By: Abdallah Sekibembe
The country now faces a high infection rate in Covid-19 cases due to outbreak of a recent wave which continues to attract thousands of positive cases daily. To scale down this number, the president recently imposed a second lockdown limiting public and private transport, cross border movements and reduced physical presence at work places among other measures.
Since this outbreak, a large part of the employment sector has been operating at a loss with most businesses having closed shop, employees’ contracts collectively terminated, redundancy cases on a rise, layoffs among others. With the subsequent lockdown, some workplaces adopted hybrid measures of remote work operation to allow continued provision of services to the public.
Unlike other jurisdictions in the west that have attempted to remodel their employment laws and policies in addressing the ongoing Covid-19 concerns e.g., Turkey, Canada, USA etcetera., not much effort has been taken to realize the same here. Current laws on employment were drafted with anticipation that the employee shall be present at the workplace and therefore involuntary circumstances preventing an available & willing employee from reporting to work was not captured.
As noted above, despite some employers adopting a hybrid approach on delivering employment instructions and tasks to their employees, there is no uniform guidance on how this can be implemented putting into consideration the interests and rights of the employer and employee. This may raise concerns in the long term should workplace physical absence and remote interaction continue.
There is also observed, inadequate compliance to occupational safety and health, and worker-compensation laws by employers some of whom have ignored the current covid-19 situation and have disregarded their duties towards creating safe working environments for their ‘essential’ and physically present workers at workplaces. This has increased the infection margin which has translated into multiple deaths. These and more developments have left the employment sector vulnerable in structure and performance.
In light of the above events and the Covid-19 situation, employers are likely to face some legal challenges which may include but are not limited to; legal action for constructive or improper collective termination the former being resignation by an employee as a result of the hostile working environment created by his/her employer e.g., compulsory return to work in a lockdown albeit the current growing crisis, compulsory vaccination etcetera., and the latter, where the employer terminates more than ten employees without following due process.
Other challenges may include; actions for unpaid salary and allowance, redundancy, disregard for employee working hours, their annual leave and public holidays, sick pays, actions for compensation for death as under the Workers’ compensation Act, 2000, unionized actions among others.
One question that has been of key interest in the legal community is whether covid-19 contraction as a result of the employer’s dangerous undertakings can be handled under the Workers’ Compensation Act, 2000. Whereas this disease (virus) is not scheduled therein for obvious reasons (WCA is an old law), one would argue that the Act is ‘remedial’ (providing a remedy) in nature and to interpret it strictly excluding Covid-19 would mean facilitating the mischief that the Act was intended to remedy. However, this is subject to guidance from court and other authorities.
The employer may take on the following actions to mitigate the above challenges cited; seek competent legal counsel and advice before taking an employee-related decision for example, termination; formulate a work from home policy to provide guidance on remote working; negotiate insurance policies to cover Covid-19 testing and mild treatment; involve employees in all decisions that may affect them e.g., collective termination, unpaid leave; create a remote working schedule within the current legal framework covering employee obligations and interests and ensure facilitation of this process; lobby government support to provide uniform guidance on remote working through subsidiary legislation or policy guidance, organize Covid-19 awareness programs for employees, develop a flexible approach to employee affairs and concerns for this period.
The Ugandan employment sector heavily relies on human capital for its production, consistency and sustenance without which affects product quality, value and service. There’s therefore urgent need to look into the above factors in ensuring the safety and wellbeing of workers for the progress of this sector.
The writer is a lawyer and an employment law enthusiast.