Exiting Lockdown: Time for employers to take action - A&L ...

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Exiting Lockdown: Time for employers to take action - A&L ...
Exiting Lockdown: Time for employers to
              take action
              Following the announcement of the Irish Government’s ‘roadmap’
              for lifting lockdown restrictions, the Return to Work Safely
              Protocol (“the Protocol”) has been published in the past few days
              by the Department of Business, Enterprise and Innovation.
              The Protocol contains practical guidance for employers on reopening their workplaces at a time when
              the spread of COVID-19 has been successfully suppressed but not extinguished. The Protocol is the
              result of the collaborative effort by the Health & Safety Authority (HSA), the Health Service Executive
Focus on      and the Department of Health and was developed following discussion and agreement at the Labour
COVID-19      Employer Economic Forum. The Protocol is non-exhaustive, and will likely be revised and added to over
Coronavirus   the coming weeks as public health advice is updated.

              In this briefing, our employment and health &        gaps are identified. Importantly, the Protocol
              safety teams highlight the key provisions of         provides that the response plan should be
              the Protocol and outline the steps employers         developed in consultation with workers and
              should be taking now to prepare for the new          communicated once finalised. In this regard,
              normal. While the Protocol has not been issued       it will be important to take account of the
              under a statutory instrument, compliance             employment law considerations that arise
              with the Protocol has been described by the          in connection with any proposed change to
              Minister for Business, Enterprise and Innovation     working patterns/hours and, specifically, of
              as “mandatory”, so for those employers               the need to obtain employee consent to any
              contemplating reopening over the coming              material changes to their terms and conditions of
              weeks, now really is the time to take action.        employment.

              Employer’s COVID-19 Response Plan                    Lead Worker Representative

              Under the Protocol, employers must have a            The Protocol provides that employers must
              COVID-19 response plan in place. This plan           appoint at least one representative who will
              needs to be developed in line with an up to date     oversee the implementation and compliance
              occupational health and safety risk assessment       with the employer’s response plan. Larger
              and safety statement. It must include a plan         employers will be expected to appoint multiple
              to deal with a suspected case of COVID-19.           representatives proportionate to the size of the
              It must also contain contingency measures to         business. The Protocol does not contain a rule of
              address increased rates of worker absenteeism        thumb on representation (e.g. one representative
              and implementation of the measures necessary         per 100 employees) so it is up to each employer
              to reduce the spread of COVID-19, which may          to determine the number of representatives
              involve changing work patterns. Being nimble         they believe are required to fulfil the worker
              and adaptable is key – employers must be able        representative mandate detailed in the Protocol.
              to respond quickly and alter processes where

Exiting Lockdown: Time for employers to take action

                        The representative’s role is primarily to work            Temperature Checking
                        collaboratively with the employer to assist in
                        the implementation of safety measures and to              A notable feature of the Protocol is the
                        monitor adherence to the measures to prevent              expectation that employers will conduct
                        the spread of COVID-19. The Protocol provides             workplace temperature checks on employees
                        that employers will also communicate with                 in line with public health advice and that
                        safety representatives / the health and safety            employees will agree to such checks being
                        officer. Depending on the scale of business               undertaken. While the Protocol does not address
                        operations, the appointed lead representative             the complex employment and data protection
                        may well be the health and safety officer.                considerations that arise in connection with
                        However, if operations are such that a lead               mandatory workplace temperature testing, it is
                        representative is required in a number of                 clear that temperature testing by employers is
                        different departments within a business, then             likely to become a feature of the new modern
                        those representatives will have to communicate            workplace. As it currently stands, there is no
                        closely with the health and safety officer to             public health advice that requires employers
                        ensure the effective implementation of changes            to conduct mandatory temperature checks
                        to workplace activities.                                  on employees, other than in healthcare and
                                                                                  residential care settings.

