The latest position:

• The government announced that, with effect from 18^th May, lockdown restrictions will begin to be relaxed and it also included a Roadmap for re-opening society and business. However, the restriction relaxation phases in the Roadmap may be paused or even reversed if the incidents of infection start to rise again. 
• From 18^th May, there will be a phased return of outdoor workers, and every three weeks from then, retail and other commercial services will re-open gradually.
• Those who can work from home should continue to do so at least until 10^th August, when it is anticipated that much of the country may be able to resume some semblance of activity, subject to public health protocols.
• On Saturday 9^th May, the DBEI published the Return to Work Safely Protocol (‘the Protocol’).  This is a comprehensive document which encourages strong communication and a shared collaborative approach between employers and employees, and sets out seven major steps for getting back to work and reducing the risk of exposure to COVID-19 in the workplace. The Protocol may change as the Public Health advice and guidance evolves.

Health and Safety at work

If we open our workplace, what steps must we take to reduce the risk of staff and other third parties, such as visitors and couriers, contracting COVID-19 at our premises?

All employers have statutory duties to provide a safe place of work and general legal duties of care towards anyone who may be accessing or using their place of business.  These duties have been expanded in the Protocol and employers must:

• Appoint at least one “lead worker representative” who will ensure that COVID-19 measures are strictly adhered to in the place of work.
• Develop and /or update a business COVID-19 response plan, to include contingency measures to address increased rates of absenteeism, changing work patterns and other measures necessary to reduce the risk of infection.
• Develop and/or amend policies and procedures to promptly identify and isolate workers who may have symptoms of COVID-19, including identifying a designated appropriate isolation area in advance.
• Carry out suitable and sufficient risk assessments to identify the risks and update the Safety Statements to address the level of risk associated with the workplace and work activities.
• Risk assessments should also take into account worker’s individual risk factors (e.g. older workers, presence of underlying conditions, etc), for whom you may need to take extra health and safety measures.
• Implement measures to minimise those risks. You must take all reasonably practicable steps to minimise the risks. This is not the same as having to eliminate the risks altogether.
• More detailed requirements include a requirement to prepare/complete a return to work form at least three days before returning to work, implementing a strict “no handshaking” policy, putting in place a plan to deal with any suspected cases in the workplace, thorough and regular cleaning of frequently touched surfaces, keeping a contact log and providing COVID-19 training to all employees who are returning to the workplace.

The Protocol includes guidance on how to do this. The Health and Safety Authority (HSA) will have responsibility for overseeing implementation of the Protocol.  It is intended that they will take a collaborative approach, they may exercise their statutory powers in terms of serving Improvement Notices or Prohibition Notices, and in extreme circumstances potentially even close workplaces which are not compliant.

How do we go about doing a satisfactory risk assessment?

The HSA has general guidance on how to do a risk assessment, although this would need adapting for Covid-19 using the workplace guidance for your particular environment.  In summary, you should (1) identify the hazards in your workplace; (2) evaluate the risks; and (3) put control measures in place to address those risks. These risks should be recorded in writing and addressed in the Safety Statement.

What responsibilities do our employees have for their safety?

Employees have their own independent statutory duties to take reasonable care for their own health and safety, and that of other persons, and to co-operate with you to ensure that your rules are complied with.  This includes attending health and safety training provided by you.

In addition, the Protocol requires that employees:

• complete a return to work form at least three days prior to their return to work, confirming that they’ve no symptoms and are not self-isolating or awaiting the results of a COVID-19 test.
• make themselves aware of the signs and symptoms,
• immediately report if symptoms develop while at work and self-isolate if they display them;
• inform their employer if there are any circumstances which need to be disclosed to allow their safe return to work.
• complete any temperature testing implemented by the employer in line with public health advice.
• adhere to the guidance in regard to hand & respiratory hygiene and physical distancing, including avoiding sharing anything (such as pens).
• avoid making contact with their face and in particular their eyes, nose and mouth. Where necessary, workers should wash their hands immediately before touching their face.

Is there a role for Occupational Health?

