Client Advisory leaflet COVID-19 issue
“Dear Member, Our Board Director Adrian Twomey has prepared this excellent advisory leaflet on COVID19 for employers, and has kindly offered it to all County Wexford Chamber members. On behalf of the Chamber I would like to thank Adrian and his team at Jacob and Twomey Solicitors Enniscorthy, for this excellent resource for our members.”
Merrythought House, Templeshannon, Enniscorthy, Co. Wexford t: +353 53 924 9920 e: atwomey@jandt.ie
COVID-19 (Coronavirus): Client Advisory Leaflet (4 March 2020)
In light of recent developments and increasing levels of concern in Ireland regarding the coronavirus (COVID-19), a number of our employer clients have contacted us in the last few days with related queries and concerns. In that context we have prepared the short FAQ below in order to assist clients who require information on certain legal issues that arise in the circumstances. In addition, we are including information from a medical perspective that has been prepared by Dr. Shane Farrelly, Occupational Health Specialist, of SomarMed.
Q.1 Are employees who are diagnosed with COVID-19 entitled to payment during any period of absence due to illness?
A.1 In terms of payment, such absences may be treated in the same manner as absences due to any other illness. In other words, if the employee has a general contractual right to payment during illness-related absence then they should be paid. If they have no such contractual right then the employer has no obligation to pay. Employees may be entitled to claim illness benefit but will normally be disqualified from receiving same for the first six (6) days of absence. For information regarding the views of the Department of Employment Affairs and Social Protection on the matter see: https://www.rte.ie/news/coronavirus/2020/0302/1119765-covid-19-social-welfare/
Q.2 Are employees entitled to be paid during any required periods of self isolation or quarantine?
A.2 Where an employee is not sick or unfit for work due to illness they will normally have no right to be paid if they do not attend for work. That legal position, however, is giving rise to concern that employees may attempt to report to work when they should be self-isolating (increasing the risk of the virus being spread). State agencies (including the Workplace Relations Commission) are therefore encouraging employers and employees to explore options such as working from home or taking annual leave to avoid employees being put in a position where they suffer a loss of income. For further details see: https://www.workplacerelations.ie/en/news-media/workplace_relations_notices/covid-19-guidance-notice-for-employers-and-employees-.html
Bear in mind that employers who refuse to explore such options could be open to disputes being referred to the WRC under the Industrial Relations Acts at a later date. It is also worth noting that where the employer directs an employee (who is otherwise willing to report for work) not to attend that the risk of adverse recommendations or findings in subsequent cases may increase.
Q.3 Can employers require employees to self-isolate and remain away from the workplace because of an identified risk?
A.3 Yes. The Safety Health and Welfare at Work Act 2005 imposes obligations on employers in terms of providing a safe place of work and minimising risk to the health and safety of all employees. However, employers should only require employees to self-isolate where there is a reasonable basis for so doing. It is advisable to monitor and follow Department of Health, HSE and medical advice in that regard. For further advice from the HSE, see: https://www2.hse.ie/conditions/coronavirus/coronavirus.html
Employees also have a duty under the Safety Health and Welfare at Work Act not to pose a threat to the safety of others in the workplace. Those who attempt to attend at work when they should be self-isolating may be in breach of that duty.
Q4. Can employers temporarily lay off employees if the COVID-19 outbreak or related precautions result in a shortage of work?
A.4 Yes but bear in mind that this situation is different to one where employees themselves need to self-isolate. Employees who are told by their employer that they are not to attend at work may still have a contractual right to be paid. Employers can only put employees on unpaid temporary lay-off if they have a contractual right to do so. In other words, employers should check their employment contracts before taking this step. Once again, try to explore other options (in line with the WRC’s advice) before opting for unpaid lay-off.
Q.5 Can employers lawfully require employees to travel to places where there have been significant outbreaks of the coronavirus?
A.5 The best advice is to abide by recommendations emanating from the Departments of Health and Foreign Affairs. See: https://www.gov.ie/en/publication/472f64-covid-19-coronavirus-guidance-and-advice/#travel-advice
Given that the Department of Foreign Affairs and Trade are, for example, advising that people avoid unnecessary travel to certain parts of Italy, employers should avoid requiring employees to engage in such travel. Employees may lawfully refuse to abide by instructions to travel that are contrary to public health advice.
Q.6 If employees fail to follow advice issued by the State regarding foreign travel (because, for example, they wish to avail of a holiday that they had already booked) can their employer require them to self-isolate and remain away from the workplace for a period thereafter?
A.6 Yes. Any employer who fails to take note of official advice issued by the State may be acting in a manner that is in breach of the Safety, Health and Welfare at Work Act 2005. Thereafter the position is as described at A.2 above.
COVID-19 (Coronavirus): Medical Information
It takes 5-6 days from contact to develop symptoms and to date the available data suggests that symptoms last from 1-3 weeks.
Below are the information resources from WHO and ILO currently available on occupational health measures in preparing for and responding to COVID-19 outbreaks:
WHO, Getting your workplace ready for COVID-19: https://www.who.int/docs/default-source/coronaviruse/getting-workplace-ready-for-covid-19.pdf
WHO/WPRO, The COVID-19 risk communication package for healthcare facilities: https://iris.wpro.who.int/handle/10665.1/14482
WHO, Corona Virus Disease (COVID-19) Outbreak: Rights, roles and responsibilities of health workers, including key considerations for occupational safety and health (English only): https://www.who.int/docs/default-source/coronaviruse/who-rights-roles-respon-hw-covid-19.pdf?sfvrsn=bcabd401_0
WHO, ePROTECT respiratory occupational health and safety: https://openwho.org/courses/eprotect-acute-respiratory-infections
WHO and ILO, Occupational safety and health in public health emergencies: A manual for protecting health workers and responders (English only): https://www.who.int/publications-detail/occupational-safety-and-health-in-public-health-emergencies
ILO, Guidelines on Decent Work in Public Emergency Services (English only): https://www.ilo.org/wcmsp5/groups/public/—ed_dialogue/—
sector/documents/normativeinstrument/wcms_626551.pdf
Coronavirus: Everything you need to know about Covid-19 via The Irish Times: https://www.irishtimes.com/life-and-style/health-family/coronavirus-everything-you-need-to-know-about-covid-19-1.4187000
Close Contact
The WHO defines close contact as being within one metre of an infectious person. Close contact is also defined as face-to-face contact or spending more than 15 minutes within two metres of an infected person. Close contact on an aeroplane is defined as within two rows of the infected passenger. Outside of these two rows the probability of transmission to each of the remaining passengers is significantly reduced (see a 2018 study on behaviours, movements and transmission of droplet-mediated respiratory diseases during transcontinental airline flights carried out by the FlyHealthy Research Team at Emory University Atlanta: https://www.pnas.org/content/115/14/3623)
For further advice or information about legal issues arising please contact our Adrian Twomey at atwomey@jandt.ie or on 053-9249920.
For further advice or information about occupational health issues arising please contact Dr. Shane Farrelly of SomarMed at shane@somarmed.com or on 087-2550756.