The coronavirus (or COVID-19) was first reported in December 2019 in Wuhan, China. With person-to-person transmission, reported cases have since continued to grow exponentially. As governments and public health authorities adjust their policies to respond to the challenge, companies need guidance on how best to address the situation with regards to their employees.
Committed to supporting employers in the region, the CIPD worked with leading law firm Clyde & Co to provide you with answers to the most commonly asked KSA Labour Law related questions.
What happens if someone is affected? Sick pay or full pay?
If an employee contracts Coronavirus (now officially termed COVID-19 by the World Health Authority), this can be treated in the same way as any other sickness absence in terms of payment. For completeness, the KSA Labour Law provides that an employee is entitled to 120 calendar days of sick leave in any 12-month period. The first 30 days are payable at full pay, the next 60 at three quarters pay and the remaining 30 days are unpaid.
To encourage employees to notify the company where they have coronavirus symptoms, and not to return to work before they are no longer contagious, the employer could consider enhancing the sick leave provisions for confirmed coronavirus cases (for example, employees could retain full pay throughout their period of sickness rather than dropping to half or no pay).
Are there protected categories of employee?
On 15 March 2020, the Ministry of HR and Social Development (as well as the Ministry of Health) announced a14 days sickness absence (over and above the statutory minimum) for employees with an underlying health condition eg cancer, autoimmune disease, respiratory disease. This measure was announced on 15 March and will expire on 29 March 2020.
What happens around self-isolation when someone is not sick? Sick pay or full pay?
The KSA Labour Law does not specifically address this situation. Any employer's policies and procedures should be reviewed for any relevant provisions (relating to emergency leave or unpaid leave, for example).
If an employee is not sick, the default situation is that no sick pay is payable. There is no legal obligation to pay an employee for not attending work which is not covered under any current contractual provision so in that situation, there would be no entitlement to pay unless the contract provides otherwise.
From a practical perspective, employers will not of course want to risk employees attending the workplace in circumstances where there is a risk that they have come into contact with someone with the Coronavirus or visited a high-risk area, for example.
Employers may therefore choose to class the absence as sickness and apply normal sick pay rules. This being said, we encourage employers to listen to employee's concerns and consider flexible working arrangements. This could, for example, include permitting the employee to work from home for a period of time (if their role allows), agreeing that the employee will take a period of paid annual leave or permitting the employee to take a period of unpaid leave. The relevant arrangement should be documented in writing and signed by the employer and the employee.
Clearly, any period of working from home or remotely, will be working time and payable at the normal salary rate. The qualification to this would be if the self isolation is ordered by a doctor or health authority and then of course this period would be sick leave.
Can an employer place employees on unpaid leave?
There is no legal right to unilaterally place an employee on unpaid leave and doing so could give rise to a breach of contract claim against the company. A period of unpaid leave could however be agreed with the employee (in which case, such agreement should be recorded in writing).
Article 116 of the KSA Labour Law permits an employer and employee to agree a period of unpaid leave and provides that if this period exceeds 20 days then the employment contract is suspended (unless otherwise agreed) meaning that the employee will not accrue any entitlements under the law for the period of suspension (e.g. holiday entitlement).
Employers are legally entitled to require their employees to take a period of annual leave (which would need to be paid in the usual way).
Do I have the right to work from home?
A suspension in the private sector from the duty to attend the workplace was announced on 18 March 2020 by the Ministry of HR and Social Development and will expire on 2 April 2020. However, it may be extended. The suspension applies in all main offices or HQ of the employer with branches and other establishments of the employer having to operate with no more than 40% of employees on site. All other employees are obliged to work from home and comply with the Ministry's guidelines on working from home.
During this period, employers who operate workplaces will need to operate a monitoring system to test employees temperatures and send individuals with high temperatures for medical tests. Social distancing must also be practised in the workplace and in any staff accommodation.
Can employers require that employees take their annual leave?
In the KSA, employees could be required to take paid annual leave (this is permitted under the Labour Law) provided, of course, that they have sufficient leave balance available. The employer should notify the employee in writing (usually 30 days in advance) of the dates he is required to take leave.
It could also be agreed with the employee that the employee can work from home or take a period of unpaid leave during this period. Such an arrangement should be documented in writing and signed by the employer and the employee.
Can employers prohibit employees from going to specific countries on their personal leave?
What your employees do outside of working hours is largely out of your control. You can encourage employees to consider whether, from their own health perspective, travel to those areas is the best thing to do and that, if they do decide to travel, they should take all necessary health precautions. You could also require employees to notify you of their travel plans so that appropriate precautionary measures can be taken.
Employers should also discuss the likelihood of post-visit isolation and the impact of that on the individual and the wider working team. If an employer feels that it is essential to limit employees' travel both personal and professional then a clear policy should be communicated to all staff highlighting the need for the restriction and also the potential consequences of breaching the policy (e.g disciplinary action). Obviously, given the travel restrictions which many countries have put in place travel outside of KSA has for the time being become almost impossible.
I’m back from an affected area. I feel fine but I’m stuck at home on government advice, will I be paid?
If you can work from home, and your employer can help you to do that by providing relevant equipment, then you can carry on working and being paid as normal.
However – if you work in a factory or warehouse where you can only do your job on the site then the employer is under no obligation to pay you. This will affect individuals more than businesses. We encourage employers to be generous and flexible to ensure that potentially affected employees stay home.
You could also request that the period be classed as annual leave, in which case you would be entitled to pay in the usual way.
