by Mary Kelleher , Breda O'Malley April-30-2020 in Employment Law, COVID-19

One significant question facing employers in these challenging times is what the future workplace may look like when the current restrictions are lifted. What will the “new normal” mean for employers? Unfortunately, there are more questions than answers right now. In a time of great uncertainty, there is consensus that when the time eventually comes for the current restrictions to be lifted, there will not be a return to the pre-COVID-19 world. A discussion on a possible national protocol on COVID-19 in the workplace is under discussion at the Labour Employer Economic Forum to address public health risks in workplaces as they gradually re-start over the coming months.

Subject to the details of any national protocol, it would seem clear that as much as the easing of restrictions will be a gradual process given the continued public health risk, so too will be a return to work or “business as usual”. A key focus in the context of the current crisis has been the extent of preparedness of governments and organisations for a global health crisis. Therefore, in terms of the next phase of a return to the workplace with a view to kick starting the economy, employers must act now and be as prepared as possible to restart their businesses post lockdown. There is, however, a delicate balance between the dual goals of keeping everyone safe and making ends meet. Now, more than ever, employers need to be tuned in to the risks of this new world. The conditions applicable to a return to work will require very careful consideration and review by employers before taking this next step given the onerous obligations on them, particularly in the context of the risk of resurgence of the virus.

This article highlights some of the issues that employers should consider to achieve these goals, as well as seeking to mitigate potential risks from an employment perspective.

 

Issues arising and to be resolved in relation to a “Safe” Return to Work

The most important issue in planning for a return to work is for employers to continue to keep itself apprised of the up to date HSE and government guidance in relation to the health risks posed by COVID-19. This guidance will likely continue to evolve until an effective vaccine has been discovered. An employer will be required to take reasonable preventative precautions so as to ensure that employees are acting in accordance with those guidelines to prevent a recurrence of COVID-19 breakouts and also to protect the organisation from the risk of claims (as referred to in brief below).

The next essential step to driving forward business as usual in the new world post COVID-19 will be the need for employers to build clear communication channels with its employees. Both individuals and the organisation should have a clear view of the specific pandemic regime applicable to the business at any point in time and an appropriate policy in place. This will be essential to enable robust implementation of the necessary measures.

A snapshot of the measures that employers may need to consider asking of its employees/implementing in a “return to work” scenario are as follows. These measures are likely to become common place in the post COVID-19 workplace. Many of these measures may require legislative change both in terms of compliance and enforceability, as well as changes to employee’s contracts of employment/company handbooks. This area will continue to evolve in the aftermath of the crisis:

  • Medical Testing – employees may be required to undergo regular testing for COVID-19 or be required to present certification of fitness for work (“COVID-19 passports”). There will also be a requirement to monitor any employees who present as unwell and to issue appropriate instructions not to attend work (requiring an employee to quarantine if displaying COVID-19 symptoms etc). To the extent that a return to work is based on the testing of employees either for the COVID-19 virus or antibodies , there will have to be sufficient testing capacity which remains an issue. Such testing will likely require statutory amendment  and guidance for employers, most particularly as to who will be responsible for testing and the costs of same. Another issue will be the timeframe for the receipt of test results and its impact on an employee’s attendance at work, including the potential financial impact arising for employees.
  • Hygiene protocols - There will be a requirement for increased hygiene and disinfecting protocols (on employers and employees) with employees being asked to clean and disinfect their hands on entering the workplace and possibly to wear masks/other PPE clothing. If the HSE or the Government recommend widespread use of PPE, such as masks/gloves, this will require clarity as to what is needed and who is responsible for providing such equipment, especially if the current shortages persist. This may create issues of compliance with health and safety requirements.
  • Technology - In light of the risk of resurgence, employers will likely be required to have increased technological proficiencies e.g. installation of thermometers to detect high temperatures (and potentially may need to develop a process to screen individuals) and perhaps also sensors may be required in infection “hot spot” touch areas, such as door handles, printer monitors, etc., restrictions on meetings and lift usage and use of shared property/stationery and other office equipment will need to be considered.
  • Work Practices - In terms of minimising high density of people, employers will need to look at strategies to segment its workforce, again depending on the nature of the industry/business, by allowing only a proportion of its staff to attend work at any one time. Examples of this might include, staggering working hours, working one day on one day off, reduced numbers of employees in the office, increased remote working capability, ensuring limited physical contact/social distancing amongst staff in the office, staggering breaktimes, installing no touch bins, to name but a few measures.
  • Tracing/Declaration of Symptoms - In terms of tracing contacts, employers would be advised to register all entrants to offices and factories. The objective of data protection law in Ireland could conflict with potential work resumption requirements for employers to verify an employee’s COVID-19 status and/or their vulnerability due to underlying health conditions. There is no consensus yet on the most effective way to trace and isolate people exposed to COVID-19 while protecting their privacy and this is an issue that requires clarification (see further below). 
  • Childcare Issues/Leave - Any childcare facility re-opening in the coming months is likely to be to accommodate the children of essential workers first. As such, employers will be asked to accommodate parents caring for children with various forms of leave, for example, unpaid leave, parental leave, carers’ leave or annual leave. The relevant leave policy will apply but employers may need to look at more creative solutions as to how they facilitate employees with childcare responsibilities, e.g. changed working hours, reduced hours arrangements etc. This is yet another issue that will need to be ironed out if the restrictions continue.

