COVID-19 Issues: EWSS; Business Supports; Lay off; Suspension Right to Redundancy; Absence; Face Masks & TravelPosted in : Webinar Recordings on 14 September 2020
In this webinar recording, Managing Director at The HR Suite, Caroline McEnery, and Learning and Development Services Officer at Legal Island, Rolanda Markey, discuss HR issues around:
- Business Supports
- Suspension right to redundancy
- Face masks
Rolanda: Good afternoon, everyone, and welcome to our webinar with Caroline McEnery from The HR Suite. My name is Rolanda Markey from Legal-Island. And this afternoon, Caroline is going to talk to you about quite a number of COVID-19 issues. She's got some very up-to-date information, which is great.
We do have some questions, and we will take some questions at the end. If you have any burning issues or questions, then use the question box option on the left-hand side on your screen. You can just pop your question and we'll try and get through as many as we can. Caroline does have quite a lot to get through today, but we will try and get as many questions as we can.
If you're having any difficulties hearing, you could just check your sound settings to make sure that your output device is your computer speaker, or if you're using headphones that that's selected correctly.
We're all still trying to get used to this new technology. And the one thing I find when we're doing webinars and calls and things like this is that it worked perfectly fine earlier today, and you start a new thing, and suddenly your sound just goes. So just important to check your sound settings on your computer there.
So just before I go over to Caroline, there's just the lovely Caroline and myself, I just want to very briefly remind everyone about this year's Annual Review of Employment Law, which takes place on the 25th and 26th of November. The early bird offer ends this Friday, the 18th of September at 5:00 p.m. So if you want to book onto that, please do so now so you can avail of the discount.
And I have to say, Caroline, I am very excited about this year's Annual Review, because normally it's obviously one day, and Scott spends a lot of time trying to squeeze and reduce the programme down to 13 or so sessions, but we haven't had that same restriction this year. So it's packed full of really interesting stuff.
Caroline will be speaking at the Annual Review on remote workplace investigations and disciplinary hearings, which is a really topical issue. And there's just so much to talk about this year, not just because of COVID, but just generally there's been quite a lot happening in the world of employment law.
Over 300 people have already registered for this year's Annual Review, so book your place now. The early bird offer, as I say, ends on Friday, and you can book online and save up to €90 per person.
So, Caroline, you have quite a lot to get through here today. If I just go over to show some of the details. Caroline is going to talk to you a bit about The HR Suite, and then take you through what she's going to cover today. Over to you, Caroline.
Caroline: Thank you so much, Rolanda. Good afternoon, everybody. Delighted to be with you this morning/afternoon. Twelve o'clock is always one of those times you never know which it is, I suppose.
I'm hoping today that we're going to give you a really good update in relation to the very topical, up-to-date, hot-off-the-press information that has been announced by government today and also what clients of ours are ringing us in relation to.
Most of you will know us in The HR Suite. We have offices in Dublin and Kerry, and remote employees throughout the country. So we are very much nationwide, to provide advice and expertise, resources, training, and proactive, timely information.
So a lot of you will know, also, I suppose, we do a lot in the area of investigations, and that will be the topic that I'll be covering at this year's Annual Review. We do a lot of remote hearings, as well as on-site investigations also. So we'd be delighted to help in any way we can. We do bundles of hours, so you don't have to sign up to big retainers if that's of interest to any of you.
So, without further ado, I'm going to give you an update from what's happening currently. This is the agenda of what I'm going to cover. And I am giving you a brief government update. Obviously, it's literally happening as we speak, so I'll give you an update in relation to the key points.
We'll talk about the new EWSS scheme. Obviously, a lot of employers are faced with the possibility of layoff, changes in terms and conditions, or indeed restructuring or reorganisation, which may include also redundancy. And we're going to talk about that. We're also going to talk about the suspension of redundancy for employees, which has been extended.
We're going to talk about absence management and the challenges in relation to the different types of absence we're facing. We're going to talk about travelling. We're going to talk about testing, which is definitely becoming more prevalent. We're going to talk about facemasks in the context of employees requiring to wear them, and also the challenges, for example, in relation to those with hard-of-hearing problems, etc. And then we're going to talk about, in general, reinforcement.
So, as Rolanda said, we have a lot to cover. If you have any questions, I'd be delighted to address them at the end. So feel free to do so. And we provide news level updates, etc., as well, which might be of interest to you. So you can follow us on The HR Suite if you'd like some of that information.
