Numerous employment law concerns have arisen due to the current coronavirus outbreak, including questions about:
- travel;
- health and safety;
- pay; and
- discrimination claim risks.
From staff who are advised to self-isolate to those who are concerned about the risk of coronavirus and reluctant to come into work, employers have a lot to consider. This article sets out guidance for employers on the implications that coronavirus could have for their business.
To date, coronavirus has spread to over 100 countries, with the World Health Organisation announcing that it is a global pandemic. With over 40 cases of coronavirus in Ireland, Taoiseach Leo Varadkar announced that schools, colleges, childcare facilities and cultural institutions would close from 6:00pm on 12 March 2020 until 29 March 2020. Further restrictions have been put in place regarding public gatherings in a bid to counter the outbreak, and numerous other public bodies have announced closures or are beginning to limit activity.
As coronavirus becomes more widespread, the government has advised people to continue working, remotely if possible. As a result, employers are implementing preventative and precautionary measures, taking account of the Department of Employment Affairs and Social Protection's (DEASP) guidance and the Health Protection Surveillance Centre's guidance.
Employers have a duty to take steps that are reasonably practicable to ensure and protect the safety, health and welfare of all of their employees at work, including those who are particularly at risk for any reason. Employers should take the following precautions:
- A risk assessment should be conducted to identify risks and hazards to employees in relation to contracting coronavirus while performing their duties. Employers should be aware when conducting a risk assessment that some employees may be more at risk if they travel frequently or have compromised immune systems (further discussed below).
- Employers can ask employees for information about their health where this is relevant to the workplace, particularly if it is required to protect the health and safety of others. However, this is a special category of personal data and should be treated confidentially.
- Employers can implement effective protective and preventative measures and controls to eliminate the identified risks and hazards in order to provide a safe place and system of work. Measures that employers could take include:
- ensuring that hand sanitiser or washing facilities are available to all employees. Some employers may find it necessary to encourage employees to wash their hands or use hand sanitiser on arrival to the building after using public transport, coughing or sneezing. Much of the evidence-based advice on preventative measures focuses on good hygiene practices such as hand washing;
- displaying posters on 'cough etiquette', hand and respiratory hygiene and safe food practices;
- regularly cleaning frequently touched communal areas, including door handles, kitchens, toilets, showers, hot desk keyboards, phones and desks;
- educating employees on preventative or precautionary measures that should be taken if they experience coronavirus symptoms. This may include advising anyone with coronavirus symptoms (eg, cough, sore throat, fever, breathing difficulties and chest pain) to stay at home, contact their doctor and self-isolate;
- keep reviewing the situation and guidance from the Department of Health, Health Service Executive and Health Protection Surveillance Centre. If the situation worsens, employers may have to take additional measures such as minimising all work-related travel or reviewing what travel is essential and what could be postponed or replaced with phone or video-conferencing calls, limiting or banning face-to-face meetings and postponing or cancelling workplace events or gatherings; and
- considering allowing vulnerable individuals to work from home, particularly if coronavirus cases are confirmed near the workplace.
Current guidance is that coronavirus can cause more severe symptoms for:
- older people;
- pregnant individuals; and
- those with long-term pre-existing medical conditions, such as:
- diabetes;
- heart disease; and
- respiratory or immune problems.
There is currently a low risk of infection for individuals in Ireland, but employers should keep the situation under review. If the outbreak worsens and more cases occur in the country, employers should re-evaluate whether the working environment presents a risk of infection to vulnerable individuals.
There is currently no vaccine for coronavirus (unlike flu), so those at higher risk cannot protect themselves. Where necessary, precautions should be taken such as moving certain employees to a different location or asking them to work from home. Consultation with the individual should be undertaken before taking any action.
Employers have specific statutory obligations to take steps to avoid risks to which pregnant employees are exposed as a result of their work. Where it is not possible to avoid such risks by other means, pregnant employees must be offered suitable alternative employment. If it is impossible for the pregnant employee to be moved to other work or moving them to other work is unreasonable, they may be granted health and safety leave. If granted health and safety leave, the employee must be paid their usual wage for the first 21 days of the leave. If their health and safety leave is more than 21 days, they might be entitled to a social welfare payment if they have enough pay-related social insurance contributions.
