2020 has been a confusing year for many and as we resume "normal" life, the recipe for success includes having policies in place to policies provide guidance for employees and apply age-old first principles of communicating and leading by example, says Celeste Ang, Principal, Baker McKenzie Wong & Leow, and Zhao Yang Ng, Local Principal, Baker McKenzie Wong & Leow, as they share insights on the legal complexities brought about by COVID-19.

The year 2020 has been a trying year for many people and employers have not gone unscathed. The impact on employers is varied but most have been affected by the pandemic in one way or another, forcing them to make uncomfortable decisions in these unprecedented times.

For those with luck on their side, cutting off the metaphorical limb to save one's life has been an option. For others however, the plague that has descended upon us that is COVID-19 meant or will mean that the only option is to cease business altogether.

The complexities of cost-cutting, work from home, closed borders, and more

Cost-cutting measures are unlikely to be new to employers and most HR personnel are likely to have experience in implementing such measures at some stage in their career. However, given the way 2020 has played out so far, one could wager that HR teams may have observed that such measures were implemented on a much larger scale.

"Furlough" or "unpaid leave", "reduced hours", "reduced salary", "forcing employees to take annual leave" and the dreaded "redundancy" - never did these phrases aggressively flood the inbox of an employment lawyer more than in the year 2020. Businesses of all sizes reached out with their questions in relation to these cost-cutting measures that they were considering to implement in order to stay afloat.

In addition to the complexities of implementing cost-cutting measures, HR teams also had to deal with the various issues arising from working from home - an all too familiar reality for most of us as COVID-19 demanded that we all be forcibly socially distanced.

Issues ranged from workplace health and safety issues, to questions on whether benefits should be provided for use of home resources such as electricity and internet, to employee productivity.

To make it all a little worse for HR teams, most countries thought it best to close their borders in order to stem the spread of COVID-19. A sensible way to keep the number of COVID-19 cases under control domestically but a cause for confusion for employers that required employees to travel for work, or that had employees stranded overseas due to travel restrictions being rolled out at the eleventh hour before they could return home.

Surely there is no sufficient cause to terminate the employment of these employees who, in most cases, by no fault of their own are not able to carry some of their responsibilities?

However, from the perspective of the employer, a line would need to be drawn at some point in time since it is not sustainable to continue fully paying an employee who is not fully performing all their job responsibilities.

As time goes on and COVID-19 slowly causes businesses to bleed out, most local governments have started to worry about their escalating unemployment rate. The natural protectionist instinct has kicked in and for some jurisdictions, this has manifested itself in a policy of prioritising the hire of local employees (being citizens and/or permanent residents) as opposed to foreign employees, in order to appeal to the local voter base.

This can be a challenging balancing act for employers, especially because oftentimes foreign employees have been brought in to work in a specific jurisdiction due to a need for their expertise. Ultimately, the right balance can generally be found in:

  1. Considering the scope and the extent of the enforcement of such protectionist policies, and
  2. Examining the business' need for these foreign employees per se, or the need for these foreign employees to physically be based within the country in question.

The road forward: Have policies in place to policies provide guidance for employees and apply age-old first principles

This article paints a rather bleak picture for employers, so where to from here?

Many of us hope that the availability of a vaccine at some stage in 2021 and the knock-on effect will be the gradual easing of border restrictions. Given the potential that there will be a time-lag before people start becoming comfortable with "normal" life resuming, we expect that working from home will be the new norm moving into 2021.

We have also heard that some employers are even considering doing away with a physical office space altogether and transitioning to a permanent working from home arrangement since working from home has proven to be quite a success from both a productivity perspective and for the reduction in overheads.

Given this foreseeable future, it is vital for employers to consider what sort of working arrangement will suit them best as we continue to wade through the twists and turns that COVID-19 will no doubt throw at us.

If a form of permanent working from home will be introduced, employers should turn their minds to whether they are prepared to address the issues arising from the implementation of such a working arrangement. It will be fundamental for employers to have adequate policies in place that will provide guidance for its employees in respect of what is and is not permissible while working from home.

These policies should also cover the way in which issues (such as misconduct or performance matters) will be handled while on a work from home arrangements. While it is good to have relevant policies in place to steer the HR team in the right direction in relation to the bounds of a work from home arrangement, much of its teeth will come from knowing when and in what circumstances the policy should be enforced, which is largely a matter of judgment.

In conclusion, while 2020 has been a confusing year for many, employers should take comfort in the fact that the problems posed by COVID-19 are a permutation of common employment issues.

If in doubt, a good general starting point will be to examine the first principles in dealing with the traditional employment issues.

For example, if there is a need to change the terms of employment that will negatively impact an employee because of business drying up due to COVID-19, the age-old first principles will generally be to talk to the employee, let them understand that a bitter pill has to be swallowed in order for the business to survive and that management will lead by example by taking the heaviest cuts.

Hopefully, this level of openness and leadership will convince the employees to agree to changes. Once you have landed on a position using first principles, then consider if there are any specific COVID-19 requirements applicable.

Photo / 123RF

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