Harneys' legal team is on stand-by to help with any legal concerns you may have in relation to changing circumstances due to COVID-19, where some clarity in existing legislation and emerging emergency policies might be helpful.
1. Does an employer have a duty of care to its employees in relation to COVID-19?
Yes. The BVI Labour Code requires employers to ensure that:
- They provide a safe, sound, healthy and secure working environment as far as is reasonably practicable
- Every reasonable precaution is taken in the circumstances (in this case, COVID-19) for the protection of employees
- Reasonable precaution is taken in the circumstances to protect the general public who comes into contact with the work site
- Any equipment, materials or protective devices prescribed are provided, are adequate, are maintained in good condition, and are used as prescribed
- The recently enacted social distancing regulations (including the Imposition of a Curfew Order 2020 and the Public Health Covid-19 Control and Suppression Measures Order 2020) are adhered to
- All applicable standards and policies established by the Labour Department and other relevant agencies of Government (including the Ministry of Health and Social Development and the BVI Health Services Authority), in consultation with stakeholders are complied with
2. What is required of employers in cases of employee self-isolation?
- Where employees are required to self-isolate, for the minimum period of fourteen days, such employees may be required to work remotely, provided they possess the requisite facilities to enable them to do so.
- Where an employee cannot work remotely, either because their employer's business cannot be operated in a remote fashion, or because the employer is unable to facilitate working remotely, the isolation period would need to be treated as paid leave unless otherwise decided between the employee and employer.
- An employee who is self-isolating, with either a positive diagnosis or symptoms similar to those of COVID-19, should not be working remotely but should be on sick leave during the period as prescribed by a health practitioner.
- Where an employer cannot facilitate remote working, employers are encouraged to provide coverage at the workplace for employees who are in self-isolation. The employer can require an employee to provide cover depending on the similarities of the nature of the work, the employment contract and the employee’s cooperation. The employer should also take into account the obligations surrounding premium pay entitlement and appropriate rest and meal intervals etc for the affected employees.
3. Were arrangements made for payment of Government taxes, Social Security (SSB) and National Health Insurance (NHI) payments while under the curfew?
Inland Revenue Department
The Inland Revenue Department opened on Tuesday 14 April, 2020 through to Friday 17 April, 2020 from 10:00am to 2:00 to facilitate credit-card payments for all government taxes by telephone. They may still be contacted at telephone: +1 284 468 2154 to facilitate payments.
SSB and NHI
SSB and NHI are accepting payments by alternative means which can be utilised during the postcurfew period. By notices issued on 19 March 2020 at www.vissb.vg, the SSB and NHI have encouraged its customers to take advantage of the arrangements to make credit card payments, wire transfers and ACH transfers to the SSB and NHI. The ability to do so continues in the post-curfew period.
Upon completion of an electronic payment, customers are asked to send a notification to the Finance Department of the NHI or SSB by forwarding the remittance form(s) by email to email@example.com and copy to firstname.lastname@example.org for NHI payments, and to forward to email@example.com and firstname.lastname@example.org for SSB payments.
4. What unemployment benefits exist in the BVI?
There is no general scheme for unemployment benefits in the BVI. The Social Security Board only provides benefits for certain qualifying conditions which might cause an employee to be unemployed temporarily or permanently. These include benefits for sickness, maternity, invalidity, work-related injury and disability (temporary or permanent). Relief under the scheme is based on a percentage of insurable earnings for the particular benefit claim.
Otherwise, some assistance is possible in cases of unemployment under the Public Assistance Act No 14 of 2013, by application through the Social Development Department of the Government of the BVI. Assistance may be granted based on individual circumstances, such as the degree of financial hardship, state of health, and educational and skill level. The assistance is limited for specifics such as food and household supplies, rent and utilities, child care, medical care, repairs to dwelling, transportation, funeral/burial expenses and clothing.
Assistance may be granted on a short, medium or long term basis, which can span from three months to twelve months depending on the circumstances. Belongers and residents in the Virgin Islands, a spouse of a belonger who resides in the Virgin Islands, and any person responsible for the care of a dependent person (who is a belonger) may apply for relief under the Public Assistance Act.
5. Can I volunteer to make social security contributions whilst unemployed?
The BVI Social Security Board’s Scheme provides coverage for employed and self-employed persons only. Employees and employers make a contribution of a certain amount on behalf of the employee, based on declared monthly earnings of the particular employee.
