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Employment Practices: the Virtual Tour

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Employment Practices: the Virtual Tour International In-house Counsel Journal Vol.14, No. 56, Summer 2021, 1 “All Sold Out” – Employment Practices: The Virtual Tour SUSAN F. FRIEDMAN Area Vice President & Group Coverage/Claims Counsel Arthur J. Gallagher & Co. As we continue to zoom in and out of each other’s lives, the curtain rises on the global stage with an inconsistent tempo for in-house counsel managing employment issues. We “shine a light” on the havoc wreaked on the employment landscape by COVID-19 causing “heartache all over the world.” Global employers grapple with furloughs, reductions in force, leave laws, teleworking, return to workplace protocols, vaccinations1 and a medley of challenges never before contemplated. Although countries on all continents have anti-discrimination laws in place, systemic racism, sexism, ageism, and discrimination based on disability seep into corporate employment decisions. These decisions are further complicated by a layer of health concerns prompting employees to question the safety of the workplace and compliance with government guidelines/regulations.2 Employers are asked to address the “19th nervous breakdown” of employees who have anxiety and a generalized fear of working under potentially hazardous conditions as well as inquiries surrounding disabilities and whether remote working can continue in perpetuity. Although COVID-19 may take center-stage, and its impact will persist far into the future, “yesterday’s papers” are still today’s news with the ongoing trends of #MeToo, Black Lives Matter, Civil Unrest, Racial Injustice, DEI (Diversity, Equity and Inclusion), transgender rights, employee classifications, pay parity, biometrics and privacy, and religious liberties, among others. This article provides sound bites from the general global employment environment, claims set forth against employers, critical areas that continue to be of concern to in-house counsel, and the focus of the plaintiffs’ bar. To keep in-house counsel “cool, calm and collected”, we conclude with a brief discussion of the insurance coverage available to assist with these matters. So, “on with the show” as we continue on our Virtual Tour. Global Jam Session -- “Don’t Shut Me Down” – Employment Landscape The rhythm of the world fluctuates as countries on separate continents experience the “social disease” of COVID-19 at different points on the scale – either ascending or descending. Without exception, however, all nations have used every instrument available to strike a common chord between employers and employees. 1 See, e.g., EEOC Guidance, U.S. EQUAL EMP. OPPORTUNITY COMM’N, www.eeoc.gov/guidance. 2 See, e.g., Occupational Safety and Health Administration, U.S. DEP’T OF LAB., www.osha.gov; Daniel Ferguson, Coronavirus: Returning to Work, UK PARLIAMENT: HOUSE OF COMMONS LIBRARY (May 5, 2021), https://commonslibrary.parliament.uk/research-briefings/cbp-8916/library. International In-house Counsel Journal ISSN 1754-0607 print/ISSN 1754-0607 online 2 Susan Friedman Each country has implemented some form of temporary anti-crisis coronavirus legislation inclusive of Executive Orders, Decrees, Ordinances and amendments to Labour Codes with the goal of making the financial and physical well-being of the working population a paramount priority. Here, we examine a random sample of countries and some of the more pressing employment issues confronting global organizations. At the outset of the pandemic the health and safety of employees took top billing. Whether it be Australia’s Work Health and Safety Act of 2011 (as amended in 2017)3, European Union Directives4 that must be followed by member countries, China’s Work Safety Act of PRC (2002)5, India’s Occupational Safety, Health and Working Conditions Code (2020)6, Canada’s Workplace Safety & Insurance Act Part III7 or South Africa’s Occupational Health and Safety Act8, the intent is the same – to protect workers by providing a workplace free of health and safety hazards. Protection came in the form of immediate requirements of facial masks/coverings, social distancing, and sanitizing environments. Working in unison with the governmental occupational health and safety administrations, designated regulatory agencies accepted worker complaints when employer protective measures failed thereby providing the overture for the first set of employee claims.9 Employee claims against employers often sound the “whistleblower” trumpet. Although many jurisdictions around the world10 prohibit retaliatory action against employees who articulate concerns pertaining to workplace safety, it is vital that multi-national employers keep apprised of the critical differences in world cultures and jurisdictions to effectively manage