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|1. Government provisions impacting businesses / Employer protection responsibilities||
The government of Kenya has put in place several measures aimed at reducing the spread of the virus. These measures have impacted the normal operations of several businesses.
Some of the provisions affecting businesses include:
What responsibilities do employers have towards their employees?
Employers in Kenya have a duty under the Occupational Safety and Health Act, 2007 to provide for the safety, health and welfare of workers and all persons lawfully present at workplaces.
In order to reduce the risk of transmission of COVID-19, employers could consider asking any employees who have recently travelled to or through a hotspot for COVID-19 or who have symptoms of COVID-19 to self-quarantine for a period of fourteen days which is the period recommended by the Government of Kenya through the Ministry of Health. An employer may also choose to introduce precautionary steps such as:
It would be in the interest of the employer and their clients/customers to limit face to face meetings unless absolutely necessary should any COVID-19 cases be reported in Kenya. An employer has a general duty to give relevant safety and health information to persons other than employees who may be affected by the way the employer undertakes its business. If an employee has symptoms of COVID-19 or tests positive the employer has an obligation to inform the persons who may have been in contact with that employee or visited the workplace.
The Public Health (Covid-19 Restriction of Movement of Persons and Related Measures) Rules, 2020 has defined a public place to include the work place.
The Rules now require all employers to ensure:
An employer who contravenes these rules, commits an offence and may on conviction be liable to a fine not exceeding twenty thousand shillings or to imprisonment for a period not exceeding six months.
|2. Returning to work: guidelines and obligations||
Guidelines for Business – Operations During Covid-19
The Government of Kenya through the Ministry of Industrialization, Trade and Enterprise Development have released ‘Guidelines for Business – Operations During Covid-19’. The guidelines cover fifteen (15) industries including restaurant, retail, general offices, transport, and agriculture.
The guidelines aim to offer direction to businesses on operating safely during the pandemic. The measures proposed include:
The guidelines are to be used as the framework against which businesses will develop standing operating procedures to suit their individual business premises.
Return to Work Advisory
The Directorate of Occupational Safety and Health Services (DOSHS) published a ‘Return to Work Advisory’ on 29 June 2020, which sets the minimum requirements for all workplaces aimed at mitigating the spread of Covid-19 at the work place.
All reference to the date of reopening in the guidelines means the date of reopening of workplaces announced by the Government of Kenya. All workers returning to work on the reopening date and thereafter ought to comply with the requirements.
There are sixteen (16) requirements set out in the advisory:
Layoffs: extensions, recalls and other issues
The detrimental effect of the pandemic on business operations and revenue generation is leading many employers to consider effecting redundancies to lay off staff members. Where possible employers are extending the employees’ leave while in other cases employees are taking unpaid leave until the situation normalizes.
Flexible work arrangements
Several employers have adopted flexible work arrangements by adopting technology to enable staff work from home. Other examples of flexible work arrangements include the introduction of rotation schedules where staff work in the office for a number of days in a week or month.
With the increase in the rate of Covid-19 infections, the Judiciary has moved toward virtual proceedings across most courts. As a result, many legal practices have put in place remote/flexible working arrangements.
Employees in the public sector have been encouraged to continue adopting flexible work arrangements. During the address of 4th November, 2020 the President of the Republic of Kenya directed that all Cabinet Secretaries, Chief Administrative Secretaries and Principal Secretaries scale-down all in-person engagements within Government and to take appropriate steps to foster the discharge of their mandates by themselves and their officers through virtual means where possible.
The President also directed that all State and Public Officers aged above 58 years or who are immunocompromised should work remotely. With the exemption of those serving the nation in critical sectors.
There are certain restrictions in certain industries that make it impossible for employees to return to work. For example, casinos have been ordered shut by the Betting Licensing Control Board and until further directions are issued, staff are unable to return.
Workplace health & safety
The workplace has been defined as a public place under the Public Health (Covid-19 Restriction of Movement of Persons and Related Measures) Rules, 2020.
The Rules now require all employers to ensure:
Some employers are taking temperatures of the employees before allowing them access on to the premises in order to spot symptoms of the virus.
Other risk areas and issues to consider
Some staff members use public transport as a means of travel and this increases the risk of contracting the virus.
|3. Employment terms adjustment||
Specific Government provisions
Most employment contracts within the jurisdiction do not contain a clause for temporary lay-off or a ‘force majeure’ clause that would allow the employer to terminate the contract in the event of the occurrence of certain and sometimes catastrophic events or in the event of operational difficulties other than on account of redundancy.
On 22 March 2020, the Betting Control and Licensing Board issued an order to shut down all betting shops and casinos as part of the social distancing measures the government is instituting to curb the spread of COVID-19.
The government has also gazetted the Public Order (State Curfew) Order, 2020 declaring that a nationwide curfew be introduced from 7.00pm EAT to 5.00am EAT effective 27 March 2020 for a period of thirty (30) days. The nationwide curfew has been varied to 10.00pm EAT to 4.00am EAT for a further period of sixty (60) days effective 4 November 2020. This signals a return to normal business operating hours. Given the government directives, an employer may wish to introduce lay-off or short term working clauses but any such amendments to employment contracts would need to be discussed with employees. Similarly, an employer may wish to reduce employees’ working hours or send their employees on unpaid leave without terminating the contract but this again would be subject to consultations and agreement with employees.
There may be certain instances where an employer may be able to rely on the Common Law doctrine of Frustration of contract. Frustration occurs where the circumstances of the parties have changed, rendering the performance of the contract impossible or only possible in a very different way than contemplated. In the present situation, this may be brought about by government/state intervention in relation to COVID-19. It may also be argued that the COVID-19 pandemic is a supervening event that has led to a fundamental change in the continued performance of the contract. Advice would need to be taken on a case by case basis as the doctrine will only be applicable in the clearest of cases.
