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COVID-19 – Returning to Work Safely

The “Return to Work Safely Protocol” (the “Protocol”) was recently published by the Government in advance of the initial phase of the “Roadmap for Reopening Society and Business” commencing on 18th May 2020, easing the Government’s emergency COVID-19 restrictions.  The Protocol sets out mandatory steps all employers must comply with in advance of reopening workplaces across Ireland.

The Protocol emphasises, and relies on, a collaborative approach between the employer and its “workers” (the use of the term workers is important as it is intended that the Protocol is not limited to employees only and applies to all types of atypical workers, including contractors) and sets the stage for the employer to establish an infrastructure to put that collaboration at the heart of its business, to ensure the health and safety of all individuals working within the business and reduce the spread of COVID-19.  

The Protocol can be broken into two sections – obligations on both the employer and the workers to be complied with in advance of workplaces reopening, and secondly, continuing obligations on the employer and workers in order for the workplace to remain open. Where essential businesses have remained open throughout the emergency restrictions, the health and safety measures that those businesses have taken must be complemented by, and enhanced to, the standards set out in the Protocol.

PRE-OPENING OBLIGATIONS

Employers must:

  • Issue a “pre-return” to work form to workers to complete at least three days in advance of the proposed return to work. This form will ask specific mandated COVID-19 related questions. 
  • Develop/update a COVID-19 response plan. This plan should outline details of how the business will deal with a suspected case of COVID-19 in the workplace, to include identifying an isolated area that a worker may self-isolate in if displaying symptoms. The employer should identify contingency measures to deal with higher rates of worker absences and measures to reduce the spread of COVID-19 such as changing work patterns.
  • Appoint at least one lead worker representative. The worker representative must be provided with appropriate training to ensure that COVID-19 measures are strictly adhered to in the workplace. 
  • Update health and safety risk assessments. Employers must put in place measures to address COVID-19 risks in consultation with workers.  
  • Provide COVID-19 induction training for all workers. This training should cover training on all public health advice and on the safety measures implemented by the employer under the Protocol. 
  • Take into account individual workers risk factors – identify vulnerable and at-risk persons as defined by the HSE guidance and facilitate any particular arrangements where possible or allow the worker to continue working from home.
  • Put in place protective measures – this includes ensuring physical distancing of 2 metres where possible, a no handshake policy, hold meetings remotely and work-day planning such as shifts. Where 2 metres of separation is not possible, put in place alternative protective measures such as the installation of physical barriers. 
  • Implement temperature testing in line with public health advice. No advice has been drafted at this time, but we can expect it to follow. 

Workers must:

  • Complete and return the pre-return to work form fully.
  • Inform the employer if other risk factors relevant to COVID-19 exist but have not been identified in the pre-return to work form.
  • Self-isolate if experiencing symptoms, obtain medical advice and remain at home until symptoms are clear. 
  • Undertake induction training.
  • Read all updated health and safety notices and policies.
  • Complete any temperature testing implemented by the employer in line with public health advice. 

ON-GOING OBLIGATIONS The continuing obligations on both the employer and employee are largely based on maintaining and updating the measures taken in advance of reopening the workplace. The employer is obliged to keep workers advised and informed of the health and safety measures it is taking in relation to COVID-19 to ensure the health and safety of the workers and the workers are obliged to adhere to the measures put in place.  Additional obligations mentioned are:

Employers must:

  • Keep workers informed and updated on public health advice. Information posters on signs and symptoms of COVID-19 should be clearly displayed for all. 
  • Keep a log of contact/group work. This should be done in order to facilitate contact tracing and workers should be informed of its purpose. 
  • Maintain a designated isolation area and procedure. Ensure that the measures identified in the COVID-19 response plan if a worker displays symptoms are maintained. 
  • Carry out a risk assessment of all COVID-19 incidents. 
  • Ensure regular cleaning of the workplace. There is an increased cleaning obligation for common work areas and rooms – these areas should be identified and cleaned throughout the day. 
  • Update First Aid training – ensure appointed first aiders training is updated to take into account potential COVID-19 incidents.

