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Coronavirus - Employment law update - Ireland

  • Ireland
  • Coronavirus - Country overview
  • Employment law

20-03-2020

Our previous briefing on this topic (Coronavirus: Implications for Employers) set out the main issues facing employers when dealing with the CoVID-19 outbreak. In this briefing we address some of the more common questions raised by Irish employers.

In a situation of great uncertainty, employers need to focus on maintaining their employees’ trust and confidence by showing leadership; following government guidance; and by acting fairly, reasonably and consistently.

General Principles

Irish employers should:

  • monitor and follow advice and guidance from relevant authorities such as the World Health Organisation (“WHO”); the HSE
  • assess the risks faced by their employees and where applicable their visitors and implement measures to mitigate those risks, paying particular attention to vulnerable staff (such as those with impaired immunity; on secondment or working away from home)
  • inform their employees and, where relevant, recognised unions about their proposed measures
  • take measures to facilitate flexible working
  • review policies governing business travel, holidays, sickness, caring for dependants and home working to ensure a reasonable and consistent approach, taking account of their risk assessment and government guidance
  • review relevant insurance policies and guidance issued by their insurers
  • update contact details for staff and management

1. Employer’s duty of care – what does the law in the Ireland say?

All employers have a duty of care toward staff under the Safety Health and Welfare at Work Act, 2005. This means that employers must consider whether their existing arrangements take account of the risk of harm arising from COVID-19. This will entail conducting a risk assessment to identify the likelihood of staff contracting the COVID-19 whilst at work and what measures could control that risk.

The risk assessment should review the specific business and the work which its employees undertake. An employer with global operations whose staff might travel internationally on a regular basis, be on secondment or work away from home will need to undertake a more detailed risk assessment than an employer with a small presence or number of employees solely based in Ireland.

Employers must also consider what special measures are required for vulnerable staff. Vulnerable employees include:

  • those over 65 years of age
  • pregnant and/or
  • with a long-term medical condition for example, heart disease, lung disease diabetes or liver disease

Having undertaken this assessment employers should consider implementing a proportionate response and review it regularly as the situation develops. If an employer fails to implement appropriate measures then it will potentially leave itself exposed to employees asserting that they have grounds for refusing to attend work, on the basis that doing so would place them in at risk in the workplace.

2. Business travel – should travel be restricted?

Employers should review whether travel is necessary or if meetings could be conducted by video link. Staff may refuse to travel during this period. As always, the key is to be proportionate, reasonable and consistent.

Employers should review their company travel and medical health insurance policy to ensure it provides coverage for risks associated with business travel where a travel advisory warning may be in place. Try to anticipate potential scenarios, devise legally robust and fair principles for dealing with them and ensure that managers are trained and understand their responsibilities in these uncertain times. Employers should review how best to protect staff and when tailored guidance and support may be appropriate. Further considerations include whether measures are in place to deal with staff being quarantined or falling ill when abroad. Can they be easily repatriated, or moved to a safer place?

3. Flexible working - can an employer require staff to work flexibly?

In line with government guidance, employees have been advised to work from home, where possible, until 29 March 2020, and this period will likely be extended. By physically having less staff in your office or place of work, the risk of wider infection may be reduced. Given the government’s recommendation, employers can justify the need for flexible working and that it behaved reasonably and proportionately when implementing different working arrangements.

As part of the company’s business continuity plan, employers should review their insurance policies and confirm whether it extents to a significant portion of the workforce working from home for a prolonged period. Employers should also ensure their IT systems and assess their ability to facilitate a significant portion of staff working remotely for a prolonged period.

If it is not possible to work remotely in the event that the workplace is closed, employers should consider whether employees may be required to take annual leave or unpaid leave until the health and safety risk is eliminated.

4. Staff who are unable or unwilling to attend work?

This will depend on the particular circumstances. Employees cannot be subjected to detriment if they refuse to work because they reasonably believe that they are in serious and imminent danger. Where employees have genuine reasons to fear they may contract COVID-19 by attending the workplace (eg. where a colleague has travelled to an affected area and has returned to the workplace) and refuse to attend work, we would recommend that the employer in the first instance considers whether there are any alternative working arrangements which can be agreed (eg. working from home). Where this is not possible, it is arguable that the employee would be entitled to paid leave. Where the employee does not have reasonable grounds to believe that they are in serious and imminent danger by attending the workplace (e.g. they just have a general fear about the virus), employees would not be entitled to pay if they refuse to work.

5. If staff cannot attend work, are they entitled to pay?

This will depend on the reason for the non-attendance.

Staff who cannot work because they have been infected with CoVID-19 will normally be entitled to sick pay in the usual way.

Pay for staff members unable to come to work due to caring responsibilities, for example where schools are closed or where they are caring for sick dependants, should be determined in accordance with their employment contract and the employer’s usual policy, ensuring that all requests are treated in a reasonable and consistent manner.

