Dr. Mordhi Al-Ayash
Associate Professor of Civil Law – College of Law – University of Kuwait
Dr. Sami Al-Hathal
Assistant Professor of Civil Law – Dept. of Law, College of Business Studies – Public Authority for Applied Education, Kuwait

Abstract:

This study seeks to address whether employees are entitled for wage pay during the mandatory closure of private establishments by the state as a precautionary measure following the outbreak of Covid-19. Although it could be argued that Article (61), on its face, obliges the employer to pay wages in all circumstances regardless of the closure cause, we attempted to provide a different interpretation.
This study follows descriptive and analytical methodologies. Its importance lies in the hypothesis it attempts to test of whether employees are entitled for wage pay during the closure period under Kuwaiti labor law, which provides the worker’s wages with great legislative guarantees. To this end, we have divided this study into two sections. The first section deals with the meaning of the wage and its protection. The second section discusses the impact of closure on the employee’s right for wage pay. It touches on the meaning of closure whether by the employer or the state then explains its implications on the employee’s wage, in particular, the extent to which the employment contract can be annulled, suspended, or terminated in such circumstances.
The study concludes that although the law protects labor wages by prohibiting any reduction during the establishment closure, or terminating the contract due to not meeting the required conditions, we argue that the employer is relieved from this obligation in certain circumstances and may terminate the employment contract, until the conditions that led to the suspension are removed. In other cases, it is permissible to terminate the contract without liability, as long as the employer does not want the worker to continue working upon suspension of business. Moreover, we found ample purview for the application of partial force majeure idea on the employment contract. We also suggest an immediate legislative intervention to address the impact of economic and extraordinary circumstances on employees’ wages through the adoption of employment suspension notion and address when wage reduction and contract suspension or termination is allowed. Likewise, impose compulsory insurance system for temporary unemployment in case of termination, suspension, and subsidization when wages are reduced.

Keywords: Covid-19, suspension of employment agreement, force majeure, partial impossibility, establishment closure, state legal acts

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