COVID-19: (Re-)Opening for BusinessPosted in : First Tuesday Q&A ROI on 13 May 2020
On Friday, 1 May, the Irish government published a "Roadmap for Reopening Society and Business" (the Roadmap). The Roadmap sets out how the government intends to ease the COVID-19 restrictions and reopen Ireland’s economy and society in a phased manner. The Roadmap sets out five stages for easing restrictions, with three-week intervals between each phase.
While tight restrictions will remain in place until Phase 1 (18 May), two changes to the restrictions came into effect on Tuesday, 5 May:
- people can now travel up to 5km from their homes for exercise; and
- people who have been cocooning can go out for exercise and fresh air provided they keep within 5km of their homes and observe social distancing at all times.
Although the lifting of the restrictions will be a slow and gradual process, it is important that employers take steps now to ensure that their business is ready to reopen when the time comes.
A new "Return to Work Safely Protocol" (the Protocol) has been developed for businesses that are beginning to re-open. The Protocol has been drafted by the HSE, the Health and Safety Authority and employer and employee representative bodies and provides advice on the implementation of various practical measures to reduce the risk of the spread of COVID-19 in the workplace. The Protocol requires enhanced worker engagement, communication and training, and compliance will be monitored by the Health and Safety Authority.
Below we take a look at when businesses can expect to reopen, how to manage the workforce while the restrictions are still in place, and what measures employers can introduce to ensure the smooth reopening of the workplace when the time comes.
1. When can businesses expect to re-open?
As per the Roadmap, the reopening of businesses will be a gradual process, and different businesses can expect to reopen at different phases.
Until the restrictions have been eased sufficiently, employees who can work from home should continue to do so.
Phase 1 – from 18 May
During Phase 1, it is expected that childcare facilities for healthcare workers will begin to reopen and outdoor workers such as constructions workers and gardeners will begin to return to work. Retailers which are primarily outdoor such as gardening centres, hardware stores and farmers markets and those which were open during previous restrictions (e.g. opticians) are also expected to reopen.
Phase 2 – from 8 June
Employees who work solitarily or who can maintain 2 metres' distance constantly from others will be permitted to return to work on a phased basis. Small retail outlets and marts where social distancing can be observed are due to reopen during Phase 2 on the basis that the retailer can control the number of individuals that staff and customers interact with at any one time.
Phase 3 – from 29 June
During Phase 3, it is expected that employees who have low levels of daily interaction with other people and who can maintain social distancing while at work will begin to return to work. It is anticipated that non-essential retail outlets with street level entrances and exits will reopen during this Phase on the basis that the number of staff and customers per square metre are limited so that social distancing can be maintained.
Phase 4 – from 20 July
It is expected that Phase 4 will see the gradual return to work of all other non-essential workers on a phased basis, starting with those who cannot work from home. Restrictions will be gradually eased during this Phase for higher risk service providers for which there is a population-wide demand (e.g. hairdressers).
Phase 5 – from 10 August
During the fifth and final Phase, it is expected that all other workers who have not yet returned to work onsite will begin to do so.
Enclosed shopping centres will begin to reopen during Phase 5 where social distancing can be observed.
2. Are there any practical steps that employers can take from a health and safety perspective while employees continue to work from home?
While the Protocol outlines steps to be taken by employers when employees return to the physical workplace, the advice remains that those who can work from home should continue to do so. So, it's important to remember that in general employers have the same responsibility and duty of care for the health and safety of employees who work from home as for any other employees.
Under Irish health and safety legislation, employers must carry out a risk assessment of their workplaces (wherever they are located, including workplaces located in the home) to identify any hazards and risks to which their employees may be exposed. As it is not possible to carry out a physical risk assessment of every employees' home, employers can require employees to complete a self-assessment questionnaire.
Employers should provide employees with guidance on good working practices, such as setting up a safe and ergonomic working environment and taking breaks and sticking to regular working hours. Regular communication is key to keep employees engaged, to boost morale and to ensure employees have an outlet to raise any issues or concerns.
Employers should take pro-active steps to address workplace isolation that can arise in connection with working from home and may want to consider:
- arranging regular updates via phone, web or email with each employee;
- providing employees with emergency contact numbers;
- arranging IT support in the event of technical problems where relevant;
- ensuring work is organised in such a way that the employee takes regular breaks and can separate his/her work life and daily life; and
- encouraging employees to maintain contact with colleagues.
Employees should also be reminded of their own health and safety duties while working from home, including:
- to take reasonable care to protect their own health and safety;
- not to engage in improper behaviour that will endanger themselves;
- not to be under the influence of drink or drugs while working from home; and
- to report any defects in the place of work or equipment which might be a danger to health and safety.
If not already done, employers should consider whether it is necessary to extend their insurance policy to include cover for any injury or damage that may be suffered by home workers in the course of their duties.
3. How can employers manage employee processes such as performance improvement plans, investigations, disciplinary and grievance issues when employees are working from home?
These processes can (and, in order to avoid accusations of delay, should) be carried out remotely. Like so many of our work practices at this time some adaptation will be required.
Performance improvement plans can commence or continue, but consideration should be given to adapting the requisite targets or key performance indicators. For example, it may be necessary to reduce targets or perhaps pause a performance improvement plan for a time to provide the employee with the opportunity to adapt to remote working. Similarly, it may be necessary to pause probation periods if an employee cannot be assessed as normal during this time (although the Unfair Dismissals Acts will continue to apply once an employee accrues 12 months' continuous service).
