Friday, March 6, 2020
Cases of Covid-19 (otherwise known as the Coronavirus) are on the rise in Ireland.
Employers should continue to review guidance issued by the World Health Organization and the HSE, along with any travel advice issued by the Department of Foreign Affairs.
A number of clients have asked us practical questions in relation to the employer-employee relationship in light of spread of the virus. This bulletin aims to summarise the position in as straightforward and simple a manner as possible.
What are my obligations to staff?
Employers are obliged to maintain a safe place of work – this obligation flows from the Safety, Health and Welfare at Work Act 2005 among other things.
In complying with this obligation, employers must take reasonable steps to identify and address risks posed to employees.
The risk of the workforce becoming infected by the coronavirus would definitely qualify.
Can I ask staff to work remotely?
Yes. Even if a contract of employment does not specifically provide for it, an employer will be generally entitled to ask staff to do this. Remote working is a sensible and practical approach in circumstances where the employer believes the workforce is at risk.
Obviously staff who are working from home have the same entitlement to be paid a salary as they would if they were present in the office.
Am I obliged to pay an employee on sick leave?
Employers are not obliged to pay employees who take sick leave (unless the employer operates a discretionary sick pay scheme).
Employees may be entitled to claim Illness Benefit from the State where they have sufficient Social Insurance contributions.
Do I have to pay individual staff members if I ask them to stay at home?
As referred to, if a member of staff decides to take sick leave, their employer does not have to pay them (unless there is a policy in place entitling the employee to paid sick leave).
However, if the employer decides to ask employees to stay away from the workplace (and remote working is not an option) the legally safest course is to continue to pay affected staff members.
Do I have to pay individual staff members if they self-isolate but do not take sick leave?
A careful approach is required here. If an employee is not actually sick, but self-isolates as a precaution, they may not have an entitlement to be paid.
An employer in this situation should firstly consider whether the employee can work remotely. If this is possible, the employer may opt to allow them to do so.
If remote working is not possible, the employer will have to assess whether the employee is actually fit for work – this will obviously involve engagement with the employee. If the employee is actually unfit for work, they should take sick leave. If they are fit for work but merely self-isolating as a precaution, the employer does not necessarily have to pay them.
What practical health and safety steps do I have to take?
Employers are obliged to identify hazards and assess risks in the workplace. In terms of Covid-19, this may involve seeking information from employees in relation to their recent travel, assessing their general health and whether they could be at risk of contracting the virus. In other words, carry out a coronavirus risk assessment.
Employers are also obliged to take necessary ‘protective and preventative measures’. This includes straightforward steps like providing hand sanitizer and wipes, educating staff on the risks posed and reducing international travel for work.
Should I be concerned about racial issues?
Employers should be careful not to inadvertently breach equality law. A blanket restriction on employees of a particular nationality (such as Chinese nationals) could give rise to accusations of unequal treatment on grounds of race. Decisions to ask certain employees not to attend the workplace should be made only on objective grounds.
What if an employee’s family member is ill/quarantined?
An employer has a number of options where an employee is needed to care for a family member:-
The employee also has the option of taking force majeure leave to care for a family member. Force majeure leave is paid – but employees are only entitled to a maximum of 5 days leave in every 36-month period.
Can I have employees medically examined to see if they have the virus?
Most contracts of employment allow an employer to do this. In light of the seriousness of the virus, a reasonable request to an employee to undergo an examination would likely be upheld even if the contract does not provide for it.
For further information on this article, please contact Patrick Walshe.