by Deirdre Malone, Partner with Ronan Daly Jermyn
It’s one year since the first lockdown, and employers are starting to prepare for a workplace return in the coming months, as more people are vaccinated and businesses hope to reopen. We look at the issues facing essential service employers now to help those employers still operating remotely plan for their return.
Work Safely Protocol
Originally launched in May 2020, the Protocol has been revised to incorporate current advice on public health measures (December 2020). The update was required to reflect the government’s Plan for Living with Covid 19.
The key factors outlined in the Protocol include employer/employee engagement, communication, and training. It sets out obligations for employers and workers to put infection prevention and control (IPC) measures in place to prevent the spread of Covid 19 in the workplace. IPC includes practising physical distancing, adopting proper hand hygiene and following respiratory etiquette. Employers are required to develop a Covid 19 Response Plan outlining the steps that an employer and its workers will take to reduce the risk of spread of Covid in the workplace.
Compliance is enforced by the Health and Safety Authority. By the end of 2020 approximately 20,000 Covid-related inspections had taken place by the HSA.
As essential manufacturing and pharmaceutical services remained open over the last year, key questions arose early on about an employer’s ability to use thermal imaging to temperature test its employee base to help reduce the spread of Covid. Employees in such services could not avoid the cameras to enter their workplace. The testing was regarded as mandatory, but non-invasive. Information about an employee’s temperature was not intended to be stored, however it was processed (as defined under the Data Protection legislation) and certain decisions were made based on this information. This gave rise to significant obligations under the Data Protection Act.
Employers needed to prove that the testing was necessary to comply with a legal obligation (such as under the Safety, Health and Welfare at Work Act) or prove that the data processing was necessary to perform a task in the public interest.
Employers had to conduct Data Protection Impact Assessments, update privacy notices, and consider questions around “processing” a special category of data (health data). Issues around express consent, necessity for the testing and proportionality all arose.
In recent months, employers are increasingly seeking advice about the use of PCR or antigen testing as part of the arsenal of tools used prevent/reduce the spread of Covid. There is no government guidance or regulation compelling employees to submit to Covid 19 testing. At time of writing, it is only mandatory for those arriving into Ireland from abroad to present a negative PCR test. It is an offence (with a potential fine of €2,500 or a prison sentence of up to 6 months) to arrive in Ireland without such a test result.
As such, from a data protection perspective, it will be a very high threshold to meet the standard required to prove that this testing is necessary and proportionate for a particular workplace. Should employers wish to require mandatory testing for employees, it should be justified based on the nature of the business and other factors. Examples of such justification might include that other IPC measures have been ineffective in preventing the spread of Covid 19, or there have been outbreaks in the workplace. It is something that will need to be regularly reviewed and best practice suggests that such review takes place on a weekly basis.
However, employers want to make the test available for employees, and many employees actively want to take the test. Employers should consider whether having the testing available on a voluntary and confidential basis may be more appropriate. Employers may then rely on the integrity of their employees not to present at work should they receive a positive test result. The employer should not receive any information about the test result.
Employers are also reminded of other issues arising including the employees’ right to privacy and, their constitutional right to bodily integrity (noting that Covid testing is invasive, rather than the thermal imaging mentioned above).
Employers are seeking advice about how to manage employees who refuse to submit to testing. For the reasons outlined above, employees are entitled to refuse to submit to testing. As such, disciplinary action is not advised.
Refusing to return without a vaccine
Given the slow rollout of Ireland’s vaccination programme, it is highly likely that it will be a number of months at least before Ireland’s adult population will all have received an offer to be vaccinated. Anecdotally, employees have already started to indicate to their employers that they will not return until such time as they have had the vaccine.
Ireland’s vaccination programme is a public health-led process, not an employer-led process. An employer cannot ask their employee if they have received the vaccine. An employer cannot refuse to allow an employee to return should they choose not to take the vaccine. Similarly, employees cannot refuse to return until they receive the vaccine without justifiable circumstances.
To best manage potential refusals to return to work, employers are advised to ensure that they comply fully with the Work Safely Protocol. This includes updating their Covid 19 Response Plan, Safety Statement and Risk Assessments. Having these steps complete will assist employers to manage such scenarios.
Employers will need to listen to employees to understand their reasons for refusing to return. In addition to the vaccine argument, other reasons provided in the last few months include living with vulnerable people, being in a support bubble with vulnerable people, being pregnant and anxiety about returning to the workplace generally.
The most important thing for employers to do is to ensure that they listen to the reasons provided carefully, and work with the employees to find a solution. Ensure that vulnerable workers who cannot continue to work remotely are provided with preferential support (ensuring that they can be supported to maintain social distancing). Practical flexible working options should be considered and documented. If an employer can prove that it meets its duty of care to provide a safe place of work to its employees with the measures it has in place to protect the employees, to include any additional bespoke measures for specific employees, then withdrawal of pay or disciplinary action may be warranted.
About the author
Deirdre provides strategic legal advice to employers of all sizes in both contentious and non-contentious employment matters. She has particular expertise in the healthcare and education sectors, representing clients before the Workplace Relations Commission, Labour and High Court. Deirdre also uses her skills as a qualified mediator to offer informed and experienced advice to clients.
Deirdre advises on all aspects of the employment relationship from recruitment to termination, redundancies, wrongful and unfair dismissal, workplace investigations, disciplinary process, protected disclosures, mergers and acquisitions, data protection and freedom of information, industrial relations, and equality issues.
In her role with the Law Society of Ireland, Deirdre teaches, tutors and examines training solicitors in the area of employment law.
Deirdre is a member of the Employment and Equality Committee of the Law Society of Ireland and has represented the Law Society in the Houses of the Oireachtas on proposed legislation in the area of employment law.