Monday, May 18, 2020
The Government has published a Return to Work Safely Protocol – a series of measures that employers should take when reopening their premises.
It is no exaggeration to say that the present COVID-19 pandemic presents unprecedented challenges for employers. At first glance, the rules may appear daunting – but with a little preparation, and a common sense attitude, most employers should be able to navigate this new terrain without too much trouble.
The purpose of this briefing note is to (a) summarise the changes and (b) provide practical advice to employers on how to comply with the new regime. It is worth noting that the Protocol deliberately describes itself as a “living document” – and the rules may be refined further as time passes. However, it’s likely that the core principles will remain largely unchanged.
Part 2 of this note sets out a simple checklist that employers will hopefully find useful.
So what is envisaged?
1. The Protocol
The protocol deals with a number of different subjects, each of which are addressed individually below.
The full Protocol can be reviewed at here.
(a) Response Plans
Employers must prepare (and update as necessary) a COVID-19 Response Plan.
This is best thought of as a comprehensive catch-all document that deals with all points of relevance relating to COVID-19 and the workplace in one place.
Among other things (and the Plan is dealt with in more detail in the following sections of this Briefing Note), the Plan will summarise the steps the employer is taking to ensure health and safety, the changes that will be made to the physical workplace and how to deal with emergencies.
On a practical level, it should be useful for employers to keep all relevant information in relation to COVID-19 preparedness in one place.
(b) Cases of COVID-19 in the workplace
Among other things, the Response Plan should address the steps an employer will take if there are cases of COVID-19 in the workplace. They must include:-
The idea is to maintain a sterile environment into which an employee can go pending medical examination.
Employers should also be ready to identify additional space that can be used as isolation rooms in the event of multiple cases of suspected COVID-19 at the same time.
(c) Remote working
One highly important point to note is that the Government is actively encouraging employers to allow employees to continue working remotely for the foreseeable future.
The new steps that need to be taken (as summarised elsewhere in this Briefing Note) in many cases only become more complicated in circumstances where large numbers of employees are returning to work at the same time.
For that reason, if an employer is able to continue to operate its business with all (or the majority of) employees working from home, it makes sense to maintain the status quo.
That said, there will obviously be cases in which remote working is not practical. The hospitality industry is a good example of this. In addition, even those businesses that can operate with the majority of staff working remotely will probably need some physical presence in the office at some stage.
The Protocol makes a point of noting that Vulnerable Workers, in particular, should be allowed to work at home if they can.
(d) Risk Assessments
Employers are required to carry out a dedicated Risk Assessment in the context of COVID-19. This is likely to be a simple and practical exercise that among other things will consider:-
The Risk Assessment can obviously be incorporated into the Response Plan. Employers would ideally simultaneously update their normal Health and Safety Statement to reflect changes that will be necessitated by COVID-19 preparedness.
It’s worth noting that employees are obliged to take steps to ensure their own health and safety (and the health and safety of co-workers) and this can be referred to when briefing employees who are returning to work. This is referred to again later in the present Briefing Note.
A prudent employer will also confirm their Employers’ Liability insurance cover is up-to-date and will address COVID-19.
(e) Contact logs
One of the more novel aspects of the recommendations is the introduction of “Contact Logs”. Specifically, employers are obliged to:-
“keep a log of contact/group work to facilitate contact tracing.”
The logic behind this measure seems clear – if an employee contracts Covid-19, their employer will be able to quickly determine whether that employee has been in sufficiently close contact with other members of staff.
However, the Protocol does not provide any additional information on practical aspects of the Contact Log concept. The reference to “group work” suggests that an entry is necessary only where staff are working closely together for periods of time – thereby giving rise to a greater risk of Covid-19 infection.
One interpretation might be that an entry is only required in the Contact Log if the employees in question have been closer than 2 metres for a period of time (perhaps 15 minutes or more). However, that is not clear at this stage.
Hopefully the Government (or employer organisations) will provide greater clarity on this point quickly.
It would also be useful if the Government could clarify how regularly logs need to be shared with management – whether a weekly reporting obligation exists, for example. Likewise, clarity on whether individual employees are required to self-report would be useful.
