Employee relations
• Information: It is important to continue to provide employees (and representatives where appropriate) with clear and regular updates in relation to proposals for return to work; measures being implemented to protect employees and to prevent the spread of COVID-19, as well as in relation to any changes to work practices going forward.
• Engage: There should be regular and meaningful engagement with employees and/or employee representatives. Ensure that employee representatives appointed (as required under the Government's Return to Work Safely Protocol ("the Protocol")) are provided with appropriate training and are fully informed on the employer's COVID-19 Response Plan. Any concerns or issues raised by employees/representatives should be considered and addressed in so far as is reasonably practicable.
• Training: Provide employees with relevant induction training before they return to the workplace and ensure employees are aware of new measures implemented in the workplace to reduce the risk of spread and infection of COVID-19 and seek confirmation from employees that they understand what is required of them and that they will comply with their individual obligations. It may also be appropriate to consider whether employees require any further training in terms of their roles, having regard to any changes that may have been implemented as a result of COVID-19.
• Mental health and well-being: The impact of the pandemic on mental health and well-being cannot be underestimated. Employers must be mindful of the mental health risks associated with the level of change. Regular contact and communication with employees is vital, in order to prevent employees from feeling isolated and disconnected from work. Managers should ensure to have regular meetings/ calls with direct reports. Consider physical and mental well-being support for those employees who have been considerably affected by the pandemic and be understanding and flexible in relation to employee concerns about working and family/childcare obligations, potential for job losses etc.
Operational planning
• Pre-return to Work Form: Employers must issue employees with a pre-return to work form to complete at least three days before they are due to return work. On this form, employees will be asked to confirm that they are not awaiting the results of a COVID-19 test, that they are not self-isolating and that they are not displaying any symptoms. The protocol lists questions, which must be included in the pre-return to work form, including in relation to symptoms, close contact with suspected or confirmed cases, and advice from a doctor to self-isolate. Employees should be asked to notify the employer of any change in circumstances, after the form has been completed.
• COVID-19 Response Plan: Before employees may return, employers must develop a COVID-19 Response Plan (Response Plan), or, if such plan is already in place, revise and update it as necessary. The Response Plan should address the level of risk to which a worker may be exposed in their workplace, taking into account individual risk factors e.g. age or underlying conditions. Health and safety risk assessments and safety statements must also be updated as appropriate. The Response Plan should also provide for induction training for all employees regarding COVID-19, as well as a plan for the implementation of temperature testing in line with national health advice.
• Hygiene Measures: Employers are obliged to provide appropriate hygiene facilities to their staff. Employers must also make advice and training available on following correct hygiene procedures, including information on hand-washing and respiratory hygiene.
• Physical Distancing: Physical distancing is crucial in order to reduce the spread of the infection and eliminating the virus. The current recommendation is for people to maintain a 2 metre distance from others. Employers must ensure that physical distancing is maintained in the workplace. The protocol suggests a number of ways in which this may be achieved, including organising teams to consistently work and break together, reorganising work and break areas, staggering break times/ introducing shifts and implementing a no-handshake policy. Where physical distancing is not possible, other measures such as physical barriers, minimisation of direct contact, provision of hygiene facilities and face masks should be considered.
• Plan to Deal with Suspected Cases: It is important that any suspected cases of infection are identified and isolated as soon as possible. Employers must display information on the signs and symptoms of COVID-19, provide employees with up to date public health advice and inform employees of the steps to take in the event they develop symptoms of COVID-19 during work. Employers should keep a log of employee contact and group work undertaken in order to facilitate contact tracing should a potential case be identified. The Response Plan should clearly identify the persons in charge of the response to a suspected case. The employer must designate an isolation area for employees with symptoms of the disease to attend. This isolation area must be easily and safely accessible and where possible, it should be behind a closed door. Alternatively, an area away from other employees should be designated.
• Insurance: Employers should engage with their insurers to ensure appropriate insurance cover is in place, taking into account new ways of working, especially where employees are working from home on a more permanent basis.
Employment law considerations
• Contracts of Employment: New working arrangements are inevitable. It may become necessary for employers to consider whether changes to specific terms in an employee's contract of employment are required. For example, where employees are required to work from home for the foreseeable future/indefinitely, this would amount to a change to an employee's terms and conditions of employment. It may also be necessary for an employer to change an employee's hours of work, where it decides to implement temporary staggered start times or different shift patterns. Employers may also wish to consider implementing lay-off/short-time working clauses where possible.
• Equality: Employers must be mindful of their obligations under the Employment Equality Acts 1998-2015 in relation to employees who have any of the nine protected characteristics (for example older employees, employees with underlying health conditions constituting a disability and pregnant employee). For any employees with a disability, employers should consider whether they require any reasonable accommodations in order for them to perform their duties.
• Homeworking: With an increasing number of employees working from home, it is vital organisations have a suitable home working policy in place. Where there is already a home working policy in place, this should be reviewed and updated as appropriate. Many employees may continue to work from home for the foreseeable future and employers continue to have obligations in relation to employees' health and safety, even where they work from home. Risk assessments should be carried out for any home workers and employers will need to consider what equipment will need to be purchased for those employees, including laptops, monitors, stationery and other home office items. Policies should also confirm what is expected of employees working from home in relation to confidentiality and data protection.
• Annual Leave: Consideration should be given to the management of annual leave to promote business efficacy. Under the Organisation of Working Time Act 1997 (as amended), it is possible for employers to require employees to take annual leave at designated times, provided they provide employees with at least one month's prior notice. In doing so, employers must have regard to the need for the employee to reconcile work and any family responsibilities and the opportunities for rest and recreation available to the employee. Ireland has not implemented or proposed any legislation in relation to carry over of annual leave due to COVID-19, so the normal rules apply. Unless your contracts of employment specify the timing of taking carried over holidays, any holidays accrued in 2020 must be taken within six months of the end of that holiday year. For most employers, this will be the end of June 2021.
• Bonus/ Commission: Employers will need to consider the impact of COVID-19 on any bonus/commission arrangements.
• Reorganisation/restructure: Is there a reduction in work? Do employers need to consider reorganisation/restructuring of the business? Is any downturn temporary or permanent?
Policies and procedures:
• Disciplinary and grievance procedures: Consider possible amendments to address social distancing breaches or other reckless COVID-19 behaviour. The protocol sets out various mandatory obligations and employers will need to ensure steps are taken to comply with those obligations. Employers may see a rise in disciplinary issues and grievances relating to COVID-19 and the change in working practices.
• Temperature Checks: The protocol states that employers must implement temperature checks in the workplace, in line with public health advice. There is currently no public health advice requiring employers to conduct temperature checks in the workplace (although this may change in the future). Some employers may consider conducting temperature checks, notwithstanding there is currently no public health advice recommending this. Where temperature checks are carried out, employers will need to be mindful of the issue of consent and data processing within the context of data protection law. Testing should also be carried out consistently across the workforce to help mitigate any discrimination claims.
• Sickness absence: Consider whether any amendments need to be made to sickness absence policies, including requirements to self-report COVID-19 symptoms and to self-isolate.
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