The coronavirus is spreading rapidly. Besides China, human infection has been confirmed in almost 30 countries. The virus is transmitted by droplet infection, whereby secreted viruses can survive for several hours on hands or places such as door handles. The WHO is already assessing the spread as an international health emergency. Currently, the risk of infection is mainly associated with travel to affected areas or close contact with people carrying the virus. Since contact at a distance of less than 2 metres and for 15 minutes is considered close, it is conceivable that in the near future working places could mutate into potential sources of infection. Both workers and employers should therefore recall their rights and obligations with regard to a possible pandemic. As Minister Harris has stated, there is no room for either complacency or panic. Employers should ensure they have an action plan prepared, so that they can respond effectively to a suspected case of the virus amongst their workforce and manage absences while limiting the impact on business continuity.
1. The obligation to provide a safe and healthy place of work under section 8 of the Safety, Health and Welfare at Work Act 2005 (the “2005 Act”). This obligation obliges employers to take reasonable steps to address any health and safety risks.
Employers in Ireland have a very clear legal obligation under the Safety, Health and Welfare at Work Act, 2005 to ensure and protect the safety, health and welfare of its employees at work as far as it is reasonably practicable. This includes ensuring that:
risks and hazards are identified on a timely basis through an expert-led risk assessment;
effective measures and controls are put in place to eliminate the identified risks and hazards in order to provide a safe place and system of work and to prevent injury or illness; and
Clear policies and rules inform the conduct of employees and users of the workplace so as to minimise the risk of any injury or harm. The Safety, Health and Welfare at Work General Regulations, 2007, as amended, prescribe in more detail how an employer is expected to provide a safe working environment, including in relation to the cleanliness of the working environment, ventilation and access to washing facilities. Where necessary, employers should seek expert guidance to ensure compliance in the workplace in particular with their statutory health and safety requirements.
2. The appropriate legal basis for the processing of high risk, special category health data in accordance with the Data Protection Acts 1988 – 2018 (the “DPA”) and the General Data Protection Regulations (the “GDPR”).
3. Confidentiality; and
4. Consistency in terms of how this issue is addressed in Ireland and internationally.
5. Employers, in addition, have a significant common law duty of care to protect employees from reasonably foreseeable harm, failing which the employer can be liable for the direct and associated loss caused to the employee. The duty is not an absolute one but an employer is expected to take steps which are reasonable and prudent in the circumstances. Employers can be guided by these standards when contingency planning.
WHAT MUST I DO AS THE EMPLOYER?
In principle, you as an employer/manager must take all necessary and appropriate measures to protect the health of their workers. You are legally obliged to do so. In order to comply with this duty of care, you have - depending on the situation - a very extensive right to give instructions to your employees.
1. Stay informed: From an employer's point of view, you must first become aware of a rapidly changing situation. The current situation must be closely monitored internationally and a decision must be made on an ongoing basis as to whether instructions are appropriate or whether further measures are be ordered. At the date of writing, there is one confirmed case of the Coronavirus on the Island of Ireland. The situation continues to evolve and employers must stay informed about local conditions and developments. There are a number of medically validated and regularly updated evidence based international resources that employers can monitor including the WHO website, the European Centre for Disease Prevention and Control, the Centre for Disease Control (US), the HSE website (Ireland) and the Department of Foreign Affairs and Trade (Travel Advisory section) (Ireland).
2. Keep your employees informed: While there is very substantial media focus on the spread of Coronavirus, it is important that employees are aware of the bespoke policies, protocols and practices that apply to your workplace. A key message to reinforce is the medically validated advice regarding prevention. The ECDC1 has published micro learning modules, some of which are relevant to office or factory based environments such as in relation to hygiene practices which can be circulated to employees relatively easily.
3. Business Continuity Plan: Ensure that your business continuity plan is fit for purpose. For example, run testing on your employee messaging service so that the business is ready to communicate remotely with employees if necessary at short notice. You should also consider further instructions at an early stage, e.g. home office, video conferencing and telephone calls instead of personal meetings, no shaking hands at the place of work. If illnesses are actually diagnosed in Ireland or the county you are situated in, employees should be explicitly instructed to stay away from work even if there is a suspicion of infection.
4. Review workplace hygiene: Much of the evidence-based advice on preventative measures focuses on good hygiene practices, such as hand washing. Applying the standards of reasonableness and prudence to a conventional office environment and being mindful of statutory obligations to provide a safe place and system of work, employers should ensure that common work areas are clean and cleaned regularly, that clean hand washing facilities are available and that hand sanitiser distributors are available to employees as a minimum. Instructions concerning hygiene in the workplace should be considered (washing hands with soap, mouth, nose and eyes, if possible, do not touch them, disinfect the workplace, etc.). Employees can be reminded of these obligations several times a day by posting notices at their workplace or by sending out appropriate e-mails.
