knowledge 18 August 2020 |

COVID-19: August Update – What Employers Need to Know

1. Mandatory Face Coverings

Regulations have been passed making the wearing of face coverings in shops and other indoor premises compulsory via the Health Act 1947 (Section 31A – Temporary Restrictions) (COVID-19) (Face Coverings in Certain Premises and Businesses) Regulations 2020. They came into force on Monday 10 August and if not renewed, replaced, or repealed will cease operating on 5 October.

 Where must you wear a face covering?

A face covering must be worn in a relevant premises. A “relevant premises” is defined as an indoor premises to which the public has access:

1. where goods are sold directly to the public,

2. that is specified in Part A of the Schedule, (i.e. shopping centres, libraries, cinemas and cinema complexes, theatres, concert halls, bingo halls, museums) or

3. in which a service specified in Part B of the Schedule is provided or a business specified in Part B of the Schedule is carried on, (i.e. cosmetic nail care/styling, hair care/styling, tattoo and piercing services, travel agents and tour operators, laundries and dry cleaners, licensed bookmakers).

Who must wear a face covering?

These regulations do not apply to those under the age of 13, to an employee who is behind a screen or at least two metres from all other people, or a member of An Garda Síochána in the course of performing his or her duties. They are not applicable in post offices, credit unions and banks, premises where the principal activity is the sale of food or drink for consumption on the premises, or where the principal activity on the premises is medical or dental services. There is a responsibility on a “responsible person”, being an occupier or a manager, to take reasonable steps to ensure those entering a premises to comply with the rules. Failure of the responsible person to do so does not attract liability.

What happens if you don’t wear a face covering?

Failure to wear a face covering without reasonable excuse attracts a Class C Fine, or imprisonment for a term not exceeding 6 months, or both. It appears that a worker or responsible person who is not behind a screen or taking all reasonable steps to maintain a distance of at least two metres from others would also be caught by this section.

Reasonable excuse includes being unable to put on, wear, or remove a face covering without suffering severe distress or because of physical or mental illness, impairment or disability. Reasonable excuse also covers communicating with a person who has difficulties communicating, removing the covering to provide emergency assistance, to take medication, or to be identified at the request of a responsible person.

2. Inspections and the Workplace Relations Commission

Which body is responsible for the inspection of workplaces?

The early stages of the Covid-19 crisis were marked with uncertainty amongst Ministers and State bodies as to which entity held responsibility for ensuring safety of employees from Covid in the workplace. However, by 14 May 2020 it was the view of the then Minister for Business, Enterprise and Innovation Heather Humphries that the role for policing the Protocol, up to and including inspections and closure orders, lay with the Health and Safety Authority (‘HSA’). At the time it was suggested by the Minister that the Workplace Relations Commission (‘WRC’) could offer the HSA support if required.

In response to a Parliamentary Question the same Minister told the Dáil on 9 June that the WRC would be recommencing “on-site visits” from 8 June. She also stated that the WRC was engaging with the HSA to assist in carrying out workplace inspections and that the two bodies were agreeing a Memorandum of Understanding regarding same. On the 8 July the WRC stated that they were working with the HSA carrying out a programme of inspections to monitor and give guidance to employers regarding obligations under the National Return to Work Safety Protocol obligations. 

It is now accepted that the HSA has the authority to inspect workplaces and enforce the Protocol on foot of their existing powers under the 2005 Act and are currently engaged in doing so. However, it is apparent that the WRC holds a supporting role and may be actively engaged in workplace inspections alongside the HSA.

Where will complaints and or claims be raised?

Employers should note that complaints could be raised by employees with both the HSA and WRC for failure to observe the Protocol. For example, an employee could complain to the HSA that an employer has failed to implement the appropriate safety standards, which may lead to an investigation by the HSA. In addition, an employee could bring a claim to the WRC as a result of any loss and damage they may have suffered as a result of a breach of the Protocol and related health and safety law. A breach may also give rise to an employee making a protected disclosure. It is important that employers understand the extent of their obligations and ensure workplaces are of the requisite standard.

3. Employment Wage Subsidy Scheme “EWSS”

On 23 July 2020, under the July Jobs Stimulus Package, a new Employment Wage Subsidy Scheme (‘EWSS’) was announced. It will succeed the Temporary Wage Subsidy Scheme (‘TWSS’), which was announced on 24 March 2020, and run until April 2021. An employer cannot receive EWSS support in respect of an employee where TWSS is being claimed for the employee during this period.

Overview

The EWSS is an enterprise support that focuses primarily on business eligibility to give a flat-rate subsidy to qualifying employers on the basis of the numbers of paid employees on the employer’s payroll. The level of subsidy payable, if any, is dependent on gross income levels of the individual employees.

New employees, such as new hires or a seasonal worker, can start the EWSS from 1 July 2020. Any employees already on the TWSS must remain on it until 31 August 2020. The TWSS ends on 31 August 2020 and no new applications for the TWSS can be accepted from that date. Non-TWSS employers, who have not previously availed of TWSS, will only be eligible to apply for the EWSS.

Eligibility Requirements

An employer must be able to demonstrate to the satisfaction of Revenue that their business will experience a 30% reduction in either the turnover or the customer orders received by the employer from 1 July to 31 December 2020 compared with the same period in 2019. Employers must show that this disruption is caused by Covid-19.

Businesses in existence after 1 July 2019 will compare the reduction relative to their date of commencement to 31 December 2019. New businesses that commenced after 1 November 2019 will use projected turnover or orders.

Employers are required to undertake a review on the last day of every month to make sure they continue to be eligible. If they no longer qualify, they are required to deregister from the EWSS.