Yes, the Protocol specifically recognises the role that an occupational health service will have, in relation to addressing any worker concerns and communicating the messages about good hand and respiratory hygiene. Occupational health might also provide the training and advice on the measures recommended to reduce the spread of COVID-19. If you don’t have an occupational health provider, then you should make the necessary public health advice from the HSE and other sources available to workers

Do we need to do any more than the government guidance as regards our staff?

Yes, potentially. You need to assess the risks presented by your own workplace to your own employees, and you may need to put in place additional controls or measures to mitigate them. The guidance is not the same as the law so your legal duties will continue alongside, and in addition to, the guidance.

Should we be consulting employees or their representatives about the health and safety aspects of re-opening or re-occupancy plans?

Yes. If you recognise a union, then you should consult with your union safety representatives. Where workers are not already represented by union safety representatives then you have a statutory requirement to consult either with employees or their elected representatives about health and safety and in particular the introduction of new measures which could substantially affect their health and safety. It’s a criminal offence not to comply, although it’s not the type of offence that the HSA has actively prosecuted in the past. Employees themselves do not have any kind of civil remedy for failing to be consulted over health and safety matters (although they can bring claims about training – see below).

The Protocol is emphatic about the strong communication and shared collaborative approach that must be taken by employers and employees. Furthermore, employers must appoint at least one lead worker representative whose role is to work with the employer to assist in the implementation of measures and monitor adherence to the measures to prevent the spread of COVID-19.

First, check your existing health and safety policy to see if it says how you will engage with employees.  Depending on any existing commitments in your policy, you may want to organise a body of employee representatives for this and other purposes. There is no set process for the election of representatives and you might simply start by asking for volunteers.

You need to pay for any employee representatives to have such training as is reasonable in the circumstances.  It is not clear that any training would be required for the purposes of consulting over the current situation, or indeed if any is available.

Consulting with employee representatives can be easier and more effective than trying to consult employees directly, and this is especially the case when consultation needs to happen remotely.  If you are starting to prepare for re-opening but are not expecting an imminent return, then now is a good time to put in place a representative body. However, if you do not want to set up a representative body, or if you are concerned about the time it might take to do so, you can consult employees directly. To do this effectively without being able to hold physical meetings you would need to consider open townhall meetings using apps such as zoom, or other online employee survey tools.

You may wish to consider delaying implementing any return to work plan until you have consulted employees. Not only does this mitigate your legal risk, but it is also likely to flush out issues and prevent problems when it comes to putting your plans into practice.

What if we are accused of breaching workplace safety guidance and/or the Protocol?

You could face a claim from an employee or third party (such as a visitor or contractor) who claims to have suffered injury as a result. This could be a claim that the employee has contracted COVID-19, but it could also be a claim that they’ve suffered some other kind of injury such as stress-related illness. Employees might also refuse to come to work (see below) and/or make a report.

In serious cases, you could face a criminal prosecution for breaching health and safety legislation by failing to take reasonably practicable steps to ensure employee (or visitor) safety. Directors, managers and officers can also be found guilty of any offence which was committed with their consent or connivance, or which is attributable to their neglect.  Responsibility for prosecuting offences falls to the HSA, and they will generally not look to launch a criminal prosecution except in cases where there is clear evidence that the health and safety breach caused serious harm and that there are public policy reasons to prosecute.

Can we be liable if an employee contracts COVID-19 at work?

Potentially, yes, but only if the claimant can show both of the following:

• You, as the employer, were negligent in some way, or one of your employees acted negligently in the course of their employment so that you are found vicariously liable.
• The negligence caused or materially contributed to the claimant contracting COVID-19.

An employee with mild symptoms is unlikely to bring a claim. In practice, claims are most likely to come from vulnerable employees, whose symptoms may be more severe.

In reality it will be difficult for employees to establish that (on the balance of probabilities) exposure at work was the cause of them contracting the virus. They could have picked up the virus anywhere. Even if an employee does contract COVID-19 at work, you will not be liable unless they can also show that this was the result of negligence, i.e. a breach of your duty of care or statutory responsibilities.

