Living with Covid – A Revised Returning to Work Safely Protocol

Last year, the Government published a guide in May 2020 setting out mandatory steps to be taken by employers in advance of workplaces reopening around Ireland. As society begins to re-open once again this summer, the Government has published a revised edition of this Return to Work Safely Protocol.

The Protocol is a general guidance document and is intended to be applicable across all sectors. It sets out the suggested minimum public health measures required in every workplace in order to prevent any further spread of Covid-19 and to allow our economy to re-open after months of closures.

Much like the previous version of the Protocol, there is emphasis on a collaborative approach between employers and employees, with an acknowledgement that everyone has a part to play in keeping our workplaces Covid-free.

• Employers and employees are reminded of the importance of hand hygiene, respiratory hygiene and social distancing.
• Employers are advised to keep monitoring the compliance with existing Covid-19 policies and ensuring that employees are still observing Covid safety measures.
• The protocol recommends that face coverings are worn in crowded workplaces, and the approach to this should be considered under your risk assessment which you are obliged to conduct as an employer.
• If you have installed safety screens in the last 12 months, or this is something you are considering before you bring employees back to the workplace, the Protocol advises that these safety screens do not need to be floor to ceiling height, but that any screens which are installed should be of an adequate height to cover the pathway from the nose and mouth of one employee to the workspace of another.
• Employers and employees must continue to complete “return to work” forms confirming they do not have symptoms prior to coming back to the workplace.
• Similarly, those experiencing symptoms or being made aware of a suspected case must follow the established guidance on self-isolating as soon as is practicable and engaging in contact tracing to minimise the spread.

New Recommendations made by the revised Protocol

Testing

The Protocol sets out guidance in respect of employers who may wish to implement rapid antigen diagnostic testing or antigen testing in the workplace. The Protocol warns that any decision to implement a voluntary testing regime should only be done in consultation with your employees. Any employer wishing to go down this route, should ensure that the test kit they avail of is suitable for the needs of the business and be able to clearly demonstrate that the proposed frequency of antigen testing is appropriate based on the needs of the business.

Any workplace implementing such a measure must consider the safe disposal of the kits and agree a strategy if a positive case is identified in this way.

Employers should also decide on a policy for those employees who may not wish to be tested regularly and should at all times be mindful of their obligations under Data Protection Legislation.

Vaccination

Another new feature of the Protocol is that employers are now dealing with workforces who will soon consist of potentially vaccinated and unvaccinated employees.

The Protocol discusses employer obligations under the Safety, Health and Welfare at Work (Biological Agents) Regulations 2003 & 2020. These regulations require that an employer carries out a risk assessment where there may be a risk to the health and safety of employees due to a biological agent. If a vaccination is available for such a biological agent, the vaccination should be offered. However, employees cannot be forced to receive a vaccine.

This creates a tricky situation for employers trying to ensure that their workplace is safe for all. They cannot force those who are reluctant to get a vaccine, but must also risk assess the impact of allowing unvaccinated employees into the workplace. In certain circumstances, the risk assessment may suggest it is not safe to have an unvaccinated worker perform their normal duties and the employer may be forced to redeploy them. Before reaching such a conclusion, we would advise examining all the other public health guidance currently in place such as social distancing and the wearing of PPE before deciding if the risk still remains. An employer may also be required to have medical evidence that the unvaccinated employee was at risk.

Importantly, the decision to receive a vaccine is voluntary and workers are entitled to make their own decisions in this regard. For more on the potential issues around vaccinations, see our previous article – here.

Some of the other suggestions have carried over from the previous version of the Protocol, such as employers implementing support for workers who may be suffering from anxiety or stress, complying with reporting obligations to the Health Safety Authority, if applicable, and keeping workplaces well ventilated. You can access the full Protocol text here.

Contact us

If you have any queries relating to this article, reopening your workplace safely or employee engagement issues, please contact Marie Claire Scullion, Partner in our Employment team, Laura Quinn, Solicitor or your usual contact in the employment law department in Whitney Moore.