Indonesia, like virtually all other countries around the world, has issued various decrees over the last few months to stop the spread of the Coronavirus. These decrees among others provide for social distancing and require that employees work from home. ^[1]

However, exemptions apply and some companies are allowed to keep open despite the measures taken. These companies must take various measures and the Ministry of Health recently issued a decree on Workplace Guidelines (the “Guidelines”), ^[2] setting out clear details of what obligations there are both during the period of social distancing (PSBB) and once the period of PSBB will have terminated.

The Guidelines provide for rules on

(i) Management Policies to mitigate the transmission of COVID-19;

(ii) Protocols in the workplace for those still coming to work during the period of PSBB;

(iii) The information of Workers about COVID-19; and

(iv) Coordination between companies and the local government in the handling of COVID-19.

In Jakarta, sanctions for violations of PSBB are in place ^[3] and the same applies to West Java. ^[4] in Jakarta, workplaces operating during PSBB that do not implement the proper protocols to mitigate the transmission of COVID-19 are subject to administrative sanctions in the form of a written warning and administrative fines of at least IDR 25 million and a maximum of IDR 50 million. Additionally, companies could also be subject to claims from employees. We therefore highly recommend that you follow the Guidelines and all other rules in place.

To make sure that you are well-informed at all times, we will provide an overview of the Guidelines sub-chapter by sub-chapter and then recommend what action you take, starting with the first sub-chapter, the Management Policies to mitigate the transmission of COVID-19.

Management Policies to prevent the transmission of COVID-19 during PSBB

Those companies which are operating during the time of PSBB must adhere to five different types of obligations relating to management policies:

• Obligation to observe the COVID-19 situation: the management of each company is under an obligation to monitor the development of COVID-19 cases in the area the company is located. ^[5] Employers must also continue to observe local government policies regarding COVID-19.
• Obligation to establish a COVID-19 Handling Team: each company must establish a response team / task force. This team must consist of someone from the management, someone in charge of human resources and the designated persons in charge of personnel for health and safety (K3) as well as a health worker.
• Obligation to establish suspected case policies: each company must establish policies and procedures for workers to report typical COVID-19 symptoms. ^[6]
• Obligation to not stigmatize : each company must make sure that those infected with the Coronavirus must not be stigmatized.
• Obligation to establish a Work from Home Policy: each company must implement a work from home policy by determining which workers are essential to the company (“Essential Workers”) and must therefore and which workers can work from home.

Recommended actions with respect to Management policies to prevent the transmission of COVID-19 during PSBB

Obligation to observe the COVID-19 situation

The website https://infeksiemerging.kemkes.go.id/ gives an overview of the official statistics of COVID-19 cases in Indonesia. This includes (i) confirmed cases (kasus terkonfirmasi) and (ii) local transmissions (transmisi lokal).

Recommended action: it is unclear what exactly the obligation is with respect to observing the situation. We recommend that someone from your management access the website once per day to review the relevant statistics and ideally keep track of when you accessed the website.

Furthermore, you must be pay attention to any amendments to current decrees or other rules as well as new regulations. We will do our best to keep you informed at all times, but with the plethora of new rules coming into action every day, we cannot guarantee that we will inform you of every single obligation.

Obligation to establish a COVID-19 Handling Team

What is referred to as “COVID-19 Handling Team” (Tim Penanganan COVID-19) can be regarded as a Task Force – a team which is set up specifically for this situation, comprising of the most important persons who should be involved.

Recommended action: it is not entirely clear under the Guidelines what the obligations are and, in particular, whether this handling team should meet regularly to discuss actions which should be taken, etc. To comply with the Guidelines, we recommend setting up this team as per the Guidelines and clearly making it clear to each team member that s/he is a member.

This can cause some headache in practice when the positions indicated in the Guidelines don’t exist in your company. The Guidelines do not make it clear what should be done in this situation. If not all positions exist, we recommend that you establish the Handling Team following the positions indicated in the Guidelines as closely as possible.

To have evidence that your company has set up a COVID-19 Handling Team, you should publicly announce – e.g. by putting such information on your bulletin board, etc. – that this team exists. This will remove any doubt as to whether you have established such team or not.

Obligation to establish suspected case policies

Those infected with the Coronavirus will often show particular symptoms, as highlighted above. There is therefore an obligation to have policies and procedures for workers in place so that they report every suspected COVID-19 case to a Public Health Center ^[7] and the local Health Agency. Any employee suspected of being infected with COVID-19 shall be referred to a “COVID-19 hospital” as decided by the government. ^[8]

Recommended action: you should inform all your employees who are coming to work – not those working from home – that they are under an obligation to report symptoms of COVID-19. We strongly recommend that you provide such information by means of a written instruction. You will not have any control whether all employees with the relevant symptoms do in fact report them. Therefore, you must show that you did everything in your control to make sure that employees do report – and this can only be effectuated by means of written instructions.

The reporting system could either be an “in-person to a person appointed with such role” system or be done via a computerized reporting system. You must make this clear in the written instructions you pass to your employees.

You must take note of the name and other personal of the employee so that s/he can easily be identified, as well as of the symptoms the employee shows.

If you assign a specific person to which employees can report, make sure that this person wears a face mask, disposable gloves and is not sitting too close to the employee(s) reporting symptoms. You should also provide for hand-sanitizers and oblige the employee reporting the symptoms that s/he wears a face mask when reporting. ^[9]

Not every case of fever, cough, a runny nose, throat pain or shortness of breath means that the person is infected with the Coronavirus. However, in cases of doubt, we highly recommend that the employee showing such symptoms is sent home from work to a hospital for a medical check-up.

Obligation to not stigmatize

The Guidelines make it clear that those infected with the Coronavirus must not be stigmatized.

Recommended action : we recommend that you issue written instructions to all employees that no one may be stigmatized because s/he is infected with the Coronavirus. It would be useful to explain what “stigmatizing” actually means. ^[10]

In our view, the obligations go beyond merely issuing such written instructions. Among others, the reporting system discussed in the previous sub-chapter should be implemented in a way so that that information is not leaked. This avoids stigmatization in the first place.

Obligation to establish a Work from Home Policy

Only essential employees are allowed to come to work, while others have to stay at home during the time of PSBB. You must therefore make a determination as to who is essential and who is not.

Recommended action : the meaning of essential is “absolutely necessary; extremely important” and to be on the safe side, it is better if you view “essential” narrowly. Make sure that only those truly necessary for the running of your operations come to work, even if this creates difficulties.

All other workers should be instructed to stay at home.

How Schinder Law Firm can help

We take the Guidelines very seriously and so should you. The efforts to fight COVID-19 should be combined and concerted – and this can only be achieved when the Guidelines are followed. The threat of having to pay IDR 50 million may not be a significant deterrent. However, you should keep in mind that enraging the authorities at these times may lead to much more trouble for you, including inspections, checks and audits. This is particularly critical in times when the government is in need of funds. This should therefore be reason enough to follow the Guidelines to the letter.

In practice, this is not always easy as the Guidelines are not very detailed. They do not determine several key terms, as can be seen from the above, and you may run the risk of hefty fines and/or other measures if you do not know how to implement the Guidelines.

We have therefore compiled several standard documents, such as a protocol for suspected cases; written information communications to your employees and a system which guarantees that you fulfil your duty to not stigmatize.

Our lawyers also regularly advise foreign investors and local entities with respect to the Guidelines and other COVID-19 measures by the government. To learn more how we can assist you in prevailing during these challenging times, write us at info@schinderlawfirm.com.