5. Social distancing: The concept of social distancing is one of several suggested countermeasures in the workplace to prevent the spread of the virus. This can be achieved through favouring the use of technology, such as Zoom, and using emails and phones in substitution for face to face meetings where possible within the workplace. Based on current information, this is unlikely to be a necessary measure for many workplaces as matters currently stand. However, if this is not a practice which is consistent with your workplace culture under normal circumstances, then clear guidance on the revised protocols for meetings and gatherings should issue if employers consider it prudent to change their work practices to achieve social distancing.
6. Reduced network and customer contact: Employers need to give consideration to the extent to which face to face meetings and particularly those which require international travel are necessary while the outbreak situation continues to evolve globally. For employers with offices and locations across the globe, it is important to check the latest travel advisory information posted by the Department of Foreign Affairs and Trade in Ireland as well as the travel advisory for the host country. Check that the employer travel insurance policy continues to cover risks associated with business travel where a travel advisory warning may be in operation. Where an employee objects to business travel, clearly a common sense approach needs to be taken so as to ensure the duty of care to the employee is discharged. Design and communicate reasonable and prudent protocols around inbound and outbound visitors to the workplace based on up-to-date government and medical advice, where individuals have recently visited an affected area. Advise employees to self-report planned travel to affected areas or if they have recently returned from an affected area.
You should be made aware that a breach of the duty of care described above can have far-reaching consequences and may, among other things, trigger a liability for damages to their employees under potentially personal injuries.
PREVENTATIVE & PRECAUTIONARY MEASURES:
1. Advise all employees who are scheduled to take personal holidays to consult the guidelines and follow the infection control precautions outlined.
2. Where employees are scheduled to travel for person reasons to affected areas, they should be required to inform HR.
3. Employers should consider requiring employees to work remotely where appropriate and necessary for example Google and Indeed have put this in practise to see how it will work in Dublin.
4. Consider conducting meetings via video link.
5. Employers should include, in their employee-wide circular, a direction that employees with vulnerable symptoms should consult their medical advisors.
6. Advise employee that they each have a responsibility to inform the company if they have any reason to believe that they may have been exposed to the virus either directly or indirectly.
7. High levels of hygiene in the workplace should be actively promoted, including reminding employees to be extra vigilant and providing hand sanitisers
8. Consider suspending unnecessary overseas business travel and using technological alternatives and keep up-to-date with travel advice from the Department of Foreign Affairs
9. Communicate workplace processes (sickness and absence policies) and ensure these are implemented consistently
10. Keep up to date with Health Protection Surveillance Centre guidance for advice on quarantine procedures
11. Follow the Department of Business, Enterprise and Innovation's checklist of preparatory actions in responding to coronavirus
12. While many employers are unable to operate under a fully remote working model, contingency planning should include a review of the ability to move employees to remote working giving consideration to technological requirements; and home working protocols.
CONTINGENCY PLANNING/CRISIS MANAGEMENT:
It is unclear whether and to what extent employers, workers, workplaces and businesses will be impacted by the evolving situation but timely contingency planning and an analysis of the workplace environment and the existing provision and practices around pay and benefits is helpful. The guiding principles or reasonableness and prudence should inform the contingency planning.
WATCH OUT FOR STIGMATISATION:
The WHO has reported on the increasing phenomena of stigmatising ethnic groups in connection with the Coronavirus outbreak and the damaging effect it can have on helping to stem the outbreak. This is an equally valid concern in the workplace. Most employers have polices on the prevention of discrimination and harassment in the workplace and employers should be vigilant to ensure that all employees continue to observe their obligations to treat their co-workers with dignity and respect.
If employers have not already issued an employee-wide communication outlining the steps which are being taken by the Company to ensure the health and safety of all employees, this should be done immediately.
Employers should ensure that it has an emergency text service in place so that it can immediately issue updates to employees in relation to the Coronavirus, if necessary.
REMOTE WORKING AND ADOPTION OF FLEXIBLE LEAVE POLICIES:
Many employers already have or are developing flexible working policies which include the use of technology to work from home or from another location other than the workplace. Few employers operate a fully remote business and may struggle to pivot to a model whereby the entire workforce is required to work remotely at short notice. Many employers in Ireland enable rather than require employees to work remotely. Employers may need a contingency plan to move their employees to a remote working model quickly including assessing the following:
Does your technology support a significant proportion of your workforce operating remotely?