In certain circumstances where a person is no longer employed and wishes to continue making contributions to the BVI’s Social Security Scheme on his or her own behalf, the person may become a voluntary contributor by making an application to the Director within a certain time after the date on which the person ceases to be compulsorily insurable. Qualifying persons are those who (a) are over the age of fifteen and under the age of sixty-five; (b) have ceased to be compulsorily insurable; and (c) have paid at least fifty contributions.
If approved, the applicant will be notified of the amount of contribution, the method of calculation and the frequency and deadlines for payment.
Persons who are temporarily unemployed as a result of the COVID-19 global crisis and who have access to resources to enable them to do so, might consider this option so as to continue qualifying for benefits under the Social Security Board’s Scheme.
6. Can I be criminally liable for sharing information on social and other online media platforms?
The Computer Misuse and Cybercrime Act, 2014 makes provision to secure computer material and to prohibit the unauthorised access, modification or any form of interference with such material, as well as to prevent the misuse of computers. Importantly, under the Act, the definition of “computer” is wide enough to catch mobile phones, as most mobile phones are connected to the internet. Hence, users of mobile phones face many of the same cyber threats as desktop or laptop computers and can therefore attract similar liability.
There are many offences under the Act which include unauthorised access to computer material, access with the intent to commit or facilitate the commission of an offence, unauthorised disclosure of password, access code, etc., unlawfully making available device or data for commission of an offence, publication of protected computer programme or data without lawful authority, using a computer for child pornography; sending offensive messages through a computer, electronic defamation, electronic forgery, electronic fraud, electronic stalking and violation of privacy.
Law enforcement agencies can seek preservation and production orders to collect data to be used as evidence and also to compel service providers to provide information in certain cases. Penalties under the Act range from $5,000 for less serious offences and imprisonment of three years and up to $500,000 for more serious offences or in excess of fourteen years in prison.
7. Can government utilise private premises as quarantine centres?
Generally, the Virgin Islands Constitution Order protects against deprivation of property. It provides however, that private property and the interest in the right over such property may be compulsorily taken possession of if taking possession is necessary or expedient in the interest of defence, public safety, public order, public morality, public health, or the development or utilisation of the property in such manner as to promote the public benefit. In such a case, provision is made by law for adequate compensation.
Further, pursuant to the Disaster Management Act, certain premises may also be utilised as suitable supplementary emergency operations headquarters for the activities undertaken in response to a disaster, emergency or threatened hazard alert. The Director of Disaster Management has authority to establish a list of premises available as emergency shelters and to liaise with persons and organisations (usually by entering into a MOU) who possess property which can be utilised as emergency shelters. The Government will list the facilities available, and set out the conditions under which the listed premises would be suitable for use, as well as the processes to be followed.
Liability will not attract to the owner/occupier of the listed premises with respect to injury, damage, or loss to any person which arises due to the condition of the listed premises occurring during the relevant period, provided that the use of the listed premises was within the limits of the suitability indicated by the Government for the particular listed premises.
8. Are unemployed persons now without national health insurance (NHI) coverage?
Generally, all persons who are gainfully employed in the BVI whether under a contract of service or self-employed, are insured persons. All insured persons, employers of persons in insurable employment, self-employed persons and any recipients of income within the BVI are required to pay contributions towards the NHI system. Failure to pay contributions shall render a person liable to pay the full cost of medical services obtained by him or a person on whose behalf he is liable to pay contributions. A self-employed person is required to pay 7.5 per cent of their insurable earnings in contributions and 3.75 per cent of insurable earnings for their dependent spouse. Generally, also an unemployed adult will pay 7.5 per cent of insurable earnings in contributions in respect of themselves and their dependent spouse.
In circumstances of unemployment, an insured person is covered for up to three months but must provide notification to the NHI upon termination of employment. After the three months of coverage, the insured person would be deemed uninsured and will no longer be covered by the NHI unless (a) notification is provided of a new employer and contributions resume; (b) such a person remains resident in the BVI and volunteers to self-contribute to the NHI system; or (c) such a person is a child of the unemployed, an unemployed senior, a ward of the state or an indigent person (as approved pursuant to an application made by persons wishing to be so categorised). In the case of the latter, the Government of the Virgin Islands will make the contribution to this category of persons by way of an appropriation made by the House of Assembly in each financial year. Importantly also, where a person ceases to be a legal resident of the BVI, NHI coverage will be terminated.
Please contact Ayana Hull, Head of the BVI Private Wealth practice, or your usual Harneys contact for further assistance.