The spread of the novel coronavirus (COVID-19) across the globe remains a significant concern in the workplace. Employers are confronting difficult questions regarding how to handle safety and health rules, travel restrictions, compensation, immigration, and other employment issues. The following Frequently Asked Questions (FAQs) are designed to address some of the more common questions that employers with operations in Ireland currently face. Employers are also encouraged to consult relevant FAQs put forth by the World Health Organization (WHO) and the Irish government.
As this is a fluid and rapidly-changing situation, please keep in mind that different or additional facts may warrant re-assessment of policies and practices so they can serve the best interest of employees, employers and the community at large. Accordingly, employers should consult with their employment counsel to keep updated on any new legislation or related legal development.
TRAVEL RESTRICTIONS
1. Should an employer restrict travel to all “affected areas” where there have been confirmed cases of COVID-19 infections, as reported by the World Health Organization (WHO)?
Employers with Irish employees should follow the Department of Foreign Affairs and Trade country advice guidance for the specific destination, and generally follow the Workplace Relations Commission advice to employers.
Employers should not send employees to areas that the Irish government classifies as yellow, amber or red due to COVID-19. Click here for classifications.
Employees who have travelled to China, Hong Kong, Singapore, South Korea, Iran, Japan or Italy (“Category 1 Countries” – more countries/areas may be added to this list in due course) are recommended to self-isolate on their return if they are not feeling well. Employees who travel to other areas affected by coronavirus are not required to self-isolate if they are asymptomatic.
2. What should an employer do if an employee shares that he/she plans to travel to an affected area?
Employers cannot restrict an employee’s personal travel, however, the government guidance for returning travellers above should be followed for Category 1 Countries. An employer must ensure that returning travellers from these areas do not return to the workplace for the requisite quarantine period if they are not feeling well, and may wish to do an individualized risk assessment and determine whether to have employees who have travelled to other affected areas stay home or work from home for the current recommended time period.
3. How should an employer handle employees who have family members who have traveled to affected areas?
Employees who have had a family member travel to one of the Category 1 Countries should contact their local Department of Public Health upon their return.
For employees with family members who have travelled to other areas that may be affected, an employer may wish to do an individualized risk assessment and determine whether to have the employee stay home or work from home.
4. Can we prevent employees from traveling to affected areas for personal reasons?
Probably not in most cases. But an employer can institute a requirement that employees disclose their plans to travel to Category 1 Countries so that they can take steps to ensure health and safety in the workplace.
An employer might be able to refuse (or revoke) holiday approval in certain situations. For example, approval potentially could be denied if: (1) an employee discloses that they intend to travel to a Category 1 Country and so they may be required to be under quarantine upon their return, or they are traveling another areas and the employer imposes a 14-day self-isolation by policy; and (2) the employee cannot work from home on return and the employer cannot do without the employee for that length of time.
Note that government guidance is subject to change at any time, and employers must stay informed about and prepared for any change in advice. For example, whilst the focus is now returning travellers, as COVID-19 spreads in Ireland and community transmission increases, people may be asked to self-isolate if other symptoms emerge. RTE is providing live updates on the issue, available here.
DISCRIMINATION LAW
5. What discrimination issues should employers address/be aware of?
Preventing travel to affected regions may indirectly discriminate against certain employees, e.g., employees of Chinese ethnic origin, because such a ban would disproportionately affect them. Although it is a defence to a claim of indirect discrimination that the action is a proportionate means of achieving a legitimate aim (i.e., to protect the health and safety of others in the workplace), an absolute travel ban might be disproportionate in the current circumstances, as an employer could ask employees to notify them of travel to an affected area and require them to take extra holiday (or unpaid leave) to self-isolate at home after returning. If an employer wishes to be more conservative and proactive and impose greater restrictions than what the government recommends, such restrictions should be based on current official guidance and be even-handed.
6. What are the employer’s obligations to prevent harassment of those suspected of being infected?
Employers should have anti-harassment policies and training to prevent harassment in order to mitigate risk for harassment, as employers will be vicariously liable if their employees harass colleagues and the employer failed to take “all reasonable steps” to prevent it. Employers may wish to include an anti-harassment reminder to employees in their communications about steps being taken in relation to COVID-19, and refer employees to relevant policies in place.
DISABILITY LAW
7. Can employers take the temperature of employees who are coming to work?
This step is not currently recommended by the government so it would not be reasonable to require it. Moreover, obtaining such personal health data would require a lawful basis under data protection law and special handling.
8. Are there any rules on what employers are allowed to do concerning subjecting employees to medical examinations or health-related tests that would apply to an emergency situation involving a communicable illness such as COVID-19?
Employers cannot subject employees to testing for COVID-19. Employers can require an employee who is not feeling well and has travelled from a Category 1 Country, or who has had contact with someone who has been diagnosed, to self-isolate at home for the recommended period. Employers can also encourage an employee in the foregoing categories to seek medical advice and instruct them remain away from work for the full recommended period of self-isolation unless they are tested and cleared. (See below for guidance on whether this time must be paid.)
SAFETY & HEALTH RULES
9. Are non-healthcare employees required to wear respirators or other personal protective equipment?
Not for reasons of protecting from or against COVID-19.