So, to ensure that you are in the best possible position to defend a negligence claim, HSA investigation or criminal prosecution, you need to make sure that you – and your workforce - are complying with the government guidance, the Protocol and taking any additional precautions required. This includes monitoring how employees are behaving towards each other and intervening quickly if they are not acting appropriately. It’s not enough to put in place systems if employees are not complying with them.

What about insurance?

You should already have Employers Liability Insurance in place to cover the risk of claims from employees about injuries or illnesses suffered in the course of employment. Your public liability insurance should cover claims from visitors or customers etc. You should check the scope of your cover, and whether you have any specialist Health and Safety insurance in place, including for directors. Remember to keep your insurers up to date if any claims are threatened.

What processes do we need for employees to flag concerns about potentially unsafe practices at work? 

You might consider setting up a special process for employees to flag concerns that your health and safety measures are not working or are not being observed.

An alternative is to use existing whistleblowing hotlines. A complaint that “the health and safety of any individual has been, is being or is likely to be endangered” counts as a protected disclosure for the purposes of whistleblowing legislation and you may already encourage concerns on this issue to be raised through whistleblowing or “speak up” policies.

Whichever process you use, make sure that:

• Someone is given responsibility for investigating the concerns.
• There is a defined escalation process.
• Managers are clear about the process for dealing with concerns and can signpost it to employees.
• You take any steps required to address legitimate concerns, e.g. by adjusting your health and safety approach or disciplining individuals who have behaved irresponsibly.
• Nobody takes retaliatory action against any employee who complains (since they are likely to be protected as a whistle blower, even if they did not use the whistleblowing policy).
• You comply with applicable data protection and privacy requirements.

What policies should we have in place?

You will need to revisit and probably expand your existing health and safety policy to cover your approach to controlling the risks presented by COVID-19 and complying with the Protocol.  You’ll also need a process for handling employee complaints and concerns about health and safety (see above).

The Protocol also provides that employers should review and revise existing sick leave policies and amend as appropriate.

Some employees may be unable or unwilling to return, and others may not be needed back immediately, so you will need set up a process for making decisions, including allocating decision-making responsibilities to designated managers.

Think about whether your existing homeworking, whistleblowing and disciplinary policies also need any amendments to ensure consistency with your new policies.

What PPE should we provide? Must we supply facemasks?

You must first assess the risk and see if it can be eliminated entirely. If that is not reasonably practicable, then you will need to look at a range of methods which can minimise the risk of harm. The provision of PPE is included as an employer’s obligation in the Protocol, as a step to eliminate or reduce the risk of infection, as is reasonably practicable. This includes the provision of tissues, hand sanitiser, disinfectant and/or wipes and clinical waste bags. While there is currently no mandatory requirement to wear masks, the Protocol does require that they be provided to any person presenting with symptoms, if available, as part of the process for dealing with a suspected case. Face masks may also be required if they are prescribed under Public Health advice.

Do employees have a right to be notified if a colleague has suspected or diagnosed Coronavirus?

No, there is no specific right. You owe the colleague a duty of confidentiality and data privacy obligations which would ordinarily mean that you should not disclose details about their health.  On the other hand, you have a duty of care and statutory health and safety responsibilities towards your other employees. The Protocol does require that a log of contact/group work be kept by employers to facilitate contact tracing. Try to balance these obligations by warning individuals who have been in contact with any suspected or confirmed case of Covid-19 without revealing the name of the colleague and, if that’s not realistic, do not reveal any information any more widely than necessary.  

Are we legally responsible for an employee’s journey to and from work?

This isn’t addressed in the Protocol and up until now, employers have not generally had any legal responsibility for an employee’s journey to the workplace. Health and safety legislation (such as the Safety Health and Welfare at Work Act 2005) covers only the risks which employees may be exposed to at work – not the risks they may face whilst travelling to and from work. However, in this unusual situation where the public health risks associated with using public transport are so significant, the courts might conclude that your implied duties to employees, including the duty to maintain trust and confidence, mean that you should take some account of the risks associated with an employee’s commute. In any case, leaving aside the legal position, commuting by public transport will be of very serious concern to your employees and the capacity of the public transport network is going to be very restricted, so there are good reasons to do what you can to ensure that employees can get to work in the safest way possible.

