Coronavirus – COVID-19

Advice for Employers

With the rapid spread of the Coronavirus throughout the globe and in more recent days cases arising on the island of Ireland we have seen a steady stream of queries from concerned employers in relation to their duties and responsibilities to their employees in Ireland and how they should be planning and addressing this. The queries that have arisen cover a variety of issues including employment law, immigration, health and safety and data protection. In this bulletin we will address the most common queries that are arising to assist employers.

The Health and Welfare at Work Act 2005 provides that an employer must provide a safe and healthy place of work. In the context of the evolving situation surrounding the Coronavirus employers need to consider what they can do to maintain a safe place of work and what obligations they have to their employees in the event it is not possible to provide the safe place of work in accordance with their normal practices. Employers should also seek guidance from The Health Protection Surveillance Centre (HPSC), which is part of the HSE, they are the public experts in dealing with new diseases in Ireland and set the public health guidelines on how to deal with contagious diseases.

What should employers do now to protect employees?

Employers need to assess the risk to employees and take all necessary steps to reduce the potential exposure and spread of the disease. Employers need to be pro active. I have set out below a number of steps that employers are ought to take;

  • Ensure the workplace is kept clean and provide alcohol based hand sanitisers.
  • Remind employees who have flu like symptoms to remain at home and seek medical attention.
  • Restrict or stop all non essential international travel for business purposes.
  • Consider limiting all non essential office meetings.

What should an employer do if it is suspected an employee has been exposed or has travelled to an infected area?

Self Isolation:

An employer and employee can mutually agree to the employee continuing to work remotely for the isolation time of 14 days.

Whether an employer can unilaterally oblige an employee to self-isolate and work from home will need to be considered on the basis of a risk analysis, this will vary from organisation to organisation. If an employee refuses to self isolate the employer may need to consider more drastic steps including potential suspension however further advice should be sought before taking this step.

Medical Testing:

Many contracts of employment will provide for an employer to request an employee to undertake a medical examination or test and in this context an employer may rely on this provision to request an employee to be tested. Where this is not provided for in the contract the employer will need to evaluate the risk and the basis for requesting same.

Notification of confirmed case to other employees:

Under data protection laws, medical test results are considered to be a special category of data and as such are owed a higher level of care. Employers can process medical data relating to a data subject where it is necessary for the employer to comply with its legal obligations in relation to health and safety.

In general however any notification to employees of a positive case should ensure where possible that it does not include any data about the individual who has tested positive. Typically such notification would confirm that a Coronavirus case has occurred within the workforce in a certain office, but it would not be appropriate to provide any details from which the individual might be identified.

Paid leave:

If the employee has tested positive then they will be on sick leave and the normal sick leave policy will take effect. Employees will be entitled to be paid in accordance with their contractual rights or custom and practice.

If the employee has not tested positive but has been instructed to remain away from work either by their employer or medical personnel then where possible they should be facilitated in working from home. Where this is not possible the issue regarding payment is not clear cut and an employer will need to consider their position and the circumstances in which this has arisen.

In the event an employee needs to remain away due to the infection of a close family member then the employer should consider the terms of their force majeure policy.

 

For more information, please get in touch with Emma Richmond or your usual Whitney Moore contact.

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