As a precautionary measure, some employers have asked employees to remain at home, particularly where there has been potential exposure to coronavirus. Some employees are already able to work remotely from home and many employers are operating or developing flexible working policies. Employers should consider contingency plans to enable their employers to work remotely if possible or necessary and should consider:
- does their technology's capability support their workforce working remotely;
- the security of personal data, confidential information and intellectual property;
- whether they have policies regarding working remotely or using a personal device for work purposes; and
- whether employees have suitable and safe equipment to support remote working.
If an employee is off sick with diagnosed coronavirus, they will be entitled to the employer's usual sick leave and pay provisions set out in the contract of employment and the employer's sickness absence policy. The guidance from the Health Protection Surveillance Centre is for employees not to attend their local doctors' surgery and instead contact them by phone if they are suffering from flu-like symptoms. Employees may not be able to obtain a doctor's certificate and employers may need to consider making exceptions to their sickness absence policy in instances where sick pay is paid only on receipt of a doctor's certificate.
If employees are not entitled to sick pay, employers may want to consider paying it on a discretionary basis because staff may otherwise try to return to work while still sick and risk spreading the virus. The government has announced that employees without any sick pay will be entitled to apply to the Department of Employment Affairs and Social Protection for an enhanced illness benefit. The enhanced illness benefit has increased the benefit from €203 per week to €305 per week. The benefit will be paid for a maximum of two weeks where an employee is medically required to self-isolate due to suspected coronavirus infection, or the full duration of absence from work following a confirmed diagnosis of coronavirus. The DEASP has announced that the usual six-day waiting period for the illness benefit will not apply to anyone who has coronavirus or is medically required to self-isolate due to a suspected coronavirus infection. In the interest of public health, the enhanced illness benefit will be paid only to those who remain confined to their home or a medical facility. As a further protective measure, illness benefit applications can be made by post and an online application is being made available.
When pay arrangements are not covered under the employment contract, there is no statutory entitlement to be paid in the event that the employee is absent from work. The DEASP guidance states that this may include an employee who is unable to attend work as a result of precautionary measures taken in line with the advice of the Health Service Executive Advices or Health Protection Surveillance Centre. The DEASP guidance further states that before ceasing pay, alternative options should be explored with the employee, including:
- taking annual leave during a period of self-isolation;
- agreeing to a period of unpaid leave for those who do not wish to use annual leave; or
- agreeing to work back hours or days lost.
The DEASP guidance has urged employers to continue to pay employees who are absent from work due to infection or self-isolation on medical advice the difference between the social welfare income supports that are being put in place and the employees' salary. Although this guidance is not legally binding and employers are technically not bound to continue to pay employees in this situation, the government recommendation should be followed where possible as it is the best way to ensure that employees follow government advice and do not come to work during a quarantine period. If an employer fails to pay sick pay, employees can apply for emergency income support in the form of the supplementary welfare allowance (based on a means test) if they are facing financial distress.
Employees who self-isolate may be able to work remotely and should be paid in these instances. If not, and where the isolation is imposed by the employer, the employee should continue to be paid to reduce the risk of a claim under the Payment of Wages legislation.
Employees may also be able to take paid force majeure leave where, for urgent family reasons, the immediate presence of the employee is indispensable owing to an injury or illness of a close family member (eg, child, spouse, partner, parent, grandparent, sibling, person to whom a duty of care is owed or person in a domestic dependency relationship). The maximum amount of leave is three days in any 12-month period or five days in a 36-month period.
Concerns about coming into work
Employers should prepare for situations where, despite the workplace remaining open and safe, certain employees may be reluctant to attend due to fear of infection.
Employers should assess the risk regularly, consulting the Department of Health and Health Service Executive's guidance for updates. Employers should also consider their staffing requirements, as it may be possible to allow employees who do not wish to come into the workplace to work remotely or take holiday.
