Ireland: Working Out How To Return To Work

1. Returning To The Office/Continuing To Work From Home

What should an employer do if an employee does not wish to return to the workplace? How does the Government Roadmap impact the employer’s decision?

The Government’s Roadmap for Reopening Society and Business (the “Roadmap”) provides a timeline for organisations to return to work provided it is safe to do so. The Roadmap had been condensed into four phases with most measures due to be implemented by 20 July 2020. However, recent National Public Health Emergency Team (“NPHET”) data has resulted in the Government’s reverting to the later date of 10 August for commencement of phase 4.

The Roadmap and the Return to Work Safely Protocol (the “Protocol”) should be considered in conjunction with the Safety, Health and Welfare at Work Act 2005 (the “2005 Act”) and any applicable and up to date public health advice. Monday, 29 June marked the beginning of phase 3 of the Roadmap which allowed for the return to work for wellbeing services, hairdressers and remaining retail outlets. Crèches, childminding facilities and pre-schools were also permitted to reopen. Indoor gatherings of up to 50 people are permitted when conducted in line with public health advice. Remote working should continue in this phase as much as possible.

Where employees indicate a preference for continuing to work remotely, despite an employer’s plan to reopen the workplace, the employer should consider the employee’s individual circumstances and attempt to balance these with business requirements. Any decision made will also be impacted by factors such as the nature of the employee’s work, the outcome of the employer’s COVID-19 risk assessment and current public health advice.

An employee’s preference to continue to work remotely is likely to be driven by a number of practical considerations which may have implications under the Employment Equality Acts 1998 to 2015.

1.1 Health Considerations

An employee working remotely may express reluctance to return to the workplace if they have a medical condition that places them “at risk” or “at very high risk” based on the HSE guidelines “People at Higher Risk from Coronavirus”. This scenario is likely to place the relevant employee within the protection of the Employment Equality Acts due to the prohibition of discrimination on the grounds of disability in that legislation. “Disability” is broadly defined and is likely to include most of the conditions that place an individual at risk or at very high risk of serious illness in the event that they contract COVID-19.

Employers are reminded of the statutory obligation to provide reasonable accommodation for employees with disabilities in order to enable them to remain in their roles. This is likely to require considerable latitude on the part of an employer facing a request to continue to work from home unless the duties associated with the role cannot be done remotely. However, it is important to note that the legislation does not require that an entirely new role be created for an employee in order to reasonably accommodate them. Employers are advised to be guided by medical expertise when considering measures related to an employee with a disability.

Some employees may express a concern about returning to the workplace because they are cohabiting with someone who is at greater risk of COVID-19. When responding to such concerns, employers should bear in mind that discrimination by association is also prohibited by the Employment Equality Acts and discriminating against an employee who raises such concerns may result in a claim under the legislation.

1.2 Age

An employee may wish to defer a return to the workplace because their age places them in the “at risk” group (over 60 years of age) or “at very high risk” group (over 70 years of age) as designated by the HSE. An employer refusing to facilitate an employee’s request in this context may face a claim of discrimination based on the age ground protected by the Employment Equality Acts. While the business needs of the organisation will be taken into consideration, it is likely that an employer will be required to make a compelling case as to why an employee making such a request cannot be facilitated, at least in the short term.

One of the core principles in employment law is reasonableness. Employers should engage with employees prior to making any decisions in this regard. Central to the issue in question will be the reasonableness of the conduct of both the employer and employee in the approach that was taken to the return to the workplace.

2. Lack of Childcare

What if an employee objects to returning to the workplace because they do not have childcare or, conversely, wishes to return to the workplace because it is difficult to work from home?

Some employees currently working remotely but due to return to the workplace in the near future may raise the issue of the lack of available childcare as an impediment to their return. For some, childcare may be accessible on a phased basis only, at least in the short to medium term.

The converse issue of an employee eager to return to work sooner than facilitated by the Roadmap may also arise. While employees may be encouraged by their employer to continue to work from home in line with Government recommendations, some may assert that they are unable to attend to their duties at home due to the distractions of childcare and may wish to return to the office sooner.

Both of these scenarios are driven by the employee’s family status which is another ground protected by the Employment Equality Acts 1998 to 2015. The employer must consider, when responding to requests from employees to be facilitated, whether their response could constitute discrimination against the employee in question.

