With the continuous rise in the number of cases for the novel coronavirus disease (“COVID-19”), which was declared a global pandemic by the World Health Organization (“WHO”) employers may have to deploy special arrangements concerning health and safety.
Myanmar has reported 15 cases to date, and the number is set to rise as Myanmar hits its peak. In any case, the consensus is that that the low number is reflective of the lack of testing and/or reporting. The biggest concern is that Myanmar ranks 190 out of 191 countries in the World Health Performance Index published by the WHO. In such testing times, employers must be prepared to take the initiative to combat and mitigate the situation effectively. In this alert, we discuss employment-related laws and compliance issues in light of the situation on-the-ground in Myanmar including the rights and duties of employers and employees.
- What are the general employers’ obligations for sanitation and health safety?
The Shops and Establishments Law 2016 (“SEL”) applies to all employers including commercial establishments, industries, public entertainment enterprises and shops. The SEL provides basic guidelines that should be followed by an employer. Section 23 of the SEL provides that the employer shall carry out the following:
(a) The premises of any establishment shall be kept clean, healthy and free from any smell.
(b) Any establishment shall be kept well-ventilated and be adequately lit.
(c) No excessive noise shall originate from the establishment.
(d) No excess temperature shall be prevalent at any establishment and fire prevention procedures shall be laid down.
(e) For workers, a first aid kit containing adequate medical supplies shall be kept at any establishment.
- What are the reporting obligations of an employer in Myanmar when dealing with communicable diseases such as COVID-19 in the workplace?
An employer of an entity operating in Myanmar has reporting obligations under the Prevention and Control of Communicable Diseases Law of 1995 (the “PCCDL”). COVID-19 was also notified as a communicable or notifiable disease under Notification No. 19/2020 dated 28 February 2020, issued by the Ministry of Health and Sport (“MOHS”).
Some of the salient features of the PCCDL are as follows:
– The PCCDL regulates the reporting requirements for notifiable communicable diseases and requires the employer to undertake the responsibility of carrying out reporting measures, by notifying the nearest health department or hospital.
– All persons must undertake the responsibility of carrying out environmental sanitation measures that include (a) in-door, out-door sanitation or inside the fence, outside the fence sanitation; (b) wells, ponds and drainage sanitation; (c) proper disposal of refuse and destruction thereof by fire; (d) construction and use of sanitary latrines; and (e) other necessary environmental sanitation measures.
– Every person must comply with the measures undertaken by the MOHS and the Department of Health (“DOH”) in respect of preventing the occurrence and spread of communicable diseases and the control thereof.
- What are the general instructions given to the employers in light of COVID-19?
The MOHS published an instruction document regarding COVID-19 prevention and control on 30 March 2020 (the “MOHS Instructions”) applicable to every employer and directing the following:
– If an employee has a fever, is coughing or has breathing problems, the employer is instructed to ask the employee to stay home;
– If an employee is pregnant, the employer is instructed to ask the employee to stay at home;
– If an employee lives with someone in quarantine, the employer is instructed to ask the employee to stay home;
– The employees are instructed to wash their hands thoroughly and wear masks;
– The workplace should be regularly sprayed and washed;
– The transportation provided by the companies (buses, cars) should be sprayed and cleaned;
– Employee work stations should be 3 feet apart from one other;
– The biometric system should be deactivated; and
– Construction companies should arrange to have no more than 50 employees on a construction site at any one time.
- Can an employer request an employee to self-isolate and work remotely?
The employer has a general duty to ensure safety in the work environment as specified under the SEL (See Question 1) and the MOHS Instructions (See Question 3). Additionally, the employer also has reporting obligations under the PCCDL should any of the employees be suffering from COVID-19 like symptoms.
Based on the MOHS Instruction, should an employee be suffering from fever, cough, breathing problems or is pregnant, the employer has an obligation to ask its employees to self-isolate and/or work remotely (if possible as per the nature of the work). If the symptoms of the employee worsen, the employee should also be requested by the employer to undergo a COVID-19 test and if the result is positive, the employer must report this to the nearest health department as per the PCCDL.
Should the employee refuse to self-isolate and work remotely in such circumstances, this may be treated as a breach of the employment contract and appropriate termination measures (as discussed in Question 10 below) may be taken by the employer.
- If an employee is under self-isolation as requested by the employer, does this count as leave or a normal working day?
As per the MOHS Instructions, an employer is required to ask an employee to self-isolate and stay at home for any of the symptoms such as fever, cough and heavy breathing and also for pregnancy.
Whether the days where the employee is at home will count as a regular working day or as a leave is largely dependent on the facts and circumstances of the particular case. Should the employee suffer any of the aforementioned symptoms but is able to work remotely, it shall count as a regular working day.
However, should the employee be requested to self-isolate and the arrangement is such that working remotely is not feasible, this may be treated as medical leave by the employer (since the request came from the employer). In situations where the employee self-isolates (without a request from the employer and without suffering any of the symptoms), this would be treated as casual/annual leave if the employee is unable to provide a medical certificate.
- Does an employee have an automatic right to work from home/work remotely?
There is no automatic right or entitlement for employees to work remotely. Working remotely is at all times subject to the arrangement/agreement between the employees and the employers. The employment contract mentions the place of work, and the employee does not have the unilateral right to change the place of work without permission/consent of the employer.
However, based upon the MOHS Instructions, the employers are mandated to request the employees suffering from the symptoms to work remotely (if the nature of the job permits).
- Should an employee be afflicted with COVID-19 and is unable to work, does it amount to paid leave?
