Nigeria, like most countries in the world, is currently dealing with the COVID-19 pandemic. As part of both the Federal and State government’s strategy to curb the spread of the virus, a lockdown has been ordered in some states, namely Lagos, FCT and Ogun. This shut down has impacted businesses in terms of them having to close their operations for a while. Organisations rendering what we know as essential services are not left out as their workers are exposed to varying degrees of risk in terms of contracting the virus. In this FAQ article, we have considered some key questions being asked by employers and employees alike in navigating this season:
1. Are All Employers of Labour Required to Shut Down Their Operations?
Absolutely not. According to Government orders, all offices and businesses are to observe the lockdown except for those operating within the following categories:
- Hospitals and related medical establishments
- Manufacturing and distribution of health care products and services
- Food processing, distribution, and retail companies
- Petroleum distribution and retail entities like filling stations (for gas, fuel, kerosene, and diesel) and the likes
- Power generation, transmission, and distribution companies; and
- Private security companies.
However, employers must ensure they take reasonable measures to protect the health of their employees, such as introducing the use of facial masks, providing hand santisers, wash hand locations, social distancing, running of shifts etc. For employees that are not required to be at the office, remote working could be activated for them to perform their duties.
2. Can employers mandate employees to utilise their annual leave during this ‘stay at home’ period?
Employers may advise their employees to utilise all or part of their annual leave during this ‘stay at home’ period. However, employees who are required and have agreed to do so should not be required to work during the period agreed. Employers would also be required by law to honour the employment contract they have with their employees as regards the payment of leave allowance.
3. Can employers, unilaterally decide to treat the ‘stay at home’ period as a period of unpaid salary, leave allowance and other benefits (in part or in full) to their employees?
Part of the psychological contract with the employers is the issue of inclusion in decision making especially at this period of significant stress.
To mitigate the risk of an employer being challenged in court by an employee(s), it is advised that employers negotiate and come to an agreement with their employees to vary any part of the employment contract they have with such employee(s). The non-payment of employee salaries or other beneﬁts adjustments must be discussed and mutually agreed with evidence for such to be adopted. If an employee does not agree to the proposed salary/benefits non-payment or adjustments, then the employer may depend on the circumstances, choose to re-consider the continued employment of any such employee.
4. Are employers mandated to deduct and remit the taxes of their employees to the government?
Yes. Except the government decides to declare a tax break or vary the date of remitting such, employers are to remit the PAYE (Pay-As-You-Earn) of their employees as at when due.
5. Are employers required to remit the pension of employees?
Like every statutory deduction, employers are to remit all statutory deduction as at when due except for cases as highlighted in answer to question 4 above.
6. Can employers mandate their employees to submit to testing for COVID-19?
The answer is no. Employers cannot mandate employees to submit to testing for COVID-19. They can advise and, in some instances, make plans for such but cannot mandate them to submit to testing. This is a matter of the personal health of the employee; hence the consent of the employee will be required before an employee can be tested. However, where an employee refuses to give such consent, and the employer reasonably fears that the employee is infected or may infect other employees, the employer can require the employee to work from home or notify relevant health authorities as a precautionary measure.
7. If an employee submits to testing, and the result comes out positive for COVID-19, what should an employer do?
- The employer should take measures to protect the identity and dignity of the affected employee
- The employee should be quarantined or advised to self-isolate to minimise the spread of the virus
- Nigeria Centre for Disease Control (“NCDC”) should be contacted via its helpline (080097000010).
- The employer should ensure that other employees who were in contact with the affected employee all stop work immediately and self-isolate for 14 days
- The ofﬁce should be shut down immediately, and plans be made to disinfect the office
8. Are employees who have tested positive to COVID-19 entitled to a paid sick or annual leave?
Automatically, employees who have tested positive to COVID-19 are eligible to a paid sick leave upon presenting a Doctor’s report to the HR of their organisation. Whether this leave should be converted to the employees’ annual leave will depend on the employee requesting for such. However, for the safety of the other employees and the public, if the employee is certified negative to the COVID-19, only then can they be permitted to return to work. On how long the employee can stay off work due to the virus, this should be negotiated with the relevant office personnel respecting the employee contract and employer’s policy on such.
9. What happens to the employment of individuals who were scheduled to resume at a date that is currently within the ordered ‘stay at home’ period?
Employers should review the employment contracts to conﬁrm what options are available to the employer. Such options could range from suspending the agreement to renegotiating the contract terms. Effective communication is the key.
10. Are temporary layoffs, furloughs, and reduced work hours open to employers in this period?
After careful consideration, employers can explore temporary layoffs or furloughs as an alternative to employee terminations or redundancies in the case of an extended period of observing the ‘stay-at-home’ order. However, it should be based on:
- The provisions of the Contract of employment between the employee and employer
- Negotiations and possible consent of the employee in some instances