So, without further ado, let's have a look at the government updates. The last major update we've got was the 18th of August, which seems like ages away. Now, we know it's only a month. And I suppose that update has provided the foundation for the update that has occurred today.
Remote Working to Continue
The major elements to that are businesses should continue to facilitate remote working where possible. And a lot of employers are now anxious to facilitate blended remote working. In other words, people are doing some working from home and some working in the office. And some employees are coming back saying, "No, I don't want to work in the office. I don't want to get public transport", etc., because of the concerns around COVID.
So it's important to remember the guiding principle is businesses should facilitate remote working where practicable. But it's also important to balance that with employees' need also for social interaction and for collaboration. We also have a lot of employees who want to come back to the office, whereas employers are saying, "No, remote working is the route we've decided".
It's important, if you are continuing the remote working, you've all done a risk assessment at this stage in relation to the ergonomics of that person working remotely. Because it's no longer a short-term measure. At this stage, most people have been doing it for a number of months and may be doing it for a number of months longer.
And you may need to consider, for example, a standing desk, etc. So again, make sure that risk assessment is done, and again, you provide guidance to the employee to do it themselves in their own home if that's required.
The next, I suppose, major occurrence that happened in August was testing was to be increased initially in meat factories and that's now increased to food manufacturing facilities, and that may be increased even further. And again, presenting challenges in relation to employees who may be refusing to get tested, and also in relation to GDPR and minding the data associated with the testing.
Again, making sure that any of these things you hear me talk about as we go through this morning's webinar, the importance of making sure there's a clear policy and protocol in relation to anything that does come in within the business context. So it avoids that uncertainty, and you're addressing the potential queries employees will have.
The other element to that was that avoidance of public transport where possible, and that was designed to free up public transport to students and those that had to it. And also there were limits around visits to home. Over-70s had specific restrictions, sporting events the same. The guards had new powers of enforcement and weddings and events and training and meetings, business meetings, etc., were limited, and indoor tours, etc., were also restricted.
So we've got the latest update this morning, and they've built on that guideline. As of this morning, a lot of the same measures are being retained, where they're still encouraging businesses to facilitate remote working and avoid public transport.
The visit to homes I haven't got an update on, because literally the announcement was going on as we were coming on to the webinar. So again, there's been talk about that being reviewed.
There is obviously also talk that in the coming days there could be restrictions in relation to the Dublin area. Again, as that comes into play, we need to assess "What does that mean for our employees also?"
The over-70s, for a lot of employers, if you have somebody who is in that age category of 70 or over, you need to make sure that you're doing an individual risk assessment for them in terms of their ability to be at work and the safety of being at work. And make sure that if you have concerns or they have medical conditions, etc., that you get independent advice from a medical practitioner.
That's one key overarching piece of advice that we have been getting from any of the cases you'll see in the WRC, when cases go there, to assess . . . rather than you as the layperson making a decision whether somebody is fit or unfit, that you get appropriate expert medical advice in making any of these assessments.
The other areas we wait and hear what the update is going to be. It's important you transpose that into the practices within your business. And we'll move from there to kind of see how that filters through from a work perspective.
So in our next slide then, I'm going to touch on the budget, simply because it's upon us. It's about to be, I suppose, finalised at this stage, or it's in the final stages, and we're now being drip-fed updates and potentials of what may happen, etc.
Obviously, there's a lot of talk in relation to PRSI. The Low Pay Commission recommendation will also be considered in relation to low pay. And there are lots of other considerations as well in relation to that budget. And I suppose it's probably one of the most significant budgets we've had in relation to trying to readdress the adverse shock that COVID-19 impacted in terms of the economy.
And we know unemployment peaked at a COVID-adjusted figure of 28.2% during COVID. And we expect by the end of the year that it should be down to 9%, hopefully, is what the predictions are saying, due to the fact a lot of measures were put in place, and a lot of employees are now reactivated back into the work environment.
Variation to Terms and Conditions of Employment
So if we move on then and look at, I suppose, one of the key areas that we're getting a lot of queries on at the moment is the need to potentially change terms and conditions. Again, a lot of these measures may have been short-term initially, where employers maybe needed to change people's working hours, maybe needed to change their place of work, maybe needed to change their salary and get agreement in relation to, for example, a pay reduction.
These changes now are looking much more longer-term, and the implications of the budget, the implications of the social and economic backdrop from a business perspective, etc., and these new guidelines will need to be assessed. And once the employer identifies, "What is my business strategy now for the next 6 to 12 months?" what are the implications to terms and conditions in relation to that?