Workers must continue to adhere to the policies and measures of the employer, keep the employer informed of any symptoms and be aware of public health advice.

OTHER RECOMMENDATIONS 

The Protocol also recommends that employers put in place supports for the mental health and wellbeing of its workers upon their return to work – many workers will have experienced grief or a traumatic experience or may be anxious at the return to work. Employers are also recommended to update working from home policies and sick leave policies, and to agree any change in work shift patterns with trade unions or worker representatives’ that are in place.

ENFORCEMENT

The Health and Safety Authority (HSA) is tasked with enforcement of the Protocol. The HSA will take a collaborative approach in the first instance. They are authorised to visit and inspect the workplace. If the HSA identifies shortcomings in the work practices, it will notify the employer and advise the employer to make improvements. If the recommendations are not followed, the HSA can issue an Improvement Notice or a Prohibition Notice, and if the notice is not followed, the HSA will be authorised to order the employer to shut down the workplace.

RISKS FOR EMPLOYER

A number of potential legal risks arise in reopening the workplace and in the implementation of the Protocol that employers should take into account in so far as possible:

  • Equality issues – identifying and putting in place measures to protect vulnerable/at risk workers is likely to involve workers that meet one of the discriminatory grounds listed in the Employment Equality Acts. Employers will have to balance their obligation to reasonably accommodate the worker with ensuring compliance with the Protocol.
  • Data protection – employers must ensure that the collection and processing of health data in the pre-return to work form, and any disclosure of health data in the workplace, is in compliance with the GDPR. Employers should identify how they can store the data securely, how long they will store it, limit who it will be shared with, and consider your deletion policy.
  • Landlord requirements – employers may need to have their leases reviewed and seek landlord consent in the event they are required to make amendments to the lay out of the workplace, in order to install the protective items envisaged by the Protocol.
  • Insurance – employers should contact their insurers to ensure they are meeting any additional requirements imposed by the insurers.
  • Shared building with other business – consider liaising with other businesses in the building to agree staggered working start times if possible. Can all parties agree one access and egress? Do log in/log out facilities need to be adjusted?
  • Employee issues – these may range from employees’ health and safety including mental wellbeing, to childcare and commuting issues as well as the day to day employee matters. Employers should prepare to be flexible where possible.

EFFECTIVE IMPLEMENTATION

Communication with workers is key in implementing the Protocol successfully. Under the Safety Health and Welfare at Work Act, 2005 an employer is obliged to provide a safe place of work for all employees and may be guilty of an offence if it does not do so. Similarly, an employee has a duty of care to take care of their own health and safety and that of others and is obliged to comply with any health and safety requirements the employer imposes. It should be made clear to employees that adherence to the policies and measures put in place is vital for the health and safety of others, and that compliance is a term of their employment – employees should be made aware that non-compliance may result in a disciplinary action, up to and including dismissal. 

A “LIVING” DOCUMENT

The Protocol is helpful in allowing employers plan for a reopening; however, it is described as a “living” document and will be updated and adapted as matters evolve and it is in no means a definitive answer to the myriad of issues that face employers at this time. Employers and employees will need to be adaptable – the key at this time is to keep the lines of communication open with your employees and encourage communication from your employees to address any concerns they may have regarding a return to work, and deal with them on a case by case basis.

 

If you have any queries relating to this article, reopening your workplace safely or employee engagement issues, please contact Marie Claire Scullion marieclaire.scullion@whitneymoore.ie  or your usual contact in the employment law department in Whitney Moore. If you have any property related queries, please contact cathy.mcfadden@whitneymoore.ie

Whitney Moore’s employment team shall be hosting a virtual HR roundtable discussion, to discuss the roadmap for reopening the economy, the return to work safely protocol and the legal considerations arising at this time. Numbers are limited so please register your interest with christopher.ryan@whitneymoore.ie