Author: Vieira de Almeida & Associados - Sociedade de Advogados, SP R.L.
Contact: E-Mail (email@example.com) (firstname.lastname@example.org)
Overview of legal measures as of 15 June 2020 as response to the coronavirus. . Please note: Due to the extraordinary situation, the legislation is in continuous evolution and may change very fast.
Managing the Impacts of COVID-19
Companies on a global level are feeling the effects of the spread of the Coronavirus (COVID-19). The present context raises legal questions that have a profound impact on businesses in different sectors and on society at large. The implications are broad and complex, and we are committed to focusing our knowledge and experience to help you navigate these new legal issues as they arise.
1. State of Emergency
1.1 Concept and implications
State of Emergency
On 12 April 2020, the President of the Republic of Gabon declared the state of emergency.
The State of Emergency is provided for the Gabonese Constitution. It is further regulated by Law 11/90 which provides that this specific regime applies in exceptional circumstances, to make it possible to address, by restricting certain individual freedoms and extending police powers, either an imminent danger resulting from serious breaches of public order or events which, by their nature and gravity, have the character of public calamities.. It may be imposed to parts or to the whole territory.
In the present case, the proclamation of the state of emergency provided for the following measures:
Right of movement and settlement anywhere in the national territory and international circulation
· Closure of land, air (except cargo) and sea borders;
· Prohibition of all domestic and international passenger flights, except in cases of force majeure, medical evacuation and cargo;
· Prohibition of all maritime and river and lagoon transport, except freight;
· ban on passenger trains, except freight trains, petroleum products;
· Limitation of all non essential travel, except for:
- Defense and Security Forces;
- essential SEEG personnel and vehicles;
- medical personnel and essential vehicles (ambulances, SAMU, SMUR, SMURA);
- funeral staff and vehicles;
- media personnel and vehicles.
· Curfew between 7.30 p.m. and 6 a.m. troughout the national territory;
· Restrictions on transportation:
- 3 passengers per private vehicle;
- maximum 9 passengers in 18-seater taxi buses;
- 10 passengers maximum in 30-seater buses;
- 3 passengers maximum in taxis and “clandos” including the driver;
- public transport drivers are required to wear gloves, masks and be in possession of disinfectant products. Each customer is obliged to disinfect his hands as soon as he enters the vehicle;
- compliance with regulations in urban and suburban public transport (“clandos”);
· Lockdown of the Greater Libreville (Libreville, Owendo, Akanda and Pointe-Denis): containment of each territorial space (arrondissements) from 12 April 2020 at midnight for a 15-day renewable period. Trips will be authorized within each territorial space, for essential activities related to food and health.
Property and private enterprise
· Closure of businesses, except for essential activities such as banks, petrol stations for the supply of fuel, grocery stores, bakeries, pharmacies, vulcanizers and garages (respecting the distance of 1 meter between people in the lines);
In Greater Libreville, markets shall be open all week, provision of food supplies (supermarkets, grocery stores etc.) in strict observance of barrier measures, social distancing and the wearing of masks and gloves. Essential activities are authorized to be carried out by private companies benefiting from special dispensation (as well as public and para-public administrations) such as shops, health services, funerary institutions, SEEG (EDAN points of sale), Société de Patrimoine, petrol stations, telephone credit points of sale, Airtel Money, Mobicash, Western Union points of sale, household waste collection companies, security companies, pharmacies.
Right of assembly and protest
· Prohibition of meetings and gatherings (in case of force majeure, any gathering cannot exceed ten people), all public events (marches and meetings), concerts, leisure and recreation sites (beaches and sports grounds), traditional ceremonies, funeral wakes, wedding celebrations, family events.
Freedom of worship
· Closure of all places of worship, namely churches and mosques (recommendation of individual home prayer), religious celebrations and processions;
Freedom to learn and teach
· Closure of schools and universities;
Right of resistance
· Acts of resistance to orders issued by public authorities as part of the state of emergency are prohibited.
In order to ensure compliance with the above-mentioned provisions, any refusal to comply or any manoeuvre used with a view to evade confinement constitutes the offence of endangering others, in accordance with article 384 of the Criminal Code, and exposes the perpetrator to legal proceedings.
2. Labour issues
2.1 Main considerations
On 20 March 2020, the Gabonese Minister for Employment, Civil Service, Labour, Vocational Training, in charge of Social Dialogue issued a statement providing for the following general measures:
· obligation to call the free number 1410 for any staff with symptoms of influenza (fever, cough, sneezing, difficulty breathing);
· limitation of the operation of services to activities ensuring the adequate functioning of companies and of the economic activity of the country;
· cancellation of all meetings, symposia, workshops of more than 10 people, as far as possible;
· implementation of a system of part-time, rotating and teleworking, adapted to the specificity of each sector, as far as possible;
· restriction and regulation of the flow of workers within companies;
· supervision and regulation of the working time of workers in situations of vulnerability, disability or pathology;
· supervision and regulation of the work of pregnant women;
· Limitation of temporary layoff exclusively to companies heavily affected by government decisions and after consulting the competent services of the Ministry of Labour in accordance with the rules of the Labour Code.
