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Kenya

1. Government provisions impacting businesses / Employer protection responsibilities

Government provisions

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:

  1. The Government lifted the cessation of movement in and out of three (3) counties effective 7 July 2020. This will have a positive impact on the transport industry, supply chains and the ability of employees to get to and from work.
  2. Closure of borders – the government has announced a closure of the border with neighboring Tanzania and Somalia. This is likely to have an impact on the transport and import/export industry. 
  3. The government has introduced rules to govern the transport industry including a limit on the number of passengers per vehicle. This has had a huge impact on revenue generation in the public transport industry.
  4. The guidelines on social distancing have led to the temporary closure of several restaurants and entertainment businesses including casinos, gyms, and cinemas, amongst others.
  5. The government has also rolled out several measures aimed at cushioning citizens and businesses from the impact of COVID-19 (see section 3 below)

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:

  • Creating awareness through discussions/sessions on COVID-19 and preventative measures as outlined by the Government of Kenya and the World Health Organization;
  • Restricting access to the workplace for any person who has travelled to a COVID-19 hotspot recently;
  • Restricting international travel for work by employees to a COVID-19 hotspot; and
  • Providing hand sanitizer stations throughout the workplace and ensuring the workplace is regularly cleaned/disinfected.

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:

  • that a distance of not less than one metre is maintained from one person to the next;
  • individuals wear face masks that cover the person’s mouth and nose;
  • hand washing soap or sanitizers are provided at the workplace; and
  • regular sanitization of their premises.

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:

  1. Designation of staff or teams responsible for the enforcement of compliance with the guidelines. This could be a committee or a single staff member.
  2. Social distancing amongst members of staff and as well as customers/ clients; maintain a physical distance of at least 2 meters (6 feet).
  3. Regular hand washing using running water and soap. In the absence of hand washing facilities, use alcohol based hand sanitizers.
  4. Regular disinfection of surfaces such as tables, chairs, counters, tools and other equipment.
  5. Wearing masks whenever in public places including work places.
  6. Refraining from physical contact when exchanging greetings.
  7. Proper management of waste arising Personal Protective Equipment (PPEs) such as used masks and gloves.

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:

  1. Occupational Safety and Health Risk Assessments – an employer, shall carry out assessments in relation to the employees including all work activities that predispose exposure of the virus and all adopted preventative/protective measures. The report must be presented to the DOSHS within thirty (30) days of the date of reopening.
  2. Covid-19 Policies and Workplace Readiness – Workplaces shall develop and communicate to all employees, a Covid-19 Preparedness Policy Statement that address all aspects of Covid-19 readiness. A summary of the policy statement shall be submitted to the DOSHS within thirty (30) days of reopening.
  3. Assessment of non-essential work and working from home – All employers are responsible for identifying work activities and workers whose services can still be undertaken from home, document the same and issue specific protocols involving safe working from home.
  4. Commuting to work, safe passage to and from work – Employers must sensitize employees on mitigation measures and staying safe while using public and private transport. Where possible, employers should consider providing a safe commute to and from work.
  5. Workplace safety and health – Employers must promote a safety and health culture including observing a distance of at least two (2) meters between employees, regular hand washing, regular disinfection of common areas and the use of face masks.
  6. Work injury insurance – An employer is required to obtain an insurance policy in respect of any liability that they may incur under the Work Injury Benefits Act, 2007. This policy shall explicitly confirm that all occupational diseases and confirmed occupational exposures to Covid-19 are covered under that insurance.
  7. Medical examinations and issuance of certificates of fitness – All workers returning to work on or after the reopening date shall be required to attend medical examination. Any tests for COVID-19 are conducted only by accredited laboratories and that the procedures adhere to guidelines set by the Ministry of Health.
  8. Health risk assessments for returning employees – Employers shall determine the kind of activities that may predispose returning employees to elevated Covid-19 risks to health, what factors may be involved and control measures to be implemented.
  9. Mental health and mental well-being – Employers and employees are encouraged to work together to minimize the impact of Covid-19 on mental health. Where possible affected employees should be linked to a mental support program.
  10. Suspected and confirmed Covid-19 employees – An employee who has tested positive or is suspected to have Covid-19 shall inform the employer and the employer shall require such employees to report to the identified Ministry of Health institutions for care, quarantine or self-quarantine as maybe appropriate.
  11. Discrimination of suspected and confirmed Covid-19 employees – An occupier shall not dismiss, discriminate against or disadvantage an employee in any way with respect of the employee’s status with regard to Covid-19.
  12. Reporting of Covid-19 positive employees by medical practitioners – Any medical practitioner who examines and diagnoses a worker with an occupational disease, which includes occupationally acquired COVID-19 shall within fourteen days after the first examination of the employee, furnish a medical report to the DOSHS.
  13. Registration of workplaces – Employers are required to register their premises as workplaces. No person shall be allowed under any circumstances whatsoever to reopen without a certificate of registration as a workplace. All workplaces that are already registered and the certificates have not expired shall be exempted from this requirement.
  14. Safety and health audits – The occupier of a workplace shall cause a comprehensive and thorough safety and health audit of his workplace within thirty (30) from the date of reopening. The audit shall be conducted by a safety and health advisor, who shall conduct the audit, issue a report and send a copy of the report to the DOSHS. The list of approved safety and health advisors may be obtained from the Ministry of Labor and Social Protection Website: https://labour.go.ke/downloads/
  15. Workers with pre-existing medical conditions – All employees aged 60 years and those with pre-existing conditions shall be required to collaborate with their employers who will in turn be required to ensure that such employees are safe.
  16. Continuous monitoring and evaluation – Every workplace is strongly advised to document the evolving impact of Covid-19 on Workplace Safety and Health Conditions and regularly update the DOSHS on specific interventions that require the attention of the regulatory authority on occupational safety and health matters.

