Since 20 September, employees have been permitted to return to Irish offices for specific business requirements on a phased and staggered basis. Further restrictions were scheduled to be lifted from 22 October, allowing for a full return to the office and removing the requirement for physical distancing. However, a significant increase in COVID-19 infections in recent weeks has meant that the current guidance for offices is likely to remain in place until spring 2022.
There has been some inconsistency between advice issued by the National Public Health Emergency Team ("NPHET"), comments made by individual members of the Cabinet sub-committee on COVID-19 and Government guidelines. The purpose of this article is to explain the steps office-based employers can take to manage a phased and cautious return to the office for specific business requirements.
Requirements for Office-Based Employers
Guidance issued by the Irish Government, including the revised Work Safely Protocol ("Protocol"), sets out the minimum public health measures required in every place of work to prevent the spread of COVID-19 and to facilitate the reopening of workplaces.
LEEF Consultative Group Guidance Note on the Work Safely Protocol
The Protocol contains a guidance note for employers which states that the return to workplaces should continue to take place, as has successfully been the case since 20 September, on a phased and cautious basis and for specific business requirements.
A return to offices should take into account the following:
- appropriate attendance levels, cognisant of public health guidance and associated checklist(s);
- the use of staggered arrangements, such as not requiring full-time attendance and flexible working hours; and
- attendance is for specific business requirements.
This guidance note does not provide any clear or specific instruction on the parameters for a phased and staggered return to the workplace and instead this is left at the discretion of individual employers depending on the specific circumstances of each office and having regard to consultation with workers. The important role of Lead Worker Representatives ("LWR") in any such consultation is emphasised (as explained below).
COVID-19 Response Plan
All workplaces are required to develop a COVID-19 Response Plan and keep it updated. The COVID-19 Response Plan must detail how the employer will put in place infection, prevention and control measures ("IPC") to help prevent the spread of COVID -19 in its workplace. Required IPC measures are detailed in the Work Safely Protocol (available here) and include:
- use of appropriate attendance levels for specific business requirements;
- physical distancing between employees of at least 2 metres;
- appropriate ventilation;
- wearing of masks (if necessary); and
- restricted movements for individuals experiencing COVID-19 symptoms, individuals who have received a positive test result, and close contacts of confirmed cases (unless fully vaccinated, and asymptomatic, in which case antigen testing is required).
COVID-19 Response Plans should be developed and updated in line with public health advice and in consultation with workers. Consultation can be through one or more LWRs, which employers are required to appoint for this purpose. The role of the LWR is to work together with the employer to assist in the implementation of and to monitor compliance with the IPC measures in the Protocol. Once appointed, the identity of the LWRs should be clearly communicated within the workplace and employees should be informed that if they have any concerns, they should raise these with the LWRs who should then communicate any employee concerns to management. Training should be provided to LWRs and they should complete the online course prepared by the Health and Safety Authority ("HSA") which is available here.
Pre-Return to Work Measures
Employers should ensure they have reviewed and implemented the Employer Checklists and templates provided by the HSA to keep workplaces safe.
All staff should be required to complete a pre-return to work form in advance of returning to work or following any period of extended absence from work. The latest version of this form, which is published by the HSA, is available here.
Induction training should be provided to all workers on, or preferably before, their return to work. The HSA provides a free online course, Work Safely Induction, which can be used for this purpose.
The requirement for two metres' physical distancing between employees across all work activities remains. The Protocol provides that where two metre worker separation cannot be ensured by organisational means, alternative protective measures should be put in place, including at least one metre distancing, physical barriers (eg perspex screens), and other IPC measures. However, it may be difficult for an office based employer which has operated a remote model for in excess of 18 months to demonstrate that two metre worker separation cannot be ensured by organisational means, such as staggered attendance / hybrid working arrangements.
Dealing with a Suspected Case of COVID-19 in the Office
The key message of the updated Protocol is that workers should be advised that they should not attend the workplace if they are displaying any signs or symptoms of COVID-19 or are feeling unwell.
In order to reduce the risks where workers begin to display symptoms of COVID-19 while in the office, the Protocol requires employers to have a defined response structure and plan, including designated contact person(s) for dealing with suspected cases. A designated isolation area should be available and clear steps for isolating the individual, providing them with a mask and arranging for them to contact their GP or the HSE (as appropriate), transportation and cleaning of the work areas involved should be in place before any employees have returned to the office.