The competent services of the Ministry of Labour will verify the compliance of companies with these measures.
On 10 April 2020, Order No. 0052/MEFPTFPDS (hereinafter “Order 52”) was adopted by the Gabonese Minister for Employment, Civil Service, Labour, Vocational Training, in charge of Social Dialogue.
Order 52 provides a set of specific measures regarding temporary lay-off periods that may be implemented by employers, following government decisions to combat the spread of the Covid-19 pandemic.
Temporary lay-off procedure
Companies are required to submit a file to the appropriate Labour Inspector, requesting the latter’s opinion on the temporary lay-off (this request may alternatively be sent electronically at email@example.com).
Each file must include the following:
a) Information on the company (fiche circuit, turnover, payroll, quarterly declarations of salaries to the CNSS and CNAMGS) and on the industry sector concerned;
b) Impact of the measures on the continuity of the activity;
c) Total headcount of the company;
d) Employees affected by the measure, with indication of their surname, name, seniority, age and pay slips;
e) Cost of the temporary lay-off (temporary lay-off allowance payment).
The grounds for implementing temporary lay-offs must exclusively result from the protection and prevention decisions made to stop the spread of the Covid-19 pandemic.
The Labour Inspector has 72 hours to give his opinion, failing what, the opinion shall be considered positive by operation of law.
Temporary lay-off allowances
Employees affected by the protection and prevention measures to combat the spread of Covid-19 pandemic are entitled to receive an allowance of, at least, 50 to 70% of their gross monthly salary (excluding bonuses and allowances).
Low-income employees (with monthly salaries between 80,000 and 150,000 CFA francs), whose salaries shall have to be maintained in full.
The above measures include young workers under a youth apprenticeship contract / “contrat d'apprentissage jeunesse”.
The above-mentioned rates are minimum rates that may be revised upwards in accordance with the salaries policies of each company.
This allowance shall be paid under the same conditions as regular salaries.
Conditionality of the allowance
During the entire period of inactivity, the employee is required to remain on standby, and the employer reserves the right to use him or her if required and according to their job. Any employees who refuse to do so forfeit their right to the allowance during the temporary lay-off period.
Other available measures
During this period, employers are encouraged to give preference to:
a) maintaining salaries;
b) promoting teleworking;
c) shift-work or part-time work at the company’s expense;
d) resorting to the recovery time mechanism; and
e) asking employees to take their annual leave ahead of schedule.
The approved temporary lay-offs and the effectiveness of Order 52 are subject to the effectiveness of the Governmental decisions made within the context of combating the spread of the Covid-19 pandemic.
3. Tax and Contributory Obligations
3.1 Mitigation measures
In order to mitigate the economic impacts of Covid-19, the Gabonese government set up a tax counter open to corporate citizens and employees to provide with the following:
· Reduction of the business license tax (patente) and of the summary tax (ISL - impôt synthétique libératoire) by 50% for small businesses;
· Tax rebates (CIT) for companies preserving jobs and showing solidarity and exemplarity in the current crisis situation;
· Granting of, and tax exemption on exceptional bonuses to employees who will work during the lockdown period;
· Postponement to 31 July of the deadline for submission of tax returns (DSF), annual salary statements (DAS), transfer pricing returns (DPT), personal income tax returns for taxpayers under the categories Bénéfices Industriels et Commerciaux (BIC), Bénéfices Non Commerciaux (BNC) and Bénéfices Agricoles (BA);
· Corporate Income Tax (IS) and Personal Income Tax (IRPP) whose payment deadline is April 30 can be paid in three equal monthly instalments on April 30, May 31 and June 30.
4.1 Contingency measures
The following financial measures have been put in place by the Gabonese government:
Introduction of a moratorium without penalties on the due dates of debts owed to banks for any company in cessation of activity or in serious difficulty due to the crisis;
Establishment of an emergency financing desk (with 225 billion CFA francs) to provide an immediate response (bank loans offered on preferential terms) to the urgent cash flow needs of businesses (subject to being up to date with their tax and social security obligations and to maintaining jobs);
Suspension during the lockdown period of rent payments for those without income;
Assumption by the State of the losses of the small owners related to the suspension of the payment of the rents;
5.1 Impact on litigation matters
The government declared the suspension of hearings in the Tribunals and Courts, except for essential litigation.
6. Social aid
6.1 Main aid measures
In order to help contain the social effects of Covid-19, the State further provided for a state fund endowed with 25 billion FCFA in order to enable the following special aid measures:
· Payment of water and electricity bills for the most fragile and economically weak people;
· Free public ground transportation provided by public companies;
· Granting of food aid to persons in distress and emergency situations;
· Payment of the losses of the small owners resulting from the suspension of the payment of the rents;
· Maintaining of salaries between 80 and 150 thousand CFA francs;
· Financial aid for Gabonese nationals stranded abroad.