The continuity challenge: Solutions to novel covid issues affecting company’s survival

As I began writing this article, I recalled one of my many character flaws. I have little time or tolerance for "experts" whose only talent is identifying problems but lack the intellectual curiosity or depth to offer possible solutions.

I pointed out several challenges to business continuity because of the covid19 pandemic in my last article, so now I present some possible solutions.

Regarding quarantine pay, many are now expecting companies to maintain the pay of workers who may be quarantined more than once for 14-21 days at a time.

When the pandemic first started in 2020 most companies decided to pay workers under quarantine. Let’s consider that as of December 30, 2020, there were 378 active cases and 7,132 total positive cases. Fast forward to January 2022 we have active cases between 16,000-19,000 and positive cases at more than 108,000.

According to the Central Statistical Office’s data for 2020 our employed labour force stood at 603,000. If 75 per cent of the total positive case numbers of 108,088 were from that workforce, then about 15 per cent of workers across the board have tested positive for covid19.

This covid19 positive workforce will obviously have primary contacts, who will also be quarantined, then we can say about 25 per cent of workers would have been somehow affected. The accuracy of these mathematical assumptions can be substantiated in the figures recently released by MTS which has a workforce of about 6,000 employees. It has experienced a whopping 30 per cent quarantine rate, losing over 36,000 man-days at a cost of over $7 million.

I have estimated that the national economy has lost over $200 million in unproductive paid wages due to workers being in quarantine over the last two years.

I must point out that companies are not legally obligated to pay workers in primary or secondary contact quarantine. This is considered an ex-gratia payment. For those workers who are ill, sick leave will be utilised and sick days outside of the company’s policy could be treated as extended pay or ex-gratia. Monies could be recouped through the NIS.

As the data suggests above, with a 4,000 per cent increase in active cases throughout the country, companies are now financially challenged to keep making these payments. I therefore advise my clients, that for those jobs that can be performed at home or offsite, they can treat quarantine absence as work from home. Where this is not possible the company is therefore not obligated to maintain full pay to such workers.

No one predicted these developments back in 2019, or before, when negotiations for collective agreements were being conducted, or when companies were creating and implementing their leave of absence policies. As such, there existed no provisions for "pandemic leave." Accordingly, companies are not obligated to pay for non-positive quarantines.

Now that the expense is proving to be unsustainable, unions are pushing back on any decision to stop or reduce payments. My advice is to revisit pandemic policies and practices and make the necessary amendments in the best interest of the company.

One client has recently introduced a system where full pay is maintained on first non-positive quarantined absence, reducing to zero pay for subsequent absences. So, a flexible approach can be used on a case-by-case basis. Companies may wish to decrease quarantine pay amounts based on the number of times the same worker has to go into quarantine.

With respect to workers who continue to act irresponsibly, for example pretending they were a primary contact without providing required proof, this is deception which is a breach of their implied duty of fidelity. So too are the issues of applying for off days to get vaccinated and not taking the vaccine. These actions may constitute direct violations of company policy. Companies can initiate disciplinary proceedings, as this goes to the root of the contract of employment, possibly justifying termination.

When it comes to unreasonable demands being made by some unions, I will always advise companies to engage the union based on the provisions set out in the collective agreement. However, no collective agreement, current or expired, would contain any provision relating to pandemic conditions. Negotiations for revised terms in collective agreements, or collective bargaining discussions around grievances arising from HR decisions touching and concerning the pandemic, now appear inevitable and ongoing. Some unions are however demanding that companies should have a blanket pay-all approach to quarantine. This is clearly unreasonable and should be challenged by any company from a position of strength and legal logic.

Workers who are required to take on additional work due to depleted staff should receive additional compensation by way of overtime pay or bonus awards. This additional payment would be partially offset, or balanced off, if quarantine workers get no or reduced pay.

Finally, regarding employees who are resisting returning to the office after working from home over the past two years, my advice to employers is to adopt an empathetic approach and treat each case on its merit. Management should work with employees who may have genuine home management issues and whose work output is unaffected while working from home. This can certainly help companies with their retention rate and help to keep talented and critical team members from placing themselves on the job market.

In this regard, I intend to offer the HR/IR considerations and implications that should be taken into account when planning for the work from home option in my next article.