                        Return to Work Form and Training                          We recommend that employers considering
                                                                                  introducing temperature testing as a matter of
                        The Protocol obliges employers to develop a               course ensure such testing complies with GDPR
                        pre-return to work form which must be issued              and is informed by public health advice once
                        to employees to complete at least 3 days                  introduced.
                        prior to their return to work. This form should
                        ask employees questions such as whether
                        they have had COVID-19 symptoms in the                    Sick leave, Working from home and ‘At risk’
                        preceding 14 days and whether they have had               employees
                        contact with individuals diagnosed with the
                                                                                  The Protocol recommends that employers review
                        disease. Employers will need to consider the
                                                                                  and revise existing sick leave policies. While no
                        data protection implications of processing this
                                                                                  essential changes are identified in the Protocol,
                        special category personal data and be sure to
                                                                                  employers would be well advised to ensure their
                        have associated protocols in place to ensure
                                                                                  current policies take account of the availability of
                        compliance with the Data Protection Act.
                                                                                  the COVID-19 illness benefit, address company
                        Employers must also provide induction training            sick pay for COVID-19 related absences and
                        for all workers. This training should include an          specifically provide for a scenario where an
                        overview of the latest up to date public health           employee has a suspected but not confirmed
                        advice; what to do if they develop symptoms;              case of COVID-19 (for example, where an
                        how the workplace is organised to address                 employee is temperature tested at work and
                        the risks; the response plan and the points               their temperature exceeds 38 Celsius).
                        of contact. It seems there is ample scope for
                                                                                  Employers should allow workers who can work
                        employers to design and implement their own
                                                                                  from home to continue to do so and ensure that
                        training provided it covers these bases and we
                                                                                  a working from home policy is introduced. If
                        anticipate that many employers will introduce
                                                                                  employers have a pre-existing policy, it should
                        digital solutions, not least to reduce the need
                                                                                  be revised to ensure it is fit for purpose. More
                        for on-site training of potentially large groups of
                                                                                  generally, employers will need to more carefully
                        staff. If an employer rolls out digital training, it is
                                                                                  reflect on the health and safety considerations
                        important an electronic log is kept of those who
                                                                                  that arise in connection with having a remote
                        have received the training for record keeping
                                                                                  workforce and we expect increased HSA
                        compliance purposes.
                                                                                  vigilance in this area in the coming months.

Exiting Lockdown: Time for employers to take action

                        The Protocol emphasises that those employees          Ultimately, if PPE is to be used, employers will
                        in ‘at risk’ categories should ideally be             need to be satisfied that it is of the requisite
                        accommodated in working from home and only            standard.
                        where they “cannot” work from home should
                        these employees attend the workplace. Where
                                                                              Physical Distancing
                        they do attend, an employer must provide them
                        with preferential support to maintain a physical      The Protocol obliges employers to provide for
                        distance of two metres. In treating workers           the minimum recommended social distance
                        differently depending on characteristics such as      of two metres in the workplace. The Protocol
                        their health or age, employers need to be alive to    suggests ways of achieving this, including:
                        the potential discrimination issues that can arise.
                        Effective consultation with those affected and        ƒ   Implementing a no handshaking policy
                        the assessment of objective reasons justifying        ƒ   Organising workers into teams who
                        any adverse differences in treatment will be              consistently work and take breaks together
                        an important factor, prior to implementing
                                                                              ƒ   Considering closing canteen facilities, or
                        measures in respect of ‘at risk’ workers.
                                                                                  staggering use
                                                                              ƒ   Conducting meetings remotely as a default.
                        Personal Protective Equipment (“PPE”)
                                                                              Where two metres social distance cannot be
                        While the use of PPE does play a role and can         ensured, alternative protective measures should
                        help prevent some exposure to COVID-19, the           be put in place, such as:
                        Protocol provides that it should not take the
                        place of other preventative measures, such as         ƒ   Physical barriers, such as clear plastic sneeze
                        hand hygiene, respiratory hygiene and physical            guards
                        distancing.                                           ƒ   Use of face masks in line with Public Health
                        Employers should first conduct a thorough
                        COVID-19 specific risk assessment to identify
                                                                              Data Protection Law
                        the nature of the risks which their employees
                        will be exposed to, work out how to mitigate          Somewhat surprisingly, the Protocol makes
                        those risks without needing PPE, and only             no reference to the need to comply with data
                        then look at what PPE is necessary/feasible to        protection law when adhering to the Protocol.
                        further limit those risks to achieve the required     This does not mean that employers have carte
                        standard. If the workplace can be adapted to          blanche when it comes to processing employee
                        facilitate social distancing, for example through     personal data and, given compliance with the
                        the use of physical barriers (e.g. glass or plastic   Protocol will involve the processing of employee
                        barriers as used in certain supermarkets),            health data, it is essential that employers have
                        limitations on the number of people who can           regard to their data protection obligations when
                        enter any particular space at any one time and        designing their own bespoke return to work
                        the provision of hand sanitizer and washing           protocols.
                        facilities, it may not be necessary to provide PPE.
                                                                              The Data Protection Commission has made it
                        In other workplaces, it may be essential to           clear in its guidance that data protection law
                        provide PPE in the form of gloves, face masks         does not stand in the way of the provision of
                        and/or suits to employees in order to ensure          healthcare and the management of public health
                        their health and safety and that of others who        issues. Measures taken need however to be
                        may be affected, to the fullest extent reasonably     necessary and proportionate. Employers must be
                        possible.                                             able to identify a legal basis for the processing of
                                                                              any personal data under Article 6 of the GDPR,
                        Ultimately, whether and what PPE is required
                                                                              and where an activity involves the processing of
                        will depend on the specific workplace, and the
                                                                              health data (as temperature checking does), they
                        risks which arise from that workplace after all
                                                                              must also identify an exemption under Article 9
                        other precautionary measures have been taken.