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.

Restrictions

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:

  • that a distance of not less than one metre is maintained from one person to the next;
  • individuals wear face masks that cover the person’s mouth and nose;
  • hand washing soap or sanitizers are provided at the workplace; and
  • regular sanitization their premises.

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 9.00pm EAT to 4.00am EAT for a further period of thirty (30) days effective 6 July 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:

  1. Pay as you Earn (PAYE) tax for employees earning an income of Ksh. 24,000 or less has been waived and the maximum PAYE rate of 30% is reduced to 25%.
  2. Corporation tax has been reduced from 30% to 25% in a bid to help employers with their cash flows.
  3. Turnover Tax has been reduced from 3% to 1% to help businesses whose turnover does not exceed Ksh. 5,000,000 during any year of income.
  4. Reduction of Value Added Tax from 16% to 14%.

The tax reliefs have been captured in the “Tax Laws (Amendment) Act 2020”, which was signed into law on 25 April 2020.

Further reliefs

  1. The Kenya Revenue Authority was also required to process and release Ksh. 10 billion to settle verified Value Added Tax (VAT) refunds within 3 weeks or to allow outstanding VAT refunds to be offset against VAT withheld. The objective is to enhance cash flows and help maintain business operations.
  2. Government Ministries were directed to release pending verified bills worth Ksh. 13 billion within 3 weeks.

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:

  1. Infrastructure;
  2. Education;
  3. Small and Medium Enterprises;
  4. Health;
  5. Agriculture;
  6. Tourism;
  7. Environment; and
  8. Manufacturing.

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:

  1. Termination by effluxion of time;
  2. Termination for cause – this involves terminating the employee for valid reasons and following due process.
  3. Mutual separation; and
  4. Redundancy.

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:

  1. sick leave of not less than seven days with full pay and thereafter;
  2. sick leave of seven days with half pay

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 illness was contracted during a period when the employee was absent from his/her employment without lawful cause;
  • The illness or injury is proved to have been self inflicted;
  • Medical treatment is provided free of charge by the Government or under any insurance scheme established any written law which covers the employee; or
  • The employer provides medical insurance/cover for the employee.

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 will be lifted as follows:

  1. Domestic carriage by air will resume on 15 July 2020, in strict conformity with all applicable guidelines and protocols from both the Ministry of Health and civil aviation authorities; and
  2. International carriage by air will resume on 1 August 2020, in strict conformity with all protocols from the Ministry of Health, local and international civil aviation authorities, and any additional requirements applicable at the ports of departure, arrival or transit.  

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.

The easing of restrictions with regard to inter-county movement shall be reviewed over the next twenty one (21) days and any trends that signal a worsening of the situation will result in a return of the lockdown.

The government had previously announced the closure of entry points into the country which remain in effect as follows;

  • There shall be cessation of movement of persons and any passenger-ferrying automobiles and vehicles into and out of the territory of Republic of Kenya through the Kenya-Tanzania international border except for cargo vehicles, with effect from midnight, Saturday 16 May 2020.
  • There shall be cessation of movement of persons and any passenger-ferrying automobiles and vehicles into and out of the territory of the Republic of Kenya through the Kenya-Somalia international border except for cargo vehicles, with effect from midnight, Saturday 16 May 2020.

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:

  • Passenger rail services, bus services, matatu services, taxicab services and e-hailing services vehicles shall not carry more than 50% of their licensed capacity;
  • Motorcycles shall carry only one passenger or goods;
  • Bicycles shall carry only the rider;
  • Tricycles may carry goods and not more than one passenger;
  • Private vehicles shall not carry more than 50% of the licensed capacity.

All users of private and public transport shall wear a face mask that covers the person’s mouth and nose.

Additionally, on 6 July 2020 the President directed that there shall be no movement of public transport vehicles into and out of the areas previously under cessation of movement restrictions, without the public transport providers being compliant with all protocols developed by Ministry of Health.  To operatePublic Service Vehicles the operators will require mandatory certification from the Ministry of Healthin consultation with the Ministry of Transport.

Some counties have gone as far as restricting the use of public transport altogether. This has an impact on employees who rely on public transport to get to their places of work. 

Dealing with travel for work, including international trips

Owing to the travel restrictions set out above, travel for work has been limited both domestically and internationally. The Government has encouraged travelling only when essential.

Questions?
Please contact:
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  • Michi Kirimi
  • Dentons Hamilton Harrison & Mathews
  • Partner, Nairobi
  • D: +254 20 3258272
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  • Aamir Sheikh
  • Dentons Hamilton Harrison & Mathews
  • Associate, Nairobi
  • D: +254 20 325 8428
  • Bio Email