Covid-19 Employment Frequently Asked Questions (FAQs)

1. What responsibilities do employers have during the Covid-19 period?

The employer’s responsibilities in the face of the Covid-19 crisis remain the same as contemplated under the Employment Act, 2007 (the Act). Some of the responsibilities are set out below:

• an employer is required to continue abiding by the terms of the employment contract with employees, in turn, employees are required to continue abiding by the terms of their employment contract;
• an employer is required to provide employees with the necessary resources to continue working;
• an employer should immediately notify the Ministry of Health the moment any of its employees tests positive for Covid-19;
• employers shall take reasonable steps to ensure that employees who are diagnosed with Covid-19 are not discriminated against or stigmatized;
• employers should notify employees on how Covid-19 will affect the employees annual leave plans (if it will); and
• employers shall protect the health, safety, and welfare of its employees. Employers must have in place all reasonable measures to ensure the safety of employees in the workplace including the provision of hand sanitizers or running water with soap and face masks.

1. Does an employer have a responsibility of notifying a medical officer or public health officer if they suspect that one of their employees has Covid-19?

Yes. Rule 2 of the Public Health (Prevention, Control and Suppression of Covid-19) Rules, 2020 provides that “Every owner, person in charge of, or occupier of premises, and every employer and head of a household, who suspects that any person who is residing at his or her premises or who is in his or her employment, is suffering from Covid-19, shall notify a medical officer, public health officer, a medical practitioner and or the nearest administrator or take that person to a medical officer, medical practitioner or health facility for treatment”.

The penalty for failing to notify is a fine of Kenya Shillings twenty thousand (KES.20,000/=) or imprisonment for six (6) months.

1. What are the expectations placed on employers under the Public Health Act (Chapter 242) if an employee is diagnosed with Covid-19 at the workplace?

A medical officer of health may at any time enter and inspect any premises in which he has reason to believe that any person suffering or who has recently suffered from any infectious disease is or has recently been present.

1. Can an employer require an employee to work from home?

It is within the employer’s managerial prerogative to require its employees to work from a different location including the employee’s home in certain circumstances. Noting the Government of Kenya recommendation that employees work from home, an employer has a right to require its employees to work remotely or from home.

1. Can an employer force an employee to go on annual leave?

Under Kenyan law, the agreement of an employee should be sought before an employer can recommend an employee to utilize annual leave days.

1. Can an employer send employees home on unpaid leave?

Kenyan law does not provide for unpaid leave. Section 10(5) of the Act requires employers to consult with their employees where any term and condition of employment changes and to notify the employees of the change in writing. This means that the consent of employees must be sought before requiring an employee to take unpaid leave. It is however unclear what the pro-employee Employment and Labour Relations Court could make of unpaid leave.

1. Can an employee vary the terms of an employment contract during Covid-19?

Yes, however, section 10 (5) of the Act requires an employer to consult with an employee and obtain their consent prior to making changes to any terms of employment such as working hours, remuneration and leave days entitlement.

1. Can an employer reduce employee salaries during the Covid-19 pandemic?

An employer can with the consent of an employee reduce the salaries and benefits owing to the impact of Covid-19 on their business.

1. Can employees be requested to take annual leave if they cannot work remotely?

Yes, employees who cannot work remotely can be requested to take annual leave during this period but the employer must consult and seek the consent of the affected employee.

1. What benefits are employees entitled to while working from home?

Employees are entitled to the benefits stipulated under their individual employment contracts. These include salary, annual leave, and sick leave.

1. Can employers declare employment positions redundant because of the pandemic?

An employer can declare employment positions redundant if there exists a valid justification.

1. Is an employer legally required to have and implement a Covid-19 policy?

An employer is required to put in place a policy that outlines specific requirements when sick or ill staff may be absent to attend hospital and to staff who are not sick or ill but need to be absent to care for others in accordance with the Ministry of Labour’s Department Occupational Safety and Health Advisory on Coronavirus (Covid-19).

1. What are the legal obligations of an employer during the Covid-19 pandemic?

All workplaces are required to develop infection control plans and policies to include the following details:

• promote and practice hygiene;
• assess the method of conducting meetings and risks of travel;
• promote safe food handling;
• promote stay at home policies for employees; and
• promote reporting of suspected cases.

1. What support should an employer extend to an employee diagnosed with Covid -19?

Employees are entitled to utilise their sick leave where they are diagnosed with Covid-19.

If you have any questions relating to the FAQs, Covid-19 employment requirements or general employment law, do not hesitate to contact James Wairoto at jwairoto@mwc.legal. Please note that this e-alert is meant for general information only and should not be relied upon without seeking specific subject matter legal advice.