The outbreak of CODIV-19 has caused employment crisis worldwide as the virus is claiming thousands of lives and sickening a millions. The virus is causing global economic, social, health, and economic disruptions. The International Labour Organization has an estimate that up to 25 million jobs could be lost worldwide. In addition to the possible unemployment crisis, the safety and health of workers are at risk. Following the declaration of the virus as a Public Emergence of International Concern and pandemic by World Health Organization, countries are taking different measures including partial or full lockdown. Ethiopia is not an exception to this crisis, and the same measures are being taken by the government.
During crisis, Labor Law responds with safety and health measures, benefits and rights for workers. However, CODIV-19 pandemic has brought new challenges to some static provisions of the labor law, including the ILO protocols and guidelines. The Ethiopian labor proclamation has also suffered from some lacuna to combat the CODIV-19 pandemic having static provisions in normal cases. Hence, the discussion as to new challenges posed by the new pandemic to the Ethiopian labor law, the adequacy of existing legal responses available, the safety and health measures needs to be taken, and the workers' rights and benefits related with this outbreak is imperative and timely.
In addition to new measures that can be taken by the government, the existing legal responses that can be used in relation to CODIV-19 needs to be examined. This pandemic has challenged the long lasting provisions of the labor law. The Issues related with quarantine, arrangements to working condition and hours, the safety and health measures, leaves, benefits, and etc needs to be analyzed if they are in conformity with attempts to combat CODIV-19 and the possible ways out thereto.
Consensual Arrangements: A priority
In tackling the disruption caused by CODIV-19, contractual arrangements between and among the employee, employer, and employment association (Trade Unions and Employers Association) should be given a priority. Due to the novelty of this outbreak worldwide, flexible and adaptable arrangements can be reached up on. The new labor proclamation NO-1156/2019 (hereinafter" Labor Proclamation") has recognized the possibility of consensual arrangements between and among the parties, and employment associations.
Employees frightened of CODIV-19, can consider use of their annual leave. According to article 77 of labour proclamation, workers shall be entitled to uninterrupted annual leave with pay for a period not less than 16 working days for the first year and plus one working day for the next years of services. The wages that the workers receive during annual leave is equal to what s/he would have received if s/he had continued working.
Basically, annual leave is to be granted based on the course of calendar year and having regard to the interest of the worker, and the need for maintaining the normal operation of the undertaking per the labour proclamation. However, having regard to the nature and impact of CODIV-19, the flexibility of this provision should be used. The protocol adopted by the Ministry of Labour and Social Affairs is vital in this regard. According to the protocol, before terminating or employment contract, the workers should be given their annual leave. This protocol has suggested that those workers who have already used their annual leave should be allowed to use half of their leave from the next year. However, although it is very enthusiastic recommendation, its binding nature is doubtful.
However, considering the period of time that CODIV-19 may last for, it can be said that use of annual leave is insignificant. There are projections that this outbreak may last for months, and the use of annual leave may cover only part of these period.
It is a probability that a working employee may be contracted with COVID-19. According to article 85 of the labor proclamation, where a worker is rendered incapable of working due to sickness other than employment injury he/she shall be entitled a sick leave up to six months. With regard to payments, the worker is entitled with payment of 100% of his/her wage for the first one month, 50% of his/her wages for the next two months, and three unpaid months. Hence, those workers affected by CODIV-19 can consider the use of their sick leave.
The Issue of Absence from work for Quarantine
One of the medical measures being taken to combat the spread of CODIV-19 is being in quarantine for 14 days. This measure directly affect the workers capacity to attend to his/her work as per the employment contract. At worst, according to article 27 91)c) of the labor proclamation, an absence from duty for a total of five days in six months period is prescribed as one of the grounds of termination without notice by the employer. This pose a challenge to the worker who has used his/her annual leave, or unless the worker is actually contracted with CODIV-19 and use sick leave. The writer, in this case, recommend the use of suspension of employment contract. In addition, flexible consensual arrangements between the employee and employers is vitally recommended. This is the time that companies have to discharge their commitment to social responsibility.