10. Can an employer with a public-facing business, prevent employees from wearing a surgical mask or respirator?
Yes, provided that they do not indirectly discriminate against disabled employees in the process. If an employee has a weakened immune system and does not want to be client facing without a mask for fear of infection, reasonable adjustments/accommodation should be considered.
11. What if an employee requests to wear some type of mask as an accommodation?
An employer should have a discussion with any employee making a request related to a medical condition to determine the reason for the specific request. It may be appropriate to seek medical advice about the best approach - an employer should not make assumptions about medical matters. There may be alternative or more effective ways to protect vulnerable individuals.
12. For employers that have events for large gatherings scheduled, should they cancel them?
The government’s plan to address COVID-19 includes a “mitigation phase” (which follows from the (“containment phase”), which may have potential mandatory social distancing measures such as cancelling large events. Employers should keep informed about the government’s intentions. Until such measures are mandated, it is up to individual businesses to conduct a risk assessment.
IMMIGRATION
13. Has your country’s government issued travel advisories? (If so, please summarize the guidance and provide a link to the government’s website (if applicable)).
See response to question 1.
14. An employee who recently traveled to an affected area (in another country) is having difficulty re-entering your country:
(a) How can an employer help the employee get back into your country? The employer cannot directly help the employee. They may support the employee financially or by offering flexible working arrangements, though. Seek legal and tax advice on specific situations, as there may be tax and other potential consequences to remote working from a different country.
(b) In the case of a foreign employee, will the government’s travel advisories affect an employer’s ability to get the foreign employee back into the country?
Yes, this is likely going to be a problem with employees in Category 1 Countries, but it will be based on their travel and not on their nationality per se.
UNEMPLOYMENT & OCCUPATIONAL RISK LIABILITY
15. Do employer-instituted quarantines or temporary shutdowns or mass lay-offs entitle workers to unemployment benefits or severance?
Yes, employees may be entitled to Welfare Allowance and Job Seekers Allowance in these cases. See a summary of employee entitlements here.
16. What are an employer’s workers compensation obligations if an employee traveled to an affected area for work and contracted COVID-19?
If the contract of employment provides for company sick pay, then it should be paid as a matter of contract law. Otherwise, an employer does not have to pay wages for employees who do not turn up to work (but may do so if they wish as a matter of policy).
WORKS COUNCIL/INDUSTRIAL UNIONS
17. In the event of a government-declared quarantine or state of emergency, does your country’s law override contractual provisions and allow for actions that might contradict a collective bargaining agreement (CBA)?
Such powers have not currently been implemented.
PRIVACY
18. According to your government’s health department, what are the steps that employees should follow to notify the authorities that he/she suspects or is confirmed to have a COVID-19 infection?
Individuals who are unwell and have symptoms of COVID-19 should contact their local Department of Public Health or 999 if an emergency (if they are seriously ill).
19. Can an employer require employees to self-report if having a COVID-19 infection?
If they are tested and confirmed positive, this information will already have been handled in accordance with government guidelines.
20. If one of our employees is quarantined, what information can we share with our employees? Who can we share it with?
Employees are protected by data protection law especially in relation to health data, which is “special category personal data.” Processing such data is limited to specific legal grounds, one of which could be that it is necessary for the purposes of obligations imposed by law in relation to employment (which arguably covers an employer’s health and safety duties). Any communication of health data must be in order to meet the employer’s health and safety obligations and must be necessary and proportionate to this purpose.
In accordance with these principles, if an employee has been diagnosed with COVID-19, an employer may have a duty, either express under new government advice or implied as part of its general health and safety duty, to warn staff who have been in contact with the employee. The employer should then direct them in accordance with then-current government guidance (seek medical advice, self-isolate etc.).
If possible, such a warning should be given to those potentially exposed without specifically identifying the diagnosed employee or sharing identifying information more broadly than necessary.
21. What privacy concerns do we need to be aware of when we are asking for the health information of our employees in order to evaluate whether they need to be quarantined?
See response to question 20. In asking for health information, as this is special category data, employees should give their express consent (or the employer should be satisfied they have another legal basis on which to process the data). Without such a legal basis, an employer can impose a presumptive 14-day quarantine if there are reasonable grounds for concern that the employee could expose others in the workplace to COVID-19, e.g., if they have recently returned from a Category 1 Country and are not feeling well. An employer can impose the applicable quarantine period in such a case subject to the employee being medically cleared to return sooner.
Employees will be advised to isolate themselves and not to work in contact with other people by the Department of Public Health if they are a carrier of, or have been in contact with, an infectious or contagious disease, such as COVID-19.
Employers should use reasonable discretion around the need for medical evidence for a period of absence where an employee is advised to self-isolate due to suspected COVID-19.
22. Please provide URL link to or copy of any government form related filing any required notification of a COVID-19 infection.
Employee may be diagnosed only by a medical professional, who then will inform the relevant authorities. If an employer needs advice in relation to disinfecting the workplace and protecting other employees after an employee has a confirmed diagnosis, it can contact the local Department of Public Health.
Littler will continue monitoring employment law developments resulting from the spread of COVID-19, and our additional guidance is available here.
