INSIGHTS

Coronavirus (COVID-19) effect on the employees subject to the civil service law No.81 of 2016

April 27, 2020

By:

Prof. El-Sayed Eid Nayel, Of Counsel

Manar Hassan, Associate

Ahmed Khaled, Junior Associate

The Egyptian government has adopted numerous decisions in order to limit the impact of COVID-19 including but not limited to imposing a night curfew, suspension of all schools and universities, reducing the number of government employees, and giving exceptional leaves to a large scale of employees.

The Civil Service Law No. 81 of 2016:

The Civil Service Law No. 81 of 2016 (Civil Service Law) is the law which regulates public sector employees working in ministries, institutions subject to ministry oversight, State administrative bodies, government agencies, and public bodies unless stated otherwise in their establishment law/decision.

 

COVID 19 Employment

Unlike private sector employees who have a contractual relationship with their employers, public servants and their employers have a different type of relationship. As per the rulings of the Supreme Administrative Court “the relationship between the public servant and the administrative authority is an organizational relationship governed by the laws and regulations”. ([1])

The Civil Service Law doesn’t have precise regulations regarding the outbreak of a contagious disease. However, we can refer to the Council of State rulings or its advisory opinions as Article 6 of the aforementioned law states that the Council of State is the exclusive authority to express advisory opinions regarding the issues arising from application of this law or its executive regulations. That said, since the outbreak of a contagious disease hasn’t occurred before in the modern history of Egypt, there are no precedents addressing similar circumstances.

Due to the absence of specific guidance in the Civil Service Law with regard to the outbreak of contagious diseases, and since the World Health Organization recognized COVID-19 as a pandemic, the Prime Minister of Egypt issued Decree No. 719 of 2020 (Decree) to address such issues relating to the virus. The Decree addresses matters such as working remotely, the right to have paid leave, and the right to travel freely. In the following sections we will discuss some issues related to the COVID-19 outbreak and clarifying the situation before and after the issuance of the Decree.

The Issue of Leave:

  1. The case when the employee is infected with COVID-19:

Sick leave in the Civil Service Law is regulated in Article 51 which allows an employee to have the first three months of illness as a full paid leave, the following three months as a 75% paid leave, the following six months as a 50% paid leave or 75% paid for those who are older than 50, and after that the employee can either have unpaid leave or request transferring the sick leave into an annual leave if there is an outstanding balance that may be applied.

However, since COVID-19 is considered a pandemic, exceptional leave provisions should be applied.

According to the Civil Service Law, exceptional paid leaves given due to sickness are as follows:

  • Employees suffering from chronic diseases (determined by decree of the Minister of Health): shall have an exceptional paid leave for the period determined by the concerned medical council until his recovery, his condition stabilizes such that he can return to work, or he is granted full disability. The latest decree determining such diseases is Decree No. 259 of 1995 which addresses a situation where the employee comes into contact with a person infected with a contagious disease as a chronic condition. This Decree gives the concerned medical council the authority to determine the duration of the employee’s leave to maintain public health.
  • Article 52 states that:

(“The cases of approving exceptional paid leaves are:

  • …………………
  • ………………….
  • The employee who comes into contact with a person infected with a contagious disease for a period determined by the concerned medical council.”)

Article 52 mentions clearly the foregoing case in which a person comes into contact with an infected person, and similar to the provisions of the foregoing decree, the infected employee shall have this exceptional leave determined by the concerned authority.

The Prime Minister’s Decree No. 719 of 2020 confirms this position by giving employees who suffer from any disease or comes into contact with an infectious disease patient an exceptional leave according to a medical report from any governmental hospital.

But what if the employee is suspected of being infected and is required to be quarantined?

Such a situation could lead to two potential scenarios, the first of which is when the employee tests positive for the infection and therefore is entitled to leave as previously explained. The second scenario occurs when the employee’s infection test is negative, which then makes it unclear whether the days spent in quarantine should be treated as sick leave or as an absence?

The Council of State advised that if the employee who has been absent for a period of time that doesn’t exceed 15 consecutive days or 30 nonconsecutive days proved that his absence was due to a reason beyond his control, this period of time shall be deducted from his annual leave balance if he has any and shall not lead to a disciplinary sanction.([2])

  1. Can the governmental authority obligate the employee to have an annual leave if he is not infected?

Employees have a right to leave and to determine when such leave is deducted from the employees’ total leave. Accordingly, a governmental institution cannot obligate an employee to take leave.

