Partner at law firm: Employers not obligated to provide pandemic leave

There is no law in Trinidad and Tobago that requires employers to provide pandemic leave to staff.

This was expressed by Catherine Ramnarine, a partner at the commercial/corporate law firm M Hamel Smith & Co.

She was speaking at a webinar hosted by the American Chamber of Industry and Commerce (AMCHAM T&T) on “Navigating HR & IR Issues During the Pandemic”.

“There is no express legal obligation on employers to provide pandemic leave. However, employers do still have a general obligation to treat with requests for leave, flexibly, reasonably and compassionately, while balancing the operational, business and financial challenges of the current situation,” Ramnarine said.

She went on to note that the COVID-19 pandemic has presented new challenges for employers particularly as it relates to Human Resource policies on sick leave, working from home and dealing with a downturn in business.

Ramnarine advised, however, that organisations are not governed by legislation or regulations as it relates to these issues.

“These principles are not codified, but instead must be gleaned from decisions of our Industrial Court.”

Even though the legislative provisions governing sick leave in Trinidad and Tobago are limited, Ramnarine urged employers to check their contracts, policies and collective agreements prior to making decisions.

“In the current situation, good industrial relations practice may require employers to apply those provisions more flexibly, reasonably and compassionately than they would during normal business operations,” she said.

As for quarantine leave or time off to supervise children, the M Hamel Smith & Co partner said it may likely be considered a breach of good industrial relations practices to penalise employees by non-payment of salary. This includes if they are mandated or recommended by health officials to stay away from work.

Furthermore, she said when dealing with the downturn in business from the COVID-19 pandemic, employers should ideally consult with its employees and obtain their agreement to utilise their vacation leave as an alternative before drastic measures are taken such as salary cuts and a reduction in paid working hours.

“The unilateral imposition of no-pay leave MAY be considered a repudiatory breach of the employment contract and conduct deemed to be harsh, oppressive or contrary to the principles of good industrial relations practice. However, the Industrial Court has recognised temporary lay-offs as a valid industrial relations practice,” she stated.

Also participating in the webinar was Ian John, CEO of Massy Technologies InfoCom. He said businesses must look beyond performance management and pay more attention to productivity.

“So, we are now in the era where we are no longer managing staff’s time, as we say performance is not managing staff time but how do we manage productivity. Many managers in organizations are finding out, holding an employee accountable/responsible for a set of deliverables but the set of deliverables that this employee has to deliver is based on a set of inputs, factors, variables, some of which may no longer be available to that employee given the current situation.”

John added that companies must ensure employees who are working from home are provided with the required IT infrastructure, HSE regulations, documented policies and processes in addition to an outline of their expectations during this crisis.

On the other hand, ANSA McAL Group HR Director Teresa White spoke about the conglomerate’s plans and policies implemented following the first reported case of COVID-19 in T&T.

She said ANSA McAL drafted work-from-home policies for all non-essential staff and issued a clear set of deliverables. She also advised that any performance managing work-from-home policy should be clearly articulated with established rules, objectives, setting and assessment measures.

White said employees working from home were required to participate in meetings set up between the ANSA McAL leadership team and the union executives with open communication channels between the executive team and staff. She noted that the Group also ramped up its corporate social responsibility activities.

Additionally, AMCHAM T&T CEO Nirad Tewarie said businesses will have to address workers’ legal obligations on issues relating to employee leave, employer’s obligation with work-from-home policies and best practices on how companies can engage with their unions and staff during this period.

“It’s important that companies employ compassionate solutions that will help them to effectively engage with their employees so that their concerns are addressed while maintaining business continuity during these uncertain times.”

The “Navigating HR & IR Issues During the Pandemic” is one of a series of webinars that was envisaged and designed by AMCHAM T&T, to help companies adjust to the disruption caused by the global pandemic.

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