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New law introducing special leave now in force | 31 March 2020

Workers with children under the age of 15 and who attend relevant educational institutions which have since March 16 closed amid the COVID-19 pandemic, can now apply for special leave under the Employment (Coronavirus Special Leave) (Temporary Measures) Regulations, 2020 .

The newly introduced regulation, which came into force yesterday, permits certain categories of workers, including parents (father, mother or guardian with whom the child or children reside) with children enrolled in schools, workers on quarantine or in isolation as a precautionary measure to prevent the spread of the coronavirus in accordance with the directive of the health authorities, as well as workers whose work organisations are temporarily partially or wholly closed during the pandemic, to seek special leave from their employers, starting from March 16, until the situation is normalised and school institutions resume their operations.

Principal secretary in the department of employment, Jules Baker, was joined by director general for labour relations, Steve Monnaie, and director general for industrial relations, Alda Aumeeruddy, in a press conference yesterday morning to explain the provisions of the regulations, announced by the department last week.

“The special leave applies to workers who are employed on a continual basis, on fixed term contracts and on part-time contracts. It also applies to expatriate workers but does not apply to expatriate workers outside of the jurisdiction, for instance, those who are abroad on annual leave or who have been left stranded due to travel bans in place and have thus been unable to return,” PS Baker explained.

With regards to parents, PS Baker clarified that only one parent can apply even if both parents qualify, proposing that they discuss among themselves and make a decision as to who should apply for special leave, while the other can apply for annual or compassionate leave, unless one of the parents’ absence is permitted by their employer on account that the business is not functioning entirely or in part.

As for workers whose work places are only functioning partially or are wholly closed, PS Baker noted that the period in which they have been absent from work will not be deducted from their annual leave on account that the situation is beyond anyone’s control. In such instances, employers have three choices; permit workers to stay at home and consider this as special leave, permit them to stay home and allow those who can work from home to do so or allow workers to take their annual leave. If an employer permits the worker to work from home, the employee is at the disposition of the employer and can therefore be called in for work. If an employee refuses to report for duty, the employer is permitted to take disciplinary actions and to deduct the missed days off the employee’s annual leave.

A third category of workers are automatically permitted to take the special leave without any application procedures. According to PS Baker, workers who are in quarantine or isolation or are separated or segregated as a precautionary measure to stop the spread of the virus, need not apply for the special leave, provided they are issued with a certificate from the relevant health authority.

As aforementioned, in order to benefit from the special leave, an employee needs to apply formally to their employer using an application form available on the department of employment’s website, and the employer has full discretion as to how to process the demand. The same applies to workers who have already started taking special leave since the closure of schools on March 16.

Should an employer refuse to grant a worker special leave unreasonably, the worker has the right to appeal the decision by issuing a letter to the Ministry of Employment, and a response and decision can be expected in seven days, according to the officers.

While the regulation makes provisions for parents, the regulations do not apply to those involved in the provision of essential services, namely, services relating to the generation, supply or distribution of electricity and water, hospital or medical services, services relating to the sewerage service, airport and port and marine services including civil aviation, customs, immigration, airline catering and unloading and service of ships and aircraft, fire and rescue services, services relating to retail or distribution of pharmaceutical products and medical equipment, wireless, telephone internet and cable communication services, meteorological services, postal services, banking and financial services, service relating to retail, wholesale, distribution and supplies of food, and water, service of manufacturing of essential commodities, service of public transportation including inter-island air and sea transportation, waste collection and disposal service, petroleum and gas retail services, storage, supply and distribution of petroleum and gas services, security services , disaster management services, print, audio and visual media or broadcasting services, service of government treasury, and the district administration service. Home carers are also excluded from the list.

“In this case, a child with both parents in essential services or as a home-carer, we suggest that the two employers discuss to organise that both parents benefit from the special leave by turns as long as the school institutions are closed. To facilitate this, the regulation is foreseeing that in such instances, the employer must not refuse an employee special leave unreasonably, so when the home-carer or an employee of an essential service requests the special leave, the employer must consider the context, such as if the employee is a single parent, or the spouse of the employee or other parent is incapable of caring for, and looking after the wellbeing of, the child, on the basis of disability, confinement or absence from Seychelles,” PS Baker said.

“If there is a necessity to reduce operations, meaning not all employees are needed at the same time, there is nothing to stop the employer of the essential service to allow some workers to take special leave and to organise work along with other workers to ensure that the operations continue, but at the same time take into consideration a parent’s responsibility to stay home with their child. We are encouraging discussions and shared responsibility during these trying times to eliminate the possibilities of abuses,” PS Baker further noted.

The special leave regulations apply to such date as the Minister for Employment, Immigration and Civil Status determines, in consideration of public health advisories and orders and directives of the Ministry of Education and Human Resource Development.

PS Baker seized the opportunity to once again clarify that no redundancies will be accepted by the department especially since provisions have been put in place for the government to assist employers financially to effect salary payments for all private sector workers and other categories of workers for a three-month period.

 

Laura Pillay

 

 

 

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