As the COVID-19 pandemic continues to spread across the world, one of the biggest challenges for businesses has undoubtedly been its response regarding employees. Similar to many other countries, Tanzania’s employment and labour laws did not quite envisage a COVID-19 or similar situation. In a recent circular, the Association of Tanzanian Employers (ATE) advised on a few measures that could be taken by employers in response to the ongoing crisis. In this update, we will address the ATE Circular, what employers in Tanzania need to know in relation to COVID-19 and employment law, and precautions that they should take.
ATE issued a circular on 18 March 2020 (the ATE Circular). Among other things, the ATE Circular provided as follows:
- employers should, bilaterally, hold consultation meetings with employees and trade unions at the workplace with regard to unpaid leave and other flexible working arrangements, such as taking annual leave, to reduce the strain on businesses and potentially buy time until the situation improves;
- employers should issue specific task contracts for the jobs which are shorter and are of a task-oriented nature. This is because in Tanzania, the minimum duration for a fixed-term contract is 12 months, whereas specific task contracts can be for a shorter duration related to a specific task;
- employers are encouraged to consider if their employees can work from home especially where the job does not necessarily require physical presence at a work place; and
- employers are also encouraged to review and update their policies and procedures which may be affected by the current situation, including sickness and absence policies. Section 32 of the Employment and Labour Relations Act, 2004 (the ELRA) requires that the employee must produce a medical certificate from a medical practitioner in case of sickness. However, during self-isolation (where the employee is not sick) it is likely not to be possible for the employee to obtain an exemption from duty from a medical practitioner. Therefore, the employer and employee may either opt for an unpaid leave or a working from home arrangement.
The ATE Circular also flagged that under Tanzanian law the concept of unpaid leave has not been developed. Therefore, any discussions of unpaid leave will have to be conducted bilaterally between the employer and the employee.
What employers need to know
It is likely that during the pandemic employers may be faced with a lot of questions. Below are some pertinent issues that may arise during this period with respect to employment matters.
The rules for paying sick pay are set out under Tanzania's labour laws. Any employee who suffers from COVID-19 is entitled to sick leave for at least 126 days in a 36-months cycle (section 32(1) of the ELRA). The 126 days of sick leave payments are payable as follows:
the first 63 days, the employee is entitled to be paid full pay; and
the subsequent 63 days, the employee is entitled to half pay (section 32(2)(a) and (b) of the ELRA).
The employer shall not pay the employee for sick leave unless the employee produces a medical certificate issued by a registered medical practitioner or if the employee is entitled to be paid sick leave under any law, fund or collective agreement. All identified COVID-19 patients are to be quarantined in specific government health centres. Therefore, once an employee is diagnosed, the employee should use all reasonable endeavours to inform the employer of their health status.
As previously mentioned, Tanzania's labour law does not envisaged unpaid leave as a working arrangement option. However in these unprecedented times and with businesses facing difficult financial strains, the employer and employee may engage in dialogue with regards to an unpaid leave arrangement. Please note that the employee must agree to this arrangement and that an employer should not unilaterally arrive at such a conclusion. Failure to consult an employee may lead the employee to file an unfair termination claim at the Commission for Mediation and Arbitration.
Despite the strain on businesses during COVID-19 pandemic, employers should refrain from unilaterally reducing employees’ salaries. An employer may engage the employees and trade unions (if relevant) in a one-to-one or group consultation to highlight the business’ economic status. The parties may then agree for the employee to take a salary reduction for a certain period or on terms agreed between them.
Termination of employment contracts
Where businesses are no longer viable and alternative working arrangements (unpaid leave, salary reduction, working from home among others) fail, an employer may consider terminating an employment agreement by way of operational requirements/retrenchment. The procedure for terminating an employment contract by operational requirements, remains stringent even during the COVID-19 pandemic. It is imperative that the employer adheres to the retrenchment procedure as provided in the ELRA and other labour legislation in Tanzania.
Additional points to note
The Ministry of Health, Community Development, Gender, Elderly and Children (the Ministry) issued a notice to the general public regarding the existence of COVID-19 in Tanzania (the Notice). Among other things, the Notice requires institutions and employers to take precautionary measures in order to prevent the spread of COVID-19. Such precautionary measures include installing hand washing facilities and sanitizers to ensure cleanliness, avoiding unnecessary travel to countries with reported cases of COVID-19 and avoiding unnecessary internal and external meetings, conducting confidential temperature screening of employees and visitors entering the employer’s premises; and
It is important for employers to carefully consider any decisions in respect of its employees in response to the issues caused by COVID-19 before it seeks to implement these. Should you have any questions in relation to the above or other employment matters please do not hesitate to contact us using the details below or through your usual Clyde & Co contact.This briefing is prepared for clients and contacts of Clyde & Co Tanzania. We aim to keep our clients abreast of developments in Tanzania as they happen and if you have any questions on the issues raised above please contact us directly. Further advice should be taken before relying on the contents of this summary. Clyde & Co Tanzania accepts no responsibility for loss occasioned to any person acting or refraining from acting as a result of material contained in this summary. No part of this summary may be used, reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical, photocopying, reading or otherwise without the prior permission of Clyde & Co Tanzania.