COVID-19 Ireland Update: Mitigation Measures

The government’s second announcement requested that all individuals should practise “social distancing”, which means:

• maintaining a personal space of 1-2 meters from others;
• avoiding indoor gatherings of more than 100 people; and
• avoiding outdoor gatherings of more than 500 people.

Again there is no bespoke statutory enforcement power underpinning these recommendations at the date of writing. The Gardaí (Police) are not tasked with actively enforcing these measures as they are in other countries such as Italy and Spain. Elsewhere, sporting bodies, employers operating in office environments and the hospitality sector in particular (licensed pubs) have been pro-active in taking effective and voluntary measures to implement social distancing. This has been achieved through the cancellation of all sporting fixtures and the closure of bars and pubs nationwide until 29 March on a voluntary basis.

Formal enforcement powers may be the next steps as the Chief Medical Officer’s team is reportedly dissatisfied with current social distancing efforts. By the time this article is released, matters may well have evolved further.

What are other employers doing?

• our collective experience is that many businesses are no longer in the testing phase of their Business Continuity Plans (“BCP”). Instead they are operating their BCPs and rapidly pivoting to a situation where the BCP is going to become the new normal for the foreseeable future. Large numbers of employees are and have been remote working for over a week. Like many of our clients, the Maples Group (with over 400 employees in Dublin) are now, for the most part, remote working.
• employers are communicating candidly, clearly and frequently with their employees.
• face to face meetings are not the norm and international travel is prohibited and in practice very challenging with a number of EU Member States closing their borders.
• employers are reporting co-operation and flexibility from their employees. It is also our experience that employers are primarily focussed on employee welfare and are equally demonstrating flexibility and creativity in relation to start and finish times of the working date, the work location; and
• while no State of Emergency has been declared in Ireland and nor are there reports of plans to do so at the time of writing (but these things change rapidly) employers are preparing in their BCPs for a “lockdown” situation limiting public transport, retail and individual freedom of movement and assembly.

Who should we be asking to work remotely?

The critical question to ask is “is it safe to have employees (or a specific vulnerable employee) at the workplace?” If the answer to that is “No”, then that employee should not be permitted to stay at the workplace.

Employers in Ireland have a significant duty of care to employees to protect them from foreseeable injury or harm in the workplace. There are also significant statutory obligations on employers (and employees) to ensure the health and safety of other users of the workplace. This is not a static duty. Employers must constantly assess the risk to employees by reference to the up to date advice and ensure that steps are taken to ensure a safe working environment and a safe system of work. At the very least, at the moment, that means:

• regular deep cleaning of workplaces;
• regular sanitising of commonly used equipment and areas;
• adequate ventilation;
• access to hand sanitisers and tissues;
• operating social distancing by moving to remote working where possible;
• allowing vulnerable employees to stay away from the workplace where possible without cessation of pay; and
• prompt, GDPR appropriate communications regarding any significant change to the situation including any confirmed cases or exposure to confirmed cases affecting the workplace.

Good to know

• there is specific and rigorous protection of pregnant and breastfeeding workers including the entitlement to take up to three weeks paid Health and Safety leave; and
• employees can take up to five paid days off as force majeure leave to take care of family members who are ill.

We have seen that some employers have been splitting shifts and staggering start and finish times as well as splitting teams into different locations. These BCPs will come under increasing pressure in the coming days as formal enforcement powers to achieve social distancing are under discussion at government level.

Employee Pay?

In summary:

• if a person is able to work remotely, then they should be paid as normal;
• a worker may not be entitled to a shift premium or overtime where the remote working arrangement no longer carries with it the conditions to earn such remuneration;
• employees who are not able to work due to illness and employees who are medically advised to self-isolate are eligible for State Illness Benefit of up to €305 per week from the first day of illness – employers can continue to pay employees in accordance with their sick pay policies and require employees to repay any State Illness Benefit for which they are eligible;
• emergency supplementary income support is also potentially available to employees who are struggling financially; and
• as many employees in the pub/bar sector face temporary or permanent lay off over the coming weeks, the government has announced general eligibility for a Covid-19 Pandemic Unemployment Payment of up to €203 per week for six weeks. Employers are requested to pay affected employees the equivalent amount to the Covid-19 Pandemic Unemployment Payment and seek reimbursement in the coming weeks from the Department of Social Protection. There is a streamlined and web based application process for the payment.

