As the COVID-19 crisis begins to ease, employers must think carefully about how to safely manage the process of returning employees to the workplace. The government has suggested that the relaxation of lockdown measures and any return to normal working life will be gradual and implemented on a phased basis. Similar approaches are being taken in those countries which are ahead of Ireland in the COVID-19 pandemic.
Companies must ensure the health and safety of both their employees and visitors to their premises. They must also comply with any continuing government guidelines, including in relation to physical distancing. Implementing a carefully considered return-to-work plan will be critical. This article summarises the legal landscape and various considerations that employers will need to take into account in Ireland.
The Safety Health and Welfare at Work Act 2005 sets out employers' obligations, including:
- ensuring that employees are provided with training, information, instructions and supervision which allows them to work safely;
- keeping any place of work under their control well maintained to ensure that it is safe to work in and has safe routes for access and exit;
- providing a safe working environment with adequate facilities for welfare at work;
- providing and maintaining a safe plant and systems of work;
- ensuring that articles and substances are safely used, handled, stored and transported; and
- preparing and regularly revising a written safety statement, based on a risk assessment for the workplace, and informing employees of its existence and any changes to it.
There are also a plethora of regulations and approved codes of practice which cover specific aspects of workplace health and safety, including:
- obligations to carry out risk assessments to identify health and safety risks to employees and take steps to remove or minimise any risks;
- obligations to provide employees with information on any identified risks, the preventive or protective measures taken and procedures in the event of an imminent danger to those at work and who is responsible for implementing such procedures;
- appointing of an officer responsible for assisting with health and safety compliance;
- manual handling;
- personal protective equipment (PPE);
- work equipment; and
- display screen equipment.
In addition, employers owe a common law duty to employees to safeguard their health, safety and wellbeing. This encompasses obligations to provide:
- safe places and safe systems of work;
- safe plant and equipment; and
- competent employees.
Penalties for breach of this duty can be severe – from fines to imprisonment. In general, employers will also be vicariously liable for the wrongful acts of their employees that are committed in the course of their employment – namely, employers may be liable if an employee's health is damaged due to a colleague's disregard of the health and safety rules.
The health and safety risks associated with COVID-19 primarily arise from person-to-person contact, transmission through close proximity to infected individuals and surface transmission. Therefore, employers must consider steps to minimise the risk of the virus entering their premises and infecting their employees and visitors. If an outbreak occurs, employers should have a quick response protocol to stop it spreading.
To get ahead and ensure readiness for staff returning to work, employers must engage now with their key stakeholders in order to devise a plan (which should include those individuals responsible for health and safety, facilities, trade unions (if recognised) and HR individuals).
Employers must consider what risks are posed by their premises and business operations. In relation to their premises, employers should consider:
- cleaning regularly and with a focus on high touch points (eg, door handles and equipment). Employers should decide whether – where health and safety regulations allow – doors could be left open;
- hygiene facilities, including hand sanitiser, hand-washing facilities, anti-bacterial wipes for surfaces and equipment;
- disposal of waste;
- minimising the number of times that staff can enter and exit the workplace and, where practicable, designating one entry and one exit point;
- whether staff facilities such as canteens and gyms should be closed;
- limiting the number of people who can enter confined spaces within the workplace (eg, lifts, stockrooms, copying rooms, bathrooms and kitchens). Employers should consider whether it would be appropriate to close spaces which are too small to accommodate physical distancing measures (eg, small meeting rooms);
- minimising non-essential visitors to the workplace;
- how operations that involve people can be undertaken in a way which minimises risk (eg, postal and courier deliveries and collections and catering);
- requiring the use of stairs rather than lifts, where possible; and
- implementing a one-way system to minimise cross contamination.
