Our comments/answers in this section are made assuming that company carries out activities in the private sector

 

Should my company have a contingency plan? What measures should the plan include? Can I/should I isolate my employees, conduct health checks or questionnaires on their private life?

To the best of our knowledge, no COVID-19-related provision/measure has been specifically adopted in Equatorial Guinea requiring companies to prepare a contingency plan. Therefore, the general rules set forth in (inter alia) the labour and data privacy legislation in force in the Country (including in connection with the legal right to privacy) are fully enforceable and any contingency plan/measures taken must abide by the limitations set forth in them.

The above said, we note that Decree 42/2020 provides that, “Considering that COVID-19 is a Public Health problem affecting all, all should fight against it and all structures and layers of Society are required to join the efforts of the Government and Ministry of Health, with them contributing to the most and overseeing compliance with the measures adopted”. Based on this provision - which, according to our best interpretation, is still deemed in force -, we take the view that local authorities have room to reasonably expect that your company prepares a COVID-19 specific contingency plan that ensures that the measures put in place in the Country during the outbreak are complied with or that are not in contradiction with the aforementioned (e.g., that (i) no more than ten (10) employees are working at the same place; (ii) all company staff uses masks and gloves; (iii) any employee that has entered into the Country after 1 March 2020 liaises with the Health Authorities and complies with their commands; (iv) employees do not travel for work reasons unless there is evidencable force majeure reasons; (v) strict social distancing, health and hygiene rules are implemented at your company’s canteen; and (vi) the NCSTC will be advised of any material sign of COVID-19). Also, implementing said measures will always be viewed as the performance of general care duties, which in turn grants you additional protection and release from (inter alia) liability in tort.

 

 Should I take special care with pregnant employees, employees with reduced working capacity, breathing difficulties or minors?

To the best of our knowledge, no COVID-19-related provision/measure has been specifically adopted in Equatorial Guinea requiring companies to adopt those measures. Therefore, the general rules set forth in (inter alia) the labour legislation in force in the Country are fully enforceable (including regarding the work of minors) and any measures taken must be consistent with them.

The above said, we note that Decree 42/2020 provides that, “Considering that COVID-19 is a Public Health problem affecting all, all should fight against it and all structures and layers of Society are required to join the efforts of the Government and Ministry of Health, with them contributing to the most and overseeing compliance with the measures adopted”. Based on this provision - which, according to our best interpretation, is still deemed in force -, we take the view that local authorities have room to reasonably expect that your company takes special care of those deemed by Equatorial Guinea authorities as well as by the WHO as more vulnerable (e.g., pregnant employees, employees with breathing difficulties older employees, etc.). Also, implementing said measures will always be viewed as the performance of general care duties, which in turn grants you additional protection and release from (inter alia) liability in tort.

 

 Can I order employees to telework or do I need their consent?

As per Decree 45/2020, both the public administration and private sector should promote work practices such as teleworking or shift work so that there are fewer people in public places. This said, our best interpretation is that the general rule that both parties have to agree to a change to their relationship applies and, consequently, under the applicable labour legislation, the employer must obtain the employee’s consent to teleworking. It also follows from said legislation that, if an agreement is reached for the employee to work from home, the employer must guarantee the necessary means for the employee to work. Also, employees that agree to work remotely must keep all their benefits and working conditions, except those that, due to their nature, are no longer justified or considered due (such as, inter alia, transport allowance).

The above said, we note that Decree 42/2020 provides that, “Considering that COVID-19 is a Public Health problem affecting all, all should fight against it and all structures and layers of Society are required to join the efforts of the Government and Ministry of Health, with them contributing to the most and overseeing compliance with the measures adopted”. Based on this provision - which, according to our best interpretation, is still deemed in force -, we take the view that local authorities have room to reasonably expect that the employer does all possible to comply with the measures adopted, namely by attempting to implement telework or shift work, as well as implementing a contingency plan as mentioned above. If, when implementing said contingency plan, it is concluded that the underlying physical conditions of the workplace do not allow that all employees that are not teleworking/that are on the same shift/that have to work at that venue at the same time, actually perform their work, then, as per the labour legislation, the employer may resort to suspending as many employment contracts as necessary to comply with the preventive measures for a maximum period of thirty (30) days in twelve (12) months (more details on the rules on the suspension of employment contracts are below). If the underlying conditions justifying suspension last longer than the aforementioned period, the employer may then request the labour authorities to authorize a dismissal for economic and structural reasons in accordance with the terms defined under the law.