One of those needs to be then looking at the contractual considerations. And I suppose we would always advise your contracts and your staff handbook and the policies that complement that are your most important documents. You need to consider have you got that variation clause available to you in those terms and conditions? And if you don't, how are you going to address that in terms of what's likely a negotiation?
But either way, the importance of communication and consultation with those that are impacted. Normally, you would try and agree a timeline that that will be reviewed, because that's a much easier way for all parties to reach agreements normally.
And I suppose then you need to consider what are the alternatives to no agreement? For example, if your requirement based on your cash flow is that you potentially need a pay reduction or an agreement in relation to changes in that regard, and employees don't agree to it, what alternatives are you going to consider then?
So again, that's just making sure that before you start a process like this, I think it's always important to play it out to see what could the avenues be in terms of where this goes. You are in, I suppose, a backdrop also where people are financially obviously under pressure, but there's also a lot of morale considerations you need to consider.
And we definitely don't want to make a bad situation any worse in these challenging times for you as an employer in trying to achieve business goals and productivity, etc. So that's when I would say tread carefully in terms of changes to terms and conditions.
Short-time Working and Temporary Lay-off
The next area I'm going to look at is what alternatives outside of changes in terms and conditions you might have if you do need to make changes in light of where things are at currently. Many of you will have already looked at these options in relation to the COVID closures, etc., but now might need to be looked at in a different way.
So from a temporary perspective, I suppose you've got short-time, where you potentially don't have full-time work for staff, and you need to reduce them to half or less than three days. And this is generally something that is required if you see a temporary backdrop of orders or customers, etc., with the expectation that that will improve. And that short-time is very complemented now with the employer subsidy, which I'll talk to you about the EWSS.
And from an employee perspective, they can claim any entitlement that they have in relation to job seekers to complement that also.
If the work is not available on a more longer-term basis, in other words, you have no work at all for a specified period of time, you have the option to consider layoff. And layoff means you pause the contract of employment.
Normally, you would advise the employees that you would be reviewing that on a monthly or bi-monthly basis. And at this stage, many employees who have been on layoff would have been waiting to return or waiting to hear the government announcement today in relation to redundancy. And I'll cover that in a moment with you.
So, if you do have people who are on layoff more longer term over the period of time . . . for example, a lot of the wet pubs, as they're being called, have had people who have been on layoff from the start of this pandemic.
And finally, the third option, which is definitely more longer-term, is redundancy. Redundancy is a termination of employment. So that is the key criteria in relation to an unfair dismissal, so that you need to be able to stand over that. The selection criteria you used, which short time layoff are redundancy indeed, has been objectively justified and you document that process of objective justification.
In particular, you also consider anybody who's out sick, you consider anybody who might be considered a vulnerable employee, and may potentially say, "Look, I was unfairly selected for any of the three of these because of a disability, or because of my gender, or because", etc. So you need to make sure that you are safeguarding against that.
I suppose the redundancy situation means that the position . . . nothing to do with the person or their performance. It's all about the position is no longer available. We're finding that a lot more redundancies are being challenged. So I think that's important just to keep that in mind as you document that selection process, and you go through that.
Employment Wage Subsidy Scheme
So the next consideration then is the TWSS has been replaced by the new Wage Subsidy Scheme, the EWSS. And I suppose we have certainty of knowing it's going to be in place until the 31st of March, which is really positive.
It's also positive that there was a recognition that both seasonal workers and new hires that were on the books from the 1st of July were able to enter the scheme, and you need to have them registered by today if you're eligible for the scheme to get the benefit of that subsidy for any employees who were with you from the 1st of July. And then that will be paid about mid-September is what the hope was.
Obviously, that was originally the 5th of September, so that was extended to the 15th of September. And so it might be paid a bit later as a result, but really positive to see those additional categories being included in the scheme.
The other key criteria of this scheme is that the employer must be operating at no more than 70% of their turnover compared with these last six months of the year versus the six months of last year.
It's also important to remember you need to look at that cumulatively and month-on-month. So there are two considerations to take into account in relation to that assessment criteria.
And like all schemes, the people who take up this scheme will be published by Revenue at the end of the year, because this is a Revenue scheme.
So if I move on then to the next slide, there are the different payment categories that are applicable in relation to the EWSS. And I suppose the major difference is it's based on the gross weekly wage rather than the net. And again, anybody who's earning less than €151.50 won't get a subsidy.
