In our Series 001- Sick Leave, MMW Advocates highlighted the Government Directives issued on 15th March 2020 by His Excellency Hon. Uhuru Kenyatta. This led to the question – Can an employee absent himself from work on the basis of this directive?
We have reviewed the Government’s directives and it is apparent that;
The Government only encouraged businesses to allow employees to work from home but did not state that this was a mandatory step to be taken by businesses;
The directive takes cognizance of the fact that it is the employer who has the discretion to allow an employee to work from home;
It is not upon the employee to make the choice to be absent from work unless authorized to do so by the employer;
PROVISIONS OF THE LAW
Under the Employment Act, an employee may be subjected to summary dismissal if, without the authorization of the employer, absents himself from work.
Further, an employer has the right to deduct an amount not exceeding one day’s worth of salary/wages and in respect to each working day the employee has absented himself.
However, under the Occupational Safety and Health Act (OSHA) if an employee absents himself from an unsafe work environment on the belief that his health is under imminent danger, such an employee should not be subjected to summary dismissal or unfair treatment by the employer.
In this instance, it is the duty of the employer, upon receiving such a complaint, to ensure that the workplace is safe for its employees.
An employee will then only be compelled to return to the workplace when remedial action is taken towards ensuring that the workplace is safe;
An employee who absents himself without lodging such a complaint, will then be considered as unlawfully absent and absconding his duties.
WHAT IS THE BEST PRACTICE DURING THIS PANDEMIC PERIOD?
Summary dismissal could be considered disproportionate in light of the understandable dread of the pandemic. The virus presents an imminent danger to an employee’s health hence best practice would dictate that;
Where an employee has expressed in writing that he may absent himself due to the work environment being unsafe, the employer should ensure that protective and remedial measures are undertaken to reduce the use of the coronavirus as an excuse to abscond from work;
For an employee who still absents himself despite the employer putting remedial measures in place, the less drastic measure would be to deduct wages for the days the employee has been absent; (this should be done procedurally and with notice).