COVID-19: Stay at Home Guidance and Exceptions for Essential Services: FAQs - Arthur Cox
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CONSTRUCTION AND ENGINEERING
COVID-19: Stay at Home
Guidance and Exceptions
for Essential Services: FAQs
31 March 2020
On 27 March 2020 the Taoiseach announced that “with effect from
midnight tonight, for a two-week period until Easter Sunday, 12 April,
everybody must stay at home in all circumstances, except for the following
situations”, firstly, “to travel to and from work, or for purposes of work,
only where the work is an essential health, social care or other essential
service and cannot be done from home.”
On 28 March 2020 the Government Construction • scientific research and development
published the List of essential service • essential health and related projects activities
providers under new public health relevant to the COVID-19 crisis, and • regulation, inspection and certification
guidelines (the “List”). This is a live supplies necessary for such projects services necessary to support essential
document which organisations should services
keep under review. • repair/construction of critical road and
utility infrastructure
• delivery of emergency services Administrative and Support Services
WHO IS PERMITTED TO TRAVEL to businesses and homes on an Where necessary to support other
FOR THE PURPOSES OF WORK emergency call-out basis in areas such essential services:
FOR AN ESSENTIAL SERVICE? as electrical, plumbing, glazing and
Only employees who are essential to roofing • employment placement and human
the provision of essential services (and resources associated with the
cannot work from home) are permitted to recruitment and deployment of workers
Transport Storage and Communication
travel to work. This is expressed as being • security activities to assist in the
subject to compliance with the guidance • land transport (for example, bus, rail delivery of essential services and the
set out in the List. and taxi services) securing of premises closed to the
• road, rail, sea and air freight public
• sea and air passenger services; ports • cleaning of buildings and industrial
WHAT ARE ESSENTIAL and airports cleaning activities
SERVICES?
• warehousing and support activities for • business support activities which
The List should be reviewed in full, but
transportation including cargo-handling are necessary to support essential
we have set out below some extracts
• postal and courier activities services included on this list; payroll
most relevant to entities that operate in
and payment services necessary for
infrastructure, construction and utilities. • network control and critical the operation of businesses; data
maintenance (including roads) processing, hosting and related
Electricity, Gas and Water • safety related functions activities
• electric power generation, transmission
and distribution Information and Communications
WHAT IF I AM A SUPPLIER TO AN
• extraction and distribution of gas • … data centres and related services ESSENTIAL SERVICE?
• water collection, treatment and supply The List states that “if you carry out an
• sewerage; waste collection, remediation Professional, Scientific and Technical activity that is necessary for the continued
activities and other waste management activities provision of an essential service by another
treatment and disposal activities • engineering, technical testing activities organisation or you are part of an essential
and analysis supply chain, you should continue to carry
out that activity. To the maximum extent
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COVID-19: Stay at Home Guidance and Exceptions for Essential Services: FAQs
possible, that should be done remotely. The working conditions are in place SOME FURTHER PRACTICAL
Government also recognises that many CONSIDERATIONS
• specific advice will be available from the
companies in Ireland are critical to global Health and Safety Authority • In many cases it will be clear whether
supply chains that are responding to the a given activity carried out by certain
COVID-19 crisis, and many companies also This Health and Safety Authority site entities (and/or their contractors and
perform critical global roles in other aspects includes Advice for Employers. sub-contractors) is an essential service.
of medicine, as well as security, cyber, • For others, determining whether their
cloud and data centre infrastructure. It is activity is an essential service will
intended that these essential global roles are WHAT SHOULD EMPLOYEES DO?
require more careful consideration.
encompassed within this national guidance.” The List states that: This may include deciding (i) which
• if your employer notifies you that you are aspects of the activity are an essential
an essential employee, or that you belong service, and (ii) which employees or
IF I AM NOT ENGAGED IN AN
to a category of essential employees, you classes of employees are required
ESSENTIAL SERVICE, WHAT
FLEXIBILITY IS PROVIDED TO are permitted to travel to and from work; to attend the work site for those
ENABLE WINDING DOWN? and essential aspects. We recommend
that entities document the basis for
If you are not engaged in an essential • when travelling to and from work, you their decision, referencing the specific
service, there was a grace period until should at all times bring with you either Government advice on which they
6pm on Monday 30 March 2020 to a work identification or a letter from based their decision, and any other
make necessary arrangements to wind your employer indicating that you are an advice they received. We suggest
down activities in an orderly way. That essential employee, as well as one other that some entities, particularly those
was required to be done in a way that form of identification. involved in infrastructure projects, may
minimised travel and personal interaction.
wish to liaise with the relevant public
The List also states that “In exceptional or awarding authority to ascertain
ARE THESE MEASURES A
circumstances, it is accepted that some their view on whether the activity is an
CHANGE IN LAW UNDER MY
extra time will be needed for a wind down of CONTRACT? essential service. That said, we do not
activity, or necessary for a site to continue think it will be viewed as appropriate to
What constitutes a Change in Law under delay any action reasonably required to
to operate at a reduced level of activity,
a contract, and whether the Change in comply with the public health guidance
for example in complex manufacturing
Law is one that triggers an entitlement to on the basis that the view of a (probably
processes or very large construction
relief (in the form of costs or further time very busy) public authority is awaited.
