Employer Obligations – Coronavirus and Employee Travel to China

With the escalating outbreak of Coronavirus we thought our members might benefit from some reminders about employer obligations in relation to employee health and safety.  The following points have been kindly provided by our partners at Dundas Street Employment Lawyers.

Under the Health and Safety at Work Act 2015 (“the Act”) an employer must, so far as reasonably practicable, ensure that the workplace is without risks to the health and safety of workers or other persons. The definition of “workplace” is wide and means a place where work is carried out, including where a worker goes. In light of the recent Coronavirus outbreak, we have set out a number of considerations for an employer where they have employees scheduled to travel to China. Employers who find themselves in this situation should seek specific advice as soon as possible.

Due diligence will require employers to be fully informed prior to sending an employee to China for work given the recent Coronavirus outbreak. As it currently stands the Ministry of Foreign Affairs travel advisory notes advises:

• Not to travel to Hubei Province; and
• Against all non-essential travel elsewhere in China. 

There are currently strict travel restrictions around Wuhan, Huanggang, Ezhou, Xiantao, and Qianjiang. 

In light of the above, the default position for employers should be to cancel and/or reschedule any trips to China currently organised for employees for work-related purposes. Anything that can be rescheduled, should be rescheduled, until such time that the travel restrictions are lifted and the risks associated with the Coronavirus outbreak are reduced. 

Employers should consult with any employees who are scheduled to be travelling to China before making any decisions. Ultimately, however, an employer can make the necessary decision to cancel a work-related trip to China in order to protect the health and safety of its employee(s). 

In the event that travel to China for work-related activities is essential, and the employee is still willing to go, there are a number of practical considerations for the employer to consider. 

Before an employee embarks on their trip to China, the employer should also consider:

• Obtaining expert advice on where the employee is going, the risks in that province and ways in which the employee can mitigate that risk. 
• Ensuring the employee has suitable travel and medical insurance in place (see further considerations below), and complies with any MFAT instructions, such as registering their details with MFAT.
• Instructing the employee to comply with all directions given by MFAT and other relevant authorities whilst in China. 
• Ensuring the employee has appropriate means of communication whilst in China.

Further travel restrictions may be imposed with short notice, meaning if employees travel to China, there is a risk that they may not be able to leave. In this instance, employers would need to consider:

• What travel insurance policies they have and the impact of that if the employee is unable to leave. 
• Who would be responsible for bearing the costs associated with having to remain in China. 
• What medical insurance the employee has and whether that needs to be extended to include cover to be medically evacuated if needed. 

In light of current MFAT advice employers should tread very carefully where they are considering sending employees to China for work-related purposes, and should seek expert advice before making any decisions. 

In terms of employees who may be returning from China, or exposed to someone else who has returned from China for work purposes, employers may consider:

• Sending a general email to all staff (or at least to those the employer is aware of) raising the topic and asking anyone to notify them if they think they might be at risk (whether that be due to contact the employee has had or symptoms they may have). 
• The Ministry of Health has indicated Coronavirus requires a 14 day incubation period. An employer may consider if they think an employee is really at risk and therefore a risk to others, in consultation with the employee, allowing them to work from home for that period of time, or taking a period of leave (employers should be cautious about this and consider offering special leave if they are requesting the employee stay away from work, rather than requiring the employee use their own entitlement – employers cannot require an employee take sick leave). 
• Consider requiring employees who have returned from China to undergo a medical examination to declare they are fit to return to work – again, the employer should reasonably expect to pay for the costs associated with this if they require employees to do it. 

Remaining communicative with employees throughout this time and raising the issues from a health and safety and wellness perspective will be key so that the employer is aware of any risks as they arise.  

Even where the employee may have been to China for non-work related purposes, the employer should still take these or other steps and precautions because the health and safety obligation is about keeping the workplace safe. Therefore, the way in which a person may become exposed to Coronavirus and therefore become a risk to others (whether they were in China for work-related purposes or not) becomes irrelevant in terms of identifying and reducing the risk.

For more information please contact the team at Dundas Street Employment Lawyers.