COLOMBO : Every person in Sri Lanka is threatened with their life and their livelihood due to the fast spread of Covid- 19 virus (the virus) across the country. The employers are concerned on the continuity of the business while the employees are concerned of their job security. The Article discusses on the legal framework on health and safety practices and the mutual agreements entered among parties on payment of salaries to employees during the Covid-19 pandemic period.
Health and Safety of employees
The Law that emerged as far back as 1897 and now is of vital importance due to the current pandemic is the Quarantine and Prevention of Diseases Ordinance No.3 of 1897 as amended (the Ordinance) and the Regulations issued under Section 2 and 3 of Chapter 222 of the Ordinance. The Ordinance is enacted for the purpose of preventing the introduction of any disease into Sri Lanka and for preventing the spread of any disease in and outside Sri Lanka (Section 2 of the Ordinance). Accordingly, the Minister is empowered to issue Regulations in furtherance of the purpose of preventing the introduction and spread of any disease under a list of incidences as well as in relation to all matters in order to prevent the spread of such disease. Although, Covid-19 was not within the scope of the Ordinance, by way of issuing Extraordinary Gazette Notification No.2167/18 dated 20th March 2020 under chapter 222 of the Ordinance, Covid-19 virus was added to the definition of “quarantinable disease”. As a result, every Regulation that is passed under the Ordinance will encapsulate the laws that are applicable under the circumstances faced due to the virus.
The important Gazette for our topic, on health and safety of employees is the Extraordinary Gazette Notification No.2197/25 dated 15th October 2020. The Gazette while laying down what every person in the country should follow during the epidemic also stresses the measures an “employer or person in charge of any institution or workplace in any diseased locality” should comply with in relation to corona virus disease 2019. The provisions are stated below;
i. Not exceed the maximum number of employees and other persons permitted within the premises at a time specified by the proper authority
ii. Ensure that every person who enters such institution or work place wears a face mask at all times
iii. Ensure social distancing not less than one meter between two persons
iv. Ensure that the body temperature of every person is measured before entering the institution or the workplace
v. Provide adequate hand washing facility with soap or sanitizer and ensure that hands are washed or sanitized before entering the premises
vi. Maintain a record of the name/ identity card number and contact details of every person entering the institution/work place
vii. Comply with such other disease preventive measures as determined by the proper authority
The definition for “proper authority” include persons who are delegated with certain tasks to take measures in furtherance of the purpose of the Ordinance.
Although people blindly follow or at times do not follow the above provisions, violation of these provisions constitutes an offence in terms of Section 4 of the Ordinance.
Accordingly, any persons who contravenes any Regulation under the Ordinance will be tried before a Magistrate and on conviction would be subject to an imprisonment for a term not exceeding six months of either description or to a fine or both not exceeding LKR 1000. However, the amount of fine charged under the Ordinance is amended by the Fines Act No.12 of 2005 to an amount, not less than LKR 2,000 and not exceeding an amount of LKR 10,000.
The Regulation also provide the measures that should be adopted by supermarkets, shops or any other business place or any other service which are not addressed in this Article.
Payment of Salaries
Another area of concern is the payment of salaries by employers during this pandemic situation. It is to be noted that, due to the lack of legal provisions to cater to the issues encountered by employers and employees, both parties are facing a difficult time.
However, the Employers’ Federation of Ceylon (EFC), Minister of Skills Development, Employment and Labour Relations and Trade Unions have entered into a Tripartite Agreement and introduced an exception to the payment of salaries to employees in every sector with monthly salaries, during the pandemic period. This was a satisfactory solution for employers and employees as businesses were unable to carry on their businesses and generate cash while obliging the Regulations issued for safety purposes.
Accordingly, the Employers’ Federation of Ceylon issued several Circulars including Circular No.31/2020 dated 8th May 2020, Circular No.41/2020 dated 26th June 2020, Circular No.51/2020 dated 16th July 2020 and Circular No.77/2020 dated 16th October 2020.
Circular No.31/2020 stipulated a mechanism to provide employees a minimum amount of salary regardless whether the employees report or do not report for duty. This scheme was introduced as employees could not attend work due to health restrictions imposed by the employer or authorities. Accordingly, the scheme suggested a pro-rate basis for calculation of salaries. The salary of an employee was calculated for the days worked and days not worked; for the days worked the salary was a proportionate amount from the basic salary per day, whereas for the days not worked salary has to be calculated on the basis of LKR 14,500 or 50% of the basic salary whichever is higher per day. In terms of Circular 31/2020, this policy was only applicable for the months of May and June 2020. However, by the period was extended for another three months from July i.e. until 30th September 2020 and by Circular No. 77/2020 the Tripartite Agreement was further extended until 31st December 2020 and requested every employer excluding employers in the tourism industry to inform of their implementation of the Tripartite Agreement to the Commissioner General of Labour and Director General of EFC.
Although the movement taken by the Tripartite Agreement could be seen as a progressive step, it is not without limitations. One such issue is that while only the last Circular requested employers to keep the Commissioner of Labour and Director General of EFC to be kept informed other Circulars did not refer to take such measure. Thus, providing employers an option to mislead its employees stating that the business did not generate enough cash to pay salaries. Further, in an event there is inability on the part of an employer to pay salaries, employer could make a representation before the Commissioner of Labour, whereas there is no remedy for his employees.
Therefore, in conclusion I would opine the relevant authorities should take steps to amend the laws to address the circumstances faced during a pandemic with due regard to the practical issues faced by employers and employees without delay.
………………………………………………………………………………………………………
Lahiruni Samarasundara is a L.L.B (University of Colombo), Attorney-at-Law and a CIMA passed finalist