How do we avoid discrimination in our return to work plans?

First, check that your return to work plans don’t disadvantage certain protected groups, e.g. that your arrangements for moving around the building don’t disadvantage the disabled and that any proposed changes to hours don’t disadvantage women or employees currently observing Ramadan. Consider the impact on protected groups in practice, even if the reason for the impact is unclear. If you identify any disadvantage, consider what adjustments you could make. If your proposed plans are a proportionate means of achieving a legitimate aim, and there are no realistic less discriminatory alternatives, any discriminatory impact will be justified.

Second, many individuals who are classified as vulnerable to COVID-19 will also qualify as disabled within the meaning of the Employment Equality Acts, and your duty of reasonable accommodation may require you to transfer them into safer alternative work or even allow unpaid leave.

The third and most difficult issue relates to the links between vulnerability and age, gender and ethnic origin.  Employers are concerned that a policy of treating everyone equally when it comes to returning to work could, in light of the emerging reports about the impact of Covid-19, be disadvantaging older workers, men and other protected employees. On the other hand, employers who favour those groups for safer work could face direct discrimination claims from other groups. Employers need to keep the medical evidence under review but should currently try to avoid making decisions purely on the basis of protected characteristics, except in relation to pregnancy and the over-70’s (who are included in the list of vulnerable groups)

How should we protect our staff who are in customer facing roles?

The Protocol provides that employers must eliminate physical interaction between workers and customers as much as is reasonably practicable through revised working arrangements. This includes through the provision of online or phone orders, contactless delivery or managed entry, installing physical barriers and clear markings to ensure that contact is minimal, and any queues are socially distanced. Cleaning regimes are also important and COVID-19 public health advice must be displayed in visible locations to ensure that customers are adhering to what is required.

Unfortunately, employees are also experiencing abuse from customers who are angry about lack of stock or about the behaviour of other customers. A failure to deal with this may be a breach of the implied term of mutual trust and confidence, leading to constructive dismissal claims. In addition, your duty of care to protect your employees’ health and safety can extend to protecting them from customer abuse.

Where abuse by customers is related to the employee’s gender, race or other protected characteristic then you should take account of your obligations under the Employment Equality Acts, which makes employers liable for third party harassment.

Make sure that managers and other employees know they should not put themselves in personal danger resulting from customer abuse. All managers should have received training on how to deal with this type of situation, including calling the police in certain circumstances. Posters warning customers that any harassment or violence towards staff will not be tolerated can also be helpful.

Medical testing and contact tracing

Can we insist on taking electronic temperature readings at entry points?   Can we insist on employees taking medical tests?

The Protocol does refer to temperature testing and says that employers must implement it in line with Public Health advice. Employees are also obliged to complete any temperature tests as implemented by employers in line with Public Health advice.  However, Public Health advice does not yet include this as a mandatory requirement in workplaces. If this changes and government guidance recommends temperature testing as something to consider, then it will be much clearer that temperature testing at work is lawful under data protection legislation.

Employers can process some health information for the purposes of complying with health and safety duties and their duty of care towards staff, but this needs to be both necessary and proportionate. The assessment of what is necessary and proportionate is crucial.  In some workplaces temperature or medical testing may be necessary and proportionate, in others it might not be if there are less invasive measures that would be sufficient (such as requesting that people take their own temperature before attending the office, giving clear guidance about when not to come in and implementing rigorous health and safety practices).

Many employers will, however, choose to run the data protection risk because they will see this as preferable to running the risks associated with health and safety.  If you are going to take temperature readings or get employees to take medical tests there are various things that can be done to mitigate the data protection risks including:

• Be 100% transparent with workers about what use will be made of any data (i.e. produce a stand-alone privacy notice or update existing notices).
• Don’t retain the information for longer than needed – e.g. do the temperature check on access and delete the data, unless preventing entry is necessary (in which case the reasons for this should probably be recorded).
• For anything that is stored, use this for no other purposes and restrict access to a very small number of people with a legitimate reason for such access.
• Make sure you train any vendors who are carrying out the testing for you and put in place agreements about how they will process the data.
• Carry out a data protection impact assessment setting out clearly why any measure is necessary for the specific workplace (which should include why alternative measures are not sufficient).

