COVID-19 – Returning to Work Safely – Webinar Summary

Whitney Moore’s Employment Litigation department held its first webinar of its series on the recently published Return to Work Safely Protocol (the “Protocol”) and accompanying Roadmap. The objective of the discussion, which was aimed at HR practitioners and business owners, was to provide some clarity and answers for employers looking to allow their staff return to work over the coming weeks. We explored the various obligations placed on employers in the Protocol and the need to balance these with their existing obligations under the Health & Safety, Equality and Data Protection legislation.

Return to Work Safely Protocol

This document places a strong emphasis on collaboration between employer and employee in seeking to achieve and maintain a safe place of work. It sets out guidance on the steps both parties should take to achieve this.

Steps for employers to take in advance of reopening:

Appoint at least 1 lead worker representative, engage and provide training and a structured framework;
Identify Covid-19 management team;
Develop/update a Covid-19 response plan in consultation with work representative/s;
Update health and safety assessments and statements;
Identify employee individual risk factors – e.g. vulnerable or at risk employees;
Put in place a plan how to deal with suspected Covid-19 case in the workplace;
Put in place contingency measures for increased absenteeism; work patterns and shifts;
Prepare pre-return to work forms;
Protective measures to be in place in advance of reopening and induction training provided;
Identify entry and exit routes, engage with other businesses in building or landlord;
Temperature testing in accordance with public health advice and data protection issues.

Employers’ obligations once in the workplace:

Provide information, training and updated guidance on Covid-19 symptoms and workplace safety measures, in line with public health advice;
Ensure physical distancing measures, such as a no handshaking policy, remote meetings, identify common work areas, prevent gatherings;
Maintain and update Covid-19 case response plan, ensuring the maintenance of at least one self-isolation area in the workplace and identify manager and measures for dealing with suspected case and aftermath;
Keep a log of group work and contacts for the purpose of contact tracing and notify employees and related data protection issues;
Train employees on hand and respiratory measures and provide necessary equipment/facilities to assist;
Update first aid training to take into account Covid-19;
Consider measures for customer facing roles and business travel.
Other recommendations – Mental health supports, updating sick leave and work from home policies, engaging with employees.

Employees’ obligations:

Complete pre-return to work, disclose any relevant Covid-19 incidents not captured;
Undertake training and keep up to date with public health advice;
Adhere to staggered working times and workplace policies and guidance.

Health and Safety

The Safety, Health & Welfare at Work Act 2005 places a statutory obligation on employers to maintain a safe workplace, whether that is in a formal workplace or where people are working from home. This obligation extends to safe systems and safe equipment. Employers need to consider how they can continue to meet this obligation in the changed work environment carrying out risk assessments and updating policies to take this into account.

Key issues:

Health & Safety Authority has power to inspect workplaces, issue recommendations, prosecute, issue fines and close premises.
Health and Safety concerns of employees may be deemed a protected disclosure thus complaints need to be dealt with under the relevant policy.
Failure to address concerns regarding safety in the workplace may put employers at increased risk of personal injury actions from injured employees.

Employment Equality

In returning to work and implementing strategies to address the health and safety concerns employers need to be cognisant of the fact that measures that are put in place could directly or indirectly effect one group of workers more than others and as such discriminate on one of the nine grounds in the Employment Equality Acts 1998-2007.

Key issues:

Consider if the actions envisaged will discriminate on any 1 of the 9 grounds set out in the including, family status, age, race, disability.
Employers need to consider what reasonable accommodation they could make to prevent discrimination.

Data Protection

In implementing the measures set out in the Protocol these need to be balanced with existing obligations under the Data Protection Act 2018 and GDPR.

Key issues:

Data Processing Impact Assessments should be carried out for each processing activity (return to work questionnaires, temperature checks, meeting/group work logs).
Ensure any processing has a legal bases, that it is fair and transparent, legitimate purpose, limited to data necessary to fulfil the purpose and restrict the length of time it is retained for.

If you are interested in any of the topics discussed in today’s webinar and would like to be notified of our upcoming online employment webinar events please register your interest at christopher.ryan@whitneymoore.ie.