Can I lay-off employees or put them on Short Time if I have no work or reduced work?

• statutory lay off and short time provisions may be used where the employer anticipates a temporary reduction in or cessation of work;
• reasonable notice must be given of any lay-off period or short time;
• there is no automatic entitlement to payment of salary during a statutory “lay-off” period and it is common for lay-off to be unpaid;
• where the contract of employment provides for an unpaid lay-off period then it is clear that no pay entitlement arises;
• consider custom and practice in the employer business and the industry to determine whether lay-off is paid or not where the contract is silent; and
• if an employer withholds pay during lay-off, employees can apply for Jobseekers benefit during any lay-off period or a Short Time Work Support payment during any period of Short Time or the Covid-19 Pandemic Unemployment Payment.

Employee Privacy – What is an appropriate amount of information to share?

Employers will likely need to process higher than normal volumes of employee health related personal data (a special category of personal data) including asking whether employees are in an “at risk” category or seeking information in relation to symptoms or a diagnosis. It is important to note the following principles:

• article 9 (2) of the GDPR provides that health related personal data should not generally be processed except in limited circumstances;
• the DPC has indicated in its recently published guidance that employers should refer to Article 9 (2) (b) (processing necessary for compliance with obligations as an employer) and Article 9 (2) (i) (processing necessary for reasons of public interest in the area of public health) to assess whether they have a legal basis for the processing of such data;
• suitable and specific measures must be put in place for the processing of special categories of personal data and such processing can be lawful where it is necessary “for public interest reasons in the area of public health including protecting against serious cross- border threats to health”;
• employers must impose an appropriate time limit for the retention and subsequent deletion of Covid-19 health related personal data;
• employers should process the minimum amount of health related personal data necessary, store it securely and only transfer it outside of the EEA in accordance with the Employee Privacy Statement and validated cross border transfer protocols; and
• in the case of an outbreak of Covid-19 within a workplace, the identity of affected individuals should not be disclosed to any third parties or to co-workers as a general rule.

Stay Informed

Finally – stay informed using validated information sources including the Ireland specific sources listed below:

Department of Foreign Affairs

• the Department of Foreign Affairs and Trade (“DFA”) is regularly updating the travel advisory. At the date of writing the following travel warnings are in place:
  https://www.dfa.ie/travel/travel-advice/coronavirus/
• the DFA has communicated a “Do not travel” advisory in relation to Italy. The “Avoid non-essential travel” advisory is in place for Argentina, Belize, Bolivia, Brazil, Cambodia, Chile, China, Colombia, Costa Rica, Cuba, Cyprus, Czech Republic, Denmark, Dominica, Dominican Republic, Ecuador, El Salvador, French Guiana, Grenada, Guadeloupe, Guatemala, Guyana, Honduras, Iran, Laos, Malta, Mexico, Morocco, Nicaragua, Panama, Paraguay, Peru, Poland, Spain, Slovakia, Suriname, Uruguay, Venezuela, Vietnam.  “Exercise a High Degree of Caution” is the recommendation in relation to travel to most other countries in Europe. The lowest level of warning “Normal pre-cautions” still applies in relation to the United Kingdom and the United States.

Government of Ireland – Daily Updates

• Latest Updates
• Information on State Benefits and Welfare Payments

Central Bank of Ireland

• on 4 March 2020, the Central Bank of Ireland (the “Central Bank”) issued a statement on the Covid-19 pandemic indicating that it expected regulated firms “to have appropriate contingency plans in place to be able to deal with major operational events should they occur”.
  www.centralbank.ie;
• regulated firms are planning for how board meetings and committee meetings are conducted in the medium term while travel within Europe and to the US and Asia remains disrupted. Non-Irish resident directors and non-Irish resident designated persons in many cases are restricted from travelling to Ireland to attend board meetings. Regulated firms are developing BCPs to address these circumstances; and
• arrangements are also being made by regulated firms to ensure that critical functions can be sustained in the event that senior management, key personnel or any other staff holding PCF or DP roles remain out of the business for several weeks.

Health Protection Surveillance Centre and Health Services Executive

Regular updates and guidance for employers and members of the public operating in non-clinical settings available at the links below.

• Guidance for non Clinical Settings
• hse.ie/coronavirus