EMPLOYMENT CASE LAW / HUMAN RESOURCE MANAGEMENT - Key Considerations for Employers in Respect of COVID-19 and the Workplace
The recent developments of the Coronavirus (COVID-19) in Ireland have continued to raise questions amongst Employers about scenario planning and obligations towards their Employees.
There are a number of considerations that Employers need to take to ensure they are prepared for possible scenarios due to the recent heightened awareness of COVID-19.
Planning:
Prevention:
Protection:
Pay:
A number of scenarios may arise where it is unclear if an Employee is entitled to be paid when Employees are unable to attend work. Each situation will be different and common sense will need to be used where there are clear health and safety risks to certain Employees.
Self-isolation / Certified Sick:
If an Employee is required to “self-isolate” or has been certified as having contracted the COVID-19 virus, Employers should adhere to their own internal policies and procedures, for example the sick leave policy.
Where possible, Employees may be permitted to work from home during this self-isolation period, however where this is not possible, Employers will need to make a decision on whether or not the Employee should be paid during this time. When making this decision, Employers are encouraged to take into consideration their duty of care for all Employees within the workplace, and what may occur if the Employee in question returns to work in order to be paid for this time.
New emergency legislation has been passed which will entitle Employees who self-isolate, or where an Employee is diagnosed with COVID-19 to sick benefit from day 1 of their absence in the amount of €350 per week, subject to medical certification. The entitlement to this increased illness benefit is only in the case of COVID-19 and where self-isolation has been medically certified but no diagnosis has been made then the benefit will only be applied for a maximum 2 week period.
Inability to attend work:
From a strict legal standpoint, there is no obligation to pay Employees when they cannot attend for work. Payment in such circumstances is discretionary.
Any more beneficial arrangement is a matter for agreement between the Employer and the Employee. Employers are encouraged to take a long-term view of the working relationship, recognising that demonstrating concern for the welfare of Employees and treating Employees fairly translates into a better working environment to the benefit of both the staff and the Employer. The custom and practice in the Organisation in previous similar instances may be of relevance. In circumstances where there are no sick pay provisions and the Employer is not in a financial position to provide for discretionary pay, an Employee may elect to apply for annual leave.
In the event that the Organisation’s premises is unable to open for reasons outside of the Organisations control, the Organisation should make every effort to notify Employees as soon as possible and Employees will not be entitled to be paid.
Where the Organisation decides that it is possible to open the premises but determines that it is impractical, then in such circumstances Employees will be entitled to be paid.
Short Time and Layoff:
Short time can be defined where an Employer reduces an Employees working week / hours of work by 50% or more, meaning that the Employee now works for 50% or less of their normal contractual hours. Where Employees are kept on this ‘short time’ arrangement for 4 weeks or more, then they can request redundancy from their Employer. The Employee may be able to claim Job Seeker’s Benefit for this time providing that they meet the criteria and also depending on their own personal circumstances.
Lay-off can be defined where an Employer temporarily removes all work from an Employee for a period of time. This means that the Employee is not paid during this time as they are not required to attend for work, however, should the Employee work at any stage during this time they must be paid for these hours worked. The Government have introduced a new COVID-19 Pandemic Unemployment Payment for Employees who have been placed on a period of temporary lay off. This new unemployment payment is for 6 weeks, and Employees may be able to claim Job Seeker’s Benefit thereafter.
Employers should be advised that when selecting Employees for lay off or short-time working they should apply a standard of selection criteria that is reasonable and carried out in a fair manner. If a lay-off or a short-time situation exists and has continued for 4 weeks or more, or for 6 weeks in the last 13 weeks, an Employee can give the Employer notice in writing of their intention to claim redundancy under the Redundancy Payments Acts 1967-2014. Employers should review the contractual terms of their Employees in relation to the proposed implementation or introduction of such measures.
What happens where a roster needs to be changed at short notice?
Normally, Employees are entitled to notice of at least 24 hours of a roster change. However, this does not apply where the change arises from unforeseen circumstances justifying a change in the notification period.
