Thursday, June 25, 2020
As we enter the later phases of re-opening our country, it is vital that employers continue to observe and follow public health advice. With the new rules and guidelines put in place, employers are faced with new and unprecedented challenges in how to reopen businesses safely and effectively. The purpose of this briefing note is to address some of the main questions that employers may have in this regard.
1. What are my health and safety obligations?
Under the Safety, Health and Welfare at Work Act 2005, employers are statutorily required to protect the safety, health and welfare of employees as far is reasonably practicable. The ways in which employers are expected to comply with their health and safety obligations have changed dramatically as a result of the COVID-19 pandemic. As a result, employers must review their health and safety policies in line with the Government’s Return to Work Safely Protocol.
2. What rules and guidelines have been published in relation to returning to work?
(a) The Health and Safety Authority (HSA), the Health Service Executive (HSE) and the Department of Health have collaborated in publishing of the Return to Work Safely Protocol.The Protocol is available here.
The protocol is designed to set out the steps which employers must take prior to reopening the workplace, and observe while it continues to operate through the pandemic.
(b) The National Standards Authority of Ireland (NSAI) have published a COVID-19 Workplace Protection and Improvement Guide. The document is intended to give guidance on how to manage to business continuity during the pandemic and addresses the risks to both workers and the public.
The Guide is available here.
(c) The NSAI have also published a COVID-19 Retail Protection and Improvement Guide. It is intended to give practical guidance to employers specifically in the retail sector on managing business continuity during the pandemic.
The Guide is available here.
3. Can I reopen my workplace?
Phase 1 saw the reopening of shops that are primarily outdoor. For example, garden centres, hardware stores and farmers’ markets – as long as social distancing measures could be put in place.
Other businesses that were re-opened in the first phase were those that previously opened in Tier 2 prior to lockdown commencing. For example, homeware, opticians, motor, bicycle and repair, office products, electrical, IT, phone sales and repair.
Now that we are in Phase 2, all other retail shops can reopen. Initially this was restricted to shops with street entrances, but from June 15th, shopping centres are open. Public libraries can also reopen, as well as marts without spectators.
4. Should I allow staff to work remotely if I can?
The Return to Work Safely Protocol states that office work should continue to be carried out at home where practicable and where it is nonessential work.
5. What steps should I take prior to reopening my business?
Before returning to work, employers must:
(a) Have a COVID-19 Response Plan in place (referred to in detail below).
(b) Update occupational health and safety risk assessments and safety statements.
(c) Identify and address the specific health and safety risks associated with their particular workplace.
(d) Consider workers who may be vulnerable and facilitate remote working.
(e) Have an action plan in place in the event of a suspected COVID-19 case (this is also referred to below).
6. What is involved in carrying out a risk assessment?
Employers are required to undertake a comprehensive risk assessment which includes a review of existing control measures in place and the identification and implementation of any additional control measures required.
A COVID-19 risk assessment prompt sheet is available here.
7. In retail premises, how do I control the number of clients/customers on the premises to ensure I am adhering to social distancing guidelines?
NSAI Guidelines recommend a number of measures for employers to put in place to control occupancy levels. These include:-
(a) Introducing special access times for OAPs and people with disabilities.
(b) Limit numbers accessing the premises in order to comply with HSE guidelines – workers should ensure that occupancy levels are continuously monitored.
(c) Limited access for children.
(d) Delivery services and click and collect services should be introduced where possible, with priority for these services given to those who are considered vulnerable or who are in isolation.
8. What about offices?
Where possible, office work should continue to be carried at home. This is in line with the Government’s Return to Work Safely Protocol. In particular, vulnerable workers should be allowed to work from home if this is possible.
Work should be organised in such a way that multiple occupancy of office premises is avoided and social distancing can be maintained.
Workers should be organised into teams who consistently work and take breaks together – the teams should be as small as is reasonably practicable.
9. How can I ensure that social distancing is being adhered to in the workplace?
The Protocol lists various measures which employers must implement to ensure that social distancing is achieved across the workplace.
(a) Implement a no hand shaking policy.
(b) Utilise free office capacity and ensure that multiple occupancy of office premises is avoided, as referred to above.
(c) Organise workers into teams, as referred to above.
(d) Organise breaks so social distancing can be maintained.
(e) Reorganise working and break areas. For example, rearrange tables and chairs to ensure they are an adequate distance apart.
(f) Card method payments (including contactless) should be put in place.
(g) Allocate special times for collections, appointments and deliverable.
(h) Meetings should be conducted using online remote means as much as possible. Where face to face meets are absolutely necessary, the length of the meeting and the number of attendees should be kept to a minimum and those present must adhere to social distancing requirements.
(i) One-way systems/routes should be put in place around the workplace.
(j) Signs and markings should be displayed around the workplace to remind workers/ customers to adhere to social distancing.
10. What if I can’t ensure that workers maintain a two metre distance?
The Protocol provides for other measures which employers must implement in this scenario. These include:
(a) Installing physical barriers between workers.
