COVID-19 vaccination and testing in Kenya - employment law perspective

The general duty of an employer in Kenya as governed under the Occupational Safety and Health Act (OSHA) is to ensure the safety, health and welfare of its workers. The employer has every obligation to provide information, instruction, training and supervision as it is necessary to ensure the safety and health at work of every person employed, including ensuring that each employee participate in the prevention and reduction of the risk of exposure in the workplace. It is therefore expected, and subject to the “high-risk of exposure” of working environments, that employers will highly encourage employees to be vaccinated.

The employer cannot provide a financial incentive to employees. However, an employer under OSHA is duty-bound not to charge employees for vaccinations particularly if they are employer-mandated.

In Kenya, employers who are obliged to offer vaccines to employees are those whose employment duties place them at a high-risk of exposure to COVID-19. Health workers fall squarely under this category and their employers, both in the private and public sector, have been mandated to offer vaccinations to them on a priority basis. In other non-high-risk industries, the employer is not mandated to offer its employees vaccinations.

Employers in Kenya are not mandated to support third parties or governmental institutions in providing vaccines to employees. For reasons stated above, the employer may only voluntarily facilitate an economic ability for an employee to access a vaccine

Under Kenya’s Data Protection Act, the act of an employer verifying if an employee has been vaccinated is defined as collection and processing of sensitive data, which cannot be carried out by the employer without the employee’s consent and with a specific indication for the use of that information. Expressly, the Data Protection Act does not allow an employer to verify the vaccination status of employees. The Act also qualifies the strict limits and procedures on how the collection of personal medical data should be carried out.

The Act is clear that personal data relating to health can only be processed by or under the responsibility of a healthcare provider or by a person subject to the obligation of professional secrecy under any law. In this case, an employer cannot make a record of vaccinated or non-vaccinated employees. 

Employees do not have a duty to inform employers whether or not they have been vaccinated. However, nothing in our laws preclude an employee from wilfully informing the employer that they have or have not been vaccinated as long as the employee’s wilful act will not lead to any form of discrimination on the grounds of health.

In Kenya, the employer cannot oblige an employee to be vaccinated. Presently, the decision to vaccinate or not has been left to the discretion of the employee. We only foresee interference with this discretion in the health industry and specifically with those persons who are on the frontline of treating COVID-19 patients. Another scenario would be in the case of an employer who wishes to contract an employee in a country that makes it compulsory to have a vaccination or have an employee carry out travel for an assignment out of Kenya in a country that requires production of proof of vaccination upon entry.

Employees can refuse to be vaccinated without being obliged to give any reasons for their refusal. The balance here is quite delicate because in respecting an employee’s freedom of choice, the employer must weigh its duty to ensure the health and welfare at work of all persons, especially if a vaccine is linked to the provision of safety.

An employer who refuses to admit employees into the workplace if they are not vaccinated may be held liable for discrimination against the employees on medical grounds. The employer cannot give favourable treatment to vaccinated employees at the expense of unvaccinated employees. 

The Kenyan Constitution provides for the enforcement of labour rights and expressly states that every person has the right to fair labour practices. It is not a fair labour practice to shut out employees from access to their work stations because they are non-vaccinated. This may lead to discrimination claims and damage awards to employees.

An employer can only refuse to admit an employee into the workplace upon noticing symptoms that may indicate a COVID-19 infection. Under the Public Health Act, an employer must take all measures to ensure the safety of its employees from communicable diseases. 

An employer cannot ask a non-vaccinated employee to perform different duties, especially if those duties will be deemed a demotion. The Kenyan Employment Act jealously guards an employee’s job description as one of those items under an employment contract that cannot be changed unless with prior consultation and consent from the employee. Even employees who have taken actual sick leave (including non-vaccinated employees) have the right to return to the job they held immediately prior to their illness.

When travelling to Kenya, it is now mandatory for one to have a certificate reflecting negative status for COVID-19 96 hours before arrival into the country. In case the validity of the test is beyond the requirement for the traveler’s destination (i.e. Kenya), it is mandatory to re-test according to the compliance of our country.

For direct connections to an onward flight, COVID-19 protocols will be applicable at the Jomo Kenyatta International Airport, Nairobi. All guests transiting Kenya must have a negative PCR COVID Certificate. In case the passenger has a long transit with a stopover in Kenya, the PCR COVID-19 test certificate should be valid for 96 hours from the date the test is taken until arrival at the transit destination – Kenya and to the final destination as per the COVID requirements for arriving passengers.
Countries exempted from quarantine are updated on the Kenya Civil Aviation Authorities (KCAA) website. Use this link for the latest information.