 

Issues/Risk of Claims

A return to work that is medically based and relies on social distancing and other best practices for public health may involve legal liability risks for employers. Issues include:

Equality/Discrimination Claims/ Breach of Contract/Unfair Dismissal

Having regard to the experiences of other countries, any return to work will need to be on a phased basis. This may be by reference to age, health vulnerability or other relevant risk factors. Employers who only permit a return to work based on medical fitness to do so or having regard to these other risk factors may be exposed to claims for discrimination on disability/health or age grounds under the Employment Equality Acts 1998 to 2015. Having regard to the superseding EU law which has been transposed into Irish law in relation to health and safety/equality law, applying such criteria to an employee’s return to work will require amendment to EU legislation to enable it to be safely actioned by employers without the risk of claims. As such, there is a need for clear guidance about what practices are acceptable in conducting a medically-based or risk-based work resumption and legislative change will be required to address this risk.

In addition, notwithstanding the legislative position, such a stance by employers may also lead to Industrial Relations issues and general employee disgruntlement.

Further, employers could face claims for unfair dismissal/breach of contract before the Courts or the Workplace Relations Commission in respect of any detrimental impact on an employee’s terms and conditions of employment (whether financially or otherwise) as a result of not being permitted to return to work. On the flip side, however, employers could similarly be exposed to claims if they permit employees to return to work too soon having regard to the employer’s health and safety obligations for all employees.

 

Health and Safety Requirements – Safety, Health and Welfare at Work Act 2005 (the “2005 Act”)

Employers and employees both have a general duty of care to ensure the safety, health and welfare at work of employees/colleagues, as far as reasonably practicable, under the 2005 Act. These obligations are in addition to the common law duty of care. In light of this, employers should review the most up to date official advice and guidance from the HSE, Department of Health and the Health Protection Surveillance Centre on how to mitigate the health risk to employees and others at the place of work. Further, employers must identify and implement suitable control measures to mitigate the risk of COVID-19 infection and to communicate these measures to the workforce before allowing any employee to return to work.  The necessary control measures will depend on the level of risk and type of workplace. In the context of planning a return to work, therefore, it is essential to have a policy in place document outlining the employer’s procedures to restore and return business operations following the restrictive measures adopted during the COVID-19 lockdown. This will require a review and amendments to existing risk assessments and safety statements, to reflect the changed working environment as a result of COVID-19.  In accordance with the 2005 Act, employers will also need to be provide employees with information and instructions (including training in the use, care or maintenance of PPE) to enable them to make proper and effective use of any PPE provided for their protection.

