Coronavirus - Essential update for employers: “No room for complacency or panic”
Consideration of what employers need to do as the incidents of coronavirus (Covid-19) appear across the world is fast changing and under constant review. Ireland is no different. As the first case of coronavirus in the Republic of Ireland has forced the closure of a Dublin secondary school and Google has implemented a company-wide work from home day to test its preparedness, we revisit essential HR considerations for businesses based on what we've seen so far.
Health & Safety
We outlined in our previous bulletin on this issue the importance of carrying out a risk assessment exercise. Employers have a legal obligation under the Safety, Health and Welfare at Work Act 2005 to safeguard the safety, health and welfare of its employees insofar as reasonable practicable, which includes putting in place effective measures to assess and eliminate risks. Employers also have a duty to protect employees from reasonably foreseeable harm.
The challenges of "self-isolation"
While staff and pupils at the relevant school have been advised to limit social interactions or "self-isolate", others who have been in close contact with the affected person may be well advised to do the same, even if they are feeling well. Many questions are arising in terms of an employer's obligation to continue paying those in "self-isolation."
If an employee is advised to self-isolate by a medical professional, are they entitled to be paid?
While employees who are unwell should be paid in accordance with the usual sick leave policy, the position in relation to employees who have been advised to self-isolate, but are feeling well, is less clear-cut. In such circumstances, where it is possible for staff to work remotely, they should do so and be paid as normal. Where such an employee cannot work remotely, there is no strict legal obligation to pay them. However the Department of Employment Affairs and Social Protection has indicated that illness benefit will be made available in such a scenario and the WRC has urged employers to explore alternatives to suspending pay.
It is important that employers give due consideration to WRC's recommedation and are mindful of the risk of employees coming into work and potentially spreading the virus in the workforce. Employers need to carefully analyse any such situation, taking into account the particular circumstances and their obligations in respect of the health and safety of their workforce and business continuity.
If the employer requests the employee to self-isolate, are they entitled to be paid?
Employers who are aware that a staff member has been in contact with a person with the virus, or has travelled from an affected area, may request the employee to stay at home for health and safety reasons. Again, if they can work from home they should be paid as normal. However, where they cannot do so, they should receive their normal pay in this situation as they would be regarded as available to work, but are remaining at home pursuant to a request from their employer. If an employer suspends pay in such circumstances it could risk legal claims such as in respect of unlawful deductions from wages under the Payment of Wages Act 1991. This is on the basis that the employee is prepared to work but their employer will not let them.
If an employee voluntarily travels to an area that they know in advance is an affected area and on return is required to self-isolate, are they entitled to be paid?
An employer cannot prevent any employee from knowingly travelling to an affected area in their free time. However, if they are required to self-isolate as a result (and this is either at the employer's or medical practitioner's direction), provided they remain well it may be the case that the employer takes the view that they will not pay them for this time off work. This is not risk free for the reasons referred to above and every case needs to be assessed on its merits. In order to reduce the risk in this instance, staff should be notified that pay may be suspended if isolation becomes necessary following their own decision to travel to an affected area.
Keep the situation under review
In general, paying staff who are well but in "self-isolation" should be kept under review. If the situation escalates to lengthy periods or affects a vast number of employees, it may become a necessary business measure to consider other options, such as employees availing of annual leave, unpaid leave, or agreeing revised pay terms with employees, given the possible impact of the situation on the business.
It is noteworthy that the HSE has declined to identify the school which has closed. The Chief Medical Officer has pointed out that confidentiality must be maintained so the public would feel confident about coming forward if they think they may have contracted the virus. Likewise, employers should endeavour to maintain employee privacy and address individual situations on a confidential basis. Medical information is special category data under GDPR and an employer must ensure that suitable and specific measures are taken to safeguard the privacy rights of the employee.
- Keep staff informed of what is expected of them. Highlight the government guidance available here and require employees to inform HR/management if they have recently returned from an affected area
- Inform staff of the affected areas and require staff to inform their employer if they are intending to travel to an affected area
- High levels of hygiene in the workplace should be actively promoted, including reminding employees to be extra vigilant and providing hand sanitisers
- Consider suspending unnecessary overseas business travel and using technological alternatives and keep up-to-date with travel advice from the Department of Foreign Affairs
- Communicate workplace processes (sickness and absence policies) and ensure these are implemented consistently
- Keep up to date with Health Protection Surveillance Centre guidance for advice on quarantine procedures
- Follow the Department of Business, Enterprise and Innovation's checklist of preparatory actions in responding to coronavirus
- While many employers are unable to operate under a fully remote working model, contingency planning should include a review of the ability to move employees to remote working giving consideration to technological requirements; and home working protocols.
As Minister Harris has stated, there is no room for either complacency or panic. Employers should ensure they have an action plan prepared, so that they can respond effectively to a suspected case of the virus amongst their workforce and manage absences while limiting the impact on business continuity.
For more information in relation to this topic, please contact Triona Sugrue, Knowledge Lawyer or any member of the A&L Goodbody Employment team.
Date published: 3 March 2020