Once greater information is to hand, we will update our client base.
(f) Providing information on COVID-19 to staff
Employers must display information in the workplace that:-
Employers are obliged to provide training to staff too – this is dealt with later in this Briefing Note.
There are a number of specific rules here:-
– Door handles;
– Table tops;
– Work equipment.
(h) Social distancing
“Social distancing” is going to be one of the buzzwords of 2020. As everyone knows, it involves maintaining a distance of at least 2 metres from another person. Any Irish workplace will have to observe social distancing for the foreseeable future.
Among other things:-
If employers cannot maintain 2-metre separation, then:-
Needless to say, business travel is strongly discouraged and employers should look to telephone/video conferencing wherever they can.
Employers are required to put in place “support for workers who may be suffering from anxiety or stress”. On a practical level, this can include:-
(j) Pre-Return to Work forms
Employers must prepare a Pre-Return to Work Form which asks individual members of staff to confirm that:-
Certain specific questions must be asked in the Form. They are:-
1. Do you have symptoms of cough, fever, high temperature, sore throat, runny nose, breathlessness or flu like symptoms now or in the past 14 days?
2. Have you been diagnosed with confirmed or suspected COVID-19 infection in the last 14 days?
3. Are you a close contact of a person who is a confirmed or suspected case of COVID-19 in the past 14 days (i.e. less than 2m for more than 15 minutes accumulative in 1 day)?
4. Have you been advised by a doctor to self-isolate at this time?
5. Have you been advised by a doctor to cocoon at this time?
Any employees who are returning to the workplace must complete this form at least 3 days before they return.
It goes without saying that if an employee answers “yes” to one or more of these questions, their employer must revisit the possibility of that employee returning to work.
Unsurprisingly, training is key. This isn’t unfamiliar territory for employers – under existing legislation, employees should receive appropriate health and safety training anyway.
Under the Protocol, “Induction Training” must be provided. Among other things:-
The content of the Response Plan, for example, can be used as a guide on what training should consist of (as can the outcome of the Risk Assessment).
The other, and critical, point to note is that training needs to be site–specific. Employers will be aware that under existing rules, they are obliged to carry out a site–specific risk assessment paying attention to the discrete hazards and risks in their workplace.
All employees returning to the workplace should be provided with such an induction, as should any contractors or visitors to the workplace.
There is no reason why COVID-19 training cannot take place remotely – and, of course, one of the key provisions of the Protocol is reducing physical contact wherever possible.
(l) Temperature screening
This is been the subject of some discussion in the media. The background is simple – in the absence of universally–available COVID-19 testing (at least for now), taking an employee’s temperature is a simple and practical way of determining if they have a fever – which, in turn, might mean that they have the virus.
At the moment, there is no obligation to introduce temperature screening – the protocol says that employers only have to implement screening “in line with public health advice.” Obviously if public health guidance requires screening, it will have to be implemented.
If an employer is introducing a regime of temperature screening, two things need to happen:–
a) Employees will need to consent to this; and
b) Great care will be required if records are being made of the outcome of tests. This will definitely constitute sensitive personal data and be subject to the full rigours of the GDPR.
(m) COVID-19 Representatives
Another measure that may appear daunting initially is the requirement that Covid–19 Representatives are appointed among the workforce. These individuals are responsible for generally monitoring the steps that their employer has taken to protect staff and, where necessary, alerting their employer to any deficiencies.
Representatives should be chosen from the workforce at large – as opposed to HR representatives, or other members of management. This is simply to ensure objectivity. There are no fixed rules but it has been recommended that at least one Representative is appointed for every organisation up to 100 people.
Because some of the tasks of Representatives may be quite time-consuming (reviewing Contact Logs, for example), an employer may wish to consider appointing several Representatives – particularly in a large organisation.
Employers will have a reasonably free hand when deciding how Representatives are appointed. Volunteers can be called for, for example.
Please click here for Part 2 – Checklist for employers.
For queries or further advice in relation to the above, please contact Patrick Walshe.