As many countries, including Ireland, are stepping up preparations in the event that the Coronavirus outbreak continues to unfold, in this update, we look at the preparations that employers in Ireland should be making and answer some of the key questions around pay and benefits if more aggressive containment measures need to be enforced to protect public health.
What are Irish employer's key obligations to employees?
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.
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. Where necessary, employers should seek expert guidance to ensure compliance in the workplace in particular with their statutory health and safety requirements.
Stay informed: 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).
Keep your employees informed: While there is very substantial media focus on the spread of the 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. In addition, 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.
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.
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.
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.
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 clearl 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. 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. 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.
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.
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.
Other Considerations – Pay and Benefits
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.
A common question is whether or not the Coronavirus outbreak could be considered to be a force majeure event in the context of the employment relationship. A force majeure event is an event which is beyond the control of the parties to the contract which prevents, delays or hinders their ability to perform the contract. In the context of employment contracts, such contracts will not contain a force majeure clause as is more common in relation to commercial contracts. In the absence of a force majeure clause, an employer may be tempted to rely on the doctrine of frustration. This doctrine of contract law provides for the termination of a contract in situations where, through no fault of either party, there is an unforeseen event that renders the contract either impossible to perform or radically changes its underlying purpose. However, the test for establishing frustration of a contract is rigorous and in any event, the doctrine, if proved, has the effect of terminating a contract rather than suspending it which is unlikely to benefit either party. Where possible, agreed arrangements should be put in place with employees with a focus on enabling remote working and agreeing periods of paid or unpaid leave.
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 entitled to be paid if they are taking care of family members who are ill?
Employees may be able to take statutory paid force majeure leave of up to five days to take care of ill relatives subject to eligibility requirements under the legislation.
The situation remains uncertain. The ECDC recently published an advisory update in which it stated:
"Workplace countermeasures refer to a variety of actions to reduce the risk of transmission in the workplace and the community by decreasing the frequency and length of interactions and the physical contacts between individuals. However, there are still insufficient data available to assess the extent of COVID-19 transmission in these settings.
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
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.