Essential Workers and Access to Childcare: How Do I Handle It?

Posted in : How Do I Handle It ROI on 15 January 2021
Alan Devaney
Ronan Daly Jermyn
Issues covered: Coronavirus; Essential Workers; Childcare and Working From Home

“We are classified as an essential service under the Level 5 Covid restrictions. However, most of our employees can work from home,  aside from the vital manufacturing functions of the business.  A number of employees, who are currently working from home, are now asking for letters confirming they are essential workers in order to access childcare facilities such as crèches – How do I handle it?”

In the first part of our two part series into essential workers and childcare during Level 5 of the Plan for Living with Covid-19, we will look at who is an essential worker and who is eligible for childcare services. In the second part, we will look how employers can be flexible with employees around working from home and childcare issues. 

Since the Government took the decision not to reopen schools and to limit childcare on 6th January, there has been much confusion around who is an essential worker and who is entitled to access to childcare services.

What Is an Essential Service?

There are 18 categories of essential services, which can be accessed here - https://www.gov.ie/en/publication/c9158-essential-services/. The list includes services such as manufacturing, education and financial and legal activities. 

Employers will have already consulted with this list in assessing whether their business is providing an essential service or not. If their business is essential, the next question is whether employees in their business fall into the definition of an essential worker. 

Who is an Essential Worker?

The Government’s website states the following in relation to essential workers:

“Essential workers are those providing the [essential] services …... Physical attendance at workplaces is only permitted where such services can only be provided in person and cannot be delivered remotely.

The guidance goes on to say: 

Essential workers do not include administrative and other support for such businesses and services unless specified in section 13 and the physical presence of a worker is required”. Section 13 sets out the following administrative and support activities;

  • payroll and payment services necessary for the operation of undertakings and bodies;
  • employment placement and human resources services associated with the recruitment and deployment of workers engaged in the provision of essential services;
  • data processing, website hosting and related activities;
  • security activities to assist in either or both of the following:

(i)     the delivery of essential services

(ii)   the securing of premises closed to the public

  • funeral, burial and related services;
  • business support services (including information and communications technology support and sales, repair and maintenance for information and communications technology and telephones) where such services are necessary to support:

(i)     any other essential service

(ii)   a person working from their place of residence where the business concerned is being operated from a place of residence

or

(iii)  a business that is not an essential service, to the extent required to maintain that business in operation or to minimise any delay in the business resuming operation after these Regulations have ceased to be in operation

  • where such services are necessary to support any other essential service:

(i)     the cleaning of buildings

(ii)   industrial cleaning activities

(iii)  the provision of key third party supports other than those referred to in paragraph (f) provided under contract to a person providing an essential service

  • essential health and safety training (that cannot be done remotely).

Who Is Permitted to Physically Attend at The Workplace?

The Government’s advice in relation to work is “work from home unless essential for work, which is an essential health, social care or other essential service and cannot be done from home”[1].

Therefore, the nature of the work, the duties involved and the role of the worker are key considerations in determining who is “essential for work” and thus, who can attend at the workplace.

An employee is only permitted to physically attend at the workplace if their presence at work is essential for the provision of an essential service, which can only be provided in person and cannot be delivered remotely.

Key questions to ask when determining if an employee is permitted to physically attend at the workplace:

  1. Does the employee or employer provide an essential health, social care or other essential service?
  2. If so, is the employee’s presence essential for that service?
  3. If so, is it the case that such services can only be provided in person and cannot be delivered remotely?

If the answer to all three questions is yes, the employee is permitted to attend at the workplace.

Childcare Services

When it comes to childcare, the Government’s guidance is as follows:

“Childcare services are open for vulnerable children and children of essential workers. Essential workers who are eligible to access childcare services include those who are working from home.

Other existing childcare arrangements can continue to operate for vulnerable children and children of essential workers only.

In addition, a household of an essential worker, without an existing childcare arrangement, can form a bubble with another household for the purpose of providing childcare.”[2]

So again, we must look at the definition of an essential worker, which is as follows:

An essential worker must:

(a)   be providing an essential health, social care or other essential service; or

(b)   be involved in administrative and support activities, as outlined above, in a business providing an essential health, social care or other essential service and their physical presence is required.

Therefore, an employee is eligible for childcare services as an essential worker, including whilst working from home, when they are providing an essential health, social care or other essential service.  Workers involved in administrative and support activities, as outlined above, are also eligible for childcare services. 

The Minister for Children, Equality, Disability, Integration and Youth, Roderic O’Gorman TD provided further details on access to childcare services in a statement issued on 8 January 2021, which you can read here.  He confirmed the follow:

“An essential worker is someone who works in an essential service. The full list of essential services is available here. For the purposes of accessing childcare, an essential worker may be working from home. The levels of uptake of services will be closely monitored by the Department during January and the conditions on children’s eligibility to access services during this period will be subject to ongoing review.”

He also confirmed that both parents are not required to be essential workers for their children to be eligible for childcare service, as long as one of the parent’s qualifies as an essential worker. He also provided further details in relation to who are vulnerable children.

What Should Employers Do?

Employers will have already consulted with this list in assessing whether their business is providing an essential service or not. If their business is essential, the next question is whether employees in their business fall into the definition of an essential worker. Once these workers have been identified, they should be provided with letters confirming they are essential workers.

There may be a number of employees involved in administrative and support activities, as outlined above, who will also qualify as essential workers. Employers should consult with these workers in relation to attending at the workplace and their childcare needs.

Employers should consider putting in place a mechanism for approving essential workers attending at the workplace, particularly where the majority of employees are working from home.

Should I Provide A Letter to An Employee Confirming They Are Essential Workers In Order To Access Childcare Facilities?

Returning to the query at hand – once an employer is satisfied that their business is providing an essential service and the employee in question is an essential worker in line with the Government’s guidance – then they are eligible for childcare services under the current guidance and should be provided with confirmation of this.

Conclusion

While the Government’s advice continues to be work from home, there may be situations where essential workers need to attend at the workplace and/or access childcare services. In those circumstances, employers should review the list of essential services, identify which employees qualify as essential workers, and consult with them in relation to attending at the workplace and their childcare needs. 

 

       

This article is correct at 15/01/2021
Disclaimer:

The information in this article is provided as part of Legal-Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article.

Alan Devaney
Ronan Daly Jermyn

The main content of this article was provided by Alan Devaney. Contact telephone number is +353 91 895380 or email alan.devaney@rdj.ie

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