by Jennifer Cashman, Practice Group Leader of Ronan Daly Jermyn’s Employment Group.
As the Covid-19 vaccination programme continues, employers and businesses are beginning to consider a return to the workplace for those employees that have continued to work remotely over the past year. Realistically, it will be September before employees return to their workplaces, but considerable planning needs to be undertaken for that return.
Work Safely Protocol
On Friday, 14th May last, the Tánaiste and Minister for Enterprise, Trade and Employment, Leo Varadkar, published an updated Work Safely Protocol (“the updated Protocol”), reflecting the most up to date public health advice for the workplace. The updated Protocol is the second revision since the document was first published in 2020. In addition to the updated Protocol, there is now also a range of complementary material available for the workplace, including a checklist and posters which may make it easier to communicate the measures advised in the updated Protocol. These work safely checklists, posters and videos can be found here https://www.gov.ie/en/collection/17705-work-safely-resources/.
It is important for all businesses and employers to familiarise themselves with the updated Protocol, which is a general document applicable to all sectors. It is not designed to prohibit the introduction of further specific measures in particular sectors or workplaces and so employers and businesses should continue to review any sector specific guidance issued for their workplaces. Further specific measures can always be introduced by all employers, even if there is no sector specific guidance, as long as such specific measures enhance the measures already set out in the updated Protocol.
The updated Protocol therefore sets out the minimum measures required in every place of work to prevent the spread of Covid 19 and to facilitate the re-opening of workplaces following temporary closures and, of course, the ongoing safe operation of those workplaces. The Government has confirmed that the updated Protocol was necessary to reflect new knowledge and understanding of what additional measures are available to reduce the spread of Covid 19 in workplaces.
In that regard, the updated Protocol includes information on wearing of masks; ventilation of workplaces; antigen testing and how a testing regime might be introduced and what both employers and employees should do if such testing is deemed necessary. As confirmed on the Gov.ie website, these are areas where knowledge has developed since the start of the pandemic.
The updated Protocol is very detailed and very useful to employers in planning a return to the workplace.
All employers are urged to consider the updated advice and to liaise with health and safety advisors and occupational health advisors as appropriate.
When publishing the updated Protocol, Leo Varadkar confirmed that the Government’s advice is still to continue to work from home where possible. However, he confirmed that, with some sectors being able to re-open over the coming weeks, it was timely to provide employers with clear guidance on how to keep their staff and customers safe, based on the most up to date public health advice. He confirmed that the Government knows much more about the virus now, with the importance of ventilation in workplaces being key. He also confirmed that there is now a Government endorsed report on antigen testing which some employers are using already. He is encouraging more employers to do so. The updated Protocol gives clear information on how to use antigen testing appropriately in the workplace. The Tánaiste confirmed that the updated Protocol sets out that these tests should be used as an additional health and safety measure and not as a substitute for any other precautions. He confirmed that he is also specifically calling on employers to consider how they can improve ventilation in workplaces, with even simple actions like airing rooms or keeping a window open being things that can make a difference. He also confirmed that vaccination is and will remain voluntary and that it is important that employers have guidance on how to manage any unvaccinated workers. He confirmed that the updated Protocol gives that information.
He acknowledged that businesses have had an incredibly challenging few months and that, although many will be delighted to get their doors open again, many will also be a little nervous. He acknowledged that businesses have put in an enormous effort over the past year to keep their staff and customers safe and that the Government is committed to continuing to help over the next few months, as people get back on their feet.
Damien English, TD, Minister for Business, Employment and Retail said that the updated Protocol is an important toolkit for employers in Ireland as Government efforts continue towards and orderly and safe re-opening of the economy and society. He confirmed that Government will continue to engage with the business community and their staff to keep everyone safe and to help prevent the virus spreading from workplace into the wider community.
The updated Protocol is very detailed in relation to the introduction of antigen diagnostic tests and rapid antigen diagnostic tests. Consultation with workers and representatives, as well as the lead worker representative(s) and the safety representatives, should be undertaken before any testing regime is introduced in the workplace and a process for workers who do not wish to take part in such testing should be agreed. The updated Protocol also sets out that a written occupational health and safety risk assessment to take account of this new work activity and specific risks associated with the use of rapid antigen diagnostic testing in the workplace should be completed.
Vaccination of employees
The updated Protocol is also very detailed in relation to vaccination and confirms that the decision to get a vaccination against Covid 19 is voluntary and that workers will therefore make their own individual decisions in this regard. The updated Protocol acknowledges, however, that employers working together with their workers and their representatives, including the lead worker representative(s), may wish to provide advice and information on the vaccination programme so that workers have the necessary information to make an informed decision. Employers should consider specific communication measures for those whose first language is not English in that regard.
The updated Protocol also sets out the requirement under Health and Safety legislation, particularly the Safety, Health and Welfare at Work (Biological Agents) Regulations, 2013 and 2020 which refers to risk assessments and vaccinations. However, the updated Protocol notes that the information set out is general advice related to the Biological Agents Regulation and that in the context of the Covid 19 national vaccination programme the vaccine rollout is currently a matter for public health and not for the employer. The updated Protocol also provides links to Covid 19 vaccination information.
The updated Protocol also sets out a worker’s role, both in the workplace and in community settings. It deals with outside of work issues, such as commuting to work, public transport and workers congregating at particular settings outside of work.
As outlined above, the updated Protocol sets out detailed information with regard to assessing ventilation in the workplace and provides good detail on developing a workplace risk assessment around ventilation. It also provides general advice in relation to mechanical ventilation and provides links to a range of further resources on ventilation.
It is important to remember that the Tánaiste has confirmed that working from home should continue in so far as possible for the time being. It is anticipated that it will be Autumn at the earliest before the Government’s advice changes in this regard.
However, there is planning required for the return to the workplace and all businesses should now study the updated Protocol to make sure sufficient time is allowed to implement the measures outlined.
The updated Protocol can be found here – https://www.gov.ie/en/publication/22829a-return-to-work-safely-protocol/
About the author
Jennifer Cashman is Practice Group Leader of Ronan Daly Jermyn’s Employment Group. Her focus is on providing strategic business advice and practical, commercial solutions for clients across a range of industry sectors. She advises multinational companies in the technology, pharmaceutical, medical devices and diagnostics sectors and also provides employment advice to Public Authorities, Universities and a number of primary and secondary schools. Jennifer is a member of the Firm’s Cyber and Data Protection Team and advises on a broad range of data management issues including GDPR, data breaches, data subject rights, international data transfers, employee data and compliance training. Jennifer has considerable experience advising clients on the practical application of all aspects of employment law and HR issues.