Employees with COVID-19 symptoms should isolate and get tested as soon as possible. Employers should facilitate such arrangements.
Enhanced Illness Benefit of €350 per week remains available for employees and self-employed people who are certified by a registered medical practitioner as diagnosed with COVID-19 or a probable source of infection of COVID-19.
At Risk Workers
A fitness for work medical risk assessment may be required for workers in the very high risk or high-risk categories who cannot work from home. This may involve assessments by both the worker's GP and the employer's occupational health practitioner. Given the current rate of infections, it is generally recommended that employers should enable such workers to work from home where possible.
Where employees are reluctant to return to the office, consult with them to try to establish the reason(s) for their concerns. Try to address their concerns by reinforcing the steps your business has taken to reduce the risk of COVID-19 spreading in the office.
If their concerns relate to attending the office on busier days or at busier times on public transport, consider alternative arrangements, such as flexible start/finishing times. If their concerns relate to a diagnosed medical condition or other protected characteristic, such as living with a high-risk person, consult in relation to alternative arrangements, be reasonable and assess whether reasonable adjustments, such as continued remote working, could be facilitated while the risks of transmission on public transport remain high. Medical assessments may be required in certain circumstances.
If, following consultation and having provided appropriate assurances about the safety of the office, the employee is unwilling to attend the office for specific business requirements on a phased and cautious basis, it may be appropriate to instigate a disciplinary procedure.
Lead Worker Representatives
The Protocol recognises that many employees may have legitimate concerns about returning to their workplace and the risks of contracting COVID-19. An open dialogue with employees is crucial to managing a smooth return to the office. The role of Lead Worker Representatives is emphasised in the Protocol to facilitate engagement between employees and employers.
Employers should also consult the Health and Safety Authority's Returning to the Office checklist ("Checklist") which is available here. A completed version of the Checklist could form the basis of discussions with the Lead Worker Representatives so that any employee questions or concerns can be addressed.
Over 90% of all people aged 12 or over are fully vaccinated.
The Protocol advises that vaccination is an important measure to prevent the spread of COVID-19 in a workplace. "Vaccination should be considered a useful supplement" to existing public health and IPC measures, but it should not replace them "because vaccination may not be effective in all who receive it. It is also known that a person who is vaccinated can still be infected with COVID-19 but the severity of the disease is reduced."
Vaccination remains voluntary and a decision for each individual to make. The Protocol refers employers to the Data Protection Commission's ("DPC") previous advice on processing of vaccination status.
However, the DPC has published updated guidance on processing COVID-19 vaccination data in the context of employment and the Work Safely Protocol which is available here.
This guidance highlights the "imbalance of power between the data subject (employee) and data controller (employer). Therefore, employees should not be asked to consent to the processing of vaccine data, as this consent is not likely to be freely given. Therefore the processing of vaccine data will require a specific set of circumstances underpinned by a legitimate reason other than consent."
Interestingly, the guidance concludes by stating that it will be subject to review if the public health advice and laws relating to the nature of the virus, the pandemic and the interplay with vaccination change."
Outside Office Social Events
COVID-19 digital vaccination certificates will continue to be required for entry into indoor hospitality venues, including bars, restaurants and indoor events.
Table service will continue to apply and numbers at tables will be limited to ten.
Specific guidance is awaited on large-scale indoor events but it is understood that mask-wearing will also be required except when eating and/or drinking.
Fixed capacity limits and COVID-19 vaccinations certificates will no longer apply to outdoor events.
Employers should be mindful of arranging social events having regard to the DPC's advice on requesting and processing vaccination status and the latest guidance from NPHET on limiting social interactions.
Similar to vaccinations, antigen testing is voluntary.
The Health Service Executive ("HSE") has updated its public health guidance on antigen tests for fully vaccinated close contacts who do not have symptoms of COVID-19, which is available here. Rapid antigen testing has been introduced for vaccinated asymptomatic close contacts of infected cases.
