COVID-19: Summary of the Emergency Measures in the Public Interest (COVID-19) Act 2020
Many individuals and businesses contending with the ongoing COVID-19 pandemic should be aware of some of the emergency measures being put in place to protect the public from the economic and social effects of the pandemic. In that respect, the Government has enacted legislation to mitigate the impact of the virus on the administration of public service functions namely, the Emergency Measures in the Public Interest (Covid-19) Act 2020 (the Act).
The Act provides a number of provisions that are to remain in force for the duration of the current health crisis (which will be confirmed by further governmental order). The key provisions are set out below.
The termination of residential tenancies and rent increases will be prohibited during crisis
The Residential Tenancies Act 2004 has been amended to prevent tenancy terminations and rent increases for the duration of the Covid-19 crisis. In this context, the Act refers to the concept of the "emergency period", which is defined as the 3 month period commencing on 27 March 2020, subject to extension by ministerial order.
Residential Tenancy termination
Notices of termination served prior to the emergency period, as well as potential new notices, are both covered by the changes, with the result that, broadly speaking, no residential tenancies are to be terminated during the emergency period. These provisions will apply to Local Authority and Approved Housing Body lettings as well as the private sector, and the Act also prohibits the eviction of travellers during the currency of the emergency measures.
For notices of termination served before the emergency period where the notice specifies a termination date falling within or after the emergency period, the termination date will be revised. For the majority of termination notices, including tenancies for a duration of less than 6 months, determining the revised termination date involves adding the duration of the emergency period to the notified termination date.
However, where the notice of termination relates to a breach of the lease, and the matter has been referred to the Residential Tenancies Board, in the absence of an appeal to the Tenancies Tribunal within the specified period, the termination date will not be revised.
The Act also provides that, during the emergency period, where a tenant is in breach for failure to pay rent the landlord must give the tenant more time to remedy his/her breach before the landlord can act – the tenant must be notified in writing that an amount of rent due has not been paid and 28 days (up from 14 days) must elapse before the landlord's 28 day notice of termination will come into effect. The intended effect of this is unclear in circumstances where the landlord’s right to take the next step (i.e. serve a notice of termination) is suspended. It may be that it gives a tenant a further 14 days grace when the emergency period comes to an end.
As a corollary to these measures, the emergency period is also to be ignored when calculating whether a Part 4 tenancy applies.
Tenants who received termination notices before the beginning of the emergency period and who have remained in occupation beyond the expiration of the notice period are now entitled to continue in occupation until the end of the emergency period, unless a determination of an adjudicator or the RTB's Tenancy Tribunal finds that they must vacate.
It should be noted that amendments made to the Act as it passed through the Oireachtas have cast some doubt over the position regarding the forfeiture of commercial leases. The legislation contains a provision which states that "all proposed evictions in all tenancies in the State" are prohibited for the duration of the emergency legislation. While the wording lacks clarity, and we do not believe that it was an intended consequence, the conservative view must be that the forfeiture of commercial leases is for the time being prohibited.
The rent increase prohibition prevents any rent increases during the emergency period.
In this regard, the Act simply provides that any increase in rent which was due to take effect during the emergency period shall not take effect during that period and shall not be payable in respect of any period falling during the emergency period.
It is important to note that tenants remain liable for their contractual rent and that the obligation to pay this rent has not been interfered with.
Certain time periods in planning and building legislation will be disregarded
Part 3 of the Act gives the Government power, at the request of the Minister for Housing, Planning and Local Government, to disregard certain time periods during the crisis to avoid breaching statutory deadlines in a number of Acts relating to planning and building development. The provisions are modelled on similar provisions in the planning laws that cover the Christmas period.
Specifically the Act inserts a new section into the Planning and Development Act 2000 which when combined with a Ministerial Order made on 29 March has the effect of deeming an initial 3 week period until 20 April as a period which will be disregarded when calculating the appropriate time limits for a number of planning and building provisions. It is likely that this initial 3 week period will be extended by a further Ministerial Order later this month.
