Many employers are now arranging for employees to return to the workplace after, what has hopefully been, the peak of the COVID-19 pandemic in Ireland. Our employment law expert, Shane Costelloe, unmasks the Return to Work Safely Protocol
In Brief: Employers must safeguard the health of their employees, customers and all who enter their premises. The Government’s Return to Work Safely Protocol must be followed together with the existing provisions of the Safety, Health and Welfare at Work Act 2005. Shane Costelloe, employment law expert, suggests the following steps to assist employers to comply:-
1. Carry out a risk assessment
2. Develop a COVID-19 Response Plan
3. Train staff
4. Maintain physical distancing, contact tracing and temperature testing
5. Ensure hygiene.
Since late March, many businesses have been forced to close their physical premises due to the COVID-19 pandemic. This has been an unprecedented challenge for business owners and management teams. Together with an economic downturn, that pales in comparison to the loss of life we hear about each day, employers are now also faced with the difficult task of safely and carefully returning to work.
On 1st May, the Government published a roadmap for the phased re-opening of society, including businesses. As Ireland prepares to restart its’ economy, employers are faced with new challenges in returning employees back to workplace premises whilst continuing to adhere to social distancing and suppress the spread of the virus. The key document for employers re-opening workplaces is the Return to Work Safely Protocol (the Protocol), issued by the Department of Business, Enterprise and Innovation, in conjunction with the Department of Health. The Protocol is a mandatory set of guidelines which all businesses must prepare for, adhere to and continue to observe until notified otherwise by Government. With employees being the individuals who are on the “frontline” of this return to work, employers have a responsibility to protect their employees from extraordinary health and safety risks.
This article will look at practical advices to assist employers in the discharge of the health and safety obligations set out in the Protocol, which we stress are in addition to the existing health and safety obligations set out in the Safety, Health and Welfare at Work Act 2005 (the 2005 Act). It is important to remember that in accordance with the 2005 Act employers are required, as far as reasonably practicable, to protect the health, safety and welfare of their employees.
Notwithstanding the existing obligations under the 2005 Act and the obvious obligations set out in the Protocol, we would like to draw attention to two additional important points for employers to keep in mind throughout Protocol planning:-
1. The Protocol is not intended to be an exhaustive list of the measures employers must now take. Rather, additional measures may be added in line with the advice issued by the National Public Health Emergency Team (NPHET); and
2. While the Protocol emphasises the importance of a collaborative approach between employers and employees, it is the employer who is responsible for implementing a plan on returning to work and ensuring that the measures outlined in the Protocol are adhered to after employees return to the workplace.
Suggested Practical Steps
The following steps are minimum considerations for all businesses and workplaces and are a suggested guide to implementation of the Protocol.
Step 1: Carry out a Risk Assessment
Employers should carry out a risk assessment to examine the various risks associated with the type of work involved in their place of business. Employers will then be required to implement measures to mitigate any risks identified. Employers should also update their occupational health and safety risk assessments and safety statements.
Step 2: Develop a COVID-19 Response Plan
Before allowing employees to return to work, employers will be required to develop a COVID-19 Response Plan. Many employers may have had existing emergency plans in place before being forced to close workplaces due to Covid-19. However, a Covid-19 Response Plan should be novel and unique, especially in light of the obligations set out in the Protocol. Similarly, after 1st May essential businesses that have remained open will need to examine their ongoing procedures in order to ensure compliance with the Protocol.
To assist with the implementation of the Response Plan, employers are required to appoint at least one lead worker who will be charged with ensuring that the measures contained within the Protocol are adhered to. Ideally, the number of lead workers should be proportionate to the number of employees in the workplace.
Before employees return to the workplace, businesses should also implement a plan on how to deal with a suspected case of Covid-19 that may arise in the workplace. A designated isolation area should be identified in advance for workers returning to the workplace who become symptomatic while at work, in order to minimize the risk of the virus spreading from an infected employee to other employees. Ideally, there should be more than one isolation area in order to address a scenario where more than one employee begins displaying symptoms.
Step 3: Pre-Return to Work Form and Information Sharing
Prior to returning to work, employers should circulate a pre-return to work form, which should be completed by employees three days before they return to the workplace. Primarily, this form should confirm that the worker has no COVID-19 symptoms and also confirm that the worker is not self-isolating or awaiting the results of a COVID-19 test. Further questions which should appear on this form are available in the Protocol document.
As mentioned above, a key aspect of the Protocol is collaboration between employers and employees. An important aspect of this collaboration is information sharing. Employers should consult with workers on the safety measures to be implemented in the workplace in order to mitigate the risk of infection.
Step 4: Training of Staff
Employers will also be required to train their employees and visitors to the workplace on all the provisions contained in the Protocol. Induction training should be held for all returning employees. This training should include, at a minimum, the latest up-to-date advice and guidance on public health, identify points of contact within the business, information on identifying and responding to the virus, the new safety measures implemented in the workplace, an outline of the COVID-19 response plan and any other sector specific advice that is relevant.
Step 5: Maintain Physical Distancing, Contact Tracing and Temperature Testing
Many businesses may already have implemented some form of social distancing protocol prior to closing. The social distancing requirements remain in place and employers should ensure that a distance of 2m is maintained between individuals in the workplace in order to minimise the risk of transmission.
Under the Protocol, employers are encouraged to conduct meetings as much as possible using online remote means. Where this is not possible, the numbers attending meetings should be kept to a minimum and all participants should maintain social distancing. In settings where a 2m distance cannot be ensured, employers should introduce alternative protective measures such as sneeze guards and masks.
A further requirement contained in the Protocol is that employers keep a log of contact/group work that takes place within the workplace in order to facilitate contact tracing. Employers should inform workers, visitors and contractors of the purpose of the log.
Under the Protocol, employers may be required to implement temperature testing in line with public health advice. As things stand, there is no public health advice that forces employers to carry out temperature testing. However, this could potentially change in light of updated public health advice.
Step 6: Implement Appropriate Hygiene Measures
Employers must ensure that the workplace remains hygienic and that regular cleaning takes place within the workplace. Employers must also ensure that facilities are in place to accommodate adherence to hand hygiene measures and that hygiene products are available for employees.
Whilst the Protocol does not explicitly mention any enforcement measures, it is important to note that under the 2005 Act, the Health and Safety Authority (the HSA) has the power to inspect and close businesses who do not comply with their obligations under the Act. In her announcement Minister Humphreys stated that it would be within the remit of the HSA to enforce the Protocol on businesses and employers.
Lastly, it is very important to note that the Protocol explicitly states that work should continue to be carried out from home, where practicable and non-essential. Notwithstanding, if an employer decides to integrate employees back into the workplace, it is vital that the employer familiarise itself with the Protocol and abide by the measures contained therein.
The employment team at Holmes O’Malley Sexton is here to help business owners and management through this difficult period and we have put a continuity plan in place to guarantee uninterrupted availability of support. Please do not hesitate to contact Shane Costelloe (Associate Solicitor), Pat McInerney (Partner) or any of our partners or solicitors if you require guidance and advice.