Covid 19 and Employers Obligations
Employers have a statutory obligation under the Safety, Health and Welfare at Work Act 2005 to ensure that employees are provided with a safe working environment. We will consider below how employers can fulfil this obligation.
Be Fully Informed
Employers should ensure they follow all advice and guidelines being given by the Government, HSE Health Protection Surveillance Centre (HPSC), World Health Organization (WHO) and any other official sources.
Working Remotely
Where possible employers should request that all employees work from home and should have the necessary tools in place to enable employees to do so. In these circumstances, once all of their duties are being fulfilled, they should continue to receive their full salary.
Where an employee cannot work from home and the employer has placed a restriction on people attending the work place, then that employee must remain at home without carrying out any of their duties. In these circumstances, the employee should continue to receive their full salary.
Employers must ensure that all restrictions are reasonable and proportionate.
Employers must maintain engagement and communication to reduce the risk of any claims for alleged discrimination or breach of contract.
On the 12th March, the Data Protection Commission issued guidelines on Protecting Personal Data When Working Remotely.
Risk Assessment in the work place
Where it is intended that employees will continue to work in the work place, a risk assessment must be carried out to ensure the safety of all staff and clients. This will involve taking reasonable measures such as; ensuring the recommended social distancing measures are in place, ensuring that there are sufficient hand sanitizing areas, placing handwashing guidelines in communal areas/toilet and food preparation areas, ensuring that there is a Covid 19 Policy in place and that all employees have been furnished with a copy and understand same.
Employers should also ensure that emergency contact details for all employees are up
to date.
The Health and Safety Authority website ‘hsa.ie’ has some useful information.
Travel
All non-essential travel by employees should be restricted.
In circumstances where employees have travelled to affected areas, they should be requested not attend the work place for 14 days.
Employers should follow the up-to-date travel information from the Department of Foreign Affairs.
Medical Testing
Employers can require employees to be medically assessed so long as the employee’s employment contract or the company illness policy provides for same.
If however, there is not a provision for same in the contract or illness policy, given the high risk nature if Covid 19, compelling an employee to be medically assessed would most likely be considered reasonable.
Sick Leave/Absence from work
Where an employee is unable to work having contracted Covid 19, the company illness policy should be implemented.
Where an employee is in Quarantine but not sick, working from home should be implemented and as aforementioned, in these circumstances once all of their duties are being fulfilled, they should continue to receive their full salary.
Where an employee is absent from work, due to a family member contracting the virus, the company force majeure leave policy should be implemented.
Employers can also facilitate requests from employees to take annual leave in order to discharge family obligations they have as a result of the current school closures. Other options that can be explored are facilitating parental leave or other unpaid leave or employees commencing maternity leave early.
GDPR/Privacy
Where additional information is requested from employees regarding their health or travel there must be a valid lawful basis for doing so under both Articles 6 and 9 of the GDPR. Any information that is collected must also be necessary and proportionate for the purpose of ensuring the safety and health of employees
As Covid 19 has been classed as a notifiable disease by the Minister for Health, it is reasonable for an employer to disclose to other staff members when an employee has contracted Covid 19. Where an employee has confirmed they have the virus, their identity must not be shared with other employees. It may be necessary to ask other employees in contact with this person to work from home, this may be communicated as a general direction without including any identifying details.
Covid 19 Policy
Employers should ensure that they have a written Covid 19 Policy in place and that all employees have been furnished with a copy and understand same. This Policy should be updated as matters progress.
The Policy should detail among other things; how the business will operate, guidelines for employees if they contract the virus or have been in contact with somebody who has the virus eg. how to notify the employer, not attending the work place etc., disclosure of illness to other employees, update of other policies such as of illness policy.
“Lay Off” & “Short Time”
In certain circumstances, if employees are laid off or put on short-time, they may be entitled to a payment under the Redundancy Payments Acts 1967-2014. This payment is separate to any State benefit that such employees may be entitled to.
In order to qualify for redundancy payments, the lay-off or short-time must come within the specific definitions contained in the Redundancy Payments Acts 1967-2014. For the purposes of the Acts, lay-off occurs where an employer is temporarily unable to provide an employee with the work for which they were employed. Short-time occurs where an employee’s hours of work or pay are reduced to less than 50% of normal weekly working hours or normal weekly pay.
The employer must reasonably believe that the situation will not be permanent and must give employees notice to this effect.
An employer cannot unilaterally place an employee on unpaid lay-off or short-time working with reduced pay unless there is an express contractual right to do so. Alternatively, the employer might have an implied right to do so, for example, pursuant to an established custom and practice of laying employees off without pay in circumstances of economic downturn.
Review Business Continuity Plan
Review business continuity plan in light of the Covid 19 virus. Business, Enterprise and Innovation has published a Business Continuity Planning checklist.