In line with government guidance, a number of businesses have agree to close until at least 29 March 2020. For many employers, paying employees in these circumstances simply won’t be feasible on either a temporary or an ongoing basis and they will need to take measures to ensure their businesses stays afloat. In this scenario, employers can lay off an employee without pay, or place them on short-time working (when employees are laid off for a number of contractual days each week) only where there is an express contractual right, or where such a right is implied through custom and practice over a long period. When an employee is laid off, they may be entitled to a statutory guarantee payment from their employer, limited to a maximum of five days in any period of three months. Employees can claim a redundancy payment from their employer if the lay-off or short time working runs for 1. More than 4 weeks in a row, or 2. 6 or more weeks in a 13 week period, where no more than 3 are in a row. In the absence of any contractual right to implement lay-offs or short-time working, employers would need to reach agreement with employees in relation to unpaid time away from work. Absence of such agreement could lead to claims for constructive unfair dismissal, unlawful deductions from wages and breach of contract. In the event of reduced or halted production, normal redundancy rules would apply.

6. Reporting - Can an employer require staff to report suspected cases of the CoVID-19 relating to themselves or those they have come into contact with?

Employers are obliged to maintain a safe place of work and should consider taking appropriate steps to prevent staff who are infected (or who are likely to be infected) from coming into the workplace. This may include, for example, health screening questionnaires for staff members returning to work.

To require an employee to report suspected cases for COVID-19 it will be necessary to show that such a course of action is proportionate and necessary for the safeguarding of other employees. Employers can request staff to report if they are infected or have been exposed to infection. However, under data protection law, such information about an individual’s health counts as a ‘special category’ of personal data which may only be processed in limited circumstances. The processing of this information (for instance what and how it will be used and with whom it will be shared – as strictly necessary) should be made clear and employers should ensure that the processing is necessary and appropriate for the stated purpose and is carried out in a proportionate manner. Maintaining the security of the personal data will be fundamental.

7. If there is a decreased requirement for staff due to the CoVID-19 outbreak, can employers require employees to take annual leave during a shut-down period?

The Workplace Relations Commission’s Coronavirus Guidance provides that one of the options which employees and employers can explore is the “taking of leave to avoid loss of earnings”. Employees should be advised if they are considering taking this option that their entitlement will diminish commensurate to the days taken, as annual leave entitlements are exhaustive.

The Organisation of Working Time Act, 1997 (the “Act”) provides that although the times at which employee annual leave is granted are to be determined by the employer, the employer must take into account not only the “opportunities for rest and recreation available” but also the need for the employee “to reconcile work and any family responsibilities”. Requiring employees to take their annual leave where they are in a shut-down may not meet these requirements.

In addition, an employer must consult with an employee (or the trade union of which he/she is a member) not later than one month before the day on which the annual leave (or portion thereof) is due to commence. Therefore, although it would not be unlawful for employees to take annual leave in such circumstances any insistence by the company to take annual leave during the shut-down without the one month notice period may expose the company to legal claims for a breach of the Act.

8. What other contingency planning steps should employers be taking?

Effective planning is key to ensuring business continuity and the protection of employees. In addition to the above, employers should:

  • create a senior team to co-ordinate monitoring government guidance, implementing measures and providing information and support to staff
  • devise an appropriate communications plan to keep staff fully informed, even when they are absent from work, together with provision of emergency contact details
  • ask employees to report if they are ill or at particular risk of infection; and inform them of the steps they should then take to receive appropriate medical attention
  • train managers on the employer’s measures and provide them with information to identify and respond to risks, as well as providing support and training to staff on key facts and risks
  • consider alternatives to travel such as using video conferencing or webinars
  • identify and track employees who are abroad and consider appropriate measures to support them
  • identify key roles in their business which are essential for business continuity and the measures necessary to ensure their resilience (for example remote working or split key teams into different locations)
  • consider any measures necessary to sustain widespread home working
  • review relevant policies (for example home working, sickness, emergency leave) and agree changes to staff contracts to deliver flexibility
  • review their insurance coverage
  • consider their stance on requests to quarantine and sickness and ensure that it is reasonable, fair and applied consistently

9. Where can guidance from the Irish government and international bodies be found and monitored?

The Irish government’s website provides the latest official information on CoVID-19 in Ireland.

Click for the World Health Organization’s information on the CoVID-19.

Another useful link for employers is as follows: https://www2.hse.ie/conditions/coronavirus/coronavirus.html

10. If an employer has a business operation in an affected area, what additional steps should be taken?

Companies operating in affected areas should comply with local regulations and guidance from international bodies such as the World Health Organisation. They may also be subject to local laws requiring them to implement special measures or to notify public health bodies if any of their employees are suspected to be ill.

Beyond compliance with local laws, companies should ensure measures are taken to properly assess the risks to staff and the impact on business continuity and should adapt their plans accordingly.

Our extensive global footprint means that we are well placed to help employers, wherever they have a presence. Our teams across the world have been supporting employers to steer through the legal and practical employment implications raised by the outbreak, including producing a variety of updates.

11. Is there any obligation on a private employer to report any cases or suspect cases of COVID-19 to the relevant local authorities?

No mandatory reporting obligations are in place. However, employers may find it helpful to call HSE (1850 24 1850) if an employee is diagnosed with COVID-19 to discuss the steps taken to manage the contamination risk in the workplace and record the advice given and followed in its risk assessment.