This write-up provides the readers with Mauritius employers’ ultimate questions and answers concerning the impact of COVID-19 on their compliance with Employment and Data Protection Laws.

The answers are updated as at 5 May, 2020.

Employment

What responsibilities should we bear in mind as employers?

Under the Occupational Safety and Health Act 2005, (“OSHA”), every employer shall, as far as practicable, ensure that every employee is provided with adequate safety and health information, instruction and training.¹ In addition to complying with all safety, health and welfare measures under the OSHA, the employers should also follow the guidelines published by the World Health Organisation on COVID-19 and make sure that these guidelines are circulated in the enterprise to educate the staff.

If any employee comes to work showing symptoms of COVID-19, he/she should be encouraged to seek medical examination at the earliest opportunity. However, it is also incumbent on the employee to take reasonable care for his/her own safety and health while at work.²

Is there a risk of employees bringing claims against the business?

The OSHA sets out the statutory obligations on Employers regarding the safety, health and welfare of employees at work. If an employee contracts the virus during the course of his/her employment, and the Employer had not taken all the reasonable measures, the aggrieved employee may bring a claim against the Employer.

As per the OSHA, failure by the Employer to ensure the safety, health and welfare of an employee at their work place can lead to criminal liability and the Employer may be subject to a fine not exceeding MUR 75,000 and to imprisonment for a term not exceeding one year.³

For legal and practical reasons, companies need to be able to show that they have complied with all health and safety measures and that they have strictly applied all measures required from the Government. Make sure all steps taken to comply with the guidelines are documented, with photographs of all measures taken (masks, sanitisers, postage, acts of cleaning etc…) and a record of the identity of the employees in charge of health and safety.

How should employers deal with employees at greater risk?

Under the OSHA, the employer has a duty to provide a safe work environment to all its employees, including pregnant employees and employees with asthma and other respiratory issues.

The Ministry of Labour, Human Resource Development and Training has issued a communiqué whereby it has stated that employees of essential services are bound to attend work, provided that the employer has obtained for the employee a Work Access Permit. However, if an employee has health conditions that increase risk, he/she shall apply for an exemption from the employer to not attend work. If required, the employer may refer the employee to a doctor of its choice for a medical examination of the employee requesting an exemption from work.⁴

Can we not pay our employees for the month of April?

Salary must be paid to the employees, irrespective of whether they are working remotely or at their workplace. Where the employees are working from home, allowances such as travel allowance can be deducted by the Employer.

The Government has announced the introduction of a Wage Assistance Scheme to ensure that that all employees in the private sector are duly paid their salary for the months of March & April 2020. This applies to both full-time and part-time Mauritians and foreign employees working in Mauritius.

Under the Wage Assistance Scheme, the Employers have been assisted to pay the salary of their employees for the month of April 2020 as follows:

The Wage Assistance Scheme applies only to employees earning MUR 50,000 or less. 

What about the month of May?

The Government has announced the extension of the curfew until 1st June 2020. However, services such as hairdressers, hardware stores and bakeries will be accessible to the public as from the 15th May 2020.

It is important to note that the possession of a work access permit is mandatory for any displacement to attend duties on-site. This applies even to a self-employed person. 

As for the Wage Assistance Scheme, the Minister of Finance has announced an extension of the scheme for the month of May. Precision on the modalities of payment are currently awaited from the Mauritius Revenue Authority. 

Reduction of Workforce 

The Employers shall discuss with trade unions or the workers’ representatives first and then, in the event no agreement is reached, the Employers should proceed by obtaining the approval of the Redundancy Board. However, it is important to bear in mind that Employers must be able to justify the reduction of the workforce, should the matter proceed before the Redundancy Board.

A communique has been released by the President of the Redundancy Board on the 7th April 2020, stating that cases referred to the Redundancy Board will only be considered after the office resumes, that is when the current lockdown is lifted. 

Data Protection

Personal Data and COVID-19

Personal data includes but is not limited to the following: name, contact details, travel history, and family connections of individuals (employees, customers, and anyone visiting your premises). Health data (temperature, blood sample, amongst others) fall within ‘special categories of personal data’.⁵

Can you require your employees to tell you if they develop symptoms or have been contaminated?

Yes, since the processing of the data is necessary for the following purposes:

1. To protect the vital interests of the employee or other staff members;⁶ and
2. For compliance with the Employer’s health and safety legal obligations towards all his employees.⁷

The data should be collected for explicit, specified and legitimate purposes and it should be limited to what is necessary.⁸

Can personal data of an infected employee be shared with the staff?

The OSHA creates a legal obligation for an Employer to ensure the safety, health, and welfare of all employees at work as far as is reasonably practicable. Hence, to comply with the provisions of the OSHA and for the legitimate interests of the employees, the Employer can inform the employees about an infected co-worker⁹. However, it is advised that the name of the contaminated employee should not be revealed without a clear justification.¹⁰

The Employer has the responsibility to take all reasonable steps to ensure that all relevant security measures have been taken to prevent any unauthorized disclosure.¹¹

Staff working from home might not be able to employ as high security measures as in the workplace. Which security measures should Employers implement?

Employers should educate the employees on cyber security and provide them with all appropriate security measures to prevent cyber-attacks, especially where employees are dealing with sensitive data while working remotely. Such security measures include setting up Virtual Private Networks (VPNs), implementing two-factor or multi-factor authentication and limit employee access to the minimum scope and duration needed to perform their duties.

It is advisable that Employers consider full encryption of the laptops provided to their employees which will be used remotely.

It is also recommended that a policy be implemented so that the employees are clearly aware of their responsibilities whilst working remotely; for e.g.: ‘where and how the documents must be kept, how to act when there is a risk of data leakage, that the use of public Wi-Fi is not permissible’.¹²

1. S 5, OSHA ↩
2. S 14(1), OSHA ↩
3. S 94(3)(b), OSHA ↩
4. Communiqué dated 16.04.20 ↩
5. S 2, The Data Protection Act 2017 (“DPA 2017”) ↩
6. S 28 (1)(b)(iii), DPA 2017 ↩
7. S 28 (1) (b) (ii), DPA 2017 & s 29 (1)(d)(iii), DPA 2017 ↩
8. S 21, DPA 2017 ↩
9. Data Protection Office, ‘Guide on Data Protection for health data and artificial intelligence solutions in the context of the COVID-19 Pandemic’ [17 April 2020]↩
10. Data Protection Office, ‘Guide on Data Protection for health data and artificial intelligence solutions in the context of the COVID-19 Pandemic’ [17 April 2020]↩
11. S 31(6), DPA 2017 ↩
12. Data Protection Office, ‘Guide on Data Protection for health data and artificial intelligence solutions in the context of the COVID-19 Pandemic’ [17 April 2020]↩