So most employers, if they're eligible for this scheme, will try to bring their employees up to that earning so that they can avail of the scheme. So, again, that requires some assessment of workforce planning so that the employer can take full advantage of the scheme, and also advantage to the employee in relation to their earnings also.
So if I move on from the EWSS in terms of additional criteria, you must have a valid tax clearance cert. And that, I suppose, was a new criteria. About 16,000 employers who applied for the previous scheme, the TWSS, didn't have an up-to-date tax clearance cert, so that has been introduced.
Obviously, it must be disruption associated with COVID, and we spoke about the differences in terms of reduction of turnover, and the comparable period of the six months versus last year.
So if I move on then to the next slide, one of the key critiques of this scheme has been the fact that there is a lead time in terms of it's up to six weeks before you get that payment. And from a cash flow perspective, that does present challenges. But unfortunately, at the moment that's the criteria of the scheme, but we're being assured that that is being looked at and all of the representative bodies have clearly made that concern and challenge clearly known. So we will watch and see what the likelihood in terms of that changing will be.
All these updates in relation to these schemes, Revenue will produce guidelines. I mean, there were numerous iterations of those guidelines for the TWSS, and the same applies for the EWSS. Whoever is processing your payroll should be reviewing those guidelines as soon as they come out so that they're up to speed in relation to any frequently asked questions that the Revenue update when they're getting those questions coming in. So it's important to take advantage of that and make sure that you're familiar with the nuances of the scheme.
Pandemic Unemployment Payment
One of the changes is in relation to the PUP eligibility. So if you had an employee who was on layoff, if they're already part of the PUP scheme by the 17th of September, then they will apply in terms of getting the PUP scheme. But after the 17th of September, new applications won't be taken.
So if employees are laid off after the 17th of September, which is upon us, then they will be going back on jobseeker's allowance. And that's a very significant difference for some employees in relation to that.
They obviously also apply for the PUP payment themselves, because your obligation is if you have work available, to let the employee know that you have work available. They need to come off the PUP payment, and you confirm that to them.
Ultimately, we had a huge challenge when the rate was €350. Once businesses opened back up after the initial closure, where employers had work for employees, they were saying, "Look, it doesn't actually suit me to come back because I prefer to stay on the €350, because it's more than what I've been earning". Well, that anomaly has been readdressed.
We can understand why it existed to start with on the basis they had to do it so quickly. But that has since been addressed.
So if I move to the next slide, we can see the new rates in relation to the PUP payment and when it will change for those that have been on it from the 17th of September.
So there are three stages of the payment changing, being reduced down. And on the 17th of September, you can see the first batch of changes means that if a person earned less than €200 per week, they get the €203. If a person earned between €200 and €300, they get €250. And if they earned over €300, they get €300 per week. That's a significant difference to the jobseekers' amount depending on what you're earning.
So again, those rates are due to change on the 1st of February and on the 1st of April. Again, we'll update you closer to the time in relation to those changes. But that's an important date, the 17th of September, for employees being eligible for that scheme.
Communication with Employees
So if we move on, I suppose one of the major things in relation to changes, whether that's to do with layoffs or changes in terms and conditions, etc., is . . . And leaders have been exceptionally good at doing this over COVID in relation to over-communicating and providing an update even if there's no change, even if you have no information to share, because this uncertainty fuels huge anxiety.
A lot of people will be coming back saying, "Look, we hear that we're going to be reduced to a three-day week", or, "We hear our jobs could be at risk", but that I suppose means by the time you actually start the communication process, trust has been damaged. Relations are not as positive as you'd like them to be. So that's definitely, I suppose, a key strategy to communicate and over-communicate.
And it's a really good time to do a communication session or a town hall meeting as we call them, i.e., a general company update with everybody, in light of the most recent government update that's out today so that you're giving people a good update in relation to how the business is performing, any changes, etc., from their perspective.
Redundancy Payments Act – Suspension Extended
So if I move on then to the next area, we had in place a suspension since the 13th of March under the emergency measures, and it has been announced literally hot off the press today that that extension is going to continue now up to the 30th of November. That's really welcome news for employers.
That suspension means that employees who are on layoff or short-time can't request to be made redundant. And a lot of employers were really concerned that .. . for example, pubs were not reopened and they were concerned that that would mean that you'd have an influx of people with long service saying, "I want to be made redundant".
A number of employers are looking at invoking redundancy. That doesn't impact the right for an employer to invoke redundancy once they follow the normal process, but it just means employees can't request to be made redundant, and that's really welcome news and, again, was something that was lobbied hard.
