A client, recently, contacted us requesting to know if an employee that had symptoms of Middle East Respiratory Syndrome ("MERS") may be requested to not come to work. We believe it is best to err on the side of caution and request that the employee is tested for MERS and prohibit the employee from coming to work. The government has established a hotline and visitation by a healthcare professional is even possible at one's home.
Occupational Safety & Health Act/Prevention of Contagious Disease Act
The Occupational Safety and Health Act of the Republic of Korea ("OSHA Korea") mandates that an employer restrict the access to work of an employee with a contagious disease. Of course, MERS is a contagious disease. This obligation is an affirmative obligation of the employer under Article 45 of OSHA Korea and an affirmative duty of the employee/employer under the Prevention of Contagious Disease Act of Korea (PCDA).
Additionally, under Article 5 of PCDA and employer has an affirmative obligation to report to the Ministry of Health & Welfare an suspected contagious diseases contracted by an employee.
Employers, under the aforementioned acts, may, also, prevent the entry of customers and screen customers for contagious diseases.
Labor Standards Act of Korea
If an employer prevents an employee from coming to his/her place of employment, the employer should pay 70% of the average wages of the employee under Article 46 of the Korean Labor Standards Act. The following employer obligation may be suspended for "unavoidable" reasons. We suspect the Ministry of Employment and Labor will hold that the present MERS outbreak, like the SARS outbreak, is "unavoidable" and, thus, will suspend this obligation.
Sean Hayes may be contacted at: SeanHayes@ipglegal.com.
Sean Hayes is co-chair of the Korea Practice Team at IPG Legal. He is the first non-Korean attorney to have worked for the Korean court system (Constitutional Court of Korea) and one of the first non-Koreans to be a regular member of a Korean law faculty.
Sean is ranked, for Korea, as one of only two non-Korean lawyers as a Top Attorney by AsiaLaw.
Sean profile may be found at: Sean C. Hayes