First and foremost the time limits set out in the Planning and Development Act 2000, which is the main legislation in the area of planning law, will not apply during the emergency period as envisaged in the Act. This means there will be no obligation on parties who have deadlines to meet under the Planning and Development Act 2000 to do so due to the emergency nature of the Covid 19 pandemic until such a time as the emergency measures are disengaged. The time limits related to Strategic Housing Developments and Environmental Impact Assessments as provided for in the Planning and Development (Housing) and Residential Tenancies Act 2016 are also not required to be adhered to for the duration of the emergency legislation.
The time limits for the making of building regulations by the Minister, dispensations and offences related to building regulations under the Building Control Act 1990 are to be disregarded during the emergency Covid 19 measures. Similarly time limits set out in the Derelict Sites Act 1990 and Part 2 of the Urban Regeneration and Housing Act 2015 will not apply during the current medical outbreak – those Acts enable the Minister to give directions in relation to derelict sites and provide for a derelict sites levy alongside a vacate site levy where appropriate.
A list of those provisions in full to which the time periods are disengaged can be found in the new section 251A of the Planning and Development Act 2000.
The introduction of a Temporary Wage Subsidy Scheme to be operated by the Revenue Commissioners
The Government will contribute to eligible employers' wage costs by paying them a wage subsidy to be passed on to the employee on a temporary basis. The Act provides that the scheme is available to employers who are making best efforts to pay some of employees' normal wages during the temporary period. The wage subsidy to be paid shall be determined by reference to the weekly emoluments paid by employers to specified employees. If an employer can demonstrate (to Revenue's satisfaction) that they will be adversely affected by the Covid 19 outbreak in the period of 14 March 2020 to 30 June 2020 by at least a 25 per cent reduction either in the turnover of the employer’s business or in customer orders being received by the employer they may be entitled to support. They must also fulfill conditions such as submitting information to the Revenue Commissioners through ROS (Revenue Online Services).
The Act envisages 70 per cent of an employee’s wages being paid by the State up to a net payment of €410-a-week for employees in receipt of weekly income of €586. For employees with weekly incomes in excess of €586 but not more than €960 per week, the amount of the temporary wage subsidy shall be determined from time to time by the Minister for Finance, with the consent of the Minister for Employment Affairs and Social Protection. A temporary wage subsidy will not be paid to an employer in relation to employees earning more than €960 per week.
A prohibition for employees who have been temporarily laid off or put on short time to claim redundancy until a longer period has passed
The Act amends the Redundancy Payments Acts 1967 with the effect that any employee who has been temporarily laid off or kept on short time due to the effects of measures taken due to Covid-19 will not be entitled to claim redundancy during the period 13 March 2020 to 31 May 2020. This period may be extended.
A simplified recruitment process for the possible re hiring of retired health sector professionals and members of the Permanent Defence Forces will be provided for
These emergency measures aim to support the re-enlistment of former enlisted members to fill certain critical technical positions in the Permanent Defence Force and to facilitate the re-employment of retired health sector professionals by empowering regulators to adopt a more streamlined and simplified restoration process to the register of their profession for individuals who wish to respond to the Covid-19 emergency.
This will include a number of professions such as doctors, nurses, midwives, dentists, pharmacists and other health and social care professionals such as social workers, physiotherapists, radiographers, dietitians, opticians and occupational therapists.
Provisions to allow for the continued operation of Mental Health Tribunals
The Act permit the Mental Health Tribunals to continue unimpeded for the duration of the exceptional circumstances caused by the pandemic. This will be done by broadening the list of consultant psychiatrists available to the tribunal and extending the period in which the tribunal must make decisions on individual cases.
A second psychiatrist will be permitted to examine a patient remotely and it will allow for one member, paper-based tribunals thereby reducing physical contact minimising personal interaction. The Act also removes the possibility of psychosurgery for the duration of the exceptional circumstances where one member may be making decisions.
The extension of some functions of tArd-Chláraitheoir in relation to Civil Registration
The Act amends the Civil Registration Act 2004 to extend the functions of an tArd-Chláraitheoir and staff to perform some of the functions of a registrar or a superintendent registrar in the event of the Registration Office being closed down temporarily because of the pandemic. It also removes the obligation on a qualified informant (usually next-of-kin) to attend a registration office to register a birth or death for the duration of this public health crisis.
For further information please contact a member of the A&L Goodbody Litigation & Dispute Resolution team.
Date published: 1 April 2020