Coronavirus: managing the return to work in Ireland

Under Ireland's 'roadmap for reopening society and business', restrictions will be eased on a phased basis, beginning on 18 May. The government recently announced that there will be four, rather than five as originally announced, separate phases to the roadmap, each spaced three weeks apart. Under the new plans, restrictions will largely end on 20 July, although the government will clarify this shortly.

Employers should be planning how they will manage the return to work phase when the restrictions are lifted for their business. They will need to put in place measures for a gradual and phased return to the workplace, with social distancing measures remaining in place.

The government implemented phase two of the roadmap on 8 June, and is now advising:

• stay local - people may now travel within their own county, or up to 20km from their home if crossing county boundaries;
• meeting other people - people may meet up to six people from outside their household both indoors and outdoors for social gatherings. Organised outdoor exercise, sporting, cultural and social activities of up to 15 people may take place;
• shops - all retail can now reopen, other than contact personal services;
• work - those who can work from home are asked to continue to do so; and
• transport - people are being asked to only use public transport if absolutely necessary, and to walk or cycle if possible.

Return to Work Safely Protocol

A 'Return to Work Safely Protocol' has been prepared to assist employers in implementing measures to protect their employees. The protocol is a live document which will be updated regularly, and should be used by all employers to adapt their workplace procedures and practices to comply with the Covid-19 related public health protection measures identified as necessary by Ireland's Health Service Executive (HSE).

Employers should use the protocol in conjunction with sector specific guidance, such as the Covid-19 Retail Protection and Improvement Guide (44-page / 2.6MB PDF) for those working in the retail sector.

The protocol advises that, in preparation for returning to work, employers should:

• appoint at least one clearly identifiable lead worker representative charged with ensuring that Covid-19 measures are strictly adhered to in their place of work. Individuals undertaking this role must receive the necessary training and have a structured framework to follow within the organisation to be effective in preventing the spread of the virus;
• consult with workers and safety representatives on safety measures to be implemented;
• provide a Covid-19 training induction for all workers;
• develop or update their Covid-19 response plan. This should include any updates to health and safety risk assessments and safety statement as discussed below;
• keep a log of any group work in order to facilitate contract tracing;
• develop or amend policies and procedures for prompt identification and isolation of workers who develop symptoms of Covid-19;
• develop, consult, communicate and implement workplace changes or policies with workers to include a response plan to deal with suspected cases of Covid-19 in the workplace and what to do if a worker displays symptoms during work hours; and
• implement Covid-19 prevention and control measures to minimise risk to workers including a pre-return to work form for workers to complete at least three days in advance of return, any controls identified in the risk assessment such as staggered breaks, social distancing and physical barriers, and temperature testing in line with public health advice.

Employers should keep in mind that rushing a return to work without the correct safeguards in place may risk a resurgence of Covid-19. They should therefore be cautious about making long-term commitments to employees and make clear that any return to work measures will continue to be reviewed and adapted in accordance with evolving government guidance.

The protocol also provides that employers should enable "vulnerable" workers to work from home where possible, although the term is not defined. If a vulnerable worker must be in the workplace, employers must ensure that they are preferentially supported to maintain a physical distance of two metres.

Employers are further advised that "non-essential" office work should continue to be carried out at home where practical and a working from home policy should be developed.

Ireland's Health and Safety Authority (HSA) will oversee compliance with the protocol in the workplace. HSA inspectors will visit the workplace and advise on any shortcomings through a Report of Inspection, which is left with the employer at the end of the visit and can include timelines and follow-ups needed. The inspectors also have the power to serve an Improvement Notice, a legal directive from an inspector requiring that certain improvements be carried out in a specified time-frame, or a Prohibition Notice, a legal instruction directing that a specified work activity be stopped.

Ultimately, if a business doesn’t cooperate and comply with the public health guidelines after being asked to make improvements, the HSA can order them to shut down the workplace. The HSA has reported that, up to 28 May, it had conducted 1,000 inspections in the first 10 days following the implementation of phase 1 of the roadmap.

The HSA has published checklists and templates to help employers, business owners and managers to get their businesses up and running again, and to inform workers about what they need to do to help prevent the spread of Covid-19 in the workplace. They should be read in conjunction with the Return to Work Safety Protocol.

Employers' health and safety obligations

Employers in Ireland have a number of legal duties under health and safety law, including:

• duty to protect the health, as well as safety, of their employees;
• duty to protect others who may be exposed to health risks as a result of the employer's activities, including members of the public, service users and contractors; and
• duty to manage safety risks from workplaces under the employer's control.

As a result, protecting the health and safety of employees and others in the workplace as they return to work will be paramount for employers.