Again, the fact it is so soon, i.e., the 30th of November, would mean that probably as they make that decision, trying to balance employers' and employees' responsibilities in terms of employers who may be trying to keep the employee on the books, but an employee equally saying, "Look, I haven't been given work since last March. I want to go and apply for another job in another sector. Well, because I'm here 20 years, I'm not leaving until I get my redundancy first".
I think that the end of November may not be extended much after that depending on what happens, so I would encourage you to look at any cohort that would fall into that category and plan for that in advance.
So the next area to look at is the illness benefit. The good thing about the illness benefit is it has been extended up to March of next year. And the illness benefit is a €350 flat rate that the employee applies for themselves if they're told either to self-isolate by a doctor or the HSC, or indeed if they are diagnosed with COVID themselves.
I suppose it's a really important payment in light of the fact that some companies may not have a sick pay scheme, and we want to ensure that employees, even if there isn't sick pay scheme in place, that they're not prevented or prohibited from confirming that they are unwell for fear of losing out in terms of financials.
So it's important that we strongly communicate that to our employees, and we have that in the COVID policy as well, because we're erring on the side of caution, obviously, if people are displaying some element of symptoms, but using a common sense approach equally in that regard.
I'm going to move on then I suppose to highlight there that's the extension. Again, the financial element is one that has come up a lot, actually, for employees who said, "Well, I didn't . . ." And it's come up particularly in certain sectors. "I didn't confirm because . . ." And that's obviously hugely concerning for the overall spread of COVID-19.
So the next area that I'm going to touch on, I suppose, is the whole area of stress management. We're getting a lot of employees and managers coming back to say, "Look, this whole situation is causing huge stress to me". And one key opportunity now is to retrain our managers and retrain them in terms of managing remote workers, managing COVID queries and situations, and managing the different dynamic and the resilience that's required as we go into the winter season with the pandemic in the backdrop.
So I would strongly encourage you to revisit "What training do we need to give our managers? How can we support them in terms of managing remote workers, in terms of managing in a pandemic, etc.?" I think the managers would really value that support, and I think we'll get better productivity from both managers and employees as a result and reduce stress accordingly.
I would also say it's a very good time to do employee engagement, both individually and collectively, via maybe an employee survey, etc., to identify what are the key challenges people are experiencing, and what plan you need to put in place now for both those at work, remote workers, those absent, and what you're planning to do so that you can communicate that with them as well.
Managing Absence – Challenges
In the next slide, I'm just going to cover off the absence management challenges. We have a number of challenges in relation to absence management at the moment, starting with COVID cases themselves.
So if somebody has, obviously, symptoms, they need to contact their doctor and not attend work. We have a very clear policy in relation to COVID, in relation to sickness, in relation to sick leave, etc. It's really important that you explain to employees the disciplinary implications of breaching that policy, because it in breach of health and safety guidelines where they have a huge obligation to their fellow employees. So that's number one.
The second area, I suppose, is managing the absence of employees who are close contacts. We've a number of employees who deem themselves to be close contacts, but they're actually close contacts of close contacts of close contacts, and they're not actually close contacts at all in light of the HSE guidelines. So, again, my advice would be to ensure that it is a medical practitioner. Ours is the HSE who identify who those close contacts are, and how we manage those COVID cases.
I also feel that it's very appropriate for anybody now, going into the winter season, if they're going to be ringing in sick that they ring in sick to a central point ideally, or a number of people depending on the size of the workforce, so that we manage the confidentiality, the common sense, and the pragmatism that goes with managing this.
If somebody is ringing up vulnerable employees, we need to have done a risk assessment at this stage to facilitate and see that they're suitable to be at work, and that's backed up by a medical assessment as required.
If you have employees who are still absent because they're in the vulnerable category, we should be reassessing that, depending on the job they do, the medical condition that they have, etc. And again, identifying how long it is before potentially they'd be in a position to return back to the workplace.
And the absence management, a lot of people are absent due to work-related stress or stress to do with COVID. I think we need to engage with the person to identify what we can do to reassure them. Is remote working an option? Is managing the fact that we have the government protocols in the work environment, and we also have, I suppose, training and an employee representative, etc., in light of those protocols? It's important to, I suppose, rather than just accept and assert, we try and identify how we can get people back to work, if we can at all.
Other absences then, for example, if somebody has a child sick, for example, it's not themselves, a key question that's been coming up is "Is that force majeure?"