(b) Minimising direct worker contact and providing hand washing facilities as well as other hand hygiene aids, such as hand sanitizers.
(c) Making face masks available to workers in line with public health.
(d) At least one metre’s distance should be kept between employees – or as much distance as is reasonably practicable.
11. What about social distancing in staff facilities, for example in the staff canteen?
Where workplaces have a canteen, employers should consider:
(a) Closing these facilities if social distancing cannot be maintained.
(b) Staggering use of canteens and extending serving times.
(c) Queue management systems should be put in place to avoid queues at food counters, tray return points and checkouts.
(d) Card method payments (including contactless) should be put in place.
12. Are there steps I should be taking to ensure that social distancing is adhered to outside of the premises, for example while customers queue?
The NSAI Retail Guidance deals specifically with this. It provides for various steps which employers should take to ensure that social distancing is adhered to outside the entrance for work premises/stores. Employers should:
(a) Implement a queue management system with distanced markings.
(b) Ensure that queues maintain physical distance from other queues in the surrounding area.
(c) Display signs outside of the premises in relation to occupancy numbers, policies regarding children, acceptable behaviours towards staff members, etc.
(d) Display signs on public responsibility – for example in relation to personal hygiene/ sanitizing and social distancing.
Dublin City Council have published guidelines to help employers control queues outside of their premises and to prevent overcrowding on the City’s streets. Although designed with Dublin in mind, they can certainly be utilised by employers across the country. A copy of the guidelines can be found here.
13. Are there any posters/signage which must be displayed in the workplace?
NSAI Guidance recommends that employers display posters which communicate information about preventing the spread of COVID-19. These posters should be displayed in both public and staff areas of the workplace.
14. Are there posters readily available for employers to use?
Yes, the HSE has created and published posters for employers to use. These can be found here.
Hygiene in the workplace
15. What can I do to ensure effective hand hygiene in the workplace?
Obviously regular hand washing is vital in preventing the spread of COVID-19. As such, employers must:
(a) Ensure that appropriate hygiene facilities are in place, for example hand sanitiser, hand wipes and hand washing facilities.
(b) Ensure that these facilities are regularly monitored and that adequate amounts are available throughout the day.
(c) Provide advice on training on how to perform hand hygiene effectively.
16. Do I need to display any posters regarding hand hygiene?
In line with the Protocol, employers must display posters on how to wash hands in the appropriate locations.
Where can I obtain posters on hand hygiene?
Employers can use the following HSE poster in relation to hand hygiene:
17. Is there anything else that I should do to ensure effective hygiene?
In addition to hand hygiene, good respiratory hygiene and etiquette is also necessary. Employers must:
(a) Provide tissues as well as bins/bags for their disposal.
(b) Ensure bins regularly are emptied.
(c) Provide advice on good respiratory practice.
18. How often should the workplace be cleaned?
The Protocol requires employers to ensure that work areas are cleaned at regular intervals. In particular:
(a) Frequently touched surfaces should be cleaned thoroughly and regularly.
(b) If an area requires disinfection, this should be done in addition to the cleaning of the area, never as a substitute.
(c) Contact/touch surfaces such as table tops, work equipment, door handles and handrails should be cleaned at least twice daily and should be visibly clean at all times.
(d) Washroom facilities and communal facilities should be cleaned at least twice daily, or whenever they are visibly dirty.
(e) Workers should be provided essential cleaning materials to keep their own workspace clean, for example the provision of wipes/ disinfection products, paper towels and waste bins/bags.
(f) More waste collection points should be made available and employers should ensure that these are regularly emptied throughout and at the end of the day.
(g) Cleaning materials should be available to staff using hot desks to ensure they can be cleaned before using.
Personal protective equipment – PPE
19. What PPE should I be providing to my employees?
The Protocol provides that the use of PPE is not mandatory. However, if the risk assessment finds that it is needed, then is should be used. The Protocol makes a point of noting that if PPE is used in the workplace, it should not be used as a substitute for other preventative measures.
20. Should I be providing face masks to my employees?
In work settings where the Risk Assessment does not find the wearing of face masks necessary, then there is no requirement to provide them to employees.
However, in settings where 2 metre social distancing cannot be adhered to, then employers should look at implementing alternative protective measures such as face masks.
Obviously public health advice in relation to face masks is constantly under review, so employers should be live to updates in this regard.
21. What about customers/others who visit the workplace? Should they be provided with face masks?
As above, unless the Risk Assessment finds that face masks are necessary, then the provision of face masks is not mandatory.
22. Do I need to install screens/barriers?
Where possible, employers must install screens/barriers around checkouts/desks.
23. Do I need to implement temperature checks on those who enter the premises?
There is currently no requirement to carry out temperature checks on those who enter the work premises.
However, if Public Health advice changes then employers should be prepared to enforce such checks.
24. Do forms need to be filled out?
Employers must issue a pre-return to work form to all employees prior to their return to work. This should be done at least 3 days in advance of their return.