Working from home:
Where appropriate, consideration should be provided to allowing Employees to work from home. This will not be feasible for a number of roles where the Employee’s presence is required. This may also put pressure on the Organisation’s IT infrastructure as demand increases.
Arriving late and / or leaving early:
Where Employees arrive late or leave early due to commuter services being impacted, whilst some flexibility may be provided, Employers need to consider paid leave where the Employees will work up the time missed at a later date, preferably within one month of the occurrence. This is usually more feasible in Organisations that already operate a flexi-time system. Alternatively, the option of unpaid leave or annual leave (broken into hours) may be considered.
Unexcused absence:
Some Employees may fail to attend for work when suitable public transport is in operation. Unless authorisation has been received, this is not a justifiable reason for absence and should be dealt with under the Organisation’s disciplinary procedure, as with any unexcused absence.
Conclusion
Each situation will be different and common sense will need to be used where there are clear health and safety risks to certain Employees.
If you require assistance with regards to your workplace in respect of COVID-19, contact the team at Adare Human Resource Management – info@adarehrm.ie / 01 5613594
There are a number of considerations that Employers need to take to ensure they are prepared for possible scenarios due to the recent heightened awareness of COVID-19.
Planning:
- Business Continuity Planning:
develop a Business Continuity Plan, including relevant stakeholders from within the Organisation, update it regularly and brief Employees - Product / Service Delivery:
consider the possibility of changes to your product, your service or your interaction with customers - Remote Working:
ensure the Organisation has an up to date remote working policy and test that the technology infrastructure can cope with larger than normal remote working activity - GDPR:
ensure the Organisation has appropriate security procedures in place relating to both hard and soft copy data when Employee are working remotely, including both on comp Organisational devices or personal devices (appropriate Bring Your Own Device policy should be in place as required) - Travel:
ensure that the Organisation have clear policies regarding travel for work, any restrictions put in place and health and Safety - Restricting Access:
consider restricting access for non-essential personnel or visitors to the Organisation’s premises - Sick Leave:
make sure the Organisation has a clear sick leave policy and procedure in place
Prevention:
- Deep Clean Offices/Premises:
ensure the Organisation has undertaken a deep clean and schedule this regularly, particularly if an Employee had been in and area where there is an outbreak of the disease - Hygiene Policy:
prepare policies on hygienic behaviour for Employees and visitors / contractor / delivery personnel to premises as guided by national recommendations including hand hygiene policies - Cleaning Practices:
promote the use of appropriate cleaning practices as recommended. Employers should make available hand sanitisers or similar products - HSE Guidelines:
ensure all Employees have access to HSE guidelines, and ensure you issue and remind all Employees and visitors of these regularly and as they are updated. - Travel:
consideration should be given to all travel requirements, whether business trips or meetings (especially abroad) should, where possible, be postponed to a later date - Etiquette:
consider approach to work etiquette including handshakes – the Organisation should agree clear and acceptable practice - Personal Responsibility:
Employees need to take personal responsibility and follow HSE guidelines, medical advice and follow all Organisational policies that are put in place to try and prevent the risk of spreading COVID-19
Protection:
- Safety, Health & Welfare at Work Act 2005:
the Safety, Health & Welfare at Work Act 2005 places an obligation on Employers to maintain a safe place of work. This is particularly important during this time and Employers must take all necessary precautions to ensure the risk of spread of COVID-19 is minimised - HSE & WHO Guidelines:
Employers should closely follow the HSE & WHO guidelines and share them with Employees. - Common Sense:
a common sense approach should prevail at all times.
Pay:
A number of scenarios may arise where it is unclear if an Employee is entitled to be paid when Employees are unable to attend work. Each situation will be different and common sense will need to be used where there are clear health and safety risks to certain Employees.
Self-isolation / Certified Sick:
If an Employee is required to “self-isolate” or has been certified as having contracted the COVID-19 virus, Employers should adhere to their own internal policies and procedures, for example the sick leave policy.