How secure is the personal data, confidential information and IP belonging to your business in a situation where all or a significant proportion of your workforce is working remotely?
Do you have clear protocols around the expectations of the home or remote working environment, i.e. private, quiet as necessary and suitable for work including making confidential calls and good connectivity to support a VPN connection?
Do you have protocols in place around working in proximity to smart speakers and devices?
Do you have the power to reasonably monitor output during a prolonged period of remote working? and;
From a health and safety perspective does the employee, a 'lone worker' have suitable and safe equipment to support home working? Employees also have obligations to take care for their health and safety and that of others and employers should encourage employees to flag any concerns about an extended period of remote working so that this can be addressed as promptly as possible.
WHAT DO WE DO IF AN EMPLOYEE IS DIAGNOSED WITH CORONAVIRUS?
1. Refer the employee to the guidelines on what to do.
2. Follow your Absence Policy.
3. Where a confirmed case of the virus within the organisation, the company should then conduct an updated risk assessment to determine what further measures need to be taken to ensure the health, safety and welfare of the workforce i.e. requiring all employees to work remotely, requiring employees to not attend the workplace, close the office/department/factory etc.
1. Employees must be made aware of their obligations.
2. Employees must follow proportionate instructions from the employer.
3. Employees must inform their employer, for example, whether they have spent or are planning to spend holidays in risk countries.
4. Employees must inform the Company about contact with people who are ill. Employees must also be made aware of these obligations.
PAYMENT & OTHER OPTIONS:
If employees receive instructions from their employers to stay at home they are entitled to payment of wages in accordance with the general legal and contractual provisions.
If an employee is experiencing coronavirus symptoms and cannot attend for work due to illness, the company sickness/absence policy should be adhered to and the company sick pay scheme (if in place) should be applied in its normal course.
However, as long as neither the employer nor the authorities order employees to stay away from work, employees are advised not to stay at home for fear of infection. In this case their absences would be unexcused and could result in disciplinary action.
Finally, in the event of a pandemic, a standstill of public transport would be conceivable. If employees are therefore no longer able to perform their work, their absences are excused, but they would not be entitled to continued payment of wages.
Although there is no statutory entitlement for an employee to be paid in such circumstances where they return from an affected area and feel fine but the employer requires them to self-isolate, prudent employers are continuing to pay employees for their period of directed absence to limit the Company’s exposure to legal claims and employee relations issues. These risks are somewhat increased where the company’s direction goes above and beyond what is stipulated by the Guidelines and the WRC Coronavirus Guidance does not provide for this situation.
SICK PAY: The Government announced on 9 March 2020 very welcome news that it is to introduce emergency legislation in the Dáil from week beginning (16 March 2020) to amend the rules on sick pay, which will see Illness Benefit rise from €203 per week to €305.
It will be available from the first day of illness rather than after six days as at present, and conditionality will be waived to allow the self-employed to receive it.
There will be no minimum number of PRSI contributions, but medical certification will be required.
LAY OFF: The Redundancy Payments Acts provides for the layoff of employees where an employer is unable to provide work for which the employee was employed to do and the employer believes that the cessation will not be permanent and provides the employee with notice.
Notice is not outlined in the legislation and should be as much as reasonably practicable.
Jobseeker's Benefit is not paid for the first 3 days you are unemployed (the first 3 days are any 3 days, not necessarily consecutive, in a period of 7 consecutive days).
An important point to note is that an employer can only place employees on a period of lay-off where there is a contractual provision to do so or where the employer relies on an established custom and practice of laying employees off within the particular workplace. FORCE MAJEURE: An employee is entitled to be paid force majeure leave where “for urgent family reasons, owning to an injury or illness” the persons presence is indispensable.
Such leave could not be granted in the circumstance where the child’s school or crèche has closed and the parent is consequently required to care for the child.
An example of where this might apply is if the child displays symptoms of Coronavirus at the crèche and the employee is rang to come collect the child to get tested etc. Day one where the employee’s presence is indispensable would classify itself as force majeure.
SELF ISOLATION: There is no statutory entitlement for an employee to receive pay on self-isolation.
Where employers reserve the right to have employees medically examined in contracts or policies, then where an examination is justified in all of the circumstances, particularly where the location of the employee is within a high risk zone, an employee cannot reasonably refuse to be medically examined.
Where no such contractual or policy provision exists and the need to medically examine the employee is clear in light of the status of the risk, then it is likely that it is in the best interests of the employee (and their colleagues) to agree to be medically examined to assess whether they are symptomatic.
Any refusal by an employee to participate in a medical examination should be dealt with formally if necessary.
