Thursday, February 11, 2021
On 26 January 2021, the Irish Government made an announcement advising of the extension of the current Level 5 domestic restrictions, which will now remain in place until 5 March 2021.
The Government also proposed key measures to further restrict travel into Republic of Ireland (the “ROI”) which included the following:
The Minister for Health (the “Minister”) has now implemented some of these measures by way of the latest regulations, the Health Act 1947 (Section 31A – Temporary Restrictions) (COVID-19) (Restrictions upon Travel to the State from Certain States) (No. 4) Regulations 2021 (S.I. No. 44 of 2021) (the “Regulations”), which came into operation on 6 February 2021 and remain in place until at least the 5 March 2021.
This note summarises the current legal requirements in place due to COVID-19 for persons entering ROI and the implications that the Regulations will have for the construction sector.
Passenger Locator Form
Passengers arriving to the ROI are legally required to complete and return the COVID-19 Passenger Locator Form (the “Form”), which details information such as the date of arrival and departure, the purpose(s) of travelling and a passenger’s place of residence in the State for the next 14 days. An exemption from completing the Form is in place for providers of essential supply chain services such as hauliers, pilots and maritime staff. The legislation in respect of the Form remains in force until 9 June 2021.
Currently, under the Regulations all passengers who arrive into the ROI (except if one’s journey originates in Northern Ireland) must have a “relevant test result” meaning a negative/’not detected’ result from a pre-departure COVID-19 Reverse Transcription Polymerase Chain Reaction (RT-PCR) test carried out no more than 72 hours prior to one’s arrival into the ROI (the “PCR Requirement”). Passengers who arrive without evidence of having satisfied the PCR Requirement will commit an offence and may be subject to prosecution, punishable by a fine not exceeding €2,500 or imprisonment for a term not exceeding 6 months or both.
The Government has proposed that it will be a mandatory legal requirement to quarantine at a designated facility for passengers who arrive in the ROI in breach of the PCR Requirement. The Regulations do not provide for same. However, we understand that legislation regarding mandatory quarantine at a designated facility is due to be published next week, with the requirement becoming operational within the next few weeks.
Pursuant to the Regulations, passengers who arrive from a “relevant state” (defined in the Regulations as any state, country, territory, region or other place outside the Irish State, other than Northern Ireland) must quarantine for 14 days at the address specified on their Form, with penalties for non-compliance.
The introduction of a strict legal requirement to quarantine at home is a significant restriction, given that previously, the Government had only advised/requested passengers to restrict their movements or self-isolate depending on where they were coming from.
An exemption from completing mandatory quarantine is in place for certain categories of persons while carrying out their duties, including but not limited to, international transport workers, pilots, maritime staff, gardaí/defence forces and diplomats (an “Exempted Traveller”).
Where a “relevant traveller” (i.e., a traveller other than an Exempted Traveller) has travelled from a designated ‘category 1 state’, which currently covers all countries save for South Africa or Brazil (a “Category 1 State”), there are limited exemptions from the requirement to quarantine for 14 days. The exemptions are as follows and only apply for as long as strictly required (the “Category 1 State Exemptions”):
The obligation to quarantine for 14 days can end for passengers travelling from a Category 1 State, following confirmation of a negative/not detected RT-PCR Test taken 5 days or more after arrival into the ROI (a “Second Negative Test”). A passenger who avails of this provision must retain written confirmation of such confirmation for 14 days following receipt of same.
The exemptions from mandatory quarantine for a “relevant traveller” from a designated ‘category 2 state’ (currently listed as Brazil and South Africa but the Minister may add further states to this list under the Regulations) (a “Category 2 State”) are even more restrictive than the Category 1 State Exemptions. The exemptions from mandatory quarantine for passengers arriving from a Category 2 State apply for such a period as is strictly required and are as follows (the “Category 2 State Exemptions”):
We understand that the intention is that passengers who arrive from a Category 2 State will be required to quarantine at a designated facility. As mentioned above, the legislation in this regard is awaited and expected next week.
Summary of the current legal requirements on travel
The below table sets out a summary of the current legal requirements on passengers entering the state pursuant to the Regulations (note that further legislation regarding mandatory quarantine is due to be published next week):
The impact of the regulations on construction
Currently, all non-essential construction sites remain closed pursuant to the Health Act 1947 (Section 31A- Temporary Restrictions) (COVID-19) (No.10) Regulations 2020 and the Health Act 1947 (Section 31A- Temporary Restrictions) (COVID-19) (No.10) (Amendment) Regulations 2021 (together, the “Previous Regulations”) until at least 5 March 2021.
In a previous article, we set out the list of 12 services relating to construction and development that were allowed to continue during the current lockdown (e.g. essential health projects, educational facilities, social housing projects and the repair, maintenance and construction of critical infrastructure – see full list in our previous article).
Depending on the stage of the works, ongoing essential projects, as identified in the Previous Regulations, may need to rely on specialist contractors travelling from abroad. However, as set out above, pursuant to the Regulations, any “relevant traveller” entering the State must comply with the mandatory quarantine requirement.
Pursuant to the Regulations, the only construction related exemption to the requirement to quarantine is for persons travelling into the State from a Category 1 State to “carry out essential repair, maintenance, construction or safety assurance of critical utility infrastructure, critical transport infrastructure, manufacturing services, information services or communications services”.
It therefore follows that all other construction related workers must comply with the mandatory quarantine requirement if entering the State regardless of whether they are working on an essential construction site as identified in the Previous Regulations. However, it is worth noting that the 14-day quarantine period may be shortened if they are in receipt of a Second Negative Test (see above).
In addition, it is important to note that while certain construction workers arriving in the State may be exempt from having to quarantine for the purposes of carrying out an exempted function (as outlined above), they must follow the quarantine requirement at all other times.
There is no such construction related exemption included in the list of Category 2 State Exemptions.
The position of the Irish Government on the arrival of passengers from overseas is evolving weekly and may be subject to further change depending on how the rate of infection progresses.
From a construction perspective, despite a site being deemed an essential site under the Previous Regulations, it will be the case, pursuant to the Regulations, that where specialist contractors from a Category 1 State are required for the project and the project is not for critical utility infrastructure, critical transport infrastructure, manufacturing services, information services or communications services, they will be required to quarantine for at least 6 days (as they must wait at least 5 days from arrival to obtain a test and wait for written confirmation of a Second Negative Test before the quarantine period ends). Otherwise, without a Second Negative Test, any such construction worker will be required to quarantine for 14 days (as is the case for any person coming to work on a project from a Category 2 State).
The Minister for Housing recently indicated that the construction sector may reopen on the 6th of March 2021. However, given the concerns being raised regarding overseas travel, it is expected that the Regulations will be extended past that date and other countries may be designated as a Category 2 State. This may result in a situation post-5 March 2021 where all constructions sites in the State would be open but may not be in a position to bring in specialist contractors from abroad for the foreseeable future without the requirement to quarantine. Without appropriate planning in advance this could lead to delays on projects and may, in any event, be of practical inconvenience to those who are required to travel to the ROI for such work.
 Health Act 1947 (Section 31A – Temporary Requirements) (Covid-19 Passenger Locator Form) Regulations 2021 (S.I. No 45 of 2021)