whistleblower activity. The “beast of burden” was not only placed on employers, but also on employees who were expected to contribute to the fight against the pandemic. Consider the Australian case of Fesshatsyen v. Mambourin Enterprises Ltd. (2021) FWC1244 in which the Fair Work Commission ruled in favor of the employer who summarily dismissed an employee for continuing to work notwithstanding a body temperature reading requiring her to leave the workplace in accordance with company rules. The Fair Work Commission (FWC) determined that the employee’s failure to comply with the lawful and reasonable COVID- 19 safety procedures in the workplace was sufficient grounds for termination. A similar case was decided in Germany by the Regional Labour Court of Dusseldorf in which an employee failed to socially distance and did not adhere to hygiene rules (failed to cover mouth/nose when coughing and sneezing).11 As a result, the employee was terminated with no notice. The Court held the termination to be ineffective.12 The Court made clear, however, that a dismissal is justified where an employer can prove non- 3 Work Health and Safety Laws, QUEENSLAND GOVERNMENT: WORKSAFE, https://www.worksafe.qld.gov.au/laws-and- compliance/work-health-and-safety-laws. 4 Safety and Health Legislation, EUROPEAN AGENCY FOR SAFETY AND HEALTH AT WORK, https://osha.europa.eu/en/safety-and-health-legislation. 5 Safety Production Law of the People’s Republic of China, THE CENTRAL PEOPLE’S GOVERNMENT OF CHINA (May 27, 2006), http://www.gov.cn/ztzl/2006-05/27/content_292725.htm. 6 The Occupational Safety, Health and Working Conditions Code, 2020, PRS LEGISLATIVE SEARCH, https://www.prsindia.org/billtrack/occupational-safety-health-and-working-conditions-code-2020. 7 https://www.ontario.ca/laws/statute/97w16. 8 Occupation Health and Safety Act, 1993 (Act No. 85) (as amended by Occupational Health and Safety Amendment Act, 1993 No. 181) (S. Afr.), https://www.gov.za/sites/default/files/gcis_document/201409/act85of1993.pdf. 9 See, e.g., HEALTH AND SAFETY EXECUTIVE, www.hse.gov.uk; GOVERNMENT OF WESTERN AUSTRALIA: DEPARTMENT OF MINES, INDUSTRY REGULATION AND SAFETY, [email protected]; Latest Regulatory Information, LAWS & REGULATIONS DATABASE OF CHINA, https://law.moj.gov.tw; CANADA: JUSTICE LAWS WEBSITE, https://laws-lois.justice.gc.ca. 10 Germany, Australia, Canada, China, Italy, Spain, Netherlands, UK, among others include whistleblower protection within the occupational health and safety laws or labor codes. 11 See Germany: Works Council Brings Claim Against Employer for Video Conferencing Equipment, L&E GLOBAL (June 29, 2021), https://knowledge.leglobal.org/corona/country/germany/. 12 Id. Employment Practices 3 compliance with COVID-19 workplace safety protocols.13 In contrast, the U.K. Employment Tribunal in Deimantas Kubilius v. Kent Foods Ltd.14 determined that the employer was justified in summarily dismissing an employee who refused to adhere to the company policy of wearing a face mask. Staying in cadence with Australia, Germany and the U.K., in LIUNA, local 183 v. Aecon Industrial15 a Canadian arbitrator confirmed an employer’s decision to terminate a construction worker employee for violating the company’s COVID-19 safety protocols. Here, the employee experienced coronavirus symptoms, was told to isolate at home and await instructions from the company nurse. The employee never spoke to the nurse, but reported to work with a runny nose five days later for fear of losing his job.16 The Canadian arbitrator upheld the employer’s dismissal, because the employee knowingly created a health and safety risk for his co-workers.17 Finding themselves on “shakey ground”, with employee health and safety, prompted governments across the globe to implement remote working regulations. The federal government in Brazil issued MP No. 1046/2021, an Executive Order re-establishing a number of measures implemented in 2020 inclusive of flexibility in adopting telework policies.18 Spain passed Royal Decree 28/2020 to provide a legal framework of the rights and duties of employers and employees with respect to remote working.19 The primary focus of the Decree was to require formal written agreements memorializing the remote work arrangement.20 Notably, the Decree includes an anti-discrimination provision prohibiting all discrimination, including denial of promotions or terminations, against employees who work remotely.21 Leaving Spain and following the “midnight sun” to Norway, the Norwegian government encouraged employers to coordinate remote work arrangements. This flexibility existed prior to the onset of COVID-19 with the Norwegian regulation on home office (FOR-2002- 07-05-715), requiring a separate written agreement in addition to an employment agreement.22 Unlike Norway, Poland had no formal remote work regulation in
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