projects.”
to fulfil obligations) is a question that can
only be determined following scrutiny of • Workers who travel to work because
the individual contract concerned. they are required for an essential
WHAT SHOULD EMPLOYERS DO? service need a letter from their
The List states that: The current public health measures are employer indicating that their work
not yet enacted by way of regulation is an essential service and that they
• you should refer to this guidance to decide pursuant to the legislation passed over are permitted to travel to work. It is
whether your organisation is providing an the past fortnight (although Gardaí may conceivable that, if travelling, they may
essential service; it is not necessary to seek rely on existing powers relating to public be asked by Gardaí to produce this as
official authorisation; health). We understand, however, that evidence that they are travelling for a
• if you are providing an essential service, the measures “will be reflected in the permitted purpose.
you should identify those employees regulations to be made under the Health • It is necessary to comply with the
(including sub-contractors and so on) (Preservation and Protection and Other current public health guidance in
who are essential to the provision of that Emergency Measures in the Public Interest) respect of workers who are attending
service and notify them (this can be done Act 2020 and will be enforced by the Garda the work place. To assist with those
by category of employee or by individual; Síochána” (indicated at the end of this who continue to travel to work,
it could include all employees of the Government briefing: New public health the Government indicated here
organisation); and measures effective now to prevent further that a Workplace Protection and
• if you are providing an essential service, spread of Covid-19). Improvement Guide has been put
latest public health guidance should be You may wish therefore to continue to in place by the National Standards
followed at all times. monitor the basis on which any new or Authority of Ireland, and that the
updated measures are taken and how Health and Safety Authority is currently
The guidance indicates that all
that impacts your contract. You may discussing with public health officials
organisations that provide essential
also wish to consider, however, that what further guidance may be required
services should have business continuity
the exceptional circumstances brought to support essential businesses to
and resilience plans in place. The
about by the COVID-19 pandemic (as continue to work, while implementing
Department of Business, Enterprise
well as the range of financial reliefs the Department of Health / HSE public
and Innovation has provided advice on
that the Government has introduced) health recommendations.
Business Continuity Planning. This should
take account of the possibility that key are such that parties may cooperate to • Employers should also be aware of
workers or key facilities may be impacted agree innovative or exceptional interim their existing duties to employees
by COVID-19. Companies may also wish solutions, mechanisms for which are not under statutory requirements,
to refer to our recent briefing which necessarily contemplated in their existing common law duty of care principles,
commented on business interruption contracts. In any case, parties should and employee contracts. Further
insurance. ensure that they do not inadvertently information is contained in our
breach the conditions of their contracts briefings, Updated Employment FAQs
In addition, the summary message about and that, in reaching alternative and HSA Advice – 5 Key Questions.
essential services available here states arrangements, they comply with any
that: relevant notice, record keeping and
change management provisions under
• all essential services should ensure safe
their contracts.
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3 COVID-19: Stay at Home Guidance and Exceptions for Essential Services: FAQs Key Contacts Alex McLean Niav O’Higgins Aaron Boyle Karen Killoran Partner Partner Partner Partner +353 1 920 1195 +353 1 920 1090 +353 1 920 1213 +353 1 920 1097 alex.mclean@arthurcox.com niav.ohiggins@arthurcox.com aaron.boyle@arthurcox.com karen.killoran@arthurcox.com Mary Liz Mahony Niamh McGovern Kate Monaghan Nicole Ridge Associate Associate Associate Associate +353 1 920 1066 +353 1 920 1208 +353 1 920 1156 +353 1 920 1863 maryliz.mahony@arthurcox.com niamh.mcgovern@arthurcox.com kate.monaghan@arthurcox.com nicole.ridge@arthurcox.com Maeve Crockett Ciara Dooley Fiona Ridgway Kim O’Neill Associate Associate Associate Associate +353 1 920 1284 +353 1 920 1855 +353 1 920 2064 +353 1 920 2121 maeve.crockett@arthurcox.com ciara.dooley@arthurcox.com fiona.ridgway@arthurcox.com kim.oneill@arthurcox.com Brian Gillespie Sinead Flanagan Claudia O’Sullivan Dearbhaile O’Brien Associate Associate Associate Associate +353 1 920 2011 +353 1 920 1372 +353 1 920 1315 +353 1 920 1447 brian.gillespie@arthurcox.com sinead.flanagan@arthurcox.com claudia.osullivan@arthurcox.com dearbhaile.obrien@arthurcox.com Fionn O’Dea Katrina Donnelly Associate Professional Support Lawyer +353 1 920 1740 +353 1 920 2122 fionn.odea@arthurcox.com katrina.donnelly@arthurcox.com Dublin Belfast London New York San Francisco +353 1 920 1000 +44 28 9023 0007 +44 207 832 0200 +1 212 782 3294 +1 415 829 4247 dublin@arthurcox.com belfast@arthurcox.com london@arthurcox.com newyork@arthurcox.com sanfrancisco@arthurcox.com arthurcox.com
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