Employment Implications of the Coronavirus Outbreak - Your Questions Answered

Posted in : First Tuesday Q&A ROI on 3 March 2020
Patrick O'Neill
A&L Goodbody

The Coronavirus, or Covid-19, continues to dominate media coverage across the globe.  Here in Ireland, authorities are finding themselves grappling with containing Covid-19 since confirmation in the past week that the virus has now officially arrived on our shores.

For Irish employers, it is essential that they are focused on what measures can be put in place to manage any fallout which the outbreak may have on business operations and what steps should be taken to ensure the health, safety and wellbeing of its employees .

What can employers be doing right now?

Employers should continue to review news updates and the guidance regularly issued by the World Health Organization (WHO) and the HSE Health Protection Surveillance Centre (HPSC). Travel advice issued by the Department of Foreign Affairs (DFA) and GOV.UK should also be reviewed for updates on affected locations. The DFA has advised against all non-essential travel to China and against all travel to the Chinese province of Hubei. The DFA has also advised against travelling to 11 specific towns in Italy which were recently affected by the outbreak.

Specific risk assessments should also be undertaken where employees are based in affected areas or are intending to travel to or from such locations. Employers should also communicate with their employees on the importance of engaging in the proper hygiene and sanitation practices.

Employers should ensure that all frequently touched surfaces in the workplace are routinely cleaned and that additional hand sanitizing facilities are provided. 

What is the process involved in carrying out a risk assessment?

Employers should identify whether there are adequate safeguards in place to reduce the risk of employees contracting the virus. The content of the assessment and actions arising out of this assessment will depend on a variety of factors:

  • Size and profile of the workplace.
  • Working environment.
  • Assessment of the risk of staff exposure to the virus.

An employer with staff assigned internationally should assess whether its employees are currently, or have recently worked, in a location where cases of the virus have been confirmed. An employer should also determine whether any employees have scheduled international trips to any affected locations and whether these should be cancelled.

How should I handle an employee intending on travelling to an affected area?

All non-essential travel by employees to an affected area should be postponed. Employers should follow the up-to-date travel information from the Department of Foreign Affairs.  Employers should also require employees who become ill while travelling to notify their relevant supervisor of their condition and promptly call a healthcare provider for advice if needed.

How should I handle an employee who has recently returned from an affected area?

If an employee has recently been to a coronavirus "hot spot", it may be worthwhile requiring him or her stay at home for an initial incubation period, for example a period of up to 14 days is currently recommended.

Employers should assess whether employees are capable of working remotely. Bespoke arrangements may need to put in place by employers who cannot implement wholesale working from home arrangements.

Can I compel employees to work from home?

Employers have a statutory obligation under the Safety, Health and Welfare at Work Act 2005 to ensure that employees are provided with a safe working environment.  In discharging this duty, it may become necessary for employers to compel all, or a portion, of their workforce to work from home. So long as the employee is continuing to fulfill his employment duties his remuneration entitlements will be unaffected.

Employers should ensure the implementations of any restrictions can be seen as reasonable and proportionate. It would be considered a reasonable response by an employer to restrict the movements of employees who have only recently returned from an affected area, however blanket restrictions against a group of employees based on their race would likely be regarded as discriminatory in nature and expose the business to potential claims.

What if an employee cannot work remotely?

In circumstances where unaffected employees cannot work remotely but are required to not attend the workplace then the employer should continue to pay the employee their normal remuneration and salary entitlements. Any attempt by an employer to restrict such payments could trigger a number of statutory claims or could result in an employee resigning and pursuing a claim for constructive dismissal.

Can employers request that an employee be tested for the coronavirus?

Employers can compel employees to be independently medically assessed so long as the employee's employment contract (or sickness absence policy) provides for such a referral.  That being said, even in a situation where the contract (or policy) does not provide for such a referral, due to the serious nature of Covid-19, insisting on an employee being medically assessed would likely be seen to be a reasonable response by an employer in satisfying their statutory obligations.

Are employers required to offer paid leave?

If an employee falls ill with the coronavirus, an employer should apply its sick leave policy, which may or may not provide for paid sick leave. Employees who are quarantined due to concerns that they may have contracted the virus will need to be assessed on a case by case basis. Quarantine can work as a protective/preventative measure and if the employee is not actually sick, he or she may be in a position to work from home. If it transpires the employee has contracted the virus, the employer will need to be notified and the employer's sick leave policy will then be triggered. Employers should also consider applying their policy on force majeure leave, should an employee need to be absent from work for a few days due to one of their close family members falling ill or having a suspected case of the virus. .

What if an employee's sick pay entitlements have expired?

If an employee has run out of sick pay entitlements and is sick, the employee's contract of employment and the employer's handbook/policies should be reviewed to assess whether additional sick pay or special paid leave can be made. Employers should bear in mind that where sick pay is discretionary, such discretion should be exercised in a fair manner.

Are there privacy concerns that employers should be aware of?

An employee's privacy rights should be carefully assessed by an employer when considering whether or not to notify other employees about ill co-workers. In exceptional cases disclosure may be permitted if there is a real risk of an employee becoming infected. The coronavirus was recently officially designated a "notifiable disease" by the Minister for Health placing an obligation on doctors to immediately notify the HSE when a case of Covid-19 is diagnosed. In these unique circumstances, it would be reasonable for an employer to override the privacy concerns of an affected employee to ensure that the health and safety of the wider workforce is maintained.

   

Back to Q&A's This article is correct at 03/03/2020
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.

Patrick O'Neill
A&L Goodbody

The main content of this article was provided by Patrick O'Neill. Contact telephone number is +353 1 649 2046 or email pponeill@algoodbody.com

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