Force majeure, as you know, is fight or flight, and it is one that I suppose is in place under Section 13 of the Parental Leave Act for employees who have unforeseen injury or illness for a close family member, that their presence is indispensable. And remember, it's at the time they make that decision that it is force majeure. That's what counts.
So when they make the decision to leave because they think the child is unwell or because they feel their presence is indispensable, it doesn't matter whether it turned out the child was okay or not afterwards. There's good case law in that regard.
So I suppose it's important that it's not abused, but it's equally important that you're making it clear in relation to what's acceptable and what's not. And I would say with force majeure that you always look at the specifics of the individual case before you make a decision in relation to it.
So if we move on then to the company policy in relation to absence, is fit for purpose? Has it been updated? At this stage, it probably has been updated in light of COVID. It should be if it's not.
It's really important you have a policy in relation to certificates. We also need to consider now things like testing in terms of have you the ability to send somebody for testing, send them for a medical assessment if required? Again, all those are things you need to consider in light of the industry that you're in.
If you have an issue around long-term absence, let's get the occupational doctors assessment. A long-term may be that somebody is saying, "I'm not going to be in a position to return until a vaccine is found", and they may have been absence since the start of the pandemic. So again, you're just doing it to ensure equity for everybody else as much as anything else.
And there may be alternatives for employees who might look at parental leave, carers leave, etc., also as alternatives.
The vulnerable employees is one we've touched on a few times. And again, the importance of engaging with them and not discriminating against them, or having any stigma associated with specific groups being affected or impacted by COVID-19, and ensuring that diversity and dignity and respect policies adhere to throughout. We've had breaches or grievances being alleged in relation to how people were treated when they or a family member was confirmed with COVID-19.
So again, just make sure that you're careful in relation to that. That's why the less people that know . . . we manage that from a GDPR perspective. Because of the fact that it's personal medical data, we should only be processing it in the manner consistent with what we've said we will, and also only communicating it to people who vitally need to know, as many as the broader workplace.
Travelling Abroad During the Pandemic
Another very topical area has been in relation to international travel. I'm sure we potentially have an update, again, in relation to travel, and will continue to do so. As an employer, again, you need to reassess what is your travel policy? What is your annual leave policy at this time? Is the policy in writing? Has it been communicated? Does everybody understand their responsibilities?
There's a pre-return to work form three days prior to returning to work as a requirement of the government protocols. And also it's important if you do potentially seek flight details for confirmation of return if quarantine applies, because again, from a health and safety point of view, we have an obligation not only to that employee, but to the wider workforce as well, that we're doing all we can.
Obviously, if an employee comes and requests to travel to a green-listed country or a non-green-listed country, that's going to be back to what does your policy say? How do you consistently manage that?
And if it's the case that they're travelling to a non-green-listed country and they must quarantine, then they need to tell you that in advance of travelling and request that additional leave so that they can quarantine when they return.
Many people would say, "But if I get a COVID test, do I still need to quarantine for 14 days?" And the answer is yes, because the HSE guidelines have been that somebody could develop symptoms at a later stage. So, again, keep up to date with the HSE guidelines, and that should inform our policy.
As you'll see, there's a lot of information I'm covering in this morning's session, which again forms the basis of a lot of our updates in terms of the policies, but also forms the update in relation to communicating to the wider employee group to let them know their responsibilities and obligations as we go into a very crucial time in relation to COVID-19 for your business and for the health and safety and well-being of the wider employees and wider society.
Wearing Facemasks in the Workplace
So if I proceed then and move on to facemasks, which have been hugely controversial and challenging for employers, both in terms of trying to manage customers wearing them in the work environment to protect their staff, and also in relation to staff.
So, first of all, again, I would say it's really important that you've updated your policy to state the employee requirements, and you've also addressed challenges in relation to some employees who may not be in a position to wear a mask. So somebody with extreme asthma, for example, or maybe somebody who explains that, "Look, I work very closely with two other people, and if they wear masks, I can't lip-read for example".
So the requirement I suppose is to do all that is reasonably practicable in terms of reasonable accommodation in that regard. We can get masks that you can still see the person's mouth, and there's clear Perspex. So, again, you will be required as a reasonable measure to consider getting those Perspex masks for people who are working with somebody who has a hearing impairment so that you can show you've done all you can to facilitate them to have a safe place of work themselves.
