Coronavirus: Time for Irish Employers to Take Action

by Michael Doyle, Partner in A&L Goodbody’s Employment Law Group

There has been widespread media coverage recently of Indeed.com’s offices in Dublin being closed over fears that an employee may have been exposed to Covid-19, the official name given to the coronavirus by the World Health Organization (WHO). This has served as a wake-up call to Irish employers of the risk of coronavirus being contracted by their employees. It also has brought into sharp focus the need for employers to be pro-actively planning for an outbreak of coronavirus and the deployment of contingency measures to alleviate the business impact such an outbreak could cause.

While fortunately it transpired that the Indeed employee tested negative for the virus, experts have predicted it is a question of when, and not if, coronavirus will arrive on Irish shores. According to the Department of Health, 65 people have been tested for the coronavirus to date and all have tested negative.

We have outlined a number of practical steps that employers can take now to ensure they are in a position to react quickly to a suspected case of coronavirus amongst their workforce.

What do employers need to be doing right now?

The declaration by the WHO of the coronavirus outbreak as a Public Health Emergency of International Concern confirms the need for employers to be pro-active in implementing risk management measures to maintain a safe place of work for their employees.

Employers should keep on top of news updates and review the guidance regularly issued by the WHO and the HSE Health Protection Surveillance Centre (HPSC). Travel advice issued by the Department of Foreign Affairs and GOV.UK should be reviewed for updates on affected locations and specific risk assessments undertaken where employees are located in those locations or due to travel to or from those locations for work related reasons.

The circulation of guidance for employees to follow on how to protect themselves could also be useful. The WHO have published recommendations on protective measures for individuals which could quite easily be circulated to all staff.

Employers should be careful with the content and tone of their communications in relation to the virus to avoid creating unnecessary alarm or panic.

Maintaining a safe place of work – a risk-based approach

Employers should identify at the outset whether there are adequate safeguards in place to reduce the risk of employees contracting the virus. To do this effectively, employers should carry out a risk assessment exercise. The content of the assessment and actions arising out of this assessment will depend on a variety of factors, including:

• size and profile of the workforce
• working environment
• assessment of the risk of staff exposure to the virus

For example, a business with staff assigned internationally should assess whether it has employees who have worked over the course of the last three months in a location where cases of the virus have been confirmed. An employer should also ascertain whether any employees have scheduled international trips to any affected locations and whether these should be cancelled. If the trips are business critical, it would be prudent to ensure appropriate medical and travel insurance is in place.

Consideration must also be given as to whether the employer has a plan in place to deal with a situation where an employee becomes ill and a case of coronavirus is suspected. Employers must ensure that employees are aware they must not come to work if they believe they may have contracted the coronavirus and that they must immediately notify their employer of their concern in this regard. Where a notification along these lines is made, it will obviously be important an employer promptly engages with the employee and establishes why the employee believes they may have contracted the virus. For example, to establish if any of the employee’s family members have recently returned from a country with confirmed cases of the virus.

In such scenarios, the employer should follow its sick leave scheme and ideally obtain medical certification that the employee is medically fit to return to work before permitting them to do so. An employer should ideally make contact with an occupational health provider in all cases of suspected coronavirus and take expert medical advice as to any steps they should be implementing to support the employee on sick leave and/or any other employees who might be directly impacted or more generally concerned about the risk of contracting the virus.

What should an employer do where a staff member has returned from an affected location?

Businesses should monitor all staff working on international assignments in locations where there have been confirmed cases of the virus, both while abroad and if those employees are due to return to Ireland. Employees who have returned to Ireland from such locations will require especially close monitoring.

Employers should also be conscious that staff could be exposed to the coronavirus within Europe. As the recent “French ski chalet” case has confirmed, staff could be inadvertently exposed to the virus merely by sharing accommodation on holidays with someone who has contracted the virus. The fact the virus can be contracted from someone who is asymptomatic endorses an overly cautious approach being taken by employers where employees have returned from affected locations. These individuals should be encouraged to immediately report any concerns they have about their health.

What steps should an employer take where a case of coronavirus is suspected?

Employers would be well advised to follow Indeed’s precautionary approach and, if feasible, consider implementing flexible working practices as a matter of priority. In its Q&A – ‘What can I do to protect myself?’ the WHO recommends “social distancing” as a protective measure. It logically follows that self-confinement practices may reduce employees’ exposure to the virus.

To the extent employers can facilitate remote working arrangements, employees can continue working unaffected and be paid accordingly – without potentially compromising their safety by exposing themselves to colleagues who may have contracted the virus. This obviously will not be an option for all employers and bespoke contingency arrangements will need to be put in place by employers who cannot implement wholesale working from home arrangements. Unless cases of the coronavirus are medically confirmed, it is probably unlikely employers will take the more radical step of temporarily closing their workplaces and placing staff on layoff.

Employers should plan for what contingency measures they will deploy in the event of a suspected case of the virus so that they are on the front foot in responding to a crisis of this magnitude.

Do employers need to offer paid leave?

If an employee falls ill with coronavirus, an employer should apply its sick leave policy, which may or may not provide for paid sick leave. Employees who are quarantined due to concerns they may have contracted the virus will need to be assessed on a case by case basis. Quarantine can work as a protective, preventative measure and if the employee is not actually sick, he or she may be in a position to work from home. If it transpires the employee has contracted the virus, the employer will need to be notified and the employer’s sick leave policy will then be triggered. Employers should also consider applying their policy on force majeure leave, should an employee need to be absent from work for a few days due to one of their close family members falling ill or having a suspected case of the virus.

Time to plan but not to panic

As things stand, there are no confirmed cases of coronavirus in Ireland.

As it is uncertain when the virus will be contained and there remains a high risk that the virus will make its way to Irish shores, employers would be well advised to prepare for the worst and ensure they have an action plan prepared so that they can respond to a suspected case of the coronavirus amongst their workforce.

About the author
Michael is a Partner in A&L Goodbody’s Employment Law Group. He advises domestic and international employers across a wide range of sectors on all aspects of contentious and non-contentious employment law and industrial relations matters. He provides employers with prompt and pragmatic advice on compliance with their legal obligations, the conduct of internal HR processes and the termination of employment. He also advises employers on data protection law and corporate immigration.
Michael has considerable experience of defending employers in complex employment litigation before the WRC, Labour Court and High Court. He also has particular expertise in advising on the employment aspects of corporate transactions and outsourcings.

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