Exiting Lockdown: Time for employers to take action

                        of the GDPR. In its guidance on data protection       The primary obligation under the 2005 Act is
                        and COVID-19, the Data Protection Commission          for employers to “ensure, so far as is reasonably
                        noted: “In circumstances where organisations          practicable, the safety, health and welfare at
                        are acting on the guidance or directions of public    work of his or her employees.” Employers must
                        health authorities, or other relevant authorities,    be able to demonstrate that they have done all
                        it is likely that Article 9(2)(i) GDPR and Section    that was reasonably practicable and that to do
                        53 of the Data Protection Act 2018 will permit        more would have been grossly disproportionate
                        the processing of personal data, including health     to the risk. While there is no expectation that
                        data, once suitable safeguards are implemented.       employers will be able to guarantee that staff do
                        Such safeguards may include limitation on             not contract COVID-19 at work, the 2005 Act
                        access to the data, strict time limits for erasure,   requires employers to introduce specific health
                        and other measures such as adequate staff             surveillance and protection measures in order to
                        training to protect the data protection rights of     discharge their obligations which are specific to
                        individuals.”                                         their particular context and workplace.

                        While compliance with data protection law is          Any decision by the HSA on whether to
                        perhaps implicit in the Protocol, we recommend        prosecute will be informed by an assessment
                        employers are far more explicit in how their          of what measures an employer put in place
                        own return to work protocols comply with data         to protect employees and their culpability for
                        protection law and update data privacy notices        an employee contracting the virus. That will
                        and data protection policies as necessary in this     not always be clear-cut. In many instances,
                        regard.                                               and without effective contact tracing, it will
                                                                              be difficult to establish whether an employee
                                                                              became infected with COVID-19 at work, or
                        Workers’ obligations
                        Consistent with the Safety, Health and Welfare
                                                                              Failure to implement appropriate health and
                        at Work Act 2005 (“the 2005 Act”), the
                                                                              safety measures carries serious legal risks not
                        Protocol makes clear safety at work is a two
                                                                              just for the company, but also its officers. The
                        way street, with employers and employees
                                                                              consequences vary and any penalties which
                        alike responsible for ensuring safety in the
                                                                              may be imposed would depend on a variety of
                        workplace. The Protocol repeatedly emphasises
                                                                              factors, such as the nature of the harm suffered,
                        that a collaborative approach is essential to
                                                                              historic compliance record and the existence of
                        achieve success and maximum buy-in. Workers’
                                                                              any mitigating circumstances. The upper regions
                        responsibilities include making themselves
                                                                              of sanctions under the 2005 Act include a fine of
                        aware of the signs and symptoms of COVID-19
                                                                              up to €3m and/or two years imprisonment, per
                        and monitoring their own wellbeing; self-
                                                                              offence, on criminal conviction. There is further
                        isolating and reporting to managers if they
                                                                              risk in that the company’s directors, managers or
                        display symptoms; along with completing and
                                                                              officers can be prosecuted personally where it is
                        returning the pre-return to work form and
                                                                              shown that they have managed health and safety
                        participating in training and temperature testing
                        once introduced.
                                                                              Employers should expect that worker
                        Compliance                                            representatives and employees themselves
                                                                              will also be monitoring compliance with the
                        The Protocol does not directly address                Protocol. Employers would be well advised to be
                        enforcement measures and is drafted in a way          receptive to employee feedback on compliance
                        that is focussed on assisting employers with a        and remember that workers can raise protected
                        return to work. Minister Humphries has however        disclosures about health and safety related
                        cautioned that the HSA will be monitoring             concerns to third parties such as the HSA.
                        compliance and will shut down workplaces in
                        cases of serious or persistent non-compliance.

Exiting Lockdown: Time for employers to take action

                        Action Plan

                        We recommend employers develop their own return to work action plan now informed by the
                        Protocol. Key tenets of that plan include:

                        While the Protocol contains useful guidance for employers and workers on reopening their
                        businesses and returning to work, there are important associated legal risks and requirements,
                        which will need to be kept under review as employers adjust to operating in a materially different
                        environment to the one they are used to.

                        For tailored advice on compliance with the Return to Work Safely Protocol, please do not hesitate to
                        contact any member of the Employment or Health & Safety teams.

                        We will continue to provide regular updates for employers on return to work considerations as well
                        as all other COVID-19 related developments. Please regularly check the A&L Goodbody COVID-19
                        Hub to ensure you are up to date with the latest developments.

                        Disclaimer: A&L Goodbody 2020. The contents of this document are limited to general information and not detailed analysis of law or legal
                        advice and are not intended to address specific legal queries arising in any particular set of circumstances.

DUBLIN / BELFAST / LONDON / NEW YORK / SAN FRANCISCO / PALO ALTO                                                                    www.algoodbody.com
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