Employment law issues in Tanzania amid Covid-19

Thursday April 2 2020



PAUL KIBUUKA

tax@paulkibuuka.com

PAUL KIBUUKA tax@paulkibuuka.com 

By Paul Kibuuka and Lilian Kyaruzi

This, too, shall pass’ is a Persian saying. Tanzania confirmed its first case of the deadly coronavirus disease (Covid-19) on March 16, 2020. The number of positive cases has risen to 20, but the first case recuperated from the pandemic, the minister for Health, Ms Ummy Mwalimu, said on March 26.

Five days later, on March 31, Tanzania confirmed its first Covid-19-related death. Yesterday, the ministry announced that another patient has recovered from the malady.

The outbreak - designated a ‘pandemic’ by the World Health Organisation (WHO) on March 11, 2020 - was first detected in Wuhan, China. However, as of April 1, 2020 04:38 GMT-7, 783,360 cases had been identified in 206 countries, and the number of confirmed deaths from the pandemic had reached 37,203, according to the WHO. Discussions about partnering and taking next steps in battling potential business impacts of Covid-19 have taken place between the Health ministry and the Tanzania Private Sector Foundation (TPSF).

But it remains important that employers create their response plans in compliance with the relevant laws and regulations and any special obligations (in contrast to general duties) that a public emergency can trigger.

Whether suspected or confirmed, Covid-19 employees can be sent home

The Employment and Labour Relations Act, 2004 (the ELRA) and the Occupational Health and Safety Act, 2003 (the OHSA) are the primary pieces of legislation covering work-related health and safety in Tanzania.

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Employers have responsibilities for the health and safety of their employees and any visitors to their premises. In addition, employers are obliged to protect their employees from hazards in the course and within the scope of work. This may include the ongoing outbreak of Covid-19. Of course, employers should not, and may not, apply and enforce workplace protection policies in a discriminatory fashion.

In the absence of a ‘complete lockdown’ order issued by the Tanzanian state over Covid-19, employers would be ill-advised to ask their employees to stay at home on account of trifling suspicion.

Instead, employers should have an objectively reasonable basis for suspecting a Covid-19 case in the workplace before asking the employee to seek medical attention and get tested in accordance with the ministry of Health guidelines and to stay at home. Moreover, speaking at a press conference in Dar es Salaam on February 29, 2020, Ms Mwalimu called on the public, including employers and employers, to remain vigilant, adopt good personal hygiene practices, and promptly report suspected cases to the relevant authorities in order to stop the spread of Covid-19. Employers should also actively remind their sick employees about their labour rights, including the right to paid sick-leave. Employees who come into the workplace with a fever or exhibit symptoms of acute respiratory problems should be isolated from others, who should be warned about potential exposure.

Such employees “should not come to work until they are free of fever [100.4 degrees Fahrenheit/37.8 Celsius] for at least 24 hours, without the use of fever-reducing or other symptom-altering medicines”, the Centres for Disease Control and Prevention (CDC) advises.

CDC is the US’ leading national public health institute which has worked with Tanzania since 2001.

Most countries have travel advisories, or outright bans, in place; and multiple businesses and organisations have suspended all nonessential travel for employees to countries with reported Covid-19 cases. Following the WHO declaration of the virus as a pandemic, though very unfortunate, employers in Tanzania should take the responsible decision of limiting or suspending travel for their employees as a precaution against contracting the virus.

Employers should be judicious to allow their employees returning to Tanzania from anywhere in the world to practice quarantine, or isolation, for medical observation for up to 14 days—counting from their date of return so as to minimise the spread of Covid-19.

Whether sick-leave benefit can be granted for Covid-19 absence

The ELRA makes it clear that employees are entitled to paid sick-leave for at least 126 days in any leave cycle. Full wages are payable to the employee in the first 63 days of the sick-leave period, and half-pay is payable in the next 63 days.

It bears reminding that employees who abuse or misuse the sick-leave benefit, either wilfully or ignorantly, may be the subject of disciplinary action.

Paid sick-leave is premised on proof of a medical certificate from a certified medical practitioner, and, in general, on the employee having worked with the employer for six months. Thus, though not all employees are entitled to paid sick-leave, employers should be judicious about requiring proof.

Having said that, employers may be required to grant time off for Covid-19 absences when a public health emergency is declared, or as a judicious accommodation of the situation under the Bill of Rights entrenched in the Constitution of United Republic of Tanzania, 1977 (Article 14: Right to Life).

Whether a contract impacted by Covid-19 can be terminated

The gloom of the coronavirus outbreak and the impact of measures to combat the outbreak has the potential to cause huge financial losses from unfulfilled contracts.

Although an employer’s right to terminate an employment contract is not affected by Covid-19, the employer may be under a duty to take reasonable steps to mitigate the loss in the absence of a force majeure clause, if any, being triggered by the pandemic.

Alternatives to laying off jobs include asking employees to work fewer hours, or to take a pay cut. But this changes the terms and conditions of employment.

Changes in the employment contract must be agreed by both the employer and the employee.

Unilateral termination may be construed adversely by the Commission for Mediation and Arbitration (CMA) and employers should tread carefully and may have to be more flexible than ever before.

While the economic effects of the Covid-19 pandemic are still far from clear, the government of Tanzania, in active collaboration with the TPSF, should step up efforts to safeguard social stability in tandem with keeping the country’s economy humming through 2020.

Whatever happens, Tanzanians and people around the world generally need to endure.

“Scars are not signs of weakness; they are signs of survival and endurance,” sages have pontificated down the ages.

Paul Kibuuka (tax@paulkibuuka.com), , a High Court of Tanzania advocate, is the chief executive of Isidora & Company and the executive director of the Taxation and Development Research Bureau.

Lilian Kyaruzi (law@liliankyaruzi.com), a High Court of Tanzania advocate, is a director in Isidora & Company and the Taxation and Development Research Bureau.

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