I travelled for work and I am now stuck because of travel restrictions, which makes going to the office impossible. Should I be paid?
Given that the travel was due to work, employers would be encouraged to be flexible. If an employee can work from home then this period would continue to be paid at the normal salary rate. Employers could also consider this period as a period of paid annual leave.
What if people might be ill but still go into work as they are worried about not being paid?
We know this is already the case for many people with a normal cold, but the Coronavirus is different, and businesses and employees must take it seriously. That means employees need to put their health and that of the rest of the workforce ahead of their individual pay-check, but businesses also need to play their part.
If someone is sick, or has potentially been exposed in some way, they should consider awarding the time as paid sick leave (whether statutory or enhanced) to ensure that person has time to recover and the rest of the workforce are protected. Employers have a care of duty to the whole workforce and should be generous to encourage people to stay home – best to pay one individual to take time off then having to cope with the whole workforce being affected.
Employees should (where possible) be given comfort that declaring that they suspect they have or may have come into contact with someone who has, the Coronavirus will not have any adverse impact on their work or pay.
Should an employee be suspected or confirmed to have contracted COVID-19, do employers have a responsibility to report this information?
There are reporting duties on medical facilities to the authorities given the emergency nature of the virus. It is therefore possible that the employee's condition will be reported independently of the employer and the preventive medicine department or team would seek to trace who the employee had come into contact with and which individuals will need to be tested.
Whilst, the law does not impose the obligation on the employer to report a case, an employer should consider taking actions to contain the spread of the virus amongst the workforce. Prompt action will be critical and, with this in mind, we strongly encourage all employers to consider an emergency response procedure so that management have a clear action plan.
Critical aspects of the emergency response procedure will include promptly ascertaining who the employee may have come into contact with and, potentially, requiring such employees to remain away from the workplace (on leave or working from home) until it is confirmed that they have not contracted the virus. These employees could be asked to undergo testing and remain at home for a period of 14 to 28 days.
Prompt communications, internally and potentially externally, may also be required and must be sensitively drafted with due regard to the balance between ensuring individuals are notified if they may have been exposed to the virus, while at the same time protecting the privacy and data of the employee involved and with due regard to local data protection legislation and/or laws protecting an individual's privacy.
My employee alleges that they contracted the coronavirus while at work. Will this result in a compensable compensation claim?
If the employer did not provide a safe working environment then it is possible for an employee to claim compensation on this basis. However, usually any compensation for a workplace injury is governed by regulations from the General Organisation for Social Insurance (GOSI) and covered by the employer's monthly subscription or payment of contributions to cover workplace injury compensation. It remains to be seen how any claim regarding compensation for contracting covid 19 at work would be dealt with by GOSI.
The KSA Labour Law (section 8) and separate resolutions on health and safety issued by the Ministry of HR and Social Development put an obligation on an employer to provide a safe working environment. In practice this means assessing the risks to health at the workplace taking into account the nature of an employee's role and working environment and whether there are particular or specific hazards to the sector or operations.
Given the need for containment and social distancing (taking into account guidance issued by relevant government authorities and the World Health Organisation), an employer should have in place a policy instructing all employees on protocol as well as general dos and don'ts in the workplace.
Depending on the work place and business requirements, employers can seek on this basis, to restrict all but essential travel, display signs instructing everyone to wash their hands, avoid shaking hands, etc. Employers should also increase cleaning services of the workplace. Some employers have introduced a policy of measuring the temperatures of employees and any visitors' to the premises, with a policy of barring entry to anyone with a high temperature. However, this would potentially involve the processing of individual's personal data and potentially medical data.
Most organisations have halted non-critical travel and instructed their staff to avoid attending meetings and events. But can an employer require that its employees attend events and keep traveling?
Employers should be taking the lead here and looking carefully at international travel and deciding on what is appropriate and what potentially poses a risk, cancelling all but essential travel, especially to high risk areas. Could meetings be done via videoconferencing for instance? If an individual is concerned, they should speak to their line manager or HR department to discuss options.
Practically speaking, given the coronavirus outbreak has been categorised as an emergency situation, the employer should consider protecting its employees and their health and this would include not attending events or any external meetings (from a practical perspective, the authorities have banned events held in public areas or facilities and are restricting travel so employers should be guided by these actions. The employee can refuse to attend such events or meetings on the basis of protecting his/her own health. Whilst an employer could take disciplinary measures in this regard, given the health and safety issues it would need a compelling and justifiable reason to do so.
On a practical level travelling outside of KSA has become near impossible because the Kingdom suspended all commercial flights both within the Kingdom and outside.
I work variable hours including sometimes at night, will the measures against COVID-19 affect me?
The Kingdom has implemented a curfew from 3 pm until 6 am every day. In addition, three cities have been closed off Riyadh, Makkah and Medina. Employees who need to travel for work (eg delivery) or to attend work (eg in factories) will be able to do so if they have a letter from their employer detailing their need to work and they carry their employee ID.
Since the KSA closed its borders, I have not been able to return – what will happen to my visa?
The Kingdom announced an automatic renewal of all current visas for three months.
Note: References to the "Labour Law" are to Royal Decree No. M/51 dated 23-8-1426 AH, as amended.
This article was authored by Charlotte Chedeville, Senior Project & Programme Manager at CIPD and Samantha Ellaby, Senior Associate at Clyde & Co.
This article was last updated on Tuesday 31 March 2020.
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