Where possible, Employees may be permitted to work from home during this self-isolation period, however where this is not possible, Employers will need to make a decision on whether or not the Employee should be paid during this time. When making this decision, Employers are encouraged to take into consideration their duty of care for all Employees within the workplace, and what may occur if the Employee in question returns to work in order to be paid for this time.
New emergency legislation has been passed which will entitle Employees who self-isolate, or where an Employee is diagnosed with COVID-19 to sick benefit from day 1 of their absence in the amount of €350 per week, subject to medical certification. The entitlement to this increased illness benefit is only in the case of COVID-19 and where self-isolation has been medically certified but no diagnosis has been made then the benefit will only be applied for a maximum 2 week period.
Inability to attend work:
From a strict legal standpoint, there is no obligation to pay Employees when they cannot attend for work. Payment in such circumstances is discretionary.
Any more beneficial arrangement is a matter for agreement between the Employer and the Employee. Employers are encouraged to take a long-term view of the working relationship, recognising that demonstrating concern for the welfare of Employees and treating Employees fairly translates into a better working environment to the benefit of both the staff and the Employer. The custom and practice in the Organisation in previous similar instances may be of relevance. In circumstances where there are no sick pay provisions and the Employer is not in a financial position to provide for discretionary pay, an Employee may elect to apply for annual leave.
In the event that the Organisation’s premises is unable to open for reasons outside of the Organisations control, the Organisation should make every effort to notify Employees as soon as possible and Employees will not be entitled to be paid.
Where the Organisation decides that it is possible to open the premises but determines that it is impractical, then in such circumstances Employees will be entitled to be paid.
Short Time and Layoff:
Short time can be defined where an Employer reduces an Employees working week / hours of work by 50% or more, meaning that the Employee now works for 50% or less of their normal contractual hours. Where Employees are kept on this ‘short time’ arrangement for 4 weeks or more, then they can request redundancy from their Employer. The Employee may be able to claim Job Seeker’s Benefit for this time providing that they meet the criteria and also depending on their own personal circumstances.
Lay-off can be defined where an Employer temporarily removes all work from an Employee for a period of time. This means that the Employee is not paid during this time as they are not required to attend for work, however, should the Employee work at any stage during this time they must be paid for these hours worked. The Government have introduced a new COVID-19 Pandemic Unemployment Payment for Employees who have been placed on a period of temporary lay off. This new unemployment payment is for 6 weeks, and Employees may be able to claim Job Seeker’s Benefit thereafter.
Employers should be advised that when selecting Employees for lay off or short-time working they should apply a standard of selection criteria that is reasonable and carried out in a fair manner. If a lay-off or a short-time situation exists and has continued for 4 weeks or more, or for 6 weeks in the last 13 weeks, an Employee can give the Employer notice in writing of their intention to claim redundancy under the Redundancy Payments Acts 1967-2014. Employers should review the contractual terms of their Employees in relation to the proposed implementation or introduction of such measures.
What happens where a roster needs to be changed at short notice?
Normally, Employees are entitled to notice of at least 24 hours of a roster change. However, this does not apply where the change arises from unforeseen circumstances justifying a change in the notification period.
Working from home:
Where appropriate, consideration should be provided to allowing Employees to work from home. This will not be feasible for a number of roles where the Employee’s presence is required. This may also put pressure on the Organisation’s IT infrastructure as demand increases.
Arriving late and / or leaving early:
Where Employees arrive late or leave early due to commuter services being impacted, whilst some flexibility may be provided, Employers need to consider paid leave where the Employees will work up the time missed at a later date, preferably within one month of the occurrence. This is usually more feasible in Organisations that already operate a flexi-time system. Alternatively, the option of unpaid leave or annual leave (broken into hours) may be considered.
Unexcused absence:
Some Employees may fail to attend for work when suitable public transport is in operation. Unless authorisation has been received, this is not a justifiable reason for absence and should be dealt with under the Organisation’s disciplinary procedure, as with any unexcused absence.
Conclusion
Each situation will be different and common sense will need to be used where there are clear health and safety risks to certain Employees.
If you require assistance with regards to your workplace in respect of COVID-19, contact the team at Adare Human Resource Management – info@adarehrm.ie / 01 5613594