Should an employee be afflicted with COVID-19, the employee is entitled to medical/paid leave for 30 days in a year as per Section 6 (1) of the Leave and Holidays Act 1951 (“LHA”). The employee will, however, need to have been employed by the employer for at least six months to be entitled to benefits under the LHA.
Additionally, every employer who has five or more employees must register the employees with the Social Security Board (“SSB”) as per the Social Security Law (“SSL”). In the event that the medical leave extends beyond the 30-day paid leave period, and the employee has been registered with the SSB, the employee may enjoy cash benefits as per Section 23 of the SSL. The registered employee is required to have worked with the employer for at least six months before being infected by COVID-19 and to have paid contributions for a minimum of four months during this six-month period. The employee has the right to enjoy 60% of the average wage/pay of the previous four months as a cash benefit related to COVID-19 infection for up to 26 weeks under the SSL.
- What are the basic Myanmar law provisions when it comes to changing the terms and conditions of an employment contract?
Section 5 (f) of the Employment and Skill Development Law 2013 (“ESDL”) states that the employer and the employee may amend, by mutual agreement, terms and conditions of the employment contract.
The Standard Employment Contract (“SEC”) which is the prescribed employment contract by the Ministry of Labour, Immigration and Population (“MOLIP”), also specifies that terms and conditions of the contract may be amended mutually between the employer and the employee.
This signifies that an employer cannot unilaterally change the terms and conditions of an employment contract. There has to be mutual consensus/agreement between both the employer and the employee, for the employment contract to be amended.
Non-compliance may lead to imprisonment for up to three months, a fine or both.
- Can an employment contract be suspended? When can an employment contract be terminated?
Myanmar employment-related laws have not defined the term ‘suspension’. However, if the employment contract covers suspension of the employment contract upon the occurrence of specified events and the employee has consented to such terms, the employment contract may be suspended.
Employment contracts may be terminated based on the provisions mentioned in the ESDL and the SEC as mentioned below:
(I) Mutual agreement
The ESDL states that an employment contract can be terminated upon mutual agreement between the employer and the employee.
(II) Termination by notice
The SEC mentions that the employer may terminate the employment of an employee with at least one month’s notice submitted in advance and payment of severance.
The SEC also mentions the closure of business and force majeure events as grounds for terminating the employment contract (upon payment of severance).
Severance payment rates are as follows:
Period of service
Severance (Month’s salary) From the completion of 6 months to less than 1 year
½ From the completion of 1 year to less than 2 years
1 From the completion of 2 years to less than 3 years
1½ From the completion of 3 years to less than 4 years
3 From the completion of 4 years to less than 6 years
4 From the completion of 6 years to less than 8 years
5 From the completion of 8 years to less than 10 years
6 From the completion of 10 years to less than 20 years
8 From the completion of 20 years to less than 25 years
10 From the completion of and more than 25 years
13 (III) Dismissal
a. Minor offenses: An employee who violates the terms of the employment contract and/or commits any minor offense as defined under the employment contract shall be given written warnings for the first and second violation and sign an undertaking upon the third violation. In the event of any further violation within twelve months from the undertaking, the employer shall have the right to terminate the employment contract without severance pay. If no further violation is committed within twelve months from the undertaking, all previous offenses of the employee shall be cancelled.
b. Grave offenses: The violation and commission of a grave offense and the dismissal terms thereof have not been mentioned under the ESDL. However, in such cases, we may assume that warnings may not be given and that the employment contract can be immediately terminated (without payment of any severance).
- What are the penal consequences for employers?
(I) Consequences under the PCCDL
The Union Government in an Announcement dated 27 March 2020 stated that non-compliance with the PCCDL may result in imprisonment of up to six months being imposed, fines or both. Therefore, employers need to abide by the PCCDL’s reporting requirements and also the MOHS Instructions as stated above.
(II) Consequences under the Myanmar Penal Code
Employers must not act negligently and should take health measures and compile reports as required under the PCCDL. Section 269 of the Myanmar Penal Code (“MPC”) provides that whenever a person (this will include an employer) negligently performs any act which is, and which he knows or has reason to believe be, likely to spread the infection of any dangerous disease shall be punished with imprisonment of either description for a term which may extend to six months, a fine or with both. This penal provision applies to employers and is broad enough to encompass a range of situations where an employer has been negligent. Submitting reports is essential if the employer notices an employee suffering from COVID-19 or similar symptoms.
Conclusion
Myanmar may see a significant rise in the number of COVID-19 cases which would be present a huge challenge for the government, health departments, and the various stakeholders to cope with. All employers should be prepared with an action task plan in place and adhere to Myanmar’s laws, regulations, and announcements. International guidelines and health plans should also be obeyed to implement plans of action more quickly, systematically and effectively.
The authorities are beefing up prevention, control and treatment of COVID-19 and have also formed a National Level Central-Committee. As per the PCCDL, the authorities can take measures to impose quarantines, lockdowns, ban festivals or large public gatherings etc. Non-compliance with the measures imposed by the authorities may lead to imprisonment of up to six months, fines or both for every person.
Employers should ensure that the measures, instructions, guidelines which are periodically publicized by the authorities be followed in order to avoid falling foul of any rules safeguarding public health and any form of culpability given the unpredictability of the COVID-19 global crisis.
The information provided here is for information purposes only, and is not intended to constitute legal advice. Legal advice should be obtained from qualified legal counsel for all specific situations.
Contact
Partner & Managing Director, DFDL Myanmar/Singapore
Authors
Partner, Deputy Managing Director & Head of Banking and Finance Practice, DFDL Myanmar
Legal Adviser, DFDL Myanmar
