knowledge | 13 March 2020 |
COVID-19: Frequently Asked Questions by Employers
With the growing spread of the coronavirus (COVID-19) in Ireland and the closure of many institutions, it is essential that employers consider what steps to take in their workplaces to deal with any further outbreaks or potential disruption to their businesses. In this briefing, we deal with some of the frequently asked questions by employers. This briefing will be updated as events unfold over the coming days and weeks.
In general, the relevant advice from the Health Protection Surveillance Centre (“HSPC”) should be reviewed frequently given the evolving situation and good communication should be maintained with employees to avoid further disruption to business.
What are an employer’s obligations under health and safety legislation?
Employers have obligations under the Safety, Health and Welfare at Work Acts 2005 – 2014 (the “Acts”) to ensure the health, safety and welfare of their employees and to provide a safe place of work. Under the Acts, employees also have duties to take reasonable care to protect their safety, health and welfare and the safety, health and welfare of any other person who may be affected by the employee’s acts or omissions at work.
The Acts will continue to apply in respect to remote/home working arrangements. A decision to require employees to work from home should be documented as part of an organisation’s overall risk assessment to be carried out in respect of COVID-19. In addition, employees should be reminded that relevant provisions of the organisation’s health and safety policy continue to apply in respect of home working arrangements, and organisations should review whether their employer liability insurance covers staff working from home.
Given that COVID-19 itself presents a significant and unprecedented health and safety risk, and given that decisions in respect of remote working may have to be taken quickly, organisations may need to take decisions in respect of remote working arrangements which, in the ordinary course, would require more detailed health and safety assessments prior to implementing such arrangements.
Employers, particularly those in safety critical environments, may wish to refuse employees displaying symptoms entry to the workplace and to introduce certain health testing measures (such as temperature testing). Employers may in certain cases, given the significant health and safety risks concerned, seek to introduce such testing provided it is conducted in a proportionate, non-discriminatory manner with the least possible impact on employees’ constitutional rights to bodily integrity and privacy and consistent with the employer’s obligations regarding data protection.
What actions should organisations implement to protect employees?
Employers should consider the following:
- Implement remote working arrangements where possible following the Government’s request to businesses to facilitate remote working for employees;
- Continue to keep up to date with guidance issued by organisations such as the HSPC, in relation to infection control precautions, and travel advice issued by the Department of Foreign Affairs and provide updates and information to employees as necessary;
- Consider suspending employees’ business travel to affected areas and generally suspending business travel other than essential travel;
- Ask employees to inform the organisation of their travel plans and consider requesting employees not to attend their place of work for 14 days in the event they have returned from overseas;
- Where it is not possible for employees to work from home, continue to review sanitation practices and standards and businesses processes in places of work, to prevent the spread of COVID-19, and adopt practical policies that will protect employees and limit face to face contact between employees in the work environment, such as suspending meetings, using video conferencing and providing advice on ‘social distancing’;
- Continue to provide information to employees on the prevention of, and limitation on, the spread of infectious diseases; and
- Ensure that the organisation has correct emergency contact details for all employees.
How should employers deal with the issue of remote working?
The Government has requested businesses to facilitate remote working for employees where possible. This request echoes the Department of Public Expenditure and Reform’s guidance issued to the Civil and Public Service, which provides that flexibility around alternative working arrangements, such as home working, is to be encouraged where possible.
Remote working will not be available to all organisations; however, businesses should consider and engage with home working as a contingency option wherever possible. The key issues for consideration in relation to remote working and practical steps that employers can take are as follows:
- Urgently engage with key stakeholders, such as IT, HR and external advisors, to ensure the organisation is as prepared as possible and has the necessary infrastructure and IT security arrangements in place to enable home working arrangements;
- Remind employees of their duties and obligations under their contracts of employment and applicable policies, in particular, their obligations and duties in relation to health and safety, confidentiality, data protection, and intellectual property;
- Remind employees to continue to take their rest breaks in line with the Organisation of Working Time Act 1997 (as amended);
- Request employees to turn off and remove smart devices, such as Alexa, from their home working area in order to maintain client/customer confidentiality;
- Ensure that it is possible to continue to communicate with staff during periods of home working (whether by email, text message or telephone);
- Consider having an emergency text service in place so that updates can be issued to employees as required; and
- Where organisations have agency staff or contractors who are employed by another organisation, engage with these organisations in relation to any decision to close the workplace.
What if employees have to care for children at home?
With the closure of schools and child-care facilities, employees who are caring for children at home may not be in a position to attend work, particularly if it is not possible for them to work remotely. Communication and flexibility from both employers and employees will be important and employers should continue to act reasonably and proportionately. Employers should engage with employees and explore whether the employees might take parental leave, annual leave or unpaid leave.
In the event that an employee is required to absent themselves from work due to a close family member falling ill, employers should consider whether a force majeure policy may apply or whether they request that employees take these days as annual leave. Force majeure leave currently entitles employees to three days in one year (5 days across two years) fully paid leave. This may be increased in the event that emergency legislation is introduced.
What issues of discrimination do employers need to be aware of?
Employers should be cognisant of potential discrimination issues that may arise, particularly on the grounds of disability and race. This may include preventing bullying and/or harassment of employees who are of Chinese or Italian origin, for example, and ensuring that management decisions, such as requiring certain employees to work from home, are not confined to employees of a particular ethnic background.
What should employers do where there is a suspected case of the virus?
Employers should give consideration to putting in place a contingency plan in the event that one of their employees falls ill and there are concerns they may have contracted the virus. Employees should be informed of the procedure to be followed if they are concerned they may have been exposed to the virus, which would include notifying their employer of their concerns and ensuring they do not attend work. Such employees should be directed to HSE guidance in respect of a suspected case of COVID-19. Current guidance provides that an employee should self-isolate and phone their GP or the emergency services and inform them of their symptoms and travel details.
Where employers learn of an employee’s potential exposure to the virus, or where an employee has recently returned from an affected region, employers should request that the employee does not attend work. The current recommended incubation period is 14 days.
Can employees be prevented from travelling abroad?
Employees are free to travel abroad in a personal capacity where there are no official restrictions on their doing so. However, employees should be asked to let their employer know if they plan to travel outside of Ireland. On their return, they should be asked to self-isolate given the risk that they could pose to other employees.
What data protection issues may arise for employers?
Where an employee is identified as suffering from COVID-19, an employer should be mindful of the employee’s data protection and privacy rights in terms of disclosing their identity to the wider organisation, while remaining cognisant of the employer’s duty of care towards the health and safety of their workforce. See our related briefing here.
Are there any other useful sources of information for employers?
There are a number of useful public sources of information available for employers.
- The Department of Business, Enterprise and Innovation has published a Business Continuity Planning checklist. This is a checklist of some of the key risks to the continuity of business activities during the outbreak of COVID-19 and of preparatory actions that can be taken to respond.
- HSE advice on COVID-19 can be found here.
- Updates from the Department of Health can be found here along with health and travel advice.
- HSPC advice and guidance including guidance for workers dealing with the general public can be found here and here.
- The Department of Employment Affairs and Social Protection has published COVID-19 Information for Employers and Employees which is available here.
This briefing is for general guidance only and should not be regarded as a substitute for professional advice. Such advice should always be taken before acting on any of the matters discussed.