Treat personal data related to health carefully.
The occurrence of a case of Coronavirus in the workplace or the presence of an employee who may have been exposed to the Coronavirus is a significant development. While clear protocols will have to be communicated to other colleagues in the workplace who may be at risk, information related to the health of an identifiable person is a special category of personal data which cannot be processed by a data controller except in very limited circumstances. Employers have an obligation to take steps to ensure that the privacy of the individual's personal data related to their health is kept secure and is not processed in a manner that is inconsistent with the GDPR.
RIGHT TO PRIVACY:
The coronavirus was recently officially designated a "notifiable disease" by the Minister for Health placing an obligation on doctors to immediately notify the HSE when a case of Covid-19 is diagnosed.
An employee's privacy rights should be carefully assessed by an employer when considering whether or not to notify other employees about ill co-workers.
In exceptional cases disclosure may be permitted if there is a real risk of an employee becoming infected. In these unique circumstances, it would be reasonable for an employer to override the privacy concerns of an affected employee to ensure that the health and safety of the wider workforce is maintained.
For example, it is unlikely that an employer would be able to justify the disclosure of the affected employee's name or information that could identify that employee or any details associated with the health of that person.
What happens when the workplace is closed?
If employers are required to close the workplace by law and remote working arrangements are not feasible, contractual lay off and short time provisions in the contract of employment may permit the employer to lay off the employee temporarily and cease pay.
Absent express provisions permitting the imposition of unpaid leave, statutory lay off provisions may be triggered by the employee if the closure of the workplace continues for more than four weeks.
In such a situation, employers could consider agreeing with employees that annual leave is taken during any period of closure or can agree that a period of unpaid leave is taken where employees do not wish to use annual leave.
Can I ask my employee to take annual leave in the circumstances where they have been to an affected area, feel fine but I want them to self-isolate?
It is unlawful for employees to take annual leave in such circumstances and any insistence by the company to apportion their time of self-isolation as annual leave may expose the company to legal claims under the Organisation of Working Time.
Is this Health & Safety Leave?
Health and Safety leave does not apply where a medical emergency is declared. Health and safety leave is available to employees who are pregnant, have recently given birth, or who are breastfeeding (Section 18 of the Maternity Protection Act 1994).
What happens if the workplace is open but public transport ceases?
If the workplace is open and the employee is unable to attend work due to public transport ceasing, unless the contract or custom and practice provides otherwise, the employee is not automatically entitled to pay. However, during previous adverse weather events in Ireland, locally agreed practices between employers and workers were put in place whereby many employers continued to pay employees for short closures (1-3 days).
Are employees entitled to be paid if they are quarantined or self-isolating?
Employees who are quarantined due to contracting Coronavirus should be managed in accordance with the workplace Illness/Absence Policy. Employees who self-isolate may be able to remote work.
If not and where the isolation is imposed by the employer, the employee should continue to be paid to reduce the risk of a claim under the Payment of Wages legislation.
Are employees allowed to refuse a business trip to an affected area (places where the virus has been confirmed in humans)?
In order to answer this question, a balancing of interests must be carried out. The employer's interest in the undisturbed continuation of business, including business trips, is primarily counterbalanced by the health interests of the employee concerned. From the employees' point of view, there is definitely an interest in avoiding certain places (e.g. airports in the Asian region), as there is a greater risk of infection compared to Ireland. However, as long as independent countries do not impose travel restrictions for the destination of the journey, there is probably no sufficient reason to refuse short trips to these places. If the employee is staying abroad for a long period of time, the rapidly changing situation and spread of the virus means that the employer must nevertheless carefully consider whether a trip is really indispensable.
If an employee voluntarily travels to an area that they know in advance is an affected area and on return is required to self-isolate, are they entitled to be paid?
An employer cannot prevent any employee from knowingly travelling to an affected area in their free time. However, if they are required to self-isolate as a result (and this is either at the employer's or medical practitioner's direction), provided they remain well it may be the case that the employer takes the view that they will not pay them for this time off work. This is not risk free for the reasons referred to above and every case needs to be assessed on its merits. In order to reduce the risk in this instance, staff should be notified that pay may be suspended if isolation becomes necessary following their own decision to travel to an affected area.
GUIDANCE & UPDATES:
Any updates to the current classification are due to be published on the WHO website following this meeting, along with any recommendations released by the WHO on how to manage the virus.
HSA Guidance is available here:
CONTACT THE HR SUITE:
If you have any queries please do not hesitate to contact our office on 066-7102887 and we would be happy to deal with your query.
Read our coronavirus update here which is being updated regularly for your information.