Other processes can be adapted and conducted via email/phone/video conference. For example, a disciplinary meeting and any subsequent appeal can be carried out by phone or video call, along with an exchange of emails to ensure that the employee has had every opportunity to participate and submit all relevant information to the decision maker. The employee should be afforded the opportunity to be accompanied by a work colleague or trade union representative who can also be present on the call, along with a note taker.
Employers should be mindful that employees may be experiencing an increase in stress levels, juggling increased childcare responsibilities and other personal commitments, and may be finding it difficult to adjust to working remotely. All of these factors need to be considered so that any necessary adjustments can be made to processes, including extending timelines, ensuring regular support from management, human resources and perhaps an Employee Assistance Program or occupational health.
The key principles of reasonableness, which underpins all dealings an employer has with its employees remains unchanged during this time and will be the standard employers are benchmarked against in any future complaint.
4. What measures should employers consider implementing to prepare for employees returning to work?
Employers should carefully consider how they will manage the safe return of employees to the workplace once the lockdown measures begin to ease and businesses begin to reopen.
The Protocol is designed to support employers and employees to put measures in place to prevent the spread of COVID-19 in the workplace. It outlines various recommendations and steps that can be taken to ensure a safe return to work. It should be born in mind that the measures outlined in the Protocol are non-exhaustive and are subject to change.
COVID-19 Response Plan
The Protocol provides that employers should engage with employees to develop a COVID-19 Response Plan (the Response Plan). As per the Protocol, employers should appoint a representative who will oversee the implementation of and compliance with the Response Plan.
As part of the Response Plan, employers should conduct a risk assessment to identify hazards and risks to which their employees may be exposed when they return to work. The employer should also identify measures to be put in place to ensure that any identified hazards will not cause injury to anyone and mitigate any risks.
The purpose of a risk assessment is to reduce the risk of injury and illness associated with work. It will form part of the employer's safety statement.
It may be worthwhile to engage a health and safety expert to assist with carrying out the risk assessment and preparation of the safety statement.
Employers should take into account employee's individual risk factors (e.g. older workers, presence of underlying medical conditions, etc.).
Employers should also include the following in their Response Plan:
- how the employer will deal with suspected cases of COVID-19 which includes the identification of an area on-site where employees with suspected symptoms can isolate if necessary;
- contingency measures that the employer will put in place to address increased rates of absenteeism; and
- measures that the employer will implement to reduce the spread of COVID-19.
The Response Plan should also identify the team designated by the employer to take responsibility for responding to suspected cases of COVID-19.
Update and introduce new policies and company documents
Employers may wish to update existing policies such as their sickness policy, health and safety and disciplinary and grievance policies to ensure that there are appropriate procedures and processes in place for when employees return to work and to ensure that appropriate measures are put in place should a situation like this arise again in the future.
As per the Protocol, employers should develop and/or amend policies and procedures for prompt identification and isolation of employees who may have COVID-19. For example, employers should keep a log of employee contacts to facilitate contact tracing and set out instructions that employees should follow if they develop symptoms of COVID-19 while at work (part of which would be availing of an isolation area). Employees should make themselves aware of the symptoms of COVID-19, monitor their own well-being and stay home if they feel unwell.
Employees should be informed of any new policies or updates to existing policies before returning to work and any necessary training should also be provided before their return.
Implement measures to limit the spread of COVID-19
The Protocol outlines various measures which employers should introduce to help limit the spread of COVID-19, such as:
- establishing and issuing a pre-return to work form for employees to complete at least 3 days before returning to work. This form should seek confirmation from employees that (i) they have no COVID-19 symptoms, (ii) they are not self-isolating, and (iii) are not awaiting the results of a COVID-19 test;
- providing training for employees to ensure awareness of the latest health and safety guidelines and advice; and
- implementing temperature testing in line with public health advice.
Other practical steps that employers are being advised to take include:
- ensuring the workplace is cleaned regularly;
- providing hand sanitiser, disposable gloves and face masks for all employee / customers;
- minimising the number of employees / customers in the workplace at any one time;
- considering adjusting/staggering working hours and extending opening hours;
- prohibiting physical contact;
- limiting face-to-face meetings;
- encouraging employees to use private transport to get to/from work instead of public transport;
- placing impervious barriers between workers;
- encouraging employees to stay at home if they feel sick; and
- displaying HSE information leaflets in prominent places.
Certain potential measures may raise data protection issues and involve the processing of special category (medical) data of employees and other visitors to work sites. Legal advice should be sought in advance of implementing any such measures.
For further advice in relation to this please contact Amy Martin (solicitor), Ciarán Ahern (Associate) or your usual contact in A&L Goodbody.
Latest on Coronavirus/Covid-19
- Lay-Offs – What Do They Mean With Respect To Notice Payments?
- Stefan Jennings v Cidos Trading Ltd Banba Toymaster 
- Warren Sweeney v MSL Engineering 
- Withdrawal of Employment Due to Disability Deemed Discrimination
- Jason Crosby v David Moore t/a DMES 
- Irish Employment Law In Brief: March 2022
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.