However, employers should be mindful that they might need to require individuals to attend the workplace if other people fall sick and there is insufficient cover. If employers permit remote working or holiday, they should reserve the right to require workplace attendance on short notice and make it clear that disciplinary action could be taken if a refusal to attend work is unreasonable.
Before taking any disciplinary action, the situation should be discussed with the individual because it may be possible to allay their concerns in some way. For instance, if the employee's real concern is the risk of infection on public transport, it might be possible to adjust their hours to enable them to travel outside rush hour.
If the individual refusing to come into work is a vulnerable individual, employers should act cautiously and may have to be more flexible. If someone has genuine fears about attending work, the stress of being required to do so or alternatively facing disciplinary action may itself adversely affect their health.
Refusing to allow employees to stay at home or disciplining them for not attending work could potentially lead to legal claims. For instance, an employee might try to claim constructive dismissal if there is a genuine health and safety risk from being required to attend work. However, provided that employers do not act unreasonably and employees are not placed at undue risk, such claims would be unlikely to succeed.
Workplace closures and providing work alternatives
Current DEASP guidance states that if employers need to close their workplace and work cannot be provided to the employee or remote working is not possible, employers may put employees on a period of lay off on a temporary basis and cease pay. If the employer is required to lay off employees on a temporary basis, the employer must explain to the employees the reason for the lay off in advance of any work stoppage and keep employees informed of the situation during this time. Before an employer can lay off employees, it must check that the contract of employment contains a clause giving it the right to make lay offs and also states that such a period of lay off is unpaid. If the clause does not state that the period of lay off is unpaid, the employer risks being liable to pay compensation for unpaid wages.
In the absence of express provisions permitting the imposition of a period of lay off, an employer may also rely on any relevant custom and practice to make lay offs in the workplace. If this is not possible, an employer will need to secure the express agreement of employees to the proposed lay offs.
Employees who are laid off can apply for a jobseeker payment.
If a workplace is open but employees cannot attend work due to public transport ceasing, unless the contract or custom and practice provides otherwise, the employees may not be entitled to pay. During previous adverse weather events in Ireland, agreed practices were put in place where employees continued to be paid for short closures.
Employers should be aware of the risks of direct and indirect race discrimination claims as well as potential claims for racial harassment in connection with coronavirus in the workplace. There have been news reports of Asian people (or those mistakenly identified as Asian) being racially abused in connection with the outbreak.
Employers may be vicariously liable if their employees racially harass colleagues, even if the employer does not know and would disapprove of such behaviour. However, employers may be able to avoid liability if they can show that they took all reasonable steps to prevent employees behaving in such a manner. 'Taking reasonable steps' might mean having well publicised diversity and harassment policies and educating and training all staff on the issue. Managers must be trained about their responsibility to identify and prevent discriminatory behaviour. Reasonable steps may also mean initiating disciplinary action to address an employee's conduct.
Any request not to attend work should relate to potential exposure to coronavirus, considering any relevant guidance, and should apply to all staff regardless of nationality or ethnicity. Treating staff of particular ethnic origins differently could give rise to claims of direct race discrimination.
Preventing personal travel to infected areas may indirectly discriminate against certain employees by disproportionately affecting a cohort of employees of a particular ethnic origin. However, in defence against a claim of indirect discrimination, employers may argue that the action is a proportionate means of achieving a legitimate aim. Protecting the health and safety of all staff would be a legitimate aim, but an absolute travel ban might be disproportionate in the current situation given that those staff could be required to take extra holiday to self-quarantine at home after returning.
Asking staff who have recently travelled to infected areas not to attend work during the incubation period might be indirectly discriminatory if the request affects more staff of one ethnicity than others. However, this would likely be justified as a proportionate means of achieving a legitimate aim.
As the coronavirus outbreak continues to evolve, further employment law issues may arise. Employers should monitor the situation closely and keep guidance from the health service executive and DEASP under review.