Once employers follow the public health guidelines, where only essential workers (as may be defined from time to time), are required to work, and adopt the necessary measures, be it social distancing, reduced staff on site, PPE, hygiene measures being adopted, and compliance as noted above, and these are being diligently met, the risk of legal claims under health and safety legislation would be mitigated.

 

Privacy/Data Protection/GDPR

Significant issues regarding an employee’s privacy and data protection issues arise in the context of the current crisis and employers must be mindful of adhering to data protection and privacy laws in balance with its health and safety obligations insofar as possible. Of note, the Data Protection Commissioner has stated that “data protection law does not stand in the way of the provision of healthcare and the management of public health issues; nevertheless there are important considerations which should be taken into account when handling personal data in these contexts, particularly health and other sensitive data.” Accordingly, measures taken in response to Coronavirus involving the use of personal data, including health data, should be necessary and proportionate. The Data Protection Commissioner has also stated that an employer may request specific details of an employee’s illness in light of COVID-19 and may require all employees to fill out a questionnaire declaring any symptoms of fever, high temperature, etc. if there is a strong justification based on necessity and proportionality and based on a risk assessment. Decisions in this regard should be informed by the guidance and/or directions of public health authorities, or other relevant authorities.

In terms of mitigating risk of claims, therefore, employers should be transparent about any new practices that involve processing additional information that may not be covered by existing employee privacy notices. Employers should now review existing data protection/GDPR policies to ensure it can make the necessary inquiries of employees regarding health status and to make certain limited disclosures to prevent the spread of the disease as may be necessary.

 

Other risks

Other legal issues that may arise at present include issues arising under the whistleblowing legislation and health and safety enforcement, for example, where certain employees are being asked to work in non-essential services and exposed to unacceptable risks. Further of note in this context, the Health Act 1947 has now been amended by the Health (Preservation and Protection and other Emergency Measures in the Public Interest) Act 2020. Section 43 of the Health Act 1947 provides that, in the context of civil proceedings, the Courts will impose a rebuttable presumption as to the party responsible for a person being infected on the basis of a failure to comply with relevant regulations. This provision has the potential to open up claims against employers who may have failed to take the necessary steps in the workplace to mitigate the risk of infection of COVID-19 in breach of stipulations set out in the 1947 Act or any regulations that the Minister of Health may make under that legislation to prevent the spread of COVID-19.

While the range of issues for an employer to consider in the context of a return to a safe workplace is far from clear, what is clear is that the guidelines for a post COVID-19 world will continue to evolve. So as to ensure that current law and best practice is followed and risk of claims is mitigated, employers should closely scrutinise the developments and any legislative changes introduced from day to day.

 

Range of Safety & Health Protocols for COVID-191

Access, Control & Quarantine

Remote Working

Hygiene & Health

Compliance & Communication

Set clear policies for workplace access

Encourage remote work practices that do not require physical presence

Set clear policies for physical distancing in workplace

Communicate regularly and often about purpose and changes in measures

Measure body temperature at building entrance

Provide remote working and leadership practices

Establish daily disinfection procedures

Perform random checks in all departments and a full list of measures

Conduct random visual and temperature checks during work day

Work and shift planning

Promote mandatory health & hygiene protocols example, hand washing, mask use, glove use for employees

Action any COVID-19 symptoms by requesting employee to self-isolate

Request employee quarantine when COVID-19 symptoms show

Create differentiated shift plans and break times for minimum congestion on work premises

Discontinue or minimise lift use

Review  protocols in accordance with HSE guidelines

Track and document all building entrances and exits /register individuals who access

Split shifts and disperse workplaces and desks to ensure minimum distance

Discontinue use of shared items

 

 

Identify minimum/critical employee groups as necessary

Provide critical supplies

 

 

Define contingency plans for workplace closures

 

 

 

For more information on any of the issues raised in this article, please contact author, Mary Kelleher mkelleher@hayes-solicitors.ie or Head of Employment, Breda O'Malley bomalley@hayes-solicitors.ie.


[1] McKinsey Report [April 2020]

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