The purpose of the form is to confirm that the employee, to the best of their knowledge, has no symptoms of COVID-19 and is not self-isolating or awaiting the results of a COVID-19 test.
25. What types of questions should I include on the return to work form?
The types of questions which employers should ask their employees before they return to work are:
(a) Does the employee have any of the symptoms associated with COVID-19 now, or in the last 14 days?
(b) Has the employee been diagnosed with confirmed or suspected COVID-19 in the last 14 days?
(c) Is the employee a close contact of a confirmed or suspected case of COVID-19 in the past 14 days?
(d) Has the employee been advised to selfisolate or cocoon at this time?
26. What training should I provide to employees prior to their return to work?
At a minimum, employers should provide the following training to employees:
27. Am I required to keep a log of contact/ group work in the workplace?
Yes, Employers are required to keep a log of contact/group work to facilitate contact tracing in the workplace. The objective of the log is to have no instances of “direct contact” for each day in the workplace.
It is the responsibility of the employer to inform employees and others of the purpose of the log.
The information should be stored securely, maintained centrally and readily available upon request.
28. Should I have a response plan to suspected cases in place?
Employers are required by the Protocol to have a plan in place which will help with identifying an employee with symptoms before the start of each shift.
Employers should also remind employees of the need to report to managers immediately if they develop any symptoms during their shift.
29. Do I need to appoint a COVID-19 Manager?
At a minimum, employers should ensure that a COVID-19 manager has been appointed.
Employers should also identify team(s) who are responsible for responding to a suspected case.
30. Do I need to establish an isolation area?
As part of the response plan, employers should identify a designated isolation area in the event an employee displays symptoms while at work.
31. What facilities should the designated isolation area have?
The designated area and the route to the designated area should be easily accessible. The area should be able to facilitate the person displaying the symptoms behind closed doors. The area should also have ventilation i.e. through a window, and have hygiene facilities in place i.e. through the provision of tissues, hand sanitiser, disinfectant, gloves, masks and waste bags.
32. What type of actions do I need to take if somebody becomes unwell while at work?
If someone becomes unwell while at work with COVID-19 symptoms, the COVID-19 manager/response team should bring the employee to the isolation area via the designated route, keeping at least 2 metres away from the symptomatic person, and isolate them there. A face mask should be provided to the unwell individual.
The COVID-19 manager/response team should initially assess whether the unwell individual can immediately be directed to go home, call their doctor and continue self-isolation at home. Where this is not possible, the unwell individual should remain in the isolation area and call their doctor, outlining their current symptoms.
The symptomatic person should avoid touching people, surfaces and objects. They should be advised to cover their mouth and nose and should be provided with disposable tissues when they cough or sneeze. Any issues used should be placed in waste bag.
33. What other supports should I have in place for my employees?
It is recommended that employers provide supports to those employees who may be suffering from anxiety or stress as a result of this pandemic.
Financial supports available for business
34. Is the COVID-19 Unemployment Pandemic Payment still in place?
Yes, the COVID-19 Pandemic Unemployment Payment has been extended until 10 August 2020.
35. Is the Temporary Wage Subsidy Scheme still available?
The Temporary Wage Subsidy Scheme is still available to employers and is intended to remain in place until the end of August.
36. Is the Temporary Wage Subsidy Scheme available to employees who were on maternity or adoptive leave?
As of 8 June 2020, the Temporary Wage Subsidy Scheme has been changed to accommodate employees who have returned or are due to return to work following a period of maternity leave, adoptive leave or related unpaid leave and who were not on the payroll of their employer on 29 February, and not paid in January and/or February 2020.
These employees did not satisfy the relevant criteria to be an “eligible employee” under the Scheme, but this has now been amended. Payments in this regard will be backdated to 26 March 2020.
Lay off and redundancy
37. Can I still lay off staff?
Yes. Many employers have been forced to lay off staff as a result of the COVID-19 pandemic. A layoff situation may arise if:
(a) Employers are unable to provide work for the employees; and
(b) The employer believes that the lay-off is a temporary situation
Generally speaking an employer can only lay off staff where there is contractual authority to do so. However, the unprecedented nature of the COVID-19 pandemic may lead to greater flexibility in the WRC/Labour Court.
38. Can I make staff redundant and if so, what is the law on claiming redundancy?
Yes – an employer is entitled to implement redundancies. Fair procedures are critical.
In terms of claiming redundancy, in normal circumstances, an employee can serve notice on the employer of their intention to claim a redundancy payment where they have been laid off or placed on short-time for a period of four or more consecutive weeks, or for a series of six weeks within a thirteen week period.
The enactment of the Emergency Measuresin the Public Interest (COVID-19) Act 2020 suspended an employee’s entitlement to notify their employer of an intention to claim a redundancy payment. This suspension has been extended until 10 August 2020.
For further information on this article, please contact Patrick Walshe.
Article written with the assistance of Sarah O’Reilly.