In the face of the COVID-19 pandemic, a lot of questions are being raised by both employers and workers on how this could impact their working relationship. Given the unprecedented nature of this situation, it is very important to maintain a cordial relationship and both parties should feel they have reached an outcome that would allow the workers to maintain their dignity and well-being while employers are able to ensure the continuity of their businesses.
First and foremost, in this circumstance, the health and safety of everyone is paramount. In its recent guidelines for employers and businesses, the Nigeria Centre for Disease Control (NCDC) advised that measures should be taken by employers during this period to help their workers. These measures include, but are not limited to: providing a clean and safe working environment by implementing procedures that reduce the risk of exposure to the virus at the workplace; informing workers about sanitary processes put in place; encouraging workers to follow safe and hygienic practices when coming to and leaving the workplace and; promoting distancing measures for meetings, for instance using Zoom or Skype
The following discussion will seek to examine some of the legal issues on employment relationships in the light of the situation presented by the COVID-19 pandemic. In this context, the main legislation to consider on employment relationships in Nigeria is the Labour Act, Laws of the Federation of Nigeria 2004 (Labour Act).
However, it is important to note that the Labour Act has a limited definition of who is a worker that falls under its protection. This definition derives from the nature of the employment relationship between the worker and the employer.
If the relationship between the worker and the employer falls under the act’s definition, the worker would have certain basic statutory rights along with their rights stated in their employment contract or collective agreement. Whereas a worker whose relationship with the employer does not fall under the definition covered by the act would simply be governed by their employment contract or a union’s collective agreement. Therefore, it is very important to establish whether a worker qualifies for protection under the Act.
What can employers and workers do?
Stay at home and employment relationship?
Among other actions, the Nigerian government introduced movement restrictions in Abuja, Lagos and Ogun states to tackle COVID-19. What this has meant is that movement is restricted for everyone including workers, except for those that are considered essential services. This measure has also been adopted by other states. Clearly this would impact business continuity across the country.
Therefore, as an employer, it is important to first consider implementing flexible working arrangements, for instance, encouraging your workers to work from home.
It is also important to make sure, as an employer, to take necessary measures that would allow workers to carry out their work at home. This may include providing the necessary toolkits like Internet connection and computers.
Where a worker believes that they are exposed or may have been exposed to the virus, the government has recommended that they self-isolate for 14 days. Where this is the case, a worker would have to follow their workplace’s sick pay guidelines unless other provisions are made by respective federal or state laws.
Statutorily, a worker is entitled to a minimum of 12 working days of sick paid leave, provided that they have been certified by a medical practitioner. A worker’s employment contract can also include additional days. If the statutory or contractual sick leave runs out before the worker is fully recovered, an employer may have the option of discussing with their worker the possibility of taking their paid holiday during this period.
Taking into consideration the unprecedented nature of the current circumstance, a good discussion between an employer and its workers should not be ruled out as it may be helpful to also come to a mutually beneficial arrangement that maintains good working relationships.
Unpaid leave is not covered by Nigerian labour legislation. However, due to the new nature of the current circumstances, it is understandable that this option may have to be considered by both employers and workers.
Across the world, one of the measures that has been adopted by some employers to maintain their workers while facing the economic hardship is to allow their workers to go on a furlough leave. Furlough leave is when a worker is given a temporary leave or suspension of work due to a certain circumstance. The worker could be given leave with or without pay, but is still employed by the employer.
The framework for furlough leave is not well covered by Nigerian law. However, if provided in an employment contract, an employer and worker may have the option of negotiating to introduce a temporary contract that would not vitiate the existing employment contract. This contract would simply govern the temporary relationship and allow both the employer and worker to negotiate terms that would be more convenient for both parties during the stipulated period.
Termination of the employment contract?
Where working remotely or negotiating a contract for temporary unpaid or paid leave is not feasible, some employers may be faced with termination as the only viable option. It is important that if an employer does decide to take this course of action, then they must follow the procedure as stated in the employment contract or in the Labour Act. Therefore, providing the necessary notice period and severance package must be observed as failure to do this could be considered a breach of the employment contract.
Additional points to add
Additional regulations which employers can also take into consideration are the Emergency Economic Stimulus Bill, 2020 which aims to provide temporary relief to companies to alleviate the economic burden caused by the coronavirus. Under this bill, it is proposed that an employer may get a 50% tax rebate on actual amount paid or due as Pay-As-You-Earn under the Personal Income Tax Act 2004. This provision will only apply where the company is registered under CAMA and maintains the same worker status, without retrenching any worker from March 1, 2020 to December 31, 2020.
In conclusion, it is important that both employers and workers carefully consider measures, options, rights and obligations within the employment contract, Labour Act and emerging regulations in view of the restrictions caused by the COVID-19 pandemic.
Chioma N. Duru LLB., LLM, is a lawyer focused on labour, business law and alternative dispute resolution across Africa. workpointservic.