Jason O’Sullivan: Post-lockdown employment law tips for employers
Jason O’Sullivan, solicitor and public affairs consultant at J.O.S Solicitors, sets out some tips for employers as public health restrictions begin to ease.
Taoiseach Leo Varadkar’s announcement last week that the Cabinet has approved plans to accelerate Ireland’s exit from current lockdown restrictions due to the novel coronavirus (COVID-19) has being warmly welcomed.
It means that from 29 June 2020, apart from some exceptions, many more businesses and activities will resume including places of worship, cinemas, gyms, hairdressers and sporting activities.
The speed of the initial lockdown restrictions was then followed by a cautious phased lifting strategy, which has been swiftly fast tracked, creating a minefield for business to navigate as they struggle to adapt to the ever changing landscape. Many businesses across all sectors have being sadly unable to cope or absorb such economic shock and will not be reopening on 29 June 2020 or may never reopen.
For those businesses that have recently re-opened or will be in a position to re-open next week, heightened compliance requirements regarding health and safety measures present fresh challenges and risk of potential liability.
Such workplace challenges must therefore be met to ensure the requisite safeguards are in place to protect the general public and employees, whilst limiting the contributory risks of a potential second wave of the pandemic.
Accordingly, businesses and employers throughout the country and across all industries have many compliance planning and legal considerations to make in adapting to this new regulatory landscape.
The primary legislation covering the health and safety of people in the workplace is the Safety, Health and Welfare at Work Act 2005.
It sets out the rights and obligations of both employers and employees. Whilst also providing for substantial fines and penalties for breaches of these health and safety laws including the potential for criminal prosecutions. This legalisation applies to all employers, self-employed and employees, including fixed-term and temporary staff.
Initial health and safety steps
Employers should first carry out risk assessments to see if there is a risk of COVID-19 outbreak in the workplace and take whatever measures are necessary to mitigate such risk.
Businesses should update their safety statements and ensure staff receive the necessary training as required and carry out a return to work induction, which could be done remotely and in advance of opening. This will also give an opportunity to the employer to garner staff views and any reservations about their returning to workplace, answer questions or outline the logistics required to ensure a safe return.
Staff will also need to complete a “return to work questionnaire” devised by the Health and Safety Authority (HSA) and will need to be completed before returning to the workplace.
This self-declaration document asks a series of questions of staff, relating to potential symptoms, diagnosis or contact with covid-19 patients.
Data protection issues
Employers will be obliged to ensure that any precautionary measures taken which may involve the use of personal data to include health data, must be “necessary and proportionate” as advised by the Data Protection Commission (DPC).
Employers will need to ensure that existing data rights and entitlements of staff are not now disregarded or breached, for instance they need to thread carefully when handling receipt of and storing such sensitive information as contained within the “return to work questionnaire” or face complaints being lodged with DPC.
Employers will need to ensure they have allocated a designated area within the workplace that can act as an isolation zone for any suspected cases of COVID-19 amongst staff. The purpose is that the member of staff is kept in that room until arrangements are made for their safe removal from the work premises.
This measure, along with other HAS protocols such as good hand hygiene, social distancing, additional cleaning and disinfection controls, will all need to be implemented in advance of staff returning and when they have returned, such mandatory standards will need to be maintained.
It is also crucial for employers to keep up to date with the guidelines being devised and tweaked by the Department of Health and the National Public Health Emergency Team (NPHET) in their efforts to combat and suppress the virus.
These are understandably testing times for both employers and employees in this post lockdown period. However it is vital for employers to remain diligent and compliant with such health and safety standards or risk not only the adverse health effects of this pandemic but also the cost implications of potential employment law claims or statutory fines for perceived failures.