If the employee is employed to carry out duties which cannot be carried out from home, in order to demonstrate reasonableness, an employer may consider adjusting working hours or working times to assist the employee in these circumstances. Alternative options such as parental leave, annual leave or an agreed period of unpaid leave (where parental leave may not be an option) may also provide a solution.

Where the employee can carry out the majority of his/her work remotely but is required to attend the workplace for certain critical tasks or duties, the employer should be flexible in so far as is possible with regard to the timing for carrying out such work.

If an employer receives requests from several employees to be among the first to return to the workplace and not all employees can be facilitated at the same time for safety reasons, the employer should be as objective and transparent as possible in selecting those for an early return. The employer should also consider whether any issues of direct or indirect discrimination might arise in how they facilitate employees’ requests.

3. Temperature Testing

What obligations are there on employers in relation to temperature testing?

The Protocol obliges an employer to implement temperature testing in line with public health advice. At the time of writing, public health advice does not mandate temperature testing.

This does not prevent employers putting such screening in place, particularly if it is made available on a voluntary basis. However, the absence of public health advice on this issue may make it more difficult to justify and harder to implement on a mandatory basis.

Temperature testing gives rise to a number of concerns for employers, including the questionable effectiveness of temperature testing in preventing the spread of the virus, compliance with data protection and employment law issues.

4. Pre-Return To Work Forms

Should the Pre-Return to Work forms be in any prescribed form and is it required that they be regularly updated? What if an issue arises, such as an employee being high risk, which is not addressed in the form?

The Protocol does not prescribe what form the Pre-Return to Work form (the “Form”) should take. However, it does specify the questions to be asked of employees. The Form should be limited to the questions set out in the Protocol. The HSA has published a template form on its website.

In terms of whether the Form should be in hard or soft copy, it appears that employers have discretion in this regard. However, from a practical and administrative perspective, it may be more efficient and safer from a health and safety perspective, for employees to complete this Form electronically where possible. It is important to note that these Forms will contain personal data concerning health, which is “special category” data under the General Data Protection Regulation (the “GDPR”) and so high levels of protection apply. Personal data must be processed and retained in accordance with the relevant provisions of the applicable employee data protection policy or data retention policy and in accordance with data protection laws.

The Protocol does not set out any requirements in respect of updating the Form. The aim of the Protocol is to facilitate a safe return to work for employees who have been out of the workplace for an extended period of time. The Protocol repeatedly states that strong communication and a shared collaborative approach between employers and workers are key to protecting against the spread of COVID-19 in the workplace. It further requires workers to report to managers immediately if any symptoms develop  during a shift.

The Protocol places obligations on workers as well as employers. Workers have an obligation to complete the Form, and in that Form must inform their employer if there are any other circumstances relating to COVID-19 not included in the Form which may need to be disclosed to allow their safe return to work.

5. Lead Worker Representatives

Do I need to appoint a lead worker representative in each workplace/location? Who is the appropriate person to carry out this role? How and when should induction training be conducted?

The Protocol provides that each workplace will appoint at least one lead worker representative, charged with ensuring that COVID-19 measures are strictly adhered to in their place of work. The number of worker representatives will, ideally, be proportionate to the number of workers in the workplace. The Protocol does not offer any guidance as to how the lead worker representative should be appointed or what type of worker should be appointed which gives employers the discretion to choose an appropriate person. The lead worker representative should receive the relevant and necessary training by their employer. It would be helpful for organisations to begin to prepare appropriate training courses for both lead worker representatives and workers. The HSA website provides a checklist for employers in respect of COVID-19 induction for employees which may be of assistance to organisations when preparing induction training.

The Protocol states that employers must provide induction training for all workers. This training should at a minimum include the latest up to-date advice and guidance on public health: what a worker should do if they develop symptoms of COVID-19; details of how the workplace is organised to address the risk from COVID-19; an outline of the COVID-19 response plan; identification of points of contact from the  employer and the workers; and any other sector specific advice that is relevant.

Induction training must also be provided to contractors and visitors to the workplace. In practical terms, it would likely be acceptable to provide a shorter, abridged version of induction training for individuals who are visiting the workplace for a short period of time.

The Protocol indicates that induction training should take place on workers’ return to work. In circumstances where such training is provided centrally and remotely to employees, some of whom will continue to work from home, some form of refresher training should be arranged for these employees upon their return to the workplace.

As well as induction training, employers should also continue to provide up to date information on public health advice issued by the HSE and other relevant State agencies.

