COVID-19: Emergency legislation in unprecedented times

On St Patrick's Day night, the Irish Government published emergency legislation in response to the evolving COVID-19 crisis. The draft legislation (the Health (Preservation and Protection and other Emergency Measures in the Public Interest) Bill 2020 (the Bill)) puts on a statutory footing the new COVID-19 social welfare payments that have been announced in recent days. It also gives the Government wide ranging powers to introduce regulations in the area of public health aimed at slowing down the virus. The Bill was passed by the Dáil on Thursday evening 19 March 2020 and passed all stages of the Seanad this afternoon (20 March 2020) with no amendments. 

Of note however is the fact that the Bill does not contain the further detail employers were anticipating in connection with the Refund Scheme announced by Minister for Employment Affairs and Social Protection on 15 March 2020. Under the Refund Scheme employers who continue to pay employees, who have been placed on unpaid layoff due to COVID-19 pandemic, €203 per week will be eligible for a refund of the payments made. The purpose behind the Refund Scheme to is to stem the flow of applications for social welfare payments by the unemployed to the Department of Employment Affairs and Social Protection. It was announced on 18 March 2020 that the Revenue Commissioners will operate the Refund Scheme; that amounts paid by employers to employees under the Refund Scheme will not be subject to tax, USC or PRSI; and that refunds will be processed on a next day basis. Further information on the Refund Scheme is available here.

Social welfare provisions

The Bill provides for a variety of enhanced income supports that will be introduced for people who are diagnosed with COVID-19 or required to self-isolate.

Illness benefit will be available from the first day of illness, and where applicable, will be backdated to apply from Monday 9 March 2020. To avail of the benefit, employees must be medically certified as diagnosed with COVID-19 or a probable source of COVID-19. However, the Bill confirms that the amount of illness benefit may be varied for such period as may be prescribed. The Bill also removes the requirement for a minimum number of PRSI contributions to avail of the benefit.

Before the publication of the Bill, the Government indicated that the waiting period for payment of Jobseeker's Allowance and Jobseeker's Benefit would be removed. The Bill does not expressly provide for this but instead implies that the waiting period may be removed by regulation and with the consent of the Minister for Public Expenditure and Reform. It remains to be seen whether and when these regulations will be published.  

Public health measures  

While the Heath Act 1974 and the Infectious Diseases Regulations 1981 already provide extensive powers designed to control the spread of infectious diseases – the Bill strengthens those existing powers and also provides the Minister for Health and health authorities with new and wide-ranging powers.

The public health measures of the Bill will continue in operation until 9 November 2020 but these can be extended beyond that date.

1.     Prevent, limit, minimize and slow spread of COVID-19 in and outside the State

  • The Government may restrict travel to and from the State, and travel to and from or within geographical locations (which is classified as an affected area). Restrictions may also be imposed on persons working in or visiting locations including requiring people to remain in their homes or other specified places.

2.     Prohibit or restrict the holding of certain events

  • The Government may prohibit events that could reasonably be considered to pose a risk of COVID-19 infection. "Event" is defined very broadly and includes events that are cultural, recreational, sporting, commercial, work, social, community, educational and religious.  
  • The Government may direct that steps are taken to safeguard and minimize the risk of infection – such directions may be issued to event organisers, owners/occupiers of a premises or any other place, and managers of schools, crèches or other childcare facilities, universities or other educational institutions. Such steps may include the temporary closure of such facilities. A person who contravenes a regulation or willfully obstructs it shall be liable to criminal penalties. 

3.     Detain people who are suspected to be possible sources of COVID-19 infection  

  • The Bill will empower medical professionals to order the detention or isolation in a hospital or other facility of a person who is a potential source of infection and a potential risk to public health. In practice, this power is likely to only be exercised where the person cannot be effectively isolated or refuses or appears unlikely to remain in his/her home. The person detained is entitled to have the opinion reviewed by another medical officer on grounds that he/she is not a potential source of infection. Criminal penalties apply to breach of such regulations.

4.     Criminal penalties for a person or corporate body who obstructs, interferes with or impedes an authorised person carrying out their powers provided under the Bill

  • A person who obstructs, interferes with or impedes someone carrying out their duties or powers under this Bill, for example, medical professionals, will be guilty of a criminal offence. This includes a refusal or failure by a person to provide relevant information to the authorised person. The Bill also provides that a body corporate (including its directors and other officers) may also be found guilty if they obstruct, interfere with or impede those discharge powers provided for under the Bill.  

The speed with which the Government has moved to draft and enact this legislation is to be commended and highlights the pressing need for swift action to be taken by the Government in responding to this evolving crisis.

It is expected that the President will sign it into law over the weekend.

Check out the ALG COVID-19 Hub for a suite of resources that have been prepared to assist companies respond to this crisis. For employment specific COVID-19 related queries, please contact any member of the ALG Employment team.

Date published: 20 March 2020