On January 30th 2020 the World Health Organisation identified the spread of the novel coronavirus as a public health emergency as the virus spread to engulf the entire world. Barbados has not been spared and has seen the closure of all non-essential businesses until May 3rd 2020. This will have an impact on all commercial activity in Barbados. and will change how we interact socially. In this article our aim is to raise some of the legal issues which individuals and businesses might have to consider at this time.
FAMILY
Given the disruption which COVID-19 has caused many arrangements made between mother and father with respect to a child may have been interrupted. The Courts of Barbados are making every effort to ensure that urgent matters are facilitated . Where it is practical to do so cases will be heard remotely using technology The Courts always look to the best interests of the child as a priority.
Bearing this in mind it is important for families to seek to have these matters mediated without putting additional stress on the child who might be anxious about the fact that his or her routine has changed dramatically. Implementing social distancing will provide a challenge but parents must try their best to meet their obligations and the orders of the court while respecting the emergency guidelines implemented by Government.
We are of course available to provide any guidance in this regard.
SAFETY, HEALTH AND OTHER CONSIDERATIONS AT WORK
The Safety and Health at Work Act 2005 was proclaimed in Barbados in 2013 and requires business owners to provide a safe place of work for employees and those required to work on their premises. There is a general duty on the employer to provide appropriate safety equipment. The following are some of the issues which one may wish to consider for discussion and possible implementation:
- Restrictions may be placed on travelling and especially to countries known to be “hotspots” and quarantining for 14 days after travel.
- If employees are required to work remotely it then becomes the duty of the employer to ensure that they can do so.
- Consider that even after the “shut down” is lifted schools and daycare for children may still be closed or some parents may still consider it risky. The employer should consider how to deal with such issues especially in terms of long term absences, continued remuneration and NIS benefits.
- Within the workplace one may still need to mitigate the infection and spread of COVID-19. The employer should not assume that the employee will follow guidelines which have been distributed through public service announcements. The employer must draw them to the attention of the employee most effectively by delivering them directly to each employee and by ensuring that they are followed. The employer should also make any changes within the workplace to ensure that the guidelines can be implemented.
- Employers should also set out a plan for the steps which the business will take if a member of staff tests positive for COVID-19. The implications for business survival as a result of further testing, tracing and possible quarantining of employers and employees should be considered
CONTRACTS
A number of contracts will be affected by the COVID-19 event and the public emergency actions which Government was required to take. It is important to review all contracts in order to determine:
- Whether there are any unmet obligations;
- Determining the consequences of any breach;
- Determining how any obligations can still be performed; and
- If entering into new agreements consider whether COBID-19 should be taken into account in the agreement
Force Majeure
Contracts should be reviewed in order to determine whether Force Majeure (Acts of God) is included in the agreement. If the provision does exist then it would have to be examined to determine whether the COVID-19 pandemic as it affects Barbados qualifies under this clause. If one wishes to rely on this provision then it is important to bring it to the notice of the other party. It would be prudent not to rely on the provision unilaterally as a reason for non-performance.
Frustration
There is a possibility that given the circumstances of the COVID-19 outbreak that it was impossible to perform the contract. The other party should be notified and an attempt made to settle the matter.
REGULATORY FILING DEADLINES
Within the law there are many limitations placed on filings of many kinds for example the time frame within which major changes to companies are filed with the Registrar, tax returns with the Barbados Revenue Authority and reports to the Financial Services Commission. Even in cases where those providing services may work remotely this might not be possible for all members of staff who would have been engaged in facilitating such filings. Where filings can be done electronically this should be done but it will require Government intervention to address all of the various deadlines across all legislation.
The FSC’s COVID-19 response can be found on its website at http://www.fsc.gov.bb. For Corporate Affairs scroll to the bottom of the page at http://www.caipo.gov.bb and the Barbados Revenue Authority at http://www.bra.gov.bb
There are also implications for the timing of holding Annual General Meetings and the notices for such meetings. Especially for publicly traded companies the Directors must take into account the impact which the COVID-19 pandemic will have on business and this must be disclosed to shareholders in their projections.
COMMERCIAL AND BUSINESS INTERRUPTION INSURANCE
Businesses must examine their insurance to determine if the terms of their insurance contract provides for business interruption. Since it might not have provided specifically for a global pandemic, then it is important to determine whether the policy can be interpreted to cover the outbreak.
We are not able to address every issue here. What we hope is that this article will cause you to think about your own circumstances. We are here to provide assistance where necessary. As the responses to the public emergency develop we will continue to monitor and advise of the legal developments.
Eastmond & Co. 