 

 Do I have any special information duty towards my employees?

To the best of our knowledge, no COVID-19-related provision/measure has been specifically adopted in Equatorial Guinea requiring companies to specifically provide information on the Pandemic to their employees. Yet, the LPCP sets forth that, in the case of emergency or calamity situations, all citizens, entities and State Bodies have the right (inter alia) to (i) receive information on the risk that may affect them as a group; (ii) be briefed on the measures taken to prevent/mitigate said risk; and (iii) be provided with information and instructions on the safety measures that they must adopt and those that must be followed. Same LPCP further provides that the failure to comply with this obligation qualifies as a minor infraction punished with a fine.

By combining the above LPCP provision with the provision in Decree 42/2020 setting forth that, “Considering that COVID-19 is a Public Health problem affecting all, all should fight against it and all structures and layers of Society are required to join the efforts of the Government and Ministry of Health, with them contributing to the most and overseeing compliance with the measures adopted” - which, according to our best interpretation, is still deemed in force -, we take the view that local authorities have room to, based on those provisions, reasonably expect that your company takes care of ensuring that all employees are well informed of all measures put in place (either by the Government or by the company itself, including regarding any contingency plan that the company may prepare). Also,making sure that the employees are well informed will always be viewed as the performance of general care duties, which in turn grants you additional protection and release from (inter alia) liability in tort.

Finally, we again highlight that the general rules set forth in (inter alia) the labour legislation in force in the Country, are fully enforceable and that all employer’s duties vis-à-vis employees must be complied with.

 

If prophylactic isolation of employees is necessary or recommended, should I wait for a decision from the health authority or can I do it on a preventive basis?

To the best of our knowledge, no COVID-19-related provision/measure has been specifically adopted in Equatorial Guinea requiring companies to adopt those measures. Therefore, the general rules set forth in (inter alia) the labour legislation in force in the Country are fully enforceable and any measures taken must be consistent with them.

The above said, we note that Decree 42/2020 provides that, “Considering that COVID-19 is a Public Health problem affecting all, all should fight against it and all structures and layers of Society are required to join the efforts of the Government and Ministry of Health, with them contributing to the most and overseeing compliance with the measures adopted”. Based on this provision - which, according to our best interpretation, is still deemed in force -, we take the view that local authorities have room to reasonably expect that your company takes adopts measures appropriate to contain the potential spread of the virus, including putting employees that have been in contact with a positive COVID-19 case in prophylactic isolation. Also,implementing said measures will always be viewed as the performance of general care duties, which in turn grants you additional protection and release from (inter alia) liability in tort.

 

 Can and/or should isolated employees continue to work from home?

To the best of our knowledge, no COVID-19-related provision/measure has been specifically adopted in Equatorial Guinea addressing employees in isolation. Therefore, the general rules set forth in (inter alia) the labour legislation in force in the Country are fully enforceable and any measures taken must be consistent with them.

If an employee has to undergo prophylactic isolation (regardless of being ordered by a health authority or as the result of the preventive measures adopted by the employer), he/she cannot be ordered to work from home if the employee's consent has not been obtained beforehand and if the employer does not guarantee the necessary means for the work to be carried out at home.

 

 What is the impact of the isolation on the employment contract? Are employees still entitled to their regular remuneration and meal allowance? Are attendance-based payments affected?

To the best of our knowledge, no COVID-19-related provision/measure has been specifically adopted in Equatorial Guinea setting forth specific consequences on employment contracts in connection with the current outbreak. Therefore, the general rules set forth in (inter alia) the labour legislation in force in the Country are fully enforceable and any measures taken must be consistent with them.

The applicable labour legislation does not deal with cases of isolation. Yet, we take the view that a parallel should be made between an absence due to prophylactic isolation and an absence due to illness of the employee. Accordingly, an employee in isolation should be entitled to his/her usual employment benefits and conditions, except (i) if the parties renegotiate the employment contract and/or (ii) in the case of benefits that are not required to be provided by the employer to the employee due to the latter’s isolation, such as the payment of transportation allowance. In accordance with our best interpretation, this allowance is not due to employees in isolation as they are prevented from commuting to and from their place of work.