Packs of antigen tests will be sent by post by the HSE to individuals who require them. Employees who are vaccinated and asymptomatic who have had close contact with individuals with COVID-19 infections must produce a negative antigen test result before they are permitted to attend the office.
Despite this, the Protocol did not update its position on antigen testing and care should be taken by employers to minimise the risks of inappropriately requesting or processing the vaccination status of employees. Further guidance may be published on this point in due course.
For employers who are considering introducing the option of antigen testing more widely, consideration would need to be given to the factors set out in Appendix 9 of the Protocol, which are helpfully summarised in the HSA's RADT Checklist. Consultation would be required with the LWRs. The Protocol states that "the key reason to use such tests is as an aid to Public Heath in "finding" cases of COVID-19; they should not be used to give a "green" light for a workplace to operate or an individual to behave in a particular way. More importantly, if such tests are being used in any setting, be it the workplace or other location, Public Health advice regarding hand washing, wearing masks/face coverings, respiratory etiquette, physical distancing and ventilation, all still need to be adhered to in full."
The LEEF Guidance indicated that continued engagement would take place with its stakeholders taking into account the latest public health guidance and further decisions of Government but no indication has been given about when there might be any change on the guidance for employers on antigen testing.
Hybrid Working Arrangements
Although NPHET continue to advise that employees who can work from home should continue to do so at this time, the Protocol does not echo this advice. The updated Protocol states that the return to workplaces should continue on a phased and cautious basis and is silent on any requirement to work from home.
The Government has repeatedly encouraged businesses to develop long term arrangements for blended or remote working in consultation with employees, including putting in place a working from home policy. Earlier this year, it published this Guidance for Working Remotely resource which sets out the various factors that should be taken into consideration when planning for hybrid/agile working on a more permanent basis. It includes health and safety advice, checklists for working remotely, guidance on working from home, advice on sensitive risk groups, work-related stress, insurance and liability, and the organisation of working time.
The HSA has also published a homeworking risk assessment. Employers remain responsible for employees' health and safety at work even where the employee is working remotely. In homeworking situations, a balance needs to be struck by the employer between meeting its obligations to protect the health and safety of the employee versus respecting their right to privacy, private property rights and the employee's own obligation to protect their own health and safety.
In addition to the checklist, it is important to provide employees with information and training on managing other risks outlined in the HSA's Homeworking Guidance, which is available here.
Legislation creating a right to remote working is expected to be introduced before the end of 2021.
All indications are that this will create a right to request remote working but that employers will be entitled to refuse such requests for objective business reasons, provided those reasons are confirmed in writing and the employee is permitted to appeal the decision.
Key Takeaways for Employers
- keep your COVID-19 Response Plan up-to-date and complete and implement the HSA's checklists for employers to reduce the spread of COVID-19 in the workplace having regard to the specific circumstances of your business;
- attendance in the office should be limited to specific business requirements, and IPC and physical distancing of two metres should be maintained;
- engagement and communication with LWRs and employees, as appropriate, is required by the Protocol and crucial to reassuring employees it is safe for them to return to their workplaces;
- high-risk and very high-risk workers should generally be permitted to work from home if possible. Where employees who are not highrisk have legitimate concerns about returning to the office, you should consult with them about the steps that have been taken to reduce the spread of COVID-19 in the workplace to address their legitimate concerns. A reasonable and informed approach should be taken to reduce the risk of discriminating against employees with health conditions. Disciplinary action may be appropriate where an employee's refusal to return on a phased and cautious basis for specific business requirements is unreasonable;
- employees should not be asked to consent to the processing of vaccine data, as this consent is not likely to be freely given. The processing of vaccine data will require a specific set of circumstances underpinned by a legitimate reason other than consent;
- vaccination is voluntary and employers may not prohibit unvaccinated employees from returning to the workplace;
- personal information of workers should be collected and processed in line with GDPR requirements and data protection legislation;
- prepare for the upcoming right to request remote working by considering whether hybrid working would suit your business requirements and put in place a hybrid working policy which includes a set procedure for making requests and retains broad discretion to decline requests; and
- NPHET has indicated that if cases continue to rise, it may recommend the return of previously lifted restrictions. Contingency planning should be undertaken in anticipation of such changes so the business is ready to adapt at short notice.
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.