Where frustration of contract cannot be invoked but an employer is of the view that the operational difficulties have drastically affected their business, they may have to consider having to declare redundancies. In this instance, employees are likely to be made redundant and the statutory process on redundancy must be observed.
Government Tax Reliefs
On 25 March 2020, the government rolled out several measures aimed at cushioning citizens from the impact of COVID-19 summarised below:
The tax reliefs have been captured in the “Tax Laws (Amendment) Act 2020”, which was signed into law on 25 April 2020.
On 23 May 2020, the President of Kenya set out an 8-point Economic Stimulus Programme amounting to a total of Ksh. 53.7 billion to disbursed periodically in a bid to stimulate growth and cushion families and companies from the impact of covid-19.
The 8 point stimulus package will cover the following sectors:
Job retention and wage subsidy schemes available to employers
The Government of Kenya has not issued any guidelines or passed any laws in relation to job retention and wage subsidy schemes available to employers.
Prohibition of dismissals (where applicable)
There are no new laws or guideline prohibiting the dismissal of employees. Under Kenyan law there are four (4) ways an employer can lawfully terminate a contract of employment:
In clear circumstances, the effects of the pandemic may give rise to the employer exploring the possibility of a mutual separation or redundancy. If fixed term contracts are coming to an end an employer may opt not to renew the contract owing to the prevailing circumstances.
|4. Employee compensation in quarantine / If unable to perform functions / Diagnosed with Covid-19||
If employees have to self-quarantine for 14 days, do we have to pay them? Are they entitled to statutory sick pay?
Where an employee exhibits symptoms or is placed under quarantine arising from work related travel or in the course of their employment, such an employee is entitled to sick leave as provided under their contract of employment or by law. Under the Employment Act, 2007 after two consecutive months of service an employee is entitled to sick leave in the following manner:
in each period of twelve consecutive months of service, subject to the production of a medical note.
It is important to check individual company policies/employment contracts, which may provide for longer periods of sick leave whether paid or unpaid.
The Government of Kenya has suspended learning in all education institutions with effect from 16 March 2020 for day schools. Boarding school administrations are to ensure that students are home by 18 March 2020 while universities and tertiary institutions must be closed by 20 March 2020. A situation where parents are unable to find childcare while they are at work may now arise and employers will have to take this into consideration and accommodate the employees where possible. An employee may also opt to use up their annual leave entitlement and depending on the discretion of the employer.
The Kenyan government has not yet introduced any guidelines on whether employees who are under mandatory quarantine are to be compensated.
How should employers treat employees diagnosed with Covid.19?
An employee who has been diagnosed with COVID-19 would be entitled to sick leave under the terms of their contract of employment and by law. Where this happens, it is advisable for the employer to put stricter measures in place including having members of staff tested and where necessary further steps taken to reduce the risk of infection.
Under the Employment Act, 2007, an employer is obligated to ensure the sufficient provision of medication and medical attention in the case of serious illness upon notification of the illness by the employee. This will not be applicable where:
The employer is also under an obligation to immediately notify the Ministry of Health of any employee who has been diagnosed with COVID-19. Under the Public Health Act, the Ministry of Health is permitted to inspect the workplace where an employee who has tested positive for COVID-19 has been working and may issue directions thereafter.
What do we do if someone displays symptoms while at work?
It is advisable to immediately require the individual to self-isolate and to submit themselves for the COVID-19 test. If they have tested positive, see the section above on ‘How should employers treat employees diagnosed with COVID-19.
|5. Employee data privacy||
Treating personal data, including health information
Under the Data Protection Act, 2019 an employee’s medical information is considered sensitive personal data and should not be disclosed. There are however instances where this is permissible. An employer would be entitled to disclose personal data relating to the health of an individual if it is necessary for reasons of public interest in the area of public health or necessary for national security. This means that an employer may lawfully collect and process data relating to COVID-19.
Are employers allowed to take employees' temperatures and use personal data to admit employees at work?
Employers have an obligation to provide a safe working environment for all members of staff. One of the symptoms of COVID-19 is a high temperature. Under the Data Protection Act, 2019 personal data relating to health may be processed (this includes collecting and recording) where necessary for reasons of public interest in the area of public health. It has become quite common for organizations, including government buildings, to check an individual’s temperature before allowing them into the premises. Given the obligations placed on the employers, the taking of employees’ temperatures is a reasonable step to take.
|6. Travel protocols||
Limitations on people's mobility introduced by the Government
The Government of Kenya issued a directive on 6 July 2020 indicating that the suspension on all incoming and outgoing international passenger travel to and from Kenya would be lifted as follows:
Furthermore, the Presidential directive of 6 April 2020 on the cessation of inter-county movement lapsed on 7 July 2020 at 4.00am. This will now enable employees who were previously unable to travel to work, to do so. The lifting of the cessation of movement will also provide a huge boost to the transport sector.
Other restrictions on travel
The Public Health (Covid-19 Restriction of Movement of Persons and Related Measures) Rules, 2020 have introduced new restrictions for public and private modes of transport as follows:
All users of private and public transport shall wear a face mask that covers the person’s mouth and nose.
Dealing with travel for work, including international trips
In the view of the lifting of the travel restrictions, employees can now travel for work. Employees will be required to adhere to their individual company travel policies as well as any quarantine rules for international travel.
The Government has encouraged travelling only when essential.
|Last updated:||18 November 2020|