Can we make employees download a contact tracing app?

Contact tracing apps will alert users if they have been in contact with someone who has tested positive for COVID-19 and then give them advice (e.g. “Self isolate”). Depending on the circumstances and the design of the app when it is released in Ireland, it is likely to be lawful to require employees to tell you if they’ve received an alert from the app but it is more problematic to require use of the app in the first place. If this you are likely to propose this, then a detailed Data Protection Impact Assessment (similar to a risk assessment in the Health and Safety context) is likely to be required.

If you provide a device to an employee then, in our view, you may be able  to require them to download a contact tracing app. Requiring employees to download an app onto their personal device is trickier, although you may already have BYOD or other policies that could be relied on here and indeed it might be possible to rely on employees’ health and safety obligations to other colleagues to mandate the downloading of the app.  However, even once the app is downloaded, there will be arguments on both sides as to whether it is necessary and proportionate to require employees to use it. The Data Protection Commission has not yet released any guidance on this, so the position should be established from them before mandating employees to use them. 

Which employees should still stay at home?

We don’t need everybody to return immediately – how do we choose which employees should come back?

We look at this issue in our insight article on how to manage a return to work.

For the time being, employees whose work can be done from home should continue to remain at home. For employees whose work cannot be done from home, we advise that you start by exploring who would be willing to come back in.

If too many employees volunteer, you may need to implement a rota system or make selections on an objective basis. However, some rota systems can increase the number of people in the workplace over a short period of time and thereby inadvertently increase the potential risk of infection. The Protocol recommends organising workers into teams who consistently work and take breaks together, which should be as small as is reasonably practicable in the context of the work.  An “A and B shift system” would give you greater control and assist in tracing potential infections. 

If not enough employees volunteer, you may need to have a mandatory system. Remember, however, that employees with caring responsibilities may be unable to return. Vulnerable employees, employees who live with vulnerable people, pregnant employees and employees with anxiety or similar health conditions may not want to come back. We explain the position for these groups of people separately below, but it will generally be safest if you can avoid calling on these categories of employee.

If employees are laid off  and you are selecting just some of them to come back, remember that employees who are unhappy about being laid off (because, for example, they are on reduced pay or social welfare benefits) could raise grievances but equally, where employees are laid off on full pay, it may be difficult to incentivise those who are returning to work.

What about office-based staff?

The current guidance is that those who can work from home should continue to do so. Office-based staff should stay at home unless they cannot work from home or it is business-critical for them to come in. Businesses with entirely office-based staff are unlikely to reopen imminently but can use the time for planning, including consulting employees about their assessment of risks.

What if an employee is not ill, or vulnerable or in any special category but does not want to return to work?

The first step is to try to re-assure the employee that you are controlling the risks. If the employee cannot be persuaded, then it may be possible to allow homeworking on usual pay. Under the current guidance, however, employees in roles that can be done from home should be working at home anyway - so this will only be a solution for business-critical roles where you need some employees in a particular role to return, but not all of them.

In theory you could take disciplinary action against any employee who is unhappy about returning to work in a situation where they have no particular vulnerability and you are taking all reasonably practicable steps to control the risks. However, we would caution against this in the current circumstances. Certainly, any misconduct dismissal would likely be regarded by the Workplace Relations Commission (WRC) as unfair and disproportionate in the current situation and any disciplinary action could result in constructive dismissal claims.

As the government schemes (Wage Subsidy/Pandemic Unemployment Payment) are wound down, it may be unsustainable for employees to remain on unpaid leave. At that time, disciplinary action/termination of employment may be appropriate, but advice should be taken at that stage before taking any action.

What if the employee says that they cannot come to work citing breaches of health and safety guidelines?

All employees have a statutory right not to be penalised (ie subjected to any detriment or dismissed) for refusing to come to work in circumstances where the employee has a reasonable belief that they are in “serious and imminent danger”.  For the purposes of this statutory protection, the issue is whether the employee reasonably and genuinely believes that they are in serious and imminent danger. It’s not relevant that you disagree about the danger – the question is whether the employee’s perspective is reasonable.  This can include danger caused by the behaviour of work colleagues.

This statutory provision was designed for extreme health and safety emergencies where an employee has no reasonable option but to take evasive action.  It was not designed with COVID-19 in mind and it is hard to say how the WRC will apply it to the current risks. It was also designed for dangers in the workplace, and it is unclear if it could be extended to dangers associated with the employee’s commute.

The ongoing uncertainty over the risks presented by COVID-19 combined with the constantly changing picture may mean that the WRC would regard the employee’s concerns as reasonable even if the employee has no particular vulnerability and the employer is complying with all guidance. Alternatively, employees may need to show that they have a vulnerability and that there are significant health and safety lapses before it is reasonable for them to consider themselves in serious and imminent danger.

It is clear that at least some employees may be within their rights to stay at home on full pay, in particular, pregnant employees who would be entitled to three weeks of paid health and safety leave if the risk to them couldn’t be mitigated.

If an employee asserts that they are refusing to work for this reason, however, then you do need to make sure that you investigate their concerns and provide a reasoned response.

What if employees are unable to return to work because they have no childcare?

Even when the schools re-open this is going to be a gradual process and not all children may be able to attend. Children who are cocooning due to health vulnerabilities will not be able to return for some time in any event. Some crèches and childminders will not re-open for business and many childminders, au pairs or grandparent carers will not be able or willing to run the risks, leaving many parents without childcare. The three main options where employees have no childcare available are:

• Employees with over one year’s continuous service may apply for a period of unpaid Parental Leave if they are caring for a child under 12, or under 16 if the child has a disability or long term illness, up to a maximum of twenty two weeks’ parental leave per child. Special rules apply to employees with less than one year’s continuous employment if their child is close to the age threshold.
• Offer employees unpaid leave or a sabbatical
• Offer employees reduced hours (and pay) with a varied schedule if it is an option to share childcare with their partner.

Adjusting hours and responsibilities

Can we reduce an employee’s hours and pay if a phased return means they need to work shorter hours?

This sort of arrangement, even if only temporary, would require you to obtain the employee’s agreement to the reduced hours and pay (unless you have a clear right in the employment contract to impose the change unilaterally). Reducing hours and pay is also covered in our FAQs on workplace restructuring post Covid-19 .

Can we change an employee’s duties/hours to cover the duties of other employees who remain absent?

Many contracts of employment give employers express powers to vary duties and hours. Employers probably have a limited right to make small changes to hours and duties as part of the employees’ implied duty to obey lawful and reasonable instructions. It is difficult to say how far this implied right would extend, and for that reason employers should be wary of relying on it. Even if there is not a contractual right, employers could still change employees’ hours and duties with their agreement.

Can we temporarily change an employee’s working hours to stagger working hours, for example from 9am-5pm to 8am-4pm?

This could certainly be done with the employee’s agreement. If it is not possible to obtain consent, you could argue that a temporary and relatively minor change of this sort comes within the employee’s implied duty to comply with a reasonable management instruction. As mentioned in the answer to the previous question, the scope of this implied term is uncertain and you should be cautious about relying on it. You should also consider the individual’s particular circumstances and whether the change could potentially have a discriminatory impact on them.

What if an employee’s hours increase as a result of additional safety measures?

It is possible that some measures to enforce safe distancing and hygiene will result in the lengthening of an employee’s day because, for example, they need to queue to get access to changing rooms or carry out extra procedures. Some employees may be entitled to extra pay for these extra hours and it is particularly important to ensure compliance with national minimum wage legislation.

This publication provides general guidance only: expert advice should be sought in relation to particular circumstances

© Lewis Silkin Ireland 2020