Consequently, the Prime Minister’s Decree No. 719 of 2020 which gave the right to have an exceptional leave for certain types of uninfected people (e.g. the pregnant women, those who have children under the age of 12, and thos who have returned from abroad recently) affirmed this principle by stating that leave granted pursuant to this Decree shall neither be deducted from the employees’ leave nor will it affect their financial benefits.

  1. Can a governmental authority obligate the employee to cancel his leave due to the pandemic?

Generally speaking, the concerned governmental authority can’t obligate the employee to cancel his leave. However, the Civil Service Law states in Article 49 that there are instances in which the authority can obligate the employee to cut his leave. Specifically, Article 49 states that:

(“The annual leave shall not be shortened, postponed, or terminated, unless there is a national reason and for the interest of the work”)

The government usually would only cancel an employee’s leave in order to address anticipated problems, like when the Ministry of Water Resources and Irrigation cancelled the leave of all employees due to bad weather status.([3])

Thus, the spread of COVID-19 could be viewed as a reason for which a concerned authority could cancel the employees’ leave, especially employees working in vital institutions (e.g. transportation services, ambulances, hospitals, drinking water, sanitation, and electricity).

The issue of working remotely

The Civil Service Law does not address this issue. Therefore, working remotely should be permissible provided that it is necessary for running the institution in an orderly way.

The World Health Organization advised employees to work from home as a way to limit the spread of COVID-19 ([4]), and the previously referred decree states in Article that employees may work remotely if they are able to perform their work away from the office.

The issue of travel

The Civil Service Law does not include provisions limiting an employee’s freedom of movement. Accordingly, employees can travel freely while they are on leave since the constitution of Egypt grants this right in Article 61 stating that:

(“The freedom of movement,….is guaranteed”)

Despite that, the Prime Minister’s decree limited the freedom of movement of employees for business trips as it stated in Article 7 of the decree:

(“All employees who are subject to this decree shall be prevented from traveling abroad on business trips or attending any workshops or training sessions during the term of this decree, except to address necessary matters upon the discretion of the concerned authority as per work needs and public interest”)      

Thus, authorities and institutions may only limit travel for business purposes, but not individual travel including travel to countries affected by the COVID-19 virus. It is worth mentioning that the Egyptian government suspended all flights till 15 April.

Might the infection by COVID-19 be considered as a work injury?

A question arises if an employee is infected with COVID-19 due to the virus outbreak at the institution: could this infection be considered a work injury?

The Social Insurance and Pensions Law No. 148 of 2019 defines a work injury as:

“Work injury: is the injury of any occupational diseases mentioned in table No.1 of this law, or being injured due to an accident happened during the work or as a result of it……”

The rulings of the Supreme Administrative Court set out the conditions under which an injury could be construed as a “work injury”:([5])

  • A physical injury: which is every damage to human body either internal or external
  • That is sudden and unexpected: which means that the injury must happen in a very short period of time and be unexpected.
  • Caused by an external element: which means that the reason of injury to the body must be due to an external element or cause.

Thus, being infected with COVID-19 can be construed as a work injury as it meets all of the criteria set out above. However, it must be established that the infection occurred in the workplace which could be difficult given the widespread nature of the virus.

That said, the infection alone is not sufficient to entitle an employee to compensation. As per rulings of the Supreme Administrative Court the injury must lead to either disability or death for the employee to be entitled to compensation.([6])

On the other hand, can a COVID-19 infection be considered as an occupational disease? The answer is yes for those employees working in the healthcare and medical institutions. The Civil Service Law as mentioned above includes in table No. 1 a general condition coded 010308 which states that being infected with any contagious disease will be considered as an occupational disease if the employee is working in a medical care institution and the causality is proven between the injury and working is such institution.

 


([1]) Appeal No. 2902 of judicial year 52, the Supreme Administrative Court.

([2]) The Council of State opinion No.1385, on 13 October 2018, file No. 713/ 6/ 86.

([3]) Akhbar El-Youm, https://akhbarelyom.com/news/newdetails/3013545/1, accessed 27/3/2020.

([4]) World Health Organization, https://www.who.int/docs/default-source/coronaviruse/getting-workplace-ready-for-covid-19.pdf, accessed 25/3/2020

([5]) The Council of State opinion No.141, on 22 February 1972, file No. 195/ 6/ 86. Appeal No. 2514 of judicial year 32, The supreme administrative court.

([6]) Appeal No. 318 of judicial year 28, The supreme administrative court.

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