Coronavirus: advice for UAE employers and HR professionals

The outbreak of coronavirus, officially Covid-19, raises important points of UAE employment law with particular considerations for a predominately expat workforce. The role of in-house legal and HR teams in managing the workforce and ensuring the business is robust and continues to perform in this environment will be crucial.

Specific legal advice should be sought where necessary, as the situation is changing daily.

How should UAE employers manage information and misinformation?

The UAE has a predominately expat workforce and many employees are following news reports in both the UAE and their home countries with interest, often via reports shared on social media. It is easy for rumours and misinformation to spread quickly, therefore employers should advise all employees to follow official government announcements and to avoid sharing rumours without verifying statements from official sources.

Employers should remind employees of the defamation laws that apply in the UAE and consider updating and recirculating their internet use and social media policies to reflect this.

Can employers require medical screening and tests of employees?

We are aware that some employers are taking steps to have their employees screened to confirm that they are healthy and not presenting any risks to other colleagues. Before implementing any such practices, employee consent should be obtained and consideration given to what steps the business will take if an employee is showing any symptoms.

Employers should review employment contracts and HR policies regarding medical screening to see if any provisions are in place for employees who refuse to agree to a medical check-up.

Can an employer require an employee to self-isolate and work from home?

This is likely to depend on:

• whether the employee is symptomatic – in which case, it is likely that they should be on sick leave and therefore not working; or
• whether the employee is able to work from home.

Employers should now be considering whether they need to take any steps to facilitate home working and whether they want to encourage employees to ensure that they have the correct set-up at home to be able to work there, if required to do so.

Relevant considerations may include:

• ensuring that all employees have a way of logging on to secure systems from home;
• whether any employers' liability insurance cover would cover a personal injury sustained by an employee while working from home;
• how the employee will be supervised while working from home;
• what measures need to be put in place to protect the confidential information of the business and personal data of employees and customers;
• where there is no established company home working policy in place, recording the arrangement with relevant employees in writing.

Can an employer prevent an employee who has refused to self-isolate from accessing its premises or coming into contact with other employees or clients?

Employers should review their employment contracts and policies to determine whether and to what extent they are able to require employees to work away from the office. Employers have a general obligation to maintain overall health and safety of all employees, and will understandably be keen to avoid the spread of illness through their staff as this could disrupt business for several weeks.

Suspension may be an option where an employee who has been advised to self-isolate refuses to do so, but employers should consider whether they have the right to suspend in these circumstances. In the absence of a disciplinary sanction having been handed down as a consequence of a formal disciplinary procedure, the general position is that any period of suspension should be on full pay. Where no express contractual right to suspend exists, legal advice should be sought.

Should employees be placed on annual leave, paid sick leave or any other type of leave?

The position will depend on the employer's contractual terms and policy, the position of the employee and any other material factors, such as the employee's health. Options available to UAE employers include:

• inviting employees to take a period of paid annual leave voluntarily;
• placing employees onto a period of mandatory annual leave;
• for employees with symptoms, allowing them to take sick leave. This is 15 calendar days with full pay, 30 calendar days with half pay and 45 calendar days without pay under the UAE Labour Law and 60 working days under the Dubai International Financial Centre (DIFC) Employment Law;
• enabling employees to work remotely wherever possible;
• where an employee voluntarily self isolates and remains away from the workplace without discussing this with the employer, there may be more scope for considering such leave to be unpaid.

Legal advice should be sought before introducing any measures which seek to reduce employees' statutory benefits, such as a mandatory period of unpaid leave or requesting that employees take a temporary pay cut.

Are there any privacy or data protection issues for employers to consider?

Far-reaching privacy laws are in place in the UAE. Any employee medical records should therefore be dealt with strictly confidentially and only shared with relevant personnel on a 'need to know' basis. Best practice is to obtain advance written consent from the employee before the details of any medical test or report are shared, even where there is a provision in the employment contract confirming how personal data will be processed within the organisation.

Employers based in the DIFC may need to take additional considerations into account in light of the specific DIFC data protection legislation in place. For example, a DIFC employer should ensure that it has the appropriate permissions in place before any personal data is transferred outside of the DIFC or to a group company.

Can employers prevent employees from travelling outside of the UAE?

We recommend that employers follow official guidance with regards to countries to which travel restrictions should be imposed - for example, Italy. Many employers are requesting that employees avoid unnecessary international travel where possible and exercise caution. However, unless the UAE government issues a specific travel ban with regards to particular countries, we do not recommend imposing a strict prohibition on employee travel for the time being.

Can employers require employees who have been to certain geographic regions to inform HR of this?

Employers that seek information from employees need to be careful not to discriminate while doing so. For example, an employer is likely to be able to justify a request for all employees to declare any travel from an area in respect of which restrictions have been imposed by the government. However, enquiring about travel only to certain areas, or seeking information only from certain sections of your employee population, may amount to discrimination or harassment.

How should employers handle the potential for workplace bullying?

There have been reports of a rise in racial stereotyping and, in some instances, workplace bullying with regards to employees from countries experiencing a high number of coronavirus cases. To date, this has predominantly been experienced by Chinese employees and others of Asian ethnicity, but as the virus spreads to other nations it is anticipated that other nationalities will be affected.

Employers should remind their employees to comply with their internal equality and inclusion policies and that any acts of workplace bullying, including discrimination and harassment, will not be tolerated and may be subject to disciplinary action.

Additional research by Andrea Hewitt-Sims and Ruth Stephen of Pinsent Masons.