by Jennifer Cashman, Practice Group Leader of Ronan Daly Jermyn’s Employment Group.
On the 20th November, the Government published the Work Safely Protocol (the “Protocol”). The Protocol is a revision to the “Return to Work Safely Protocol” previously published in May 2020. When that document was published, we were advised that it was a “living document” – the Protocol reflects that fact and takes account of the current Public Health advice in response to the ongoing COVID-19 crisis in Ireland and the measures necessary to reduce the spread of the virus, as well as the Government’s more recently published Resilience and Recovery 2020 – 2021 Plan for Living with COVID-19. The Protocol remains a general document applicable to all sectors and sets out the minimum measures required in every place of work to prevent the spread of COVID-19; to facilitate the re-opening of workplaces following temporary closures and the on-going safe operation of those workplaces.
The Protocol contains new areas of information not included in the May 2020 version, including management and control of outbreaks, selection of hand sanitisers, wearing of masks, ventilation of workplaces, and symptoms. This reflects updated knowledge around COVID-19, and the measures necessary to prevent its spread, including the 2-metre social distance rule, close contact transmission, surface transmission and airborne transmission. It also contains further information on re-opening workplaces following temporary closure, bearing in mind the potential future lockdowns that may be enforced, and also guidance for employers on keeping their workers updated on signs and symptoms and spread of the virus, advice on hygiene, use of PPE and cleaning/disposal.
It also includes more information on cleaning materials that can be used to disinfect the virus from surfaces and sets out specific environments where spread is more likely including processing plants, nightclubs, restaurants and places of worship, in particularly where indoors, densely populated and inadequately ventilated.
To complement the Protocol, the Health and Safety Authority (“HSA”) has published updated checklists and templates to help employers, business owners and managers to get their business up and running again and to inform workers about what they need to do to help prevent the spread of COVID-19 in the workplace – these can be found here:
Engagement, Communication and Training
The Protocol emphasises that the key to safe workplaces remains strong communication and a collaborative approach between employers and workers. Employers should provide up to date information and guidance to workers, to include signs and symptoms of COVID-19; how it spreads; advice about hygiene measures; use of PPE and cleaning routines and waste disposal.
COVID-19 checklists and templates are available to complement the revised Protocol on the HSA website.
At least one lead worker representative must be appointed, whose role is to work with the employer to assist in the implementation of measures and monitor adherence to the Infection Prevention and Control measures in the revised Protocol. The number of representatives should be proportionate to the number of workers in the workplace. The worker representatives must also be clearly identifiable. The employer is to provide the worker representatives with all necessary training to assist them in their roles – there is now an on-line training course on the HSA website.
COVID-19 Response Plan
The Protocol also provides for employers developing and/or updating their COVID-19 Response Plan. This should include updates to health and safety risk assessments and safety statements. Employers need to take into account workers individual risk factors such as older workers or the presence of underlying medical conditions. Risk assessments should identify the risks to employees and detail the measures and controls necessary to reduce the spread of COVID-19 in the workplace.
Pre-Return to Work Forms and Inductions
The Protocol has updated the pre-return to work form, which workers must complete at least three days in advance of employees returning to work. The pre-return to work form should ask the worker to confirm that, to the best of their knowledge, they have no symptoms of COVID-19; are not self-isolating, and/or awaiting the results of a COVID-19 test.
Return to work induction training is also to be provided to all workers. The induction, among other matters, should include:
· the latest up-to-date Public Health advice.
· the Company’s Response Plan.
· the process to be followed should an employee develop COVID-19 symptoms (in and outside of the workplace).
· details of the measures that have been put in place to address the risk of COVID-19.
· a contact person within the employer that workers may contact should any issues arise.
The HSA has a free on-line course – Return to Work Safely Induction, which employers can use in this regard.
Management and Control of Outbreaks
The Protocol contains more information on addressing levels of specific risks associated with workplaces and work activities, in particular, identifying the sources of potential exposure (facing customers or co-working for example), and identifying any particular locations that might be a hotspot for congregation and therefore transmission. Workplaces are also now advised to ensure they assess modified work practices to avoid any inadvertent exposure of workers to additional health and safety hazards. Individual risk factors should also be taken into account.
Workplaces are advised to include in their updated plans any specific communication measures required for workers whose first language may not be English and to identify leads who can communicate to those groups. The HSE now provides translated versions of all COVID-19 resources.