Employers, in conjunction with the Return to Work Safely Protocol, should:

• keep up to date with the latest public health guidance, local government advice and World Health Organisation (WHO) updates, and communicate these to employees. The HSA has helpful guidance for employers on its website, which is frequently being updated;
• conduct a risk assessment on health and safety before any return to the workplace, and put in place relevant measures to ensure the health and safety of employees in line with health and safety law and guidance and HSE guidance. The assessment should cover risks posed by premises, working conditions and the composition of the workplace. For example, workstations may need to be moved to ensure there is a 2m distance between workers;
• communicate clearly and early with employees on your plans to reopen and any new policies you wish to introduce. Consider providing guidance and establishing protocols on any workplace measures to be adopted;
• brief line managers and HR staff on company policy, using an FAQ guidance document. Ensure there is a consistent message to all employees on the process and company policy;
• assess who will return, bearing in mind that the greater the number of people who enter the workplace the greater the risk. Careful consideration will need to be given to how to select which employees are to return to work or to come off lay-off, bearing in mind issues such as potential discrimination and procedural fairness. Some employees may not want to return to work due to caring responsibilities or for health reasons, and consideration should be given as to whether these employees can continue to work from home or remain on temporary lay-off, where applicable;
• consider working hours and arrangements, which may include ways to limit the number of staff commuting at peak travel hours or staggering start and end times to minimise the risk of infection - for example, creating two cohorts with half the department working from home and half in the office each day in order to balance operations with practical measures. If contractual working hours need to be changed, consult with the employees and get their consent prior to any changes taking affect;
• display HSE posters around the workplace to raise awareness of measures to prevent the spread of Covid-19;
• keep up to date with the latest guidance on the use of personal protective equipment (PPE). Employees must be given the correct PPE and work equipment for their job if they are required to come into work. Employers should also ensure that they have adequate stocks of PPE, and may need to consider what other measures to put in place if the supply of PPE is disrupted;
• put in place practical measures to support those on site such as hand washing facilities, additional hand sanitiser stations, antibacterial wipes and appropriate signage, and check and re-stock these regularly;
• organise for work areas and frequently-touched surfaces to be cleaned at regular intervals;
• consider whether canteens, gyms and other staff facilities should re-open, bearing in mind that there may be contractual commitments in outsourced contracts requiring facilities to be open if the building is in use;
• continue to reduce to the absolute minimum or cancel non-essential business travel and encourage employees to conduct meetings via video conferencing software. Where this is not possible, provide additional guidance on essential business travel and the expectations of the company in order to ensure employees have sufficient guidance;
• assess the risks around third parties entering the workplace, as there is a legal obligation to ensure their health and safety;
• whether or not an employer recognises a trade union, early engagement on its plans with employees should help ensure understanding or cooperation. Union engagement may be required where changes to working hours and other terms and conditions are needed, although agreement or consent to any changes will be required regardless of union presence. More generally, unions and staff representative bodies may help to communicate guidance to employees and provide a route for them to raise questions or concerns;
• where employees and contractors are required to complete questionnaires on recent travel and health information, third parties should also complete these before entering the premises. Employers must ensure any questionnaires are compliant with data protection legislation;
• consider whether any employees can work from home. If they can, the employer should satisfy itself that it is a safe place of work. The HSA has issued guidance for employers to understand their duties in relation to home workers.

Facilities health and safety obligations

Facility owners also have duties under the 2005 Safety, Health and Welfare at Work Act if they are to reopen their buildings. These include:

• to do everything reasonably practicable to ensure that people working in or visiting the building are not exposed to risks to their health (which includes exposure to Covid-19); and
• to the extent that they have any control of the premises (e.g. managing the common areas) to take reasonable measures to ensure, so far as is reasonably practicable, that the building, all means of access to and egress from the premises, and any plant (e.g. lifts) within the building, are without risks to health.

These are broadly similar to the duties that apply to facility owners in the UK under the 1974 Health and Safety at Work Act.

A risk assessment of the premises should be conducted. People entering the workplace are a significant risk and consideration must be placed on what hygiene facilities will be made available and how social distancing can be maintained. Special consideration should also be placed on those who are 'high risk' or less abled. Accommodations may need to be made so that only these individuals use the lifts and all other staff use the stairs, or a one-person per lift rule could be implemented. The facility owner should also put in place a system in which it can co-ordinate its actions and share information between tenants in different parts of the building and if necessary inform the tenants of any risks to their safety, health and welfare.

A greater level of duty arises where the facility owner is more active in managing the premises, for example serviced offices. In that case, the facility owner should take advice from a competent health and safety professional on how to manage risks within the premises.

If it becomes necessary to close the premises, official advice should be followed and a cooperative approach adopted. Facility owners should bear in mind that health and safety inspectors have powers to prohibit access to premises, for example if their continued use poses a risk of serious personal injury

Co-written by Jason McMenamin of Pinsent Masons, the law firm behind Out-Law.