However, in case an individual traveler has symptoms such as a fever that is above (37.5 C / 99.5 F), and other COVID-like symptoms, Port Health Services present at the airport will handle the traveler in accordance to public health protocols. Note: the above countries will be updated periodically.

1. Changes in corporate law

At the onset of the pandemic, the convening of general meetings was the greatest challenge facing companies largely due to directives on social distancing and the ban on public gatherings. Whereas the Companies Act is silent on virtual meetings, the Registrar of Companies issued guidelines on holding virtual and hybrid meetings – a combination of online and physical general meetings.

2. Administration of justice

The Kenyan Judiciary has stepped up efforts to incorporate the use of technology in delivering judicial services. By 1 July 2020, an electronic filing (i.e. e-filing) system of cases was rolled out in Nairobi courts. Consequently, the courts have been using ICT platforms to conduct hearings and deliver judgements and rulings in line with protocols issued by the Ministry of Health that support social distancing.

3. Commercial & property transactions

The Business Laws (Amendment) Act 2020 came into effect immediately prior to reports of the first cases of COVID-19 in Kenya. While the Act was not designed as a targeted intervention for COVID-19, its provisions have had a positive impact on the ease of doing business in Kenya particularly within the context of the pandemic. Some notable developments involve the legal recognition of e-signatures for commercial transactions including property transactions, electronic stamping and registration of documents, and the simplification and digitalisation of land transactions.

Employers cannot oblige an employee to take a COVID-19 test. However, nothing precludes an employer from impressing upon its employees the need for having the test carried out and specifically under its general duty for ensuring health and safety of all persons working in its premises.

Presently in Kenya, some employers depending on the numbers of their employees, are voluntarily organising for these tests to be carried out in the office in a designated private room to ensure comfort of the employee as well as to maintain confidentiality during the process. Other employers have negotiated charges with some health providers to conduct these tests at economically friendly rates and the turn out from employees has been positive. 

In an environment of anxiety around the pandemic, many employees desire to know their COVID-19 status. Due to the massive loss of jobs many workers feel like they need to be certified fit to work in order to secure their employment contracts.

Employers are encouraging their employees to be tested at the end of major holiday seasons when people are most likely to have travelled and interacted with family and friends. In Kenya, employers who carry out testing of their employees did so in January 2021, are expected to do so in April (after the Easter and Ramadan holidays), in August (after the summer holidays) and again after the December holidays. This may seem to be the likely pattern.

The exception maybe if there has been a suspected or confirmed case of COVID-19 at the workplace involving an employee who may have interacted with other employees. In this case, the employer may carry out employee testing to rule out any further infections that may be easily transmitted at the workplace. 

Irrespective of who carries out the testing, it is mandatory that they are qualified under the relevant health and medical laws to administer testing and that they adhere to the provisions of the data Protection Act on the confidentiality of processing and handling results.

The employee is only obliged to share the outcome of a positive result with the employer under the guidelines of the Public Health Act in which the employee is mandated to be in isolation/quarantine. If they fail to do, they commit an offence of knowingly endangering the health and safety of their colleagues. Also, as they isolate themselves from the work environment, the legal basis upon which they need to justify their absence is through the taking of sick leave, especially in a scenario where they cannot or are unable to work from home.

The employer, however, cannot publicise or share this information with other employees. It is an offense to do so without the employee’s consent. There have been situations where the employer shares this information with employees who may have had close contact with a COVID-19 positive employee, and so for purposes of contact tracing and effecting testing, employers can share this information with the relevant employees to enable them to take further protective measures on behalf of their families and friends. 

An employee can refuse to be tested and cannot be discriminated against or treated differently by the employer.

Testing will inevitably become a mandatory condition for employment in sectors that employees are deemed to be at a higher risk of exposure to the virus. However, for those who may not comply with the mandatory testing directed by the employer, the employer may ask the employee to sign certain documents that will discharge the employer from liability in the event that the employee actually contracts the virus while carrying out employment duties.  

An employer cannot assign different duties to employees who are unable to present a negative COVID-19 test before entering the workplace. To do so would be deemed extremely discriminatory especially because the decision would be based on an unjustifiable apprehension that the employee cannot carry out certain duties because of an existent or non-existent health status. The likelihood that the matter will proceed for Court action in Kenya is high and an employer who bears the burden of proving that they acted in good faith towards the employee will not discharge this burden in accordance with the requisite legal threshold.