There are more extensive requirements for workplaces to prevent not only outbreaks within their workplace but outbreaks that might transmit to the community from the workplace. This includes providing information on Government supports, up to date information on public health advice and HSE advice, translations of such advice, cooperation with local Department of Public Health to contain any outbreak should it occur, and maintaining personal information in line with GDPR.
There is additional advice for workers in how they conduct themselves not only within the workplace but also in community settings – for example, travelling alone to work where possible and avoiding congregating in groups when on breaks from work.
There is additional information on when a worker should not go to work – i.e. if displaying any signs or symptoms and/or identified as a close contact, and workers are required to cooperate with any public health personnel and their employer for contact tracing and any advice given in respect of an outbreak.
Employers are asked to ensure that conditions, including employment of staff via agency contracts, support the prevention and spread of COVID-19, and also to minimise rotation of staff across multiple settings and workplaces, particular where agency contracts are used.
The Protocol also advises that where there is an occupational health service provided by a workplace, this can be used to address any worker concerns and communicate the messages re hygiene, etiquette and distancing, as well as providing training and advice on the recommended measures.
Employers should also provide advice on the HSE COVID-19 tracker app and encourage workers to utilise it.
Infection Prevention and Control (“IPC”)
The Protocol sets out far more detailed information on the IPC measures to combat the spread of COVID-19 in the workplace, specifically (i) hand hygiene, (ii) respiratory hygiene and (iii) physical distancing within the workplace including the organising of office space and breaks to facilitate maintaining distance, as well as taking into account any workers who share accommodation. This is in addition to more detailed “pre-return to work” procedures and obligations for both employer and workers, including, for example, the new “traffic lights” system of travel in the EU and travelling from abroad with an essential function or business reason.
Temperature testing is also addressed. The Protocol states that currently there is no public health requirement to undertake temperature testing/screening in the workplace. However, in certain sectors and workplaces, Public Health have advised the employer to put in place temperature checks, for example on entry to the facility or during shift work, and in such sectors, the employer will implement this requirement as it is advised by Public Health.
Workers are also now asked to cooperate with any mass or serial testing as advised by public health and implemented by their employer and also to further restrict movements where a contact of a confirmed case or where living with someone with symptoms.
There is further information for customer-facing roles and the Protocol recommends public health regulations be implemented in shops, shopping centres and other settings. Masks should be provided for any workers who interact with customers particularly where distance of 2 metres cannot be maintained. Contractors and visitors to workplaces should be given induction training. There is also additional information on keeping up to date with the recommended PPE and use thereof.
The Protocol acknowledges that there is now a requirement for any medical practitioner to report COVID-19 under the newly enacted Infectious Diseases (Amendment) Regulations 2020, where they become aware of an instance of the disease. However, the Protocol goes on to confirm that there is no requirement for an employer to notify the HSA if a worker contracts COVID-19. Diseases or occupational illnesses are not reportable under the Safety, Health and Welfare at Work (Reporting of Accidents and Dangerous Occurrences) Regulations 2016 (S.I. No. 370 of 2016).
There is more detailed information about natural and mechanical ventilation that should be used in workplaces, including cross ventilation and advice on use of air conditioning and checking these ventilation systems to ensure air is being properly treated or obtained from fresh air sources, and where additional information can be obtained.
Further Public Health Advice and Information
There are a number of Appendices to the Protocol which give further new information on a number of areas, including management of a case or outbreak at work (where cooperation is emphasised), choosing hand sanitisers (and detailing the register from which workplaces must choose) and use of identified teams or pods where possible within a workplace.
Wearing face coverings, masks and visors
The Protocol sets out the new basis for the legal requirement to wear a face covering on public transport and in specific locations including shops, shopping centres, libraries, cinemas, theatres and concert halls etc. There are specific standards for masks that are to be worn in certain settings and the Protocol specifically sets out that visors are no replacement for masks and should only be worn as an additional protection and fully cover the face.
Where to find specific information for certain sectors
Specific advice has been provided to certain sectors and the Protocol lists these sectors and advises where this further advice can be sought as it is periodically updated; these include healthcare, social care, retail, meat processing, food processing, construction, childcare and education etc.
Compliance with the new Protocol will continue to be led by the HSA, supported by inspectors from a number of other Government Departments and State Bodies. In that regard, the HSA has carried out almost 20,000 workplace inspections since May 2020, related to COVID-19, and has been given additional funding by the Government for 2021, to reflect the on-going COVID-19 challenge in workplaces.
Employers should now review the Protocol and update their existing COVID-19 response plans in accordance with its provisions, in conjunction with occupational health, insurance and health and safety advice.
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.