Again, I will say if an employee tells you they have asthma and they can't wear the mask, it's important that they remain out if it's a workplace that requires wearing a mask, and you can't manage two metre distancing, etc. They remain out on medical confirmation of that. And then you consider alternatives in that regard, because you're managing both your employee who may have the issue, but also you're managing the co-workers in that regard.
Again, I think it's important that we do staff training in terms of the protocol of how we manage that issue if a customer comes in and they're not wearing the mask, because we've had huge issues where employees have been abused, really, and put in very difficult positions to deal with customers who have been very irate in terms of when they've been asked to wear a mask. So, again, it's important that we're addressing that in advance with our employees.
So my final point before we do some questions is I suppose . . . There's a lot we've covered off in this morning's webinar, and we've tried to tailor it to suit the questions that you submitted in advance of today's webinar. But for me, the most important thing now is if you haven't done . . . since you've done the government return to work training, which again is required for all staff in all environments, not just for those who actually returned, that you do a refresher training session with your staff.
Now, again, it'll do two things. One is it will give confidence to everybody that you are proactively trying to manage, and I think that trust in the employer is really important in the current situation. I suppose also it helps ensure that there's no ambiguity about any of the policies or any of the changes that I've covered off today.
The other thing I would say, too, is the WRC are back doing inspections. And they've been doing inspections in relation to the government protocols, but they're also back doing inspections remotely in most cases in relation to the compliance piece. And things like the national minimum wage, especially with the subsidies, things like the return to work protocol, things like breaks, etc., are areas that a number of people are falling down in. And so, again, I'd encourage you to make sure you have your return to work protocol up to date, and also your wider compliance piece.
That communication and reinforcing the training, again, should be documented and signed off. And again, I think it'll just give everybody confidence in relation to that.
That's probably the main elements that I'm going to cover off in the presentation. But I think it's important that you make it really clear to people that breaching policy will result in disciplinary action, and you're very clear in relation to what that means.
Again, in light of the health and safety obligations, if you have somebody who breaches, for example, by doing a house party and comes into work and breaches guidelines, or travels and doesn't make you aware they were supposed to quarantine and they didn't, any of these elements are a breach a policy. And the implications, as I say, need to be clearly outlined for employees.
So the government update that's just hot off the press, we will be putting out an update in relation to our newsletter and our social media, etc., in relation to the implications from a HR perspective.
But any of you who aren't on our newsletter list already and would like to be, please don't hesitate to drop us an email at email@example.com. We'd be delighted to include you in. We literally just do main newsletters and webinars occasionally as well to keep clients up to date proactively.
I look forward to seeing you at the Legal-Island conference, which always provides a really good update to people in relation to the backdrop and the lay of the land. And as Rolanda mentioned, the session I'm going to be covering is in relation to remote investigations and how we ensure that the rules of natural justice and the process is still maintained to the highest standard as we manage remotely for many of these situations now.
So I'm going to pass you back to Rolanda, and we're going to cover off any questions that you may have before we finish today's session.
Rolanda: Okay. Thank you very much, Caroline. You're listening to Caroline McEnery from The HR Suite and Rolanda from Legal-Island, just as a bit of a COVID update. We normally finish this webinar at quarter to, but since Caroline had quite a lot to cover today and we wanted to address a few questions, we hope you can stay with us for another 10 minutes or so.
Q&A – Travelling Abroad
A lot of the questions that already have been sent in have been answered through the presentation, so I won't repeat those.
But just simply as long as your policy is up to date, Caroline, regarding the whole thing about discipline for not disclosing that you're travelling to a country that's not in the green list, for example, then would it be okay for an employer to treat the absence following that that they need to isolate, perhaps, for disciplinary purposes?
Caroline: Yeah, I think it's a really serious one, Rolanda, and again making it crystal clear as people are applying for holidays. They're clear that if they are travelling, they need to follow the public health guidelines in light of the health and safety obligations they have as an employee of your company.
And I think it's important that you link the public health guidelines to the health and safety obligations they have as an employee within the company, and again, the importance of making sure those policies are signed off in advance. It's really good timing to do those now so that people have those updates.
Rolanda: Okay. Before we move on from that, if someone is travelling to a country that is perhaps not on the list, and they say,
"Look, could I possibly work while I'm abroad?" that could be an option as a way to deal with the isolation period, if it's feasible for the company to let them work from abroad.
Caroline: Absolutely. And you will have some people who need to travel because they have a family requirement to travel. There will be a need for people to travel. I think the most important thing is that people are honest, and the company work with them on the basis of trying to facilitate in line with public health guidelines.
