As cases of Covid-19 continue to spread, Irish-based employers should take steps to ensure they are meeting their legal obligations to employees and prepare a contingency plan to prepare for the possibility that employees will be required to self-isolate.
The Safety, Health and Welfare at Work Acts 2005 to 2014 imposes an obligation on employers to provide a safe place of work and also an obligation on employees to take reasonable care to protect their safety, health and welfare and the safety, health and welfare of any other person who may be affected by the employee's acts or omissions at work.
Recent communications by the Irish Government on the impact of Covid 19 on employers
The Department of Employment Affairs and Social Protection (the "Department") has published helpful guidelines outlining employer obligations and employee rights online which can be accessed here: https://www.gov.ie/en/publication/99104a-covid-19-coronavirus/.
These guidelines contain details of new measures which are designed to support workers and ease the burden on businesses if employees cannot attend work due to the impact of Covid-19.
The Irish Government is urging employers to pay employees who are absent from work due to the impact of Covid-19, at least at the current rate of unemployment allowance, referred to as "Jobseekers Allowance", (€203 per week). Employers who have to "lay-off" employees (discussed further below) due to social distancing requirements will be able to claim a refund of €203 per worker per week from the Department. The aim of this refund scheme is to retain employees' employment relationship with their employer and therefore alleviate the need for these employees to personally submit a claim for unemployment allowance. As it will take some time for refunds to be processed by the Department, the Department has stated that banks will provide working capital finance in the form of overdrafts or short-term loans to cover costs.
The Department will also be introducing a new Covid-19 Pandemic Unemployment Payment for employees who have been laid off due to the impact of Covid-19 and who are not receiving any payment from their employers. This payment will be paid for a period of six weeks at a flat rate of €203 per week upon submission of a simplified one-page application to the Department. Once the six week period has elapsed, individuals may apply for normal Jobseekers Allowance if necessary and the correct rate for individuals will be assessed at that time.
The Irish Government recognizes that the impact of Covid-19 will cause a financial burden to many Irish based businesses. A €200 million package of loans will therefore be available to business impacted by Covid-19. This package will include a scheme whereby businesses can apply for a maximum loan of €1.5 million at a reduced rate for assistance with the impact of Covid-19.
Although this recent Government announcement will undoubtedly increase pressure on employers to pay employees' wages during absences caused by the Covid-19 infection and/or self-isolation, it does not create a legal obligation on employers to do so.
There is no statutory requirement on Irish-based employers to pay employees during sick leave. If the employee is not actually sick and self-isolating as a precautionary measure they may not be entitled to sick pay. Employees who contract Covid-19 should be dealt with in accordance with their employer's sickness policy. However, employees may have an entitlement to sick pay under the terms of their contracts of employment or through an established custom and practice by the employer. For instance, employers who operate a discretionary sick pay policy but who routinely pay employees while on sick leave may be held to have created an enforceable contractual right to sick pay for its employees.
Employees who are absent from work due to illness or injury may be entitled to Illness Benefit from the Department provided that the employee has made sufficient PRSI contributions. Currently, employees normally only receive Illness Benefit from the sixth day of absence.
As part of the Department's new measures, the rules relating to Illness Benefit have been modified. In circumstances where the employee has been told by a doctor to self-isolate or has been diagnosed with Covid-19 and the employer does not pay sick pay, employees will be entitled to Illness Benefit from the first day of absence. Illness Benefit will be increased from a maximum payment of €203 per week to a payment of €305 per week for a maximum of two weeks of medically certified self-isolation or the duration of a person's medically-certified absence from work due to a positive diagnosis of Covid-19.
Employers who can facilitate remote working can minimise disruption to their business by putting in place a contingency plan now in case a switch to remote working is required at short notice. Employers should audit their technological capabilities, system security and employee management arrangements to gain a realistic idea of how the business would cope with remote working and to identify and improve upon any perceived insufficiencies. Where employees are prevented from working remotely or attending the workplace as a precautionary measure, employees could bring a number of statutory claims if their employer does not pay them as normal.
Lay-off and/or short-time working
Where remote working is not feasible, employers should consider how they might deal with employees who are unable to attend work, either due to the business ceasing operations or the employee choosing to self-isolate in the absence of a medical certificate by a doctor advising that employee to self-isolate. It may be possible for an employer to "lay-off" its employees for a limited period of time. Irishbased employers have no automatic right to lay off workers, or to put them on short time working even if there is no work for them to do. Depending how serious the situation becomes for a business, employers may propose lay-off or short-time working as an alternative to redundancy. However, this entitlement must be established by contract or by custom and practice within the employment or by specific consent of each employee.
If there is an express or implied contractual right to lay-off or place employees on short-time working, employees must be informed that the measure is temporary. Employers who intend to lay off their employees or to place employees on short time should use the form RP9 (provided under statute and accessible here: https://www.workplacerelations.ie/en/publications_forms/lay_off_and_short_term_procedures_form_rp9_. pdf) or a form of wording similar to that contained in form RP9 to inform employees of proposed period of lay-off or short time. Employers who wish to pay laid off employees should consider availing of the Department's temporary refund scheme discussed above. In the absence of payment from their employers, employees may apply for the Covid-19 Pandemic Unemployment Payment.
However, employers who lay off employees should be are that if this measure continues, employees will be entitled to a redundancy payment if: (i) they have been laid off or placed on short-time working either for four consecutive weeks, or for a total of six weeks in any 13 week period; and (ii) they have given notice of intention to claim a redundancy payment, or notice terminating the contract of employment, to the employer. Notice must be given within four weeks of the last week since being laid off or placed on short-time working. Employers can contest such payments by serving a counter-notice in writing within seven days of receipt of a notice of intention to claim.
Unpaid and paid leave
Alternatively, employers may be able to agree an arrangement with its employees whereby the employees opt to take an agreed period of unpaid leave or a period of (paid) annual leave. Although employers are entitled to decide the times at which annual leave is granted to employees, the employer must have regard to work requirements and take into account (i) the need for the employee to reconcile work and any family responsibilities, (ii) the opportunities for rest and recreation available to the employee and (iii) the employer must have consulted with the employee not later than one month before the day on which the annual leave is due to commence. So, other than encouraging employees to take annual leave to take account of possible changes to work requirements, employers cannot force employees to take leave at a particular time without their consent.
Force majeure leave
Employees who are unable to attend at work due to certain family members contracting Covid-19 may avail of force majeure leave. The Parental Leave Acts 1998 – 2019 provide for paid force majeure leave where, for urgent family reasons, the immediate presence of an employee is indispensable owing to an injury or illness of a close family member. Force majeure leave is limited to three days leave in any 12 month period or five days in a 36 month period.
It is not yet clear to what extent Covid-19 will impact Irish employers. However, prudent employers should continue to monitor the situation, maintain clear communications with employees and put in place a contingency plan to limit potential disruption.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.