Occupational safety and health measures
One of an effective ways of combating CODIV-19 is the implementation of occupational safety and health measures both by workers and employers. Effective implementation of these measures have the effect of keeping the decent of employment and the health of the workers at the same time. According to the Occupational Safety and Health Convention of 1981, employers have the overall responsibility of ensuring that all practicable preventive and protective measures are taken to minimize occupational risks.
The Ethiopian labor law has prescribed an extensive occupational safety and health measures that needs to be taken by employers and workers. According to article 92 of the labor proclamation, employer shall take the necessary measure to safe guard adequately the health and safety of the workers in terms of complying with safety and health requirements; informing and instructing the workers; providing protective equipment, clothing and other materials; ensuring that the working environment is safe; implementing instructions by competent authority, and etc.
Workers have also the duty to discharge with regard to implementation of safety and health measures. Specifically, workers have the duty to inform of any incidents, make proper use of all safety devices and other appliances, observe all health and safety instructions issued by the employer and competent authority, and etc. This can be read from article 93 of the labor proclamation.
Within the context of CODIV-19, these safety and health measures should include application of social distancing, provision of protective equipments, hygiene procedures, update of information, use of flexible working arrangements and etc per the instructions and recommendation of the ministry of health, Ministry of Labor and Social Affairs/regional bureau, WHO, other competent adhoc bodies. Workers too, have the duty not to attend the work place if they have CODIV-19 symptoms.
The protocol adopted by the Ministry of Labour and Social Affairs with regard to safety and health measures that needs to be taken is so important. The protocol calls for provision of cleaning, and preventive materials at work place, application of social distancing, flexible working arrangements, awareness creation, safe transportation service, interruption of any meetings, and etc. Appropriate implementation of these measures can combat the spread of CODIV-19 and is in line with the WHO and ILO recommendations.
Taking care of family members contracted with CODIV-19
Family members contracted with CODIV-19 might need worker's support. The ILO recommends the worker to obtain leave of absence in the case of family member's illness. Under Ethiopian Labor proclamation, special leave is allowed for 3 working days for family events, and for five consecutive days in case of exceptional and serious events per article 81. This provision is irresponsive to the outbreak of CODIV-19 and not in tune with the ILO recommendations.
Right to Cease the Work
The right to cease the work is the worker's right to stop working if he/she has reasonable justification to believe the presence of an imminent and serious danger to their life or health. What makes this right different from protection from compulsory work is that the worker's decision to cease the work should not expose her/him for any undue consequences such as termination of employment contract or disciplinary measures. The ILO convention has recognized the right to cease the work.
A look at the labor proclamation reveals that the only rights the worker who has reasonable justification to believe the presence of imminent and serious danger to his/her life or health is to inform the employer. The right to cease the work without being exposed to undue consequence is not recognized.
COVID-19 as an Occupational Disease
Occupational disease as one part of occupational injury entitle the worker the compensation for any disorder arising from the type of work performed by the worker, pathological condition caused by physical, chemical or biological agents witch arise as consequence of surroundings in which the worker is obliged to work per article 98 of the labor proclamation.
However, the caveat in this regard is that endemic or epidemic disease which are prevalent and being contracted in the area where the work is done are not considered occupational disease. Yet, the caveat to the caveat are workers exclusively engaged in combating such diseases by reason of their occupation. In the context of the COVID-19, the health workers are fully protected by this provisions as they are directly engaged in fighting against it.
It can be deduced that the protection given by this provision is insignificant having regard to the nature and severity of CODIV-19. This is because, although the workers are not directly engaged in combating this pandemic, the possibility of being contracted very high in any work place. The ILO convention and protocols also lack adequate protection in this regard.
The CODIV-19 has challenged the existing static labor laws both internationally and Ethiopian context. The provisions of the labor proclamation is irresponsive to the novel nature of this pandemic. However, use of the existing laws within a context of this pandemic is recommended. More than anything else, consensual arrangements between and/or among the employers, employees and associations are highly recommended. This is also a time at which the companies should discharge their social responsibility by exceeding solid responsibility under the law.