6. Various Health And Safety-Related Queries

6.1 What obligations does an organisation have to independent, self-employed contractors/consultants, as opposed to employees?

The 2005 Act provides that employers must manage and conduct their undertakings in such a way as to ensure, so far as is reasonably practicable, that in the course of the work being carried on, individuals at the place of work (not being employees) are not exposed to risks to their safety, health or welfare. In the context of the return to the workplace, this will require putting in place the recommended measures such as physical distancing, good hygiene and cleaning practices as well as taking appropriate action on any matters arising from a relevant risk assessment.

6.2 Who is responsible for ensuring a safe place of work when the place of work is a serviced office space?

Employers are required, under the 2005 Act, to ensure in so far as is reasonably practicable the provision a safe place of work. “Place of work” is broadly defined in the 2005 Act. Where a place of work is aserviced office space, the employer will still be subject to the same duties. From a practical perspective, however, the employer may need to engage with the owners/managers of the serviced office space to ensure that any necessary, appropriate measures are put in place.

6.3 What should an employer do if an employee is considered to be at “high risk” or “very high risk” and they want to return to the workplace? Would putting extra protective measures in place be sufficient or should the employer refuse to allow the at risk employee to return to work?

With regard to “very high risk” people, the current HSE advice is to “cocoon” and stay at home as much as possible. The current HSE advice for “high risk” people is to take extra care to avoid catching COVID-19 and strictly follow the advice on how to protect themselves from coronavirus. The HSE advice states that they should work from home, but if they cannot and they have to attend their workplace, they should take extra care to practise social distancing where possible and wash their hands regularly and properly.

The Protocol address “at risk/vulnerable workers” by providing that if an at risk or vulnerable worker cannot work from home and must be in the workplace, employers must make sure that they are preferentially supported to maintain a physical distance of two metres. It also states that employers must take into account worker’s individual risk factors (e.g. older workers, presence of underlying medical conditions, etc.) when developing/updating its COVID-19 Response Plan.

If an employer refuses to allow an “at risk/vulnerable” worker to return to the workplace, this could give rise to potential claims of discrimination on grounds such as age and/or disability. However it is advisable to notify all employees of the HSE guidance and encourage them to raise any concerns that they have in relation to the return to the workplace. It may be possible to facilitate employees in these categories with a temporary redistribution of duties or temporary leave as an alternative to the return to the workplace.

6.4 What measures should be taken in respect of visitors to the workplace?

The Protocol provides that workplace controls to comply with infection prevention measures should be communicated and explained to all relevant workers and others (visitors, contractors) at the place of work. It states visitors to workplaces where there are restrictions arising from the risk of COVID-19 should follow the site infection prevention and control measures and take into account public health advice around preventing the spread of COVID-19. A system for recording visits to the site(s) by workers/others as well as visits by workers to other workplaces should be put in place by employers and completed by workers as required. The Protocol also provides that induction training must be provided to visitors to the workplace. As mentioned above, it would likely be acceptable to provide a brief, abridged version of induction training for individuals who are visiting the workplace for a short period of time, such as a  notice or printout of the relevant measures.

6.5 Will an employer have liability if one of its employees passes COVID-19 to another in the workplace?

Employers have duties to their employees arising from multiple sources of law, including contract law, statute and common law. While it is possible that various claims may be brought by employees against their employers in respect of the spread of COVID-19, if an employer can demonstrate that it has followed Government and public health advice and has complied with its duties and the Protocol, the employer’s defence to such claims will be greatly strengthened. In any event, it may be difficult for an individual to prove that they were infected with COVID-19 by a specific individual in a particular place or at a particular time.

6.6 With regard to an employer’s health and safety obligations to employees, can an employee be instructed to fly/travel for a work trip?

The Protocol provides that business trips and face-to-face interactions should be reduced to the absolute minimum and, as far as is reasonably practicable, technological alternatives should be made available (e.g., telephone or video conferencing). Relevant Government restrictions/advice in respect of travel should also be adhered to. The Department of Foreign Affairs and Trade has advised against all non- essential travel overseas until further notice. Measures recently implemented now require individuals travelling into Ireland to complete a COVID-19 passenger locator form and self-isolate for 14 days following their arrival. These requirements must be taken into account by any employer proposing that an employee travel for work reasons.

By Byrne Wallace, Ireland, a Transatlantic Law International Affiliated Firm. 

For further information or for any assistance please contact irelandlabor@transatlanticlaw.com 

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