I think that's the most important thing. You can't have a blanket approach of saying, "Nobody can go abroad", because obviously the green list says people can. But it's managing how we do that in light of ensuring health and safety in terms of our employees, but also in terms of balancing that and ensuring the public health guidelines are maintained at all times.
Q&A – Covid-19 Testing
Rolanda: Just quickly around the protocol with someone who's waiting on a test.
So if someone in your household is being tested for COVID, without any symptoms at this point in time, are you free as a fellow householder to continue to work while they await their test results?
Caroline: Again, if you are a close contact, that's where the GP or the HSE, etc., as they confirm in relation to the testing who might be close contacts, how that's going to be managed, etc. So, as an employer, I think it's most important that we say to any employee that they need to follow whatever public health guidelines and guidance they've been given, rather than it being a case that we're managing it in terms of making those decisions.
The HSE have, I suppose, clarity in relation to contact tracing, whereas for a lot of employees, they're making the decision themselves to say, "Look, I was with my first cousin. I think I could be a close contact". And again, we want everybody to err on the side of caution, but the HSE contact tracing and following the protocol of "contact your GP and they will advise you" is the best approach.
We're advising everybody to say, "Look, if in doubt, get medical advice just to make sure". And we have a lot of employers as well who are organising arrangements with occupational health doctors, etc., so that they've got somebody they can send the employee to if they need to aside from their own doctor. But for many, their own doctor is meeting the requirement in that regard.
Q&A – EWSS
Rolanda: Okay. We're just going to finish off, Caroline, with a few questions on the wage subsidy. We had a few questions. Now, some of these might be a bit technical. Maybe we can refer people where to get more information. First one is,
"What is the impact on employees if pension contributions were not deducted during the Temporary Wage Subsidy Scheme?"
Caroline: I suppose for me the Temporary Wage Subsidy Scheme is a payroll or a tax piece. I honestly don't know, Rolanda. It's outside of my area of knowledge.
Rolanda: That's fine.
Caroline: So I won't comment in relation to that, I'm afraid.
Rolanda: Someone has mentioned a template to complete in order to get the sweepback for July and August. Does that make . . .
Caroline: Again, all I can tell you is that there is a requirement in line with those Revenue guidelines to apply for the employees. And those Revenue guidelines take you through step-by-step exactly how you do that process.
I love employment law and HR, but payroll is an area that I just don't have enough knowledge in, and we don't advise in that area. So I would say go back and have a chat with your payroll provider, and definitely have a look at those Revenue guidelines because they're very, very helpful and very user friendly as well.
Rolanda: Now, just as a final question,
Caroline, if somebody worked a bit of overtime, additional hours during the pandemic and they were on the Temporary Wage Subsidy Scheme, presumably they owed the payment then for those extra hours. What is the best way to reimburse them for that? Is that something that maybe they need to take specialist advice on?
Caroline: I think it depends on what is your normal policy around additional hours. So have you agreed with the employee that they're going to get paid for those hours? Have you agreed that it's going to be added to their holiday balance? In light of the WRC inspections, any hours that the employee has worked, you need to be able to show if an inspector asks, "How did the person get compensated for those hours?"
So you have a lot of options available to you. But ultimately, how you decide is in line with what is your custom and practice. And that's, I think, something you should maybe sit down and agree with your employee as to what's best for both them and for you.
Rolanda: Okay. And one final question just on the travelling abroad again.
If someone is travelling to a country that is on the green list, a listener is asking could they insist . . . even though I suppose as statutory they're not required to . . . that they quarantine on their return?
Caroline: So if you insist for them to quarantine, you can. But then you need to pay them and compensate them for that. You can't ask an employee not to come to work when the government guidance is that they don't need to quarantine unless you're going to ensure that they're not out of pocket would be my advice.
So you can request them to stay at home, or you could maybe facilitate them to work remotely as an alternative option. But it would be the employer's obligation to pay them would be my advice if that was the case.
Rolanda: Okay. Caroline, thank you once again for your time. Thank you all for listening. Recording from this webinar will be sent out in the follow-up email. We hope you enjoyed it. And our next webinar, Caroline, is on the 16th of October, I believe, in the morning.
Rolanda: More information on that nearer the time. But thank you all once again, and thanks again, Caroline. Don't forget you'll see Caroline at this year's Annual Review of Employment Law. Thanks now. Bye, all.
Caroline: Thank you.This article is correct at 25/11/2020
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.