The Health (Preservation and Protection and other Emergency Measures in the Public Interest) Act 2020 (the “Act”) forms part of the emergency response by the Government to the increasing prevalence and spread of COVID-19. The objective of the Act is to mitigate the effect of the spread of COVID-19.

The Act, amongst other things, amends the Health Act 1947 to allow the Minister for Health (the “Minister”) to introduce regulations which can impose travel restrictions, prohibit some events (including large gatherings), and for any other measures that they may deem appropriate for the minimisation of the spread of COVID-19, and enables the detention and isolation of persons who are a potential source of COVID-19 where they do not submit to voluntary self-isolation.

The Act was signed into law (enacted) by the President on 20 March 2020 and commenced upon enactment (with measures relating to social welfare amendments deemed to have come into effect from 9 and 13 March). Changes made by the Act to the Health Act 1947 will remain in place until 9 November 2020. Section 10 of the Act inserts a new Section 31A into the Health Act 1947. The new Section 31A allows the Minister to make regulations for the purpose of preventing, limiting, minimising or slowing the spread of Covid-19 (including the spread outside the State) or to deal with public health risks arising from the spread of COVID-19 (the “Regulations”). As at 3 April 2020, no Regulations have been made.

The Government has also decided that everybody should stay at home until 12 April 2020 except for, inter alia, to travel to and from work, or for purposes of work, only where the work is an essential health, social care or other essential service and cannot be done from home. The question is, what constitutes an essential service where workers cannot work from home. If you carry out an activity that is necessary for the continued provision of an essential service by another organisation or you are part of an essential supply chain, you should continue to carry out that activity. To the maximum extent possible, that should be done remotely.

The Government have released a list of essential services and construction is described as “Essential health and related projects relevant to the COVID-19 crisis, and supplies necessary for such projects; repair/construction of critical road and utility infrastructure; delivery of emergency services to businesses and homes on an emergency call out basis in areas such as electrical, plumbing, glazing and roofing.”.

The question arises as to whether the public health measures are enforceable by An Garda Siochána, or whether we are being asked to adhere to these measures via a civic duty.

Regulations have not yet been introduced to allow for enforcement of the measures. However, Government websites have indicated that “The measures above will be reflected in the regulations to be made under the Health (Preservation and Protection and Other Emergency Measures in the Public Interest) Act 2020 and will be enforced by the Garda Síochána.”

It is therefore anticipated that the rules around essential services, recently updated (and the measures of adhering to government guidelines) will be linked to section 31A of the Health Act 1947 and in particular will fall within the scope of the anticipated powers of An Garda Siochána to enforce the measures.

Employers who are carrying on business should be aware that if they are regarded as a non-essential service, they could be acting in contravention of the legislation. Should an employer act in contravention of the provisions of section 31A and Regulations made thereunder, they are exposed to a possible fine and/or imprisonment.

In the same vein, those who are providing an essential service in line with the recommendations may qualify as an exempt specified classes of persons to the regulations, specified by the Minister under the new legislation.

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