The question that many employers now face is whether COVID-19 allows them to invoke force majeure clauses in their employment contracts to excuse their inability to meet their contractual obligations. And the answer is that it`s important. Employers should also review the “choice of law” provisions contained in their employment contracts and determine the extent to which the courts have interpreted force majeure clauses in the chosen jurisdiction. “When the Public Health Commission finds that the illness for which the worker arrives is incurable and that it is harmful to work in the workplace, the right to terminate the employment contract without notice for the employer is transferred to section 17 six weeks after the reporting deadlines corresponding to the worker`s working time in the workplace. However, wages are not processed for periods when the worker cannot go to work due to the suspension of the employment contract. While there is no force majeure clause excusing non-compliance, common law`s teachings on impossibility, impracticality and frustration can fill this gap. More discussions about these lessons can be made here and here. When an employer wishes to invoke a force majeure clause, it may continue to be required to mitigate the effects of COVID-19 on its ability to provide under the employment contract. In fact, the contract can even determine what mitigation measures the employer should take. For example, many employers have tried to mitigate the effects of emergency shelters by giving workers the opportunity to work from home. The frequency of force majeure clauses varies from sector to sector. In health sector employment contracts, force majeure clauses are more common because disaster planning is particularly prevalent in the health sector. Other sectors could follow suit in the wake of this pandemic. Under these rules, employers must pay half the daily wage for up to a week to workers who, due to a case of force majeure such as coronavirus that prevents the worker from practising, cannot work or cannot work by the employer.
At the end of a week that the employer has to wait for the right to be dismissed for the right reason, the employer may decide to wait for the elimination of force majeure by not making use of the right of termination. However, the employer is not obliged to pay wages to the employee during this period. During the aforementioned period, the working relationship between the worker and the employer remains suspended, but as long as the case of force majeure persists, the employer`s right to immediate dismissal remains. However, if the case of force majeure ends, the worker must continue to work and the employer must continue to employ the worker. As with most things in the world of law, the devil is in the details. First, employers should carefully consider the language and scope of the contract, as not all force majeure clauses are equal. Some contracts may, for example, delineate “pandemics,” epidemics or “epidemics” as force majeure events. However, other contracts may include broader force majeure clauses, which relate to “acts of God” or “events outside the party`s control zone.” In addition, article 40 of the labour code provides that a worker who, due to a case of force majeure, cannot work or cannot work, receives half a wage per day for up to one week during that waiting period.