An employer must have a tax clearance certificate to be eligible to join the EWSS and remain tax clear to continue to receive the on-going benefits. Employers should ensure they are compliant with all obligations under Irish tax legislation in relation to the filing of returns and payment of taxes.

Legislation

The legislation is set out in the Financial Provisions (Covid-19)(No.2) Act 2020 as it amends s.28 of the Emergency Measures in the Public Interest (Covid-19) Act 2020.

Please find a link to the legislation here.

Rates

The subsidy available depends on the gross income of each employee. It is a flat rate subsidy to qualifying employers, based on the number of qualifying employees on the payroll.

• For every employee paid between €203 and €1,462 gross per week, the subsidy is €203.

• For every employee paid between €151.50 and €202.99 gross per week, the subsidy is €151.50.

No subsidy is paid for employees paid less than €151.50 or more than €1,462 gross per week.

The EWSS will re-establish the normal requirement to operate PAYE on all payments. This includes the regular deduction and remittance of income tax, USC and employee PRSI. If an employment is eligible for the subsidy, a 0.5% rate of employer’s PRSI will apply.

Employees

Employees who were eligible under the existing TWSS will also be considered eligible for the EWSS. The definition of eligible employee was extended to now include an individual who is on the payroll of the employer at any time in the qualifying period, 1 July 2020 to 31 March 2021.  

Application

Employers should self-assess whether they are eligible for the EWSS, and if so, they will be required to sign a declaration on the Revenue’s Online System (‘ROS’) to register for the scheme.

Registered childcare providers

Registered childcare providers, who are registered in accordance with section 58C of the Child Care Act 1991, can avail of the EWSS without the requirement to meet the 30% reduction in turnover or customer orders.

Publication

A list of employers availing of the EWSS will be published in January 2021 and April 2021 to www.revenue.ie.

4. Lockdown measures in counties Laois, Offaly and Kildare

On the midnight of 8 August, the Government introduced new lockdown measures in the counties of Laois, Offaly and Kildare. These restrictions follow recent increased levels of COVID-19 cases in these counties (where, reportedly, almost half of the cases in the country in the prior two weeks had been concentrated).

In short, the new measures represent temporary travel restrictions to and from these counties for a period of 2 weeks (the measures are in place  from midnight Friday 7 August until midnight Sunday 23 August). Other than the travel restrictions, compulsory closure to the public of certain types of businesses and more stringent restrictions on social gatherings (which mirror the restrictions which were operational during Phase 2), the situation within those counties remains largely unchanged.

The new restrictions were introduced through the Health Act 1947 (Section 31A – Temporary Restrictions) (Covid – 19) (Relevant Counties) Regulations 2020 (as amended) (the “Regulations”) and were also announced by the Department of Health on the gov.ie website. A summary of the applicable restrictions can be accessed here. The following are measures employers and employees should pay particular attention to:

Travel

Residents of Kildare, Laois or Offlay (the “relevant counties”) cannot travel outside of their counties for the duration of the restrictions “without a reasonable excuse”. Reasonable excuse includes, inter alia, travel

1. to work, to comply with a contract of employment or contract for services, or otherwise engage in work or employment;

2. to attend medical appointments and collect medicines or other health products;

3. for vital family reasons, such as providing care to children, elderly or vulnerable people (these do not include social family visits);

4. for farming reasons, such as food production or to care for animals;

5. to attend a funeral;

6. to fulfil a legal obligation (including attending court, satisfying bail conditions, or participating in ongoing legal proceedings), attend a court office where required, initiate emergency legal proceedings or execute essential legal documents;

7. to return home to Kildare, Laois or Offaly;

8. to leave Kildare, Laois or Offaly to return home.

People residing outside of the relevant counties should not travel to them, but can pass through these counties to get to a county that does not have such restrictions in place.

Economic activity and work

All workers who can work from home are advised to work from home. While most business remain open, the following are examples of the venues which will be closed during the restriction period:

1. cinemas, theatres and circuses

2. museums and art galleries

3. betting shops and bingo halls

4. gyms, leisure centres, swimming pools, exercise and dance studios.

The manager, occupier or another person in charge for the time being of the premises where the abovementioned businesses or services are carried or provided are obliged (subject to a number of limited exceptions) to take all reasonable steps to ensure that members of the public are not permitted, or otherwise granted, access to these premises, or to a part of such a premises. This obligation is a penal provision for the purposes of section 31A of the Act of 1947.

In addition, hotels will only remain open for essential (non-social and non-tourist) reasons; restaurants and cafés can only operate on a takeaway, delivery or outdoor dining bases.

For a full list of the businesses and services that are affected by these restrictions (as well as certain exceptions in relation to these restrictions), please see Schedule 2 to the Regulations.

5. Apprenticeship Incentive Scheme

On Wednesday 12 August 2020, a new Apprenticeship Incentive Scheme was announced by the Minister for Further & Higher Education, Innovation & Science. The incentive is funded under the July stimulus package and will provide €3,000 for employers who take on a new apprentice between March and the end of the year. According to Apprenticeship Council Ireland, apprenticeships currently available include those in the Construction, Electrical, Engineering, Finance, Hospitality, and Motor industries. In earlier statements, the Minister for Employment Affairs and Social Protection explained that participating employers could receive €2,000 up-front per apprentice hired and a further €1,000 after 12 months if the apprentice is still on their books.

6. Restart Grant Plus

On 10 August, applications for the Restart Grant Plus scheme opened. The scheme provides a direct grant to businesses to aid them with costs associated with reopening and reemploying workers following COVID-19 closures. Grants of between €4,000 and €25,000 are available. Notably, eligible businesses in Kildare, Laois and Offaly are also entitled to a 20% top-