Contrarily, we take the view that at least any attendance-based payments that would continue to be paid to the employee if he/she were ill, would likewise be payable to the employee in isolation. Similarly, we are of the opinion that meal allowances remain due during isolation, as the employee still has to bear a cost with meals at home and is not prevented from going to work per his/her will.

 

To what social security contributions are employees entitled?

To the best of our knowledge, the only COVID-19-related social security measure approved in Equatorial Guinea to mitigate the impact of COVID-19 in the Country was enacted by Decree 43/2020 and consists on the Ministry of Finance attributing a 100% bonus applicable to social security quotas until 30 September 2020 to food distribution and marketing companies, as well as to those that hire new employees to comply with the measures adopted by the health authorities. Yet, as far as we can determine, this measure only applies to the aforementioned companies in the aforesaid conditions, and provided they qualify as SMC.

Other than the measure mentioned above, to the best of our knowledge, no other COVID-19-related provision/measure has been specifically adopted in Equatorial Guinea setting forth specific social security subsidies in connection with the current outbreak. Therefore, the general rules set forth in (inter alia) the labour and social security legislation in force in the Country are fully enforceable.

 

If any employees have booked holidays, what can I do? Can I alter the holiday schedule? Can I close the company so that employees take their holidays?

To the best of our knowledge, no COVID-19-related provision/measure has been specifically adopted in Equatorial Guinea addressing this subject matter. Therefore, the general rules set forth in (inter alia) the labour legislation in force in the Country are fully enforceable and any measures taken must be consistent with them.

As per said legislation, any vacation previously booked may only be changed by the employer with the consent of the employee. Likewise, any pending vacation should only be booked by agreement between the parties. In the absence of an agreement, the matter should be examined and decided by the labour authorities.

Closing a company does not have as consequence deeming that the employees are taking their vacation/losing or expending their vacation days.

 

How do school closures impact the rights of employees who need to stay at home to care for their family?

To the best of our knowledge, no COVID-19-related provision/measure has been specifically adopted in Equatorial Guinea addressing the labour impact of the closure of schools due to the current outbreak. Therefore, the general rules set forth in (inter alia) the labour legislation in force in the Country are fully enforceable and any measures taken must be consistent with them.

The labour legislation provides for several types of paid leaves. Yet, none of them applies in the case of having to take care of a child. Therefore, any absence on the grounds of staying home to take care of children will be deemed unjustified under the law.

 

And when caring for other family members is necessary?

To the best of our knowledge, no COVID-19-related provision/measure has been specifically adopted in Equatorial Guinea addressing this issue. Therefore, the general rules set forth in (inter alia) the labour legislation in force in the Country are fully enforceable and any measures taken must be consistent with them.
The labour legislation provides for several types of paid leaves. Yet, none of them applies in the case of having to take care of a family member. Therefore, any absence on the grounds of staying home to take care of another family member will be deemed unjustified under the law.

We note however that an employee will be nonetheless entitled to bereavement paid leave for (i) death of spouse, child or parent (equal to ten (10) days) or (ii) death of grandparent, parent-in-law or sibling (equal to seven (7) days).

 

Are there any measures approved by the Government to maintain employment contracts while mitigating the financial impact on the company? Namely, can I resort to lay-off?

To the best of our knowledge, no COVID-19-related provision/measure has been specifically adopted in Equatorial Guinea to mitigate the impact of the outbreak within the labour sector. Therefore, the general rules set forth in (inter alia) the labour legislation in force in the Country are fully enforceable and any measures taken must be consistent with them.

Under the applicable labour legislation, an employer cannot resort to lay-off, but may suspend the employment agreement on, inter alia, the following grounds:

  • Force majeure precluding work from being rendered for a maximum of thirty (30) days in a twelve (12)-month period; and
  • Economic or technological reasons (such as interruption of power supply or of the supply of raw materials), i.e., for reasons not attributable to the employer that prevent that work be rendered for up to a maximum of thirty (30) days in a twelve (12)-month period.

During suspension, an employment agreement remains in full effect and the employee may not be dismissed. However, there is no obligation to render the work or pay salary and the employee does not accrue seniority. Once suspension ceases, the employee becomes entitled to resume his/her work under the same conditions pre-existing suspension.


 

 

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This information is being updated on a regular basis.

All information contained herein and all opinions expressed are of a general nature and are not intended to substitute recourse to expert legal advice for the resolution of real cases.