In relation to people, employers should consider:
- identifying vulnerable employees and how they will be treated. Employers must determine whether employees will continue to be allowed to work from home and, if they are returning to the workplace, what extra measures must be taken;
- how person-to-person contact can be minimised – for example, by:
- having fewer people in the workplace so that the two-metre distance rule can be achieved;
- adjusting working hours;
- dividing staff into groups and rotating attendance at work; or
- prohibiting physical contact (eg, handshaking);
- the proximity of workstations;
- PPE. Employers must determine whether they will require staff to wear face masks, disposable shoe covers and gloves and, if so, whether there are bins to ensure the safe disposal of such items;
- minimising in-person meetings. If they are necessary, employers should implement rules so that physical distancing can be maintained;
- minimising the handling of hard-copy documents, including post and parcels;
- whether the use of certain facilities should be limited (eg, kitchens, fridges, vending machines and crockery);
- implementing protocols for visitors to the workplace (eg, handwashing, no contact greetings, disposable shoe covers and physical distancing in meetings); and
- how the risks associated with travel can be minimised – for example, by:
- encouraging the use of methods of transport which involve minimum exposure to others where possible. If this is impossible, employers should consider whether home working should continue;
- staggering start and end times so that peak travel times can be avoided; or
- prohibiting non-essential work travel.
Finally, employers must consider whether they have appropriate insurance in place in case anyone becomes infected in the workplace.
Step 2: devise, revise or update appropriate policies and practices
Once employers have established a risks draft or revised their policies and practices, they should consider whether updates to the sickness, health and safety and disciplinary policies are required.
Employers may need to draft new protocols for how staff should:
- conduct themselves so as to protect their own health and safety and that of others (eg, how to deal with employees travelling for personal reasons rather than for work); and
- monitor their own health and report any issues – if mandatory testing is required, there will be contractual and data protection issues to work through.
If a union is recognised or employers have a staff consultative body, employers should seek engagement and input on their proposals.
Employers should establish a register of who has contracted or thinks that they have contracted COVID-19. It will be important to identify if any individuals who perform health and safety functions (eg, first aiders or fire chiefs) are absent and need temporary replacement.
Employers should provide a mechanism through which employees can raise questions or make suggestions.
Employers should establish a plan for who will return to the workplace and when. They must work through business-critical roles and those which are necessary to enable proper functioning of the workplace (eg, facilities, IT, cleaning, post room and reprographics teams). Employers may wish to exclude vulnerable employees and seek volunteers initially. Employers will need to designate named persons who will manage the process of which employees will be returning and in what teams so as to ensure that physical distancing can be maintained.
If employers will require certain roles or numbers of people to return, it will be important to establish how the selection will be carried out to avoid any discrimination or other issues of unfairness which could lead to claims. If preferential treatment is given to those with caring responsibilities or those who live with vulnerable people, employers must consider the impact that this may have on those who are required to return to the workplace and who may end up shouldering the burden of increased work.
Step 3: train and communicate staff and visitors
This should involve:
- devising training for managers and employees;
- delivering this to staff before they return to the workplace;
- holding return-to-work health and safety briefings by online meetings; and
- displaying communications and reminders in the workplace in key places (eg, at hand washing points, entrances and exits and in bathrooms).
Employers should review their plan in light of further government guidance. They must continue to monitor the effectiveness of the policies and procedures that they have developed and adapt and revise them as necessary.
With any return to work likely to be gradual and phased, it is anticipated that staff will continue to need to work from home for a prolonged period.
Employers have the same health and safety obligations to those who work from home as at their premises. Employers should consider:
- measures for keeping in touch and monitoring wellbeing;
- the type of work being undertaken and working hours;
- whether the work can be done at home safely; and
- whether any control measures should be put in place in order to protect homeworkers.
During the COVID-19 crisis, many employees, especially those who do not work from home regularly, will not be appropriately set up to do so. While this may not pose a significant problem in the short term, the longer that homeworking continues, the greater the risk. In the event of prolonged periods of homeworking, employers that require their employees to use display screen equipment should ask employees to undertake display screen and desk risk assessments, including:
- ensuring that employees take breaks from their display screens; and
- providing guidance or training on best practices and how to identify risks within their own environment.
When staff return to the workplace, employers may wish to provide them with updated eye tests or offer such tests on request.
