In brief

With the COVID-19 restrictions beginning to ease in Thailand, along with many parts of the world, the question that comes to mind for most of us, and particularly for employers, is whether it is now the right time to return to the workplace. Despite the different approaches we are seeing around the world, with some companies allowing employees to continue working remotely and some starting to ask staff to return to the workplace, what is clear is that remote and hybrid work has been the trend for the past two years. The impact that the pandemic has had on the future of workplaces cannot be underestimated, from health and safety to an increase in agile and hybrid work, and transformation focusing on AI and technology. Now may be the right time for employers to take time to consider what the key issues are to prepare for post-pandemic.

In more detail

First, vaccinations

At this stage, it would appear that the rollout of vaccines will play a key role in any successful reopening of the economy and making workplaces safe. However, this is not as simple as it sounds. There are some important labour and employment law considerations that need be taken into account as far as employers are concerned. Central to this is the question of whether it is legal to compel employees to be vaccinated before returning to work.

We have seen over the past few months governments in certain jurisdictions passing legislation that empowers employers conducting certain businesses where employees are put at high-risk, such as healthcare workers, to require their employees to be vaccinated, and also to take disciplinary actions including termination if those employees refuse to do. However, such a legislation is not applicable to all businesses. In the case of Thailand, the existing labour and employment laws do not address this question explicitly, therefore one must look at the general principles of labour law. Essentially, employers will need to consider if the requirement for employees to be vaccinated is lawful and fair. This will need to be determined based on the facts of each case, for example, why has the employer made such request. Below we provide some of the key issues that employers need to consider before implementing any vaccination policy:

• Inability to access vaccines. If the employer has made it mandatory and the employee is unable to obtain the vaccine for whatever reason, what would happen then? Is this an acceptable excuse for the employee?
• Medical conditions and disabilities. Workers with certain medical conditions may have reason to be concerned, how would the employer accommodate this? Would this potentially lead to any claims?
• Different beliefs, including religious ones, which may prohibit vaccination. Is this justification acceptable?
• Human rights. Employees might resist by citing the right to their body, would this present a challenge to enforce vaccination?
• Data privacy. Are employers able to ask employees to provide proof of vaccination before returning to the workplace or to require employees to show proof of a negative COVID-19 test before they are allowed back to the workplace? Employers need to consider this carefully in light of the Personal Data Protection Act.
• Risk of claims as a result of being vaccinated. Any liabilities to the employers as a result of enforced vaccination?

These are some of the issues which employers need to consider before implementing any vaccination policy. Employers would also need to consider measures to deal with employees that refuse to be vaccinated, whether disciplinary actions are justified in light of litigation risks and claims, and if there are other appropriate measures that can be taken instead, such as allowing employees who do not need to return to the workplace to continue with the remote working arrangement.

Ensuring a safe workplace

The COVID-19 disease remains present and may be here to stay. Employers will need to ensure they fulfill various legal obligations to make the workplace safe before reopening. We have detailed some of the obligations and issues that employers should consider in this regard in our previous alert (Returning to the Office: Are You Well-Prepared?). Employers will also be well advised to ensure good employee relations strategies for reopening to minimize confrontation and potential issues with reluctant returners. For example, if employees are not feeling confident enough about their safety and refuse to go back to work, can employers unilaterally order them to come into the office? What should the approach be in this regard? Can disciplinary actions be taken in this situation or should other measures be considered? Mutual consultation and communication with employees will be key to ensure a smooth reopening.

Hybrid and agile working trends

Traditional employment models are being challenged and transformed. Even before the pandemic hit, many organizations have already shifted towards more contingent and agile working models. With remote and hybrid working becoming the norms during the pandemic, it seems these trends will continue to rise. In regards to the employer-employee relationship, these trends trigger a number of legal compliance issues and risks for employers to navigate, from employee compensation and benefits to immigration, corporate tax and data privacy, to name but a few. Any remote work policy will require careful planning. We have seen employers in some countries considering allowing their employees to work remotely 100% if they wish to do so, while at the same time, reducing their compensation and benefits given that their cost of living and travelling expenses may not be as high as before. Also, the emerging trend of non-traditional hiring methods involving flexible and agile workforce or the so-called “modern workforce” is expected to continue which would give rise to further legal issues for employers to consider.

Employee wellbeing

With ESG (Environment, Social and Governance) gaining increased focus in most corporate boardrooms, understanding employers’ legal obligations to ensure employee wellbeing will be important. We discussed this issue in our previous newsletter (Managing Employees’ Mental Well-being during Remote Working). There are positive benefits for employers to ensure the well-being of their workforce, such as for productivity and long-term engagement. However, failure to manage the issues properly can also turn into challenges and legal liabilities for employers, e.g., potential claims for work-related injury as a result of working long hours. The obligations of employers to arrange and maintain safe and hygienic working conditions and environment for their employees, and to support and promote the work operations of their employees in order to protect their health, safety and welfare remain true under the remote working arrangement. Getting the wellbeing agenda right will be important for employers.

Inclusiveness and diversity in the workplace

With the societal changes propelled by such movements as #MeToo and Black Lives Matter, serious steps to address existing discriminatory gaps and workplace harassment and ensure inclusiveness and equity in the workplace are advisable. In some jurisdictions, companies are required to collect diversity data and report their gender pay gap data. In this regard, though it is less clear in Thailand at the moment, employers can no longer ignore these issues, particularly as most organizations are incorporating ESG into their corporate strategy, a trend strengthened during the pandemic. It should also be noted that the concepts of equal pay and equal treatment already exist under current Thai labour laws. So non-compliance with these issues could also give rise to sanctions against employers.

These issues and trends warrant serious attention from employers in the post-pandemic world, some more urgent than others, but all represent key components of the future of the workplace. It is important for employers to prepare themselves for these waves of changes so they can smoothly ride rather than struggle against them.