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Employer & Employee Obligations Re Covid-19 Outbreak

General:

There appears to be a lot of confusion as to employers’ obligations and employees’ rights in respect of payment during quarantine, self-quarantine and minding of those on quarantine. There appears to be little stated of employees’ obligations in this regard. We have attempted to address all employment issues and give some clarification and guidance below.

Most are aware that employers have a statutory duty and common law obligation to provide a safe place and system of work to all of their employees. However, employees also have a statutory duty to take reasonable care to protect the safety of themselves and others who might be effected by their acts and omissions.

Therefore employers and employees alike would be well advised to be as transparent, as flexible and co-operative as possible with each other during this time in order to manage the risk to all posed by the outbreak of Covid-19.

Practical Steps:   

Employers should put in place whatever practical measures they can in order to try to reduce the risks. Depending on the nature of the work and workplace in question, the practical steps available to employers may differ.

At a minimum, most employers will be in a position to circulate the guidelines that have been published by the World Health Organisation and the HSE in order to raise the level of awareness of these guidelines among staff.

Many employers who have physical workplaces will also be able to put up appropriate signage containing infection control guidelines.  

While remote working is not an option that every business will be able to consider, it is something that is well worth considering in so far as it is possible to do so. Helpfully in recent years a lot of businesses have started implementing at least some degree of remote working which they could potentially now look at temporarily expanding as a control measure given the outbreak of Covid-19. This could prove useful both in the reducing the chances of contraction by employees of the virus in the first place and in terms of managing situations where employees have reason to self-isolate.

Flexibility in relation to working arrangements is also something that both employers and employees may need to look at being as reasonable as possible about. For instance employees may be able to minimise their exposure to large groups of people by taking alternative modes of transport or travelling at less busy times.

A practical situation that employers may be faced with during this time is how to react to a situation where an employee’s children have to stay at home due to, for instance, school closures and the employee does not have alternative childcare. There is no one size fits all approach to any of these situations and the key in most is likely to be flexibility and reasonableness on both sides. Again this may involve agreeing some flexible and/or remote working arrangement during this time.

Another option the employer and employee may wish to look at is whether an employee who is eligible to take parental leave might take a period of parental leave during this time and whether in accordance with Section 8(4) of the Parental Leave Act 1998 (as amended), the employer might exercise their discretion to treat that period of leave as parental leave despite not having received the ordinary notification requirements for a period of parental leave.

Where an employee needs to remain at home unexpectedly due to a dependent taking ill, then the usual rules in respect of force majeure may apply to such a situation. However, this is likely to only be of limited assistance in circumstances where force majeure leave only kicks in if the “immediate presence” of the employee is “indispensable”. Furthermore, an employee is only entitled to a maximum of 3 days force majeure leave in a 12 month period.

Employers should try to be as proactive, flexible and as reasonable as they can during this time. However, employees also have obligations and they too should be flexible and reasonable and put forward constructive solutions where possible where a tricky situation arises as everyone is in unchartered territory in terms of trying to react appropriately to the risks posed by the outbreak of the Covard-19 virus.

See below consideration of some of the specific scenarios that employers and employees may find themselves in as a result of the Covid-19 virus:

Periods Of Absence From The Workplace – Are Employees Entitled To Pay?

The consideration of this question needs to be split into three different scenarios.

Scenario 1 – Sick leave due to contraction of the virus

Firstly, there is the question of whether an employee should be paid while out sick if they have tested positive for a Covard-19 virus. The consensus on this point is that if an employee has tested positive for the virus and is out on sick leave, the Company’s usual sick pay policy should be applied in the same way as it is usually applied to any sick leave. Therefore, if an employee would ordinarily be paid for sick leave, the same treatment should apply while he/she is out sick with the Covard-19 virus. Similarly if an employee is not ordinarily paid for sick leave, they will not become entitled to sick pay from the employer just because the reason for the absence is the Covard-19 virus. Employees should be able to claim illness benefit in the normal way during this period of sick leave, subject to the normal rules regarding illness benefit. As illness benefit does not usually kick in straight away on a period of sick leave employees may also wish to explore an application for supplementary welfare allowance with the Department of Employment Affairs and Social Protection.

Scenario 2 – A period of self-isolation

The second scenario to be examined is the scenario where an employee does not necessarily have the virus but has to self-isolate because for example they have been in contact with someone with the virus or have recently spent time in an affected area and are showing symptoms. This scenario is less clear cut because technically this is not sick leave. In this scenario, it is advisable for the employer and the employee to communicate and co-operate as well as they can with each other and to try to come up with some kind of a solution. For example, if it is possible for the employee to work remotely during this time, that is a good solution as it allows the business to still benefit from the employee’s service and it allows the employee to still earn their remuneration. Where remote working is not a realistic option, the employer and employee may wish to look at whether by the consent of both parties the period in isolation and out of work can be treated as a period of annual leave so that the employee can still get paid for it or a period of authorised but unpaid leave. If an employer is in a position to do so they may even consider paying or part paying the employee during the period of self-isolation in circumstances where the Covard-19 virus is an outbreak outside of all our control. Some employers may pay and look for the employee to work back the time later. Having said that, if the employee has to go into self-isolation due to having knowingly travelled to an affected area, then it would seem reasonable that an employer should be allowed to take that into account in determining how to approach the question of pay for any period of self- isolation. However, the employer should inform its employees of such potential consequences if they decide to travel to a known affected area.

Recent guidelines appear to be that a person who has been directed by a doctor to self-isolate on the basis that they are a probable source of Covid-19 infection and whose employer stops paying their wages, may (similar  to those who are on sick leave above) apply for income support under the same illness Benefit and Supplementary Welfare allowance schemes.  While a person who self-isolates in accordance with up to date HSE guidelines, but without a doctor’s certificate, may apply for income support in the form of Supplementary Welfare Allowance.

Scenario 3 – General Employee unease

The third scenario that could potentially arise is where an employee refuses to attend work, even though they have neither contracted the virus nor have any legitimate reason to self-isolate. This is a tricky scenario. From the employer’s perspective, the key to managing a situation like this is to be as reasonable as possible with all employees in terms of working with them to minimise, in so far as it is possible to do so, the risks of contraction of the virus. Some of the ways in which an employer might do this are discussed above. However, at a basic level an employee has a duty to turn up for work unless they are on sick leave or some kind of authorised leave. Where an employee unreasonably refuses to attend work without good reason, this could potentially result in the employee not being paid for that period and/or in some cases (where warranted) disciplinary proceedings being instituted against them. However, employers should be very careful to assess the reasonableness of the employee’s refusal in the circumstances in which it arises. Employers should also be careful to ensure that their own reaction is reasonable and that in so far as they can they are working with the employee in question to allay the employees’ concerns and help minimise exposure to the virus in so far as it is reasonably possible to do so.

Layoff or short time

Some employers are concerned about what is to happen if there is a dip in their business due to the outbreak of the virus. Employers who have concerns that it may need to reduce hours or lay off staff, it would be better to address this sooner rather than later. Employers should give employees written notice now that in the event that a reduction in working hours or a period of lay off becoming necessary they will only be paid for the hours they actually work but that they will be given letters to this effect for social welfare purpose if/when it arises. There can be further technical considerations around this point that employers should take specific advice on before commencing any period of short time or layoff.

Take Away:

Communication, transparency, flexibility and reasonableness on the part of both employers and employees are key to managing the issues that may arise during this challenging period.

4th  March 2020

Anne O’Connell Solicitors

Fitzwilliam Hall

Fitzwilliam Place

Dublin 2.

www.aocsolicitors.ie

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