Milestones so far:
The month of May brought a number of milestones in terms of the move towards re-opening the country’s workplaces.
On 1st May, the Government published its “Roadmap for reopening society and business” which sets out the Government’s intention to re-open the economy in five phases.
This roadmap was then followed up with the publication of the Government’s “Return to Work Safety Protocol” which was published on 9th May (hereafter referred to as “the Protocol”). The Protocol is designed to support employers and workers to put measures in place that will prevent the spread of COVID-19 in the workplace as the economy begins to slowly open up.
With phase 1 of the Roadmap having commenced on 18th May, certain workplaces have already been allowed to re-open as part of this first phase and the hope is that others will soon be able to follow in stages depending on what phase of the Roadmap they fall under.
The message still remains that where employees can work from home they should continue to do so for now. However, with more and more employees set to return to the workplace in the weeks and months ahead, it is very important that employers and employees familiarise themselves with the new requirements set out by the Protocol and get to grips with what “the new normal” is going to look like in terms of co-existing in the workplace.
First and foremost employers need to familiarise themselves as best they can with the requirements of the Protocol.
The Protocol – Practical Tips:
The Protocol itself is a lengthy 29 page document that can be accessed here: https://www.gov.ie/en/publication/22829a-return-to-work-safely-protocol/.
It is described as a “living document” which means it is subject to change at any time and employers should do their best to stay up to date in relation to changes to the Protocol as they arise.
The Protocol sets out numerous employer and employee obligations. Some of these obligations are discussed below. However, the protocol is lengthy and may seem overwhelming to some employers.
In practice employers are likely to find the templates and checklists that have been prepared by the Health and safety Authority (“the HSA”) and the National Standards Authority of Ireland very useful in assisting them to digest and implement the requirements of the Protocol in manageable and practical way. These templates and checklists are available at the below links:
Examples of Mandatory Requirements Imposed by the Protocol:
Covid Response Plan
All employers must put in place a “Covid-19 Response Plan before their workers return. In practice this is likely to involve the carrying out of an updated risk assessment.
Updated Risk Assessments:
There is no one size fits all approach in terms of risk assessments. Risk assessments need to be tailored to the workplace in question and take account of the particular risks that arise in that work place. For example workplaces with employees in customer facing roles will have to consider the COVID-19 related risks this interaction with members of the public poses. The employer should also take into account workers individual risk factors (e.g. where some workers have underlying medical conditions).
The employer’s safety statement (which all employers are obliged to have generally – even pre the COVID-19 pandemic) should be updated in light of the updated risk assessment.
Implementation of Controls
It is not enough to simply identify the risks, the employer will also need to identify, implement and document control mechanisms to mitigate in so far as possible against the risks posed. For instance, in so far as employees in customer facing roles are concerned, employers must eliminate physical interaction between workers and customers as much as is reasonably practicable.
This might be achieved for example through the provision of online or phone orders, contactless delivery and/or managed entry. In other cases this might involve things like of provision of Perspex protective screens between employees and customers or restructuring work patterns to minimise the number of employees working in any one area together at any one time.
Increased Absence:
The Protocol specifies that employees should not attend work if displaying symptoms and it dictates that the Covid Response Plan needs to include contingency measures to deal with increased rates of employee absence.
Response plan for a suspected case:
Employers need to plan for how they will react if an employee becomes symptomatic in the workplace. As part of the employer’s Covid Response Plan, they will need to put in place a defined response structure that identifies the team(s) responsible for responding to a suspected case of Covid-19. This will include appointing an appropriate manager (or managers) for dealing with suspected cases.
Employers must identify a designated isolation area in advance, the route to which should be easily accessible. Employers are also required to take into account the possibility of more than one person at a time displaying symptoms and are required to have additional isolation areas/other contingency plans for dealing with this.
The isolation area must be away from other workers and in so far as possible it should allow for the isolation of the person behind a closed door.
In addition the Protocol requires employers “as is reasonably practicable” to provide ventilation in the isolation room as well as tissues, hand sanitiser disinfectant and/or wipes, PPE, gloves, masks and clinical waste bags.
The manager and the response team must have a procedure in place to accompany the symptomatic worker to the designated isolation area via the isolation route, keeping at least 2 meters between the symptomatic worker and the person accompanying them and also ensuring others maintain at least a 2 meter distance from the symptomatic worker.
A mask should be provided to the symptomatic worker if available and the worker should wear this when in a common area with others or while exiting the premises.
The manager and the response team will need to make an assessment as to whether the worker can immediately be directed to go home and to call a doctor and self-isolate. If not the symptomatic worker needs to be facilitated in remaining in isolation and calling a doctor from the workplace. The symptomatic individual should avoid touching people, surfaces and objects. They should be advised to cover their mouth and nose with the disposable tissue provided when they cough or sneeze and to put the tissue in the waste bag provided.
Transportation home or to hospital needs to be arranged. The protocol specifically states that public transport of any kind should not be used.
Afterwards, the manager and the response team must arrange for appropriate cleaning of the isolation area and work areas involved. They must also carry out an assessment of the incident which will from part of determining follow-up actions and recovery and they must provide advice and assistance if contacted by the HSE.
Lead Worker Representative/Safety representative
The Protocol requires each workplace to appoint at least one lead worker representative charged with ensuring that COVID-19 measures are strictly adhered to in their place of work.
The HSA has provided a helpful checklist for these persons to follow. This checklist is available at the below link:
The number of worker representatives appointed will, ideally, be proportionate to the number of workers in the workplace and this person should be clearly identifiable in the workplace.
The person(s) undertaking this role must receive the necessary training and have a structured framework to follow within the organisation to be effective in preventing the spread of the virus.
Many workplaces will already have safety representatives appointed under the Health and Safety Legislation. For example, pre-Covid-19 this will already have been a requirement at most construction sites. The Protocol envisages consultation with and the involvement of these representatives (or external competent persons) to ensure the effective implementation of changes to work activities and the implementation of infection prevention and control measures in the workplace.
Some Companies may choose to have their Covid-19 lead worker representative(s) and their health and safety representative(s) be the same person(s).
Contact Logs:
Employers will need to keep a log of contact/group work to facilitate contact tracing.
In terms of contractors and visitors to the workplace, a system for recording these visits as well a system for recording visits by the employer’s own workers to other workplaces should be put in place by the employer.
Pre-Return to work forms:
The Protocol requires employers to have employees compete a pre-return to work form at least 3 days in advance of returning to work. The HSA has provided a helpful template for this form which is available at the below link:
Induction Training
An employer must provide induction training for all workers. At a minimum this needs to include the latest up to date advice and guidance on public health and other information (specified in the Protocol) around how the workplace in question is responding to Covid-19 risks.
The protocol also envisages induction training for contractors and visitors to the workplace.
Display and provision of Information
The Protocol sets out employer obligations in respect of displaying within the workplace information on signs and symptoms of Covid-19 and in respect of providing up to date information on public health advice.
Temperature Testing
The Protocol outlines that employers must implement temperature testing in line with public health advice. However, in the absence of any such public health advice on this point as yet (other than in certain health care scenarios), it would appear that for the moment at least there is no mandatory obligation on employers to carry out temperature testing.
Hand Hygiene
Employers must ensure appropriate facilitates are in place to accommodate workers adhering to hand hygiene measures. They must make available advice and training on hand hygiene and display posters on hand washing in appropriate locations.
Respiratory Hygiene
Employers must provide tissues and bins/bags for their disposal. Employers must empty bins at regular intervals and provide advice on good respiratory practice.
Physical Distancing:
The protocol provides that employers must provide for physical distancing across all work activities. The protocol acknowledges that this may be achieved in a number of different ways. Some examples of how this might be achieved are included in the protocol. For instance the Protocol envisages that some work places may:
These are just some of a number of examples given by the Protocol of measures that can be taken by employers to ensure physical distancing.
The Protocol also specifically addresses situations where it is not possible to ensure 2 metre worker separation by organisational means and it states that in those cases alternative protective measures should be put in place. It gives some examples of what those measures may be. For example, it refers to the installation of physical barriers, such as clear plastic sneeze guards between workers and maintaining at least a distance of 1 metre or as much distance as is reasonably practicable. Employers should refer to the Protocol for further examples.
Working From Home:
The Protocol states that “Office work should continue to be carried out at home, where practicable and non-essential work”.
Cleaning:
The Protocol sets out a number of specifics that employers must put in place in respect of cleaning regimes. For example employers must implement thorough and regular cleaning of frequently touched surfaces and ensure contact/touch surfaces e.g. table tops, door handles and handrails are cleaned at least twice daily. Employers must also provide workers with essential cleaning materials to keep their own workspace clean. Employers should refer to the Protocol for further details.
Ventilation
The Protocol clarifies that switching off air conditioning is not required to manage the risk of Covid-19. The Protocol states that for organisations without air conditioning adequate ventilation is encouraged, for example, by opening windows where feasible.
PPE
The Protocol provides that employers must provide PPE and protective clothing to workers in accordance with identified Covid-19 exposure risks and in line with Public Health Advice.
First Aid
Workers with a specific role in acting as first responders should be provided with updated training on infection prevention and control principles.
Mental Health
Employers will need to be cognisant that workers returning to work may have gone through traumatic events such as the serious illness or death of a relative or friend. There will also be anxieties around other aspects and consequences of the covid-19 pandemic. The Protocol recognises all of this and states that employers should put in place supports for employees.
The Protocol specifies, for example, that employers should provide workers with information on publicly available sources of support and advice. Employers should ensure workers are made aware of and have access to any Employee Assistance Programmes or Occupational Health Services provided by the business (however, not all businesses have these services and the Protocol does not go so far as to require them to be put in place if they do not already exist).
Control of Legionella Bacteria
The risk of Legionnaires disease can arise as a result of premises re-opening after having been shut down. The Protocol specifically recognises this and contains a reference to advice on the prevention of Legionnaires disease.
Update Policies and Procedures
There will be a number of policies and procedures that employers will have to review/update in light of the Protocol and the continued efforts to combat the spread of Covid-19. The Protocol envisages the review and possible updating of sick leave policies, working from home policies and work related travel practices.
Key Takeaway: Collaborate, Communicate and keep up to date:
The Protocol recognises that the key to effective implementation of the measures envisaged by the Protocol is having strong communication and a shared collaborative approach between employers and workers.
Author: Laura Reid
Dated 30th May, 2020
Anne O’Connell
Solicitors
Fitzwilliam Hall
Fitzwilliam Place
Dublin 2
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