Returning to the Workplace – How Do I Handle It?Posted in : How Do I Handle It ROI on 16 March 2021
It’s one year since the first lockdown, and we are starting to properly plan for a return to the workplace. All of our employees continue to work remotely but now that we see the vaccine being rolled out, we want to understand what our obligations are to our employees as they return. What are the issues that you are seeing as other employers try to manage this?
Work Safely Protocol
Originally launched in May 2020, the Protocol has been revised to incorporate current advice on public health measures (December 2020). The update was required to reflect the government’s Plan for Living with Covid 19.
The key factors outlined in the Protocol include employer/employee engagement, communication, and training. It sets out obligations for employers and workers to put infection prevention and control (IPC) measures in place to prevent the spread of Covid 19 in the workplace. IPC includes practising physical distancing, adopting proper hand hygiene and following respiratory etiquette. Employers are required to develop a Covid 19 Response Plan outlining the steps that an employer and its workers will take to reduce the risk of spread of Covid in the workplace.
Compliance is enforced by the Health and Safety Authority. By the end of 2020 approximately 20,000 Covid-related inspections had taken place by the HSA.
As essential manufacturing and pharmaceutical services remained open over the last year, key questions arose early on about an employer’s ability to use thermal imaging to temperature test its employee base to help reduce the spread of Covid. Employees in such services could not avoid the cameras to enter their workplace. The testing was regarded as mandatory, but non-invasive. Information about an employee’s temperature was not intended to be stored, however it was processed (as defined under the Data Protection legislation) and certain decisions were made based on this information. This gave rise to significant obligations under the Data Protection Act.
Employers needed to prove that the testing was necessary to comply with a legal obligation (such as under the Safety, Health and Welfare at Work Act) or prove that the data processing was necessary to perform a task in the public interest.
Employers had to conduct Data Protection Impact Assessments, update privacy notices, and consider questions around “processing” a special category of data (health data). Issues around express consent, necessity for the testing and proportionality all arose.
In recent months, employers are increasingly seeking advice about the use of PCR or antigen testing as part of the arsenal of tools used prevent/reduce the spread of Covid. There is no government guidance or regulation compelling employees to submit to Covid 19 testing. At time of writing, it is only mandatory for those arriving into Ireland from abroad to present a negative PCR test. It is an offence (with a potential fine of €2,500 or a prison sentence of up to 6 months) to arrive in Ireland without such a test result.
As such, from a data protection perspective, it will be a very high threshold to meet the standard required to prove that this testing is necessary and proportionate for a particular workplace. Should employers wish to require mandatory testing for employees, it should be justified based on the nature of the business and other factors. Examples of such justification might include that other IPC measures have been ineffective in prevent the spread of Covid 19, or there have been outbreaks in the workplace. It is something that will need to be regularly reviewed and best practice suggests that such review takes place on a weekly basis.
However, employers want to make the test available for employees, and many employees actively want to take the test. Employers should consider whether having the testing available on a voluntary and confidential basis may be more appropriate. Employers may then rely on the integrity of their employees not to present at work should they receive a positive test result. The employer should not receive any information about the test result.
Employers are also reminded of other issues arising including the employees’ right to privacy and, their constitutional right to bodily integrity (noting that Covid testing is invasive, rather than the thermal imaging mentioned above).
Employers are seeking advice about how to manage employees who refuse to submit to testing. For the reasons outlined above, employees are entitled to refuse to submit to testing. As such, disciplinary action is not advised.
Refusing to return without a vaccine
Given the slow rollout of Ireland’s vaccination programme, it is highly likely that it will be our number of months at least before Ireland’s adult population will all have received an offer to be vaccinated. Anecdotally, employees have already started to indicate to their employers that they will not return until such time as they have had the vaccine.
Ireland’s vaccination programme is a public health-led process, not an employer-led process. An employer cannot ask their employee if they have received the vaccine. An employer cannot refuse to allow an employee to return should they choose not to take the vaccine. Similarly, employees cannot refuse to return until they receive the vaccine without justifiable circumstances.
To best manage potential refusals to return to work, employers are advised to ensure that they comply fully with the Work Safely Protocol. This includes updating their Covid 19 Response Plan, Safety Statement and Risk Assessments. Having these steps complete will assist employers to manage such scenarios.
Employers will need to listen to employees to understand their reasons for refusing to return. In addition to the vaccine argument, other reasons provided in the last few months include living with vulnerable people, being in a support bubble with vulnerable people, being pregnant and anxiety about returning to the workplace generally.
The most important thing for employers to do is to ensure that they listen to the reasons provided carefully, and work with the employees to find a solution. Ensure that vulnerable workers who cannot continue to work remotely are provided with preferential support (ensuring that they can be supported to maintain social distancing). Practical flexible working options should be considered and documented. If an employer can prove that it meets its duty of care to provide a safe place of work to its employees with the measures it has in place to protect the employees, to include any additional bespoke measures for specific employees, then withdrawal of pay or disciplinary action may be warranted.
eLearning Training Resource
Return to Work Safely Protocol: COVID-19 Induction Training
The purpose of this course is to explain what is expected of individuals as they return to work.
Workers must understand the risks of Coronavirus (COVID-19) to themselves and their colleagues, the risk to your organisation for non-compliance with the Protocol, and their own personal risk of contracting the disease, in event of non-compliance with health and safety measures put in place in response to the Protocol.
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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.