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COVID-19 Employer FAQs

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Law Business Research, article published by Littler Mendelson PC – Darren Isaacs and Dónall Breen, retrieved on 26th May 2020

The spread of the novel coronavirus (COVID-19) across the globe remains a significant concern in the workplace. Employers are confronting difficult questions regarding how to handle health and safety rules, travel restrictions, compensation, immigration, and other employment issues. The following frequently asked questions (FAQs) are designed to address some of the more common questions that employers with operations in Ireland currently face. Employers are also encouraged to consult relevant FAQs put forth by the World Health Organization (WHO) and the Irish government.

As this is a fluid and rapidly-changing situation, please keep in mind that different or additional facts may warrant re-assessment of policies and practices so they can serve the best interest of employees, employers and the community at large.  Accordingly, employers should consult with their employment counsel to keep updated on any new legislation or related legal development.

Travel restrictions

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Discrimination law

  • What discrimination issues should employers address/be aware of?

    Preventing travel may indirectly discriminate against certain employees, e.g., employees from other countries. However, it is a defence to a claim of indirect discrimination that the action is a proportionate means of achieving a legitimate aim (i.e., to protect the health and safety of others in the workplace and following government advice). An employer could ask employees to notify them of travel to an affected area and require them to take extra holiday (or unpaid leave) to self-isolate at home after returning.

  • What are the employer’s obligations to prevent harassment of those suspected of being infected?

    Employers should have anti-harassment policies and training to prevent harassment in order to mitigate risk for harassment, as employers will be vicariously liable if their employees harass colleagues and the employer failed to take “all reasonable steps” to prevent it. Employers may wish to include an anti-harassment reminder to employees in their communications about steps being taken in relation to COVID-19, and refer employees to relevant policies in place.

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Disability law

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Safety & health rules

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Immigration

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Unemployment and occupational risk liability

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Work Council / Industrial Unions

Privacy

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Planning for return to work

  • Has the Irish government announced when it plans to ease any current restrictions or instructions on freedom of movement/business openings, or when such a decision will be taken?

    Yes, the government has published its ‘Roadmap for Reopening Society and Business’. It is available here.

  • When will restrictions be eased?

    The reopening of the society and business will take place based on a phased approach. The phases will be reviewed on a 3-week basis. The current phases would commence on the following dates: Phase 1 – 18th May; Phase 2 – 8th June; Phase 3 – 29th June; Phase 4 – 20th July; Phase 5 – 10th August. These dates should be seen as indicative only.

  • What has been announced about how restrictions will be eased?

    The Roadmap for Reopening Society and Business gives a detailed breakdown about how each sector of society may be reopened. However, at a high level:

    Phase one – 18 May

    People should continue to avoid unnecessary journeys. Up to four people not of the same household may meet outdoors while maintaining strict social distancing. People should continue to avoid non-essential social visiting.

    A phased return of outdoor workers will be permitted (i.e., construction workers and gardeners). Social distancing will be required. People who are in are position to work remotely will continue to do so. Open retail outlets that are primarily outdoor (e.g., garden centres and hardware stores). Open retail outlets that were open in Tier 2 (i.e., homeware, opticians, motor and bicycle repair). Retailers will be asked to develop a plan for safe operation and protection of staff and consumers.

    Phase two – 8 June

    Restriction on movement from a person’s home will be increased to 20km but unnecessary journeys should still be avoided. Workers who can maintain working from home should continue to do so. Organisations will be asked to develop plans for a return to onsite working by employees in light of Covid-19. Small retail outlets can reopen with small numbers of staff on the basis that the retailer can control the number of individuals that staff and customers interact with at any given time.

    Phase three – 29 June

    People should maintain restriction to within 20km of their home and continue to avoid unnecessary journeys. Organisations where employees have low levels of daily interaction with people and where social distancing can be maintained will reopen. Workers who can work from home should continue to do so. The reopening of cafés and restaurants providing on-premises food and drinks where social distancing can be maintained. Phase-in opening of all other non-essential retail outlets. This is to be limited to retail outlets with street-level entrances which are not in enclosed shopping centres.

    Phase four – 20 July

    Travel can be extended to outside a person’s region. Slightly larger numbers of people may visit another household for a short period of time while socially distancing. Organisations where employees cannot work remotely will be considered first for return to onsite working arrangements. Retail services will see the commencement of loosening of restrictions on higher risk services such as hairdressers and barbers. Reopening of hotels, hostels, caravan parks and holiday parks for social and tourist activities, initially on a limited occupancy basis.

    Phase five – 10 August

    Large social gatherings will be restricted due to risk. There will be a continued restriction on all household contact of suspect cases. Economic activity will see a phased return to onsite working. Reopening of enclosed shopping centres where social distancing can be maintained.  Further loosening of restrictions on services involving direct physical contact for periods of time between people, such as tattoo and piercing services. Reopening of pubs, bars, nightclubs and casinos where social distancing can be maintained. Reopening theatres and cinemas where social distancing can be maintained. Reopening of gyms, dance studios and sports clubs, only where regular and effective cleaning can be carried out and social distancing can be maintained. Festivals, events and other social and cultural mass gatherings only in accordance with both indoor and outdoor numbers.

  • Is the general public going to be required to wear masks and gloves in public spaces?

    Not at present, although it is widely expected this may be introduced in alignment with EU and international best practice.

  • What, if any, “social distancing” guidelines will be applicable to employers (e.g., employees must wear masks; business must implement staggered work start/stop times; physical space separating employees must be at least six feet; etc.)?

    The Irish government has published its Return to Work Safely Protocol which details practical steps employers must take depending on the working environment. This includes social distancing, staggered working times and temperature checking in line with public health guidance. The full protocol can be found here.

  • Will employers be permitted to take the temperature of employees, and if so, what compliance steps are required (e.g. written consent, data privacy notice, etc.)?

    Yes, in line with public health guidance and the usual other principles, i.e., data protection law, employment law, medical record laws etc.

  • Will employers be able to require nonemployee visitors (suppliers, delivery personnel, customers, etc.) to submit to temperature testing before entering premises?

    There is no guidance in this respect, therefore the usual principles apply, i.e., data protection law, criminal law in relation to assault, medical record laws etc.

  • As the economy reopens, what are the steps that employers should follow to notify the authorities that they suspect or are confirmed to have a COVID-19 infection?

    At present, there are no mandatory reporting requirements if an employee has a suspected case of COVID-19. However, as a matter of health and safety, the employer should not permit the employee to attend the workplace if they reasonably believe this may cause a safety issue for other employees.

  • As the economy reopens, can an employer require employees to self-report having a COVID-19 infection or other relevant health information (e.g., symptoms of COVID-19)?

    The Government has not issued specific guidance on whether an employer can require employees to self-report a COVID-19 infection or other relevant health information, such as symptoms of COVID-19.

    As the collection and sharing of data about the health of a worker is highly regulated under UK and EU law (including under GDPR), employers will need to balance their data protection and privacy obligations and their health and safety obligations to their employees in general.  In practice, employers may decide that the latter takes precedence, and require employees to notify them of COVID-19 infections or risks. If they do so, they should ensure that any health information obtained is kept confidential. Employees should be informed of the infection risk, but the identity of the affected employee must not be disclosed. Employers should ensure they remind employees that they should stay home if they (or anyone in their household) has COVID-19 symptoms, in line with government guidance.

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