By: Eoin Casey | Posted on: 11 Mar 2020

With the continued spread of the Coronavirus (COVID-19), Employers and Employees are facing into a period of uncertainty with the potential for significant disruption to business and employment arrangements.

Employers’ Health and Safety Obligations

Under the Safety, Health and Welfare at Work Act 2005, employers are obliged to ensure, insofar as is practicable, the health, safety and welfare of their employees. In practice this means conducting risk assessments (including in relation to Coronavirus and any issues specific to their workforce) to identify health and safety risks and put in place measures to deal with same. If employers are on notice of any potential symptoms, or if they are aware that employees have travelled recently to areas known to be affected by the virus, or been in contact with any affected persons, they should consider carefully whether they may need to request employees to stay home from work, given the risk of potentially infecting other staff.

Employees Self-Isolating

It is important to note that employees also have a commensurate obligation to take reasonable care to protect their own safety, health and welfare and that of any other persons who might be affected by their acts or omissions at work. This might mean having to stay off work and self-isolate depending on the circumstances.

Employees may be directed by a medical professional or otherwise obliged under current public health guidelines to self-isolate. It is likely that these employees will not be clearly entitled to be paid by their employer for the period of isolation unless there is a term in their employment contract or in the employer’s workplace policies providing for the right to be paid while absent. Employers will have to act proportionately and will always maintain discretion to provide for sick/absence pay in any given circumstances, but many workplaces may not be able to afford same. There is no statutory entitlement for employee payment when absent from work and so many employees may be faced with the risk of a loss of income during a period of self-isolation. Even if there is a contractual entitlement to sick/absence pay, it may be limited to a certain number of days insufficient to cover the entire period of isolation. In those circumstances or if there is no provision for sick/absence pay, the employee may be able to apply for income support from the Department of Social Protection. The Government announced measures on the 9th March 2020 including providing for specific income support for affected employees but it appears likely that the income support measures in the form of illness benefit are to apply only for medically certified self-isolation. The legislation will have to be reviewed when it is published to confirm details of the measures. 

Contingency Planning and Potential Business Disruption

Employers should keep a close eye on Health Service Executive (HSE) Guidelines and those published by the Department of Business, Enterprise and Innovation and would be well advised if they have not already done so to put in place contingency plans to deal with the impact of the virus on their workplace. As part of those plans, they should engage proactively with and communicate clearly with all staff as to the arrangements which will apply in the event that the virus impacts the workplace and in particular the pay and leave arrangements.

For example, some workplaces might be able to facilitate employees working from home or elsewhere (in the event that they are asked to stay away from the workplace or are self-isolating but not showing any symptoms – employers should never seek to compel employees to work while actually ill). Where this is not possible, employers should consider whether or not they could seek to agree alternative arrangements with affected employees if likely to suffer loss of income such as the taking of leave or agreements to work back time lost.

If business are temporarily unable to provide ongoing work for employees or are forced to temporarily close the workplace, it might become necessary to place employees on temporary unpaid lay-off, but any employers considering this step will need to be careful to ensure that they are entitled to do so in accordance with the relevant provisions of the Redundancy Payment Acts.

Employees Forced to take Leave due to School/Crèche Closures or Illness

Employees may potentially be in a position to apply for paid force majeure leave in circumstances where a child (or certain other categories of close relative) who is dependent on the employee falls ill with the virus and urgently requires the immediate presence of the employee. However, any such paid force majeure leave, if applicable, would be limited to 3 days in any period of 12 consecutive months (or 5 days in any period of 36 consecutive months).

It may also be open to parents to apply to take up to 22 weeks’ unpaid parental leave to care for a child up to 12 years old (or 16 years old where the child has a disability). There is a 6 week notice period applicable under the relevant legislation, which employers could choose to waive. Of course it would also be open to an employer to agree to provide temporary paid leave or to agree alternative pay/leave arrangements with an employee faced with this situation.

There are a wide range of other employment issues potentially arising in the context of this ongoing public health emergency, including those pertaining to data privacy and compliance, employee testing and discrimination and harassment. Ultimately, both employers and employees should act first and foremost in accordance with guidelines and guidance published by the HSE and the Government and communication and contingency planning will be paramount.

If you are an employer or an employee and require advice on employment law in the context of the Coronavirus (COVID-19), including on any of the issues mentioned above, please contact the person(s) referenced below.

This article is correct as at 11 March 2020.

Key contact:

Eoin Casey

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