates of registration are exempted from this requirement;
- conduct health risk assessments to determine if any activities at the workplace pose a significant risk to human health and develop control measures; and
- within 30 days of reopening, have a comprehensive safety and health audit conducted at the workplace.
2. Does an employer have to give notice to employees to return to the workplace?
No; there is no such requirement.
3. Is an employer obliged to consult with employees/representatives about the return to work process?
No, but it would be prudent to do so for purposes of informing employees or their representatives of any new measures that will be implemented to avoid the spread of the virus in the workplace.
4. Are there any requirements or recommendations for employees to wear or employers to provide masks or other protective equipment in the workplace?
Yes. The Public Health (COVID-19) Restriction of Movement of Persons and Related Measures) Rules, 2020 provide a raft of measures to mitigate the spread of COVID-19. In particular, Rule 6(1)(b) places an obligation on all people in public places to use a proper face mask that covers their mouth and nose. The workplace is defined as a public place and so employees will be required to wear masks.
In relation to other protective equipment, employers have an obligation under Rule 6(2) to:
- provide at their business location, or entrance to their premises, a handwashing station with soap and water or an alcohol-based sanitiser approved for use by the Kenya Bureau of Standards;
- put in place measures to ensure that no less than 1 m is maintained between people accessing or within their premises or business location; and
- regularly sanitise their premises or business location.
It is an offence to contravene any of the above measures.
The Ministry of Labour and Social Protection through the Directorate of Occupational Safety and Health Services issued an advisory entitled Occupational Safety and Health Advisory on Corona virus (COVID-19).
The Occupational Safety and Health Post COVID-19 Return to Work Advisory requires adoption of a new safety and health culture at the workplace including:
- strict observance of social distancing of at least 2 m in all directions;
- regular hand washing and sanitising; and
- regular cleaning and disinfection of common areas; and surfaces (handrails, lifts, doorknobs).
Employers are required to provide and enforce use of face masks at the workplace.
People who fail or refuse to use a face mask or adhere to any procedure or protocols established by the employer should be denied access to the workplace
5. When can business travel resume and what are the key considerations for employers?
Domestic air travel resumed on 15 July 2020 while international flights resumed on 1 August 2020. The cessation of movement order that barred entry into and out of some counties ended on 7 July 2020.
Entry into the country is subject to mandatory conditions such as:
- completing quarantine for 14 days for citizens from some countries. The government continuously updates the list of countries whose citizens are exempt from the mandatory quarantine;
- having a COVID-19 negative certificate which must be valid for a period of 96 hours of arrival.
- not having a body temperature above 37.5°C (99.5°F), a persistent cough, difficulty breathing or other flu-like symptoms.
Employers are required to inform employees of safety measures while travelling.
6. If schools remain closed, can working parents continue to work from home?
Currently there is no law on this subject. Such an arrangement would depend on the contractual terms agreed between the employee and employer.
This material was prepared by DLA Piper Africa, Kenya (IKM Advocates)