WHAT BVI EMPLOYERS NEED TO KNOW AND DO IN THE PRESENT COVID-19 BUSINESS ENVIRONMENT

Over the past few weeks, British Virgin Island authorities and the business community have been actively monitoring the rapidly evolving COVID-19 disease. With the surge of reported cases around the world, and now in the Caribbean, all major stakeholders in the BVI have taken temporary measures to ensure an efficient and effective transition of business and human resources.

Given that the spread and effects of COVID-19 are unprecedented, many persons will panic simply because of the unknown. The constant stream of information (including misinformation) from traditional and social media sources can also create great anxiety. To alleviate misperceptions and panic, employers should be diligent in accessing only trustworthy resources and sharing only factual material with concerned employees. Employers can set an example by only sharing information from government sources, public health authorities, and healthcare providers.  

Continuity Plans For BVI Businesses

Now is a good time to review and update business continuity plans, if you have not already done so. Having an updated business continuity plan is the best way for you to respond efficiently, not only to this potential outbreak but also in the event of natural disasters or any unplanned emergency that might affect your workforce in the future. Many employers saw the value of planning when responding to the 2017 hurricanes—the Territory was able to rebuild and the private sector able to provide an exemplary level of service throughout the disruption. 

One aspect of business continuity plans may include moving to partial or complete remote work, such as working on shift systems to maintain normal business hours while reducing social contact. Employers may also choose to reduce an employee’s hours (and salary). However, an employee is not obligated to accept less favourable terms of employment than those contained in his or her offer letter or contract of employment (e.g., reduction in salary). Any change in terms requires a mutual agreement between employer and employee. For example, the employee may refuse less favourable terms, and in such a case, the employer will have to consider other options, such as a temporary or permanent layoff. 

In scheduling shift work or remote work, employers should also consider employees who have special concerns, including those with underlying health conditions or who have individuals within their homes with such conditions, which places those employees in a high-risk category. 

Unfortunately, for certain types of establishments, such as bars, restaurants and other hospitality services which depend heavily on foot traffic in order to generate income, the business continuity plan is likely to involve taking more proactive measures to reduce overhead and financial obligations. For example, some may choose to lay off staff either temporarily or permanently. Notwithstanding the employers’ need to minimize their financial exposure in the current climate, an employer’s relationship with its employees is in most cases contractual. Therefore, employers need to ensure that any proposed termination (temporary or permanent) is done in accordance with applicable law. 

BVI Employer Dos and Don’ts

In particular, employers must ensure that employees are given the required period of notice of termination OR pay in lieu thereof as prescribed by the BVI Labour Code. The period of notice is dictated by what the employee’s contract of employment stipulates. In the absence of a written contract of employment, the minimum periods as stipulated in the Labour Code will apply:

  • 24 hours’ notice for employees on probation
  • 2 weeks’ notice for employees who are paid fortnight and have been employed for more than 7 years
  • 1 months’ notice for employees who have been employed for more than 7 years but less than 15 years
  • 2 months’ notice for employees who have been employed for more than 15 years

Further, if, as an employer, you plan to temporarily layoff an employee, that employee must be rehired within three months of the date of the temporary layoff. If you do not rehire the employee once the three months have elapsed, you will be required to pay severance and all accrued benefits payable upon termination of employment, as the employee will be deemed to be permanently terminated at the end of the temporary period. However, if you plan to permanently lay off any employee immediately, the employee is entitled to severance pay and other benefits now.

Other options for employers to reduce overhead and manage finances can involve seeking extensions of payment schedules from lenders or insurance providers. Employers will need to speak directly with the financial service providers concerning these matters.

Employers that continue to maintain normal staffing and/or business hours should ensure sick leave policies are up to date, flexible, and non-punitive to allow sick employees to stay home to care for themselves, children, or other family members. Consider encouraging employees to do a self-assessment each day to check if they have any COVID-19 symptoms (fever, cough, or shortness of breath). 

Additionally, employers with an onsite workforce should regularly sanitize offices and workspaces, reminding employees to diligently wash their hands and keep an eye on their own wellness. 

Finally, employers should require sick employees—even those with common cold symptoms—to go home and stay home until cleared by medical professionals to return to work. Most importantly, employers should actively monitor the COVID-19 situation and follow all directives from the BVI Government and public health authorities. 

Please note that this information is intended for educational purposes only and should not be used as a substitute for competent legal advice from a licensed professional attorney in your jurisdiction. If you need further information or professional legal advice about the situation in your workplace, please contact Jenelle Archer at jarcher@onealwebster.com.

O'Neal Webster is a leading offshore law firm in the British Virgin Islands providing superior legal services to clients globally. The firm is a member of Lex Mundi, the world's largest association of independent law firms.

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