Coronavirus – Safe re-opening of workplaces - Ireland

• Northern Ireland

• Coronavirus
• Coronavirus - Country overview
• Coronavirus - Workforce issues

29-04-2020

The coronavirus pandemic has put health systems, workplaces and the economy under enormous strain. At the same time, employers are looking ahead in the expectation that the government will permit them to gradually lift their containment measures with a view to entering the recovery phase and revitalising our society and economy.

Any physical reopening of a workplace, in any sector, must prioritise the health and safety of its employees and the public and recognise that every workplace faces a new and potential health and safety risk for the foreseeable future.

Though a co-ordinated, phased, science based lifting of containment measures is being assessed by the relevant experts advising the government, businesses are still uncertain as to what steps they may need to take to re-open their workplaces in a safe manner. There is no universal ‘best practice guide’, no blueprint or black and white process that can be followed to ‘safely’ reopen. There is however legislation to be followed.

Under the Safety, Health and Welfare at Work Act 2005, employers are required to protect the health and safety of employees insofar as is ‘reasonably practicable’. Ultimately this means that an employer must be satisfied that it has exercised all due care by putting in place the necessary protective and preventative measures, having identified the hazards and assessed the risks to safety, health and welfare likely to result in accidents or injury in the place of work.

COVID-19 is a workplace hazard

COVID-19 now represents such a hazard. Consequently, the 2005 Health & Safety legislation provides that before staff commence work a bespoke written risk assessment evaluating the risk to employees and the relevant control measures put in place must be prepared by a competent person to reflect the specific working environment.

Further, the Health Act 1947 has been strengthened as a result of the Health (Preservation and Protection and other Emergency Measures in the Public Interest) Act 2020. Section 43 of the Health Act 1947 states that in civil proceedings the courts will impose a rebuttable presumption that the party who failed to adhere to the government regulations which resulted in a party being infected with COVID-19, caused the other person’s infection. That creates a very difficult burden of proof for any defendant to satisfy in court.

In circumstances where it is likely that there will be a gradual lifting of containment measures, businesses will have additional time to assess whether or not any precautionary steps they have taken and put in place in their workplace are sufficient to mitigate against the spread of COVID-19. It also provides time for additional guidance to be received on a sector specific basis.

Ten key tips for safe re-opening of businesses in Ireland

1. Many of the hazards in the workplace still exist as they did pre COVID-19. Don’t forget about them or create a new hazard as a consequence of implementing COVID-19 preventative measures.
2. If you have adopted a specific way of working to mitigate COVID-19 related risk, ensure the new ways of working are compliant with your policies of insurance and that your staff are sufficiently trained to adapt to the new working environment.
3. In the same way that governments are seeking to gather data to develop a robust system of reporting, employers must keep a close eye on any reported cases of COVID-19 arising from a workplace over which they have control and take appropriate steps as a consequence.
4. Similar to the way that the most vulnerable groups of society are likely to be protected for a longer period of time, any employees that are more exposed to the risk of contamination or indeed any other risk should have heightened protection measures put in place.
5. Don’t place all your eggs in the one basket (e.g. do not assume PPE, antibody testing, thermal screening will be readily available or acceptable), continue with your contingency planning and regularly review your options.
6. It is not a case of simply going back in and switching on the lights. There might be equipment that needs to be re-certified before it is put back in use. Does your building face a heightened risk of legionella disease as a result of a complete lockdown?
7. PPE is generally governed by the Safety, Health and Welfare at Work (General Application) Regulations 2007 and must be provided if the risks at the workplace cannot otherwise be avoided. If PPE is deemed to be necessary it must be fit for purpose and employees must be informed as to how to use it properly and how to ensure that it is maintained in an appropriate manner.
8. Document your risk profile and assessment of those risks together with the preventative measures taken to mitigate the risk.
9. Update your Section 20 safety statement required under the Health and Safety and Welfare at Work Act 2005 to make sure it reflects the different systems of work and responsibilities created as a result of COVID-19.
10. If there are industry specific guidelines, depart from them at your peril. You know your business better than a regulator will. Adopt that knowledge and assess what is reasonably practicable in the circumstances.

The issue facing employers is not just regulatory and many multi-nationals and corporate clients realise that ensuring the appropriate health and safety of their employees and visitors is not just a matter of legislative requirement, it goes to the very culture of the business.