By Declan Groarke, Firm: Lewis Silkin LLP Ireland
The coronavirus outbreak throws up numerous employment law issues, including questions about travel, health and safety, pay and risks of discrimination claims.
From staff who are advised to self-isolate, to those who are concerned about the risk and are reluctant to come into work, what do employers need to consider? We have received numerous queries from employers on the implications coronavirus could have on their business. This article sets out guidance in response to those queries on how best to respond.
Coronavirus: what is the current situation in Ireland?
Coronavirus has now spread to over 70 countries with the EU risk level designated as ‘moderate to high’. With the first two cases of coronavirus in Ireland confirmed in the last week, Ireland remains in a containment phase. Since then, the Health Service Executive has ordered the closure of a secondary school for 14 days, the duration of the coronavirus incubation period. Google, Twitter and Indeed are the latest employers to ask their Irish based workforce to work from home after an employee presented with flu-like symptoms and there were concerns that they had potentially contracted coronavirus.
As coronavirus becomes more widespread, employers should plan for and implement preventative and precautionary measures and take account of the Health Protection Surveillance Centre’s guidance for employers.
Health and safety
Employers have a duty to take steps that are reasonably practicable to ensure and protect the safety, health, and welfare of all their employees at work, including those who are particularly at risk for any reason. Employers should:
- Conduct a risk assessment to identify risks and hazards to employees in relation to contracting coronavirus while performing their duties. Employers should be aware when conducting a risk assessment that some employees may be more at risk if they travel frequently or have compromised immune systems (see more detail on this below). Employers can ask employees for information about their health where this is relevant to the workplace, particularly if required to protect the health and safety of others. However, this is a special category personal data and so should be treated confidentially.
- Implement effective protective and preventative measures and controls to eliminate the identified risks and hazards in order to provide a safe place and system of work. Such measures may include:
- Ensuring hand sanitiser or washing facilities are available to all employees. Some employers may find it necessary to encourage employees to wash their hands or use hand-sanitiser on arriving in the building after using public transport and after coughing or sneezing. Much of the evidence-based advice on preventative measures focuses on good hygiene practices, such as hand washing.
- Displaying posters on ‘cough etiquette’, hand and respiratory hygiene and safe food practices.
- Regularly cleaning frequently-touched communal areas, including door handles, kitchens, toilets, showers, and hot desk keyboards, phones and desks.
- Educating employees on preventative or precautionary measures that should be taken if they experience coronavirus symptoms. This may include advising anyone with coronavirus symptoms (cough, sore throat, fever, breathing difficulties, chest pain) to stay at home, contact their GP and self-isolate (see below for more detail on pay in these circumstances).
- Keeping the situation and guidance from the Department of Health, Health Service Executive and Health Protection Surveillance Centre under review. If the situation worsens, employers may have to take additional measures such as minimising all work-related travel or reviewing what travel is genuinely needed and what could be postponed or replaced with telephone or video-conferencing calls, limiting or banning face to face meetings, postponing or cancelling workplace events or gatherings.
- Considering allowing vulnerable individuals to work from home, particularly if coronavirus cases are confirmed near the workplace.
Current guidance is that coronavirus can cause more severe symptoms for older people, pregnant women and those with long-term pre-existing medical conditions such as diabetes, heart disease and respiratory or immune problems.
There is currently a low risk of infection for individuals in Ireland, but employers should keep the situation under review. If the outbreak worsens and more cases occur in Ireland, employers should re-evaluate whether the working environment presents a risk of infection to vulnerable individuals.
There is currently no vaccine for coronavirus (unlike flu), so those at higher risk cannot protect themselves. Where necessary, precautions should be taken such as moving particular employees to a different location or asking them to work from home. Consult with the individual before taking any action.
Employers have specific statutory obligations to take steps to avoid risks to which pregnant employees are exposed as a result of their work. Where it is not possible to avoid such risks by other means, pregnant employees must be offered suitable alternative employment. If it is not possible for the pregnant employee to be moved to other work or where moving them to other work is unreasonable, they may be granted health and safety leave. If granted health and safety leave, the employee must be paid their usual wage for the first 21 days of the leave. If their health and safety leave is more than 21 days, they might be entitled to a social welfare payment if they have enough PRSI contributions.
As a precautionary measure, some employers have asked employees to remain at home, particularly where there has been potential exposure to coronavirus. Some employees are already able to work remotely from home and many employers are operating or developing flexible working policies. Employers in Ireland should consider contingency plans to enable their employers to work remotely if possible and necessary and should consider the following:
- does their technology support their workforce working remotely;
- how secure is personal data, confidential information and Intellectual property;
- are there clear policies regarding working remotely or using a personal device for work purposes; and
- from a health and safety perspective does the employee have suitable and safe equipment to support remote working?
What about pay?
If an employee is off sick with diagnosed coronavirus, they will be entitled to the employer’s usual sick leave and pay provisions set out in the contract of employment and the employer’s sickness absence policy. The guidance from the Health Protection Surveillance Centre is for employees not to attend their local GP and instead contact them by telephone if they are suffering from flu-like symptoms. In light of this, employees may not be able to obtain a doctor’s certificate and employers may need to consider making exceptions to their sickness absence policy in instances where sick pay is only paid on receipt of a doctor’s certificate.
If employees are not entitled to sick pay, employers may want to consider paying it on a discretionary basis because staff may otherwise try to return to work while still sick and risk spreading the virus. Employees without any sick pay may be entitled to apply to the Department of Employment Affairs and Social Protection for illness benefit following the sixth consecutive day of illness.
When pay arrangements are not covered under the contract of employment there is no statutory entitlement to be paid in the event an employee is absent from work. The WRC guidance states that this may include an employee who is unable to attend work as a result of precautionary measures taken in line with the advice of the Health Service Executive Advices or Health Protection Services Centre. The WRC’s guidance further states that before ceasing pay, alternative options should be explored with the employee including taking annual leave during a period of self-isolation or agreeing to a period of unpaid leave with employees who do not wish to use annual leave or agreeing to work back hours / days lost.
Employees who self-isolate may be able to work remotely and should be paid in these instances. If not and where the isolation is imposed by the employer, the employee should continue to be paid to reduce the risk of a claim under the Payment of Wages legislation.
Employees may also be able to take paid force majeure leave where, for urgent family reasons, the immediate presence of the employee is indispensable owing to an injury or illness of a close family member (child, husband, wife, partner, parent, grandparent, brother, sister, person to whom a duty of care is owed, a person in a relationship of domestic dependency). The maximum amount of leave is three days in any 12-month period or five days in a 36-month period.
Employees concerned about coming to work
Employers should prepare for situations where, despite the workplace remaining open and safe, certain employees may be reluctant to attend due to fear of infection.
Employers should assess the risk regularly, consulting the Department of Health and Health Service Executive guidance for updates. They should also consider their staffing requirements: it may be possible to allow employees who wish to do so to work remotely or to take holiday.
Employers should, however, be mindful that they might need to require individuals to attend the workplace if other people fall sick and there is insufficient cover. If employers do permit remote working or holiday, they should reserve the right to require workplace attendance on short notice and make it clear that disciplinary action could be taken if a refusal to attend work is unreasonable.
Before taking any disciplinary action, the situation should be discussed with the individual, because it may be possible to allay their concerns in some way. For example, if their real fear is the risk of infection on public transport, it might be possible to adjust their hours to enable them to travel outside rush hour.
If the individual refusing to come into work is a vulnerable individual, employers should tread carefully and may have to be more flexible. If someone has genuine fears about attending work, the stress of being required to do so or alternatively face disciplinary action may itself adversely affect their health.
Refusing to allow employees to stay at home, or disciplining them for not attending work, could potentially lead to legal claims. For example, an employee might try to claim constructive dismissal if there is a genuine health and safety risk from being required to attend work. However, provided employers do not act unreasonably and employees are not placed at undue risk, such claims would be unlikely to succeed.
What if we need to close the workplace or cannot provide work?
Current WRC guidance states that if employers need to close the workplace, work cannot be provided to the employee or remote working is not possible, employers may put employees on a period of lay-off on a temporary basis and cease pay. If the employer is required to lay-off employees on a temporary basis, the employer must explain to the employees the reason for the lay-off in advance of any work stoppage and keep employees informed of the situation during this time. Before an employer can lay off employees, it must check that its contract of employment contains a clause giving it the right to make lay-offs and also states that such period of lay-off is unpaid. If the clause does not state that the period of lay-off is unpaid the employer is on risk of being liable to pay compensation for unpaid wages.
In the absence of express provisions permitting the imposition of a period of lay-off, an employer may also rely on any relevant custom and practice to make lay-offs in the workplace. If this is not possible, an employer will need to secure the express agreement of employees to the proposed lay-offs.
If the workplace is open but the employee is unable to attend work due to public transport ceasing, unless the contract or custom and practice provides otherwise, the employee may not be entitled to pay. During previous adverse weather events in Ireland, agreed practices were put in place where employees continued to be paid for short closures.
Employers should be aware of the risks of direct and indirect race discrimination claims as well as potential claims for racial harassment in connection with coronavirus in the workplace. There have been news reports of Asian people (or those who are mistaken as such) being racially abused in connection with the outbreak
Employers may be vicariously liable if their employees racially harass colleagues, even if the employer does not know and would disapprove of such behaviour. Employers may be able to avoid liability if they can show that they took “all reasonable steps” to prevent employees behaving in such a manner. Taking reasonable steps might mean having well-publicised diversity and harassment policies and educating and training all staff on the issue. Managers must be trained about their responsibility to identify and prevent discriminatory behaviour. Reasonable steps may also mean initiating disciplinary action if necessary, to address the conduct of an employee.
Any request not to attend work should be related to potential exposure to coronavirus taking into account any relevant guidance and should apply to all staff regardless of nationality or ethnicity. Treating staff of particular ethnic origins differently could give rise to claims of direct race discrimination.
Preventing personal travel to infected areas may indirectly discriminate against certain employees: such a ban might disproportionately affect a cohort of employees of a particular ethnic origin. It is a defence to a claim of indirect discrimination that the action is a proportionate means of achieving a legitimate aim. Protecting the health and safety of all staff would be a legitimate aim, but an absolute travel ban might be disproportionate in the current situation, given that those staff could be required to take extra holiday to self-quarantine at home after returning.
Asking staff who have recently travelled to infected areas not to attend work during the incubation period might be indirectly discriminatory if it affects more staff of ethnicity than others. This would, however, most likely be justified as a proportionate means of achieving a legitimate aim.
The Department of Justice and Equality has stated that it is examining the immigration position of Chinese nationals currently in Ireland who require an extension of their permission as a result of the coronavirus outbreak. The Department is liaising closely with the Health Service Executive and monitoring the situation and will adopt a pragmatic approach in relation to persons whose permissions are coming to an end.
The Department has also continued with planned citizenship ceremonies as scheduled.
As the coronavirus outbreak continues to evolve, further employment law issues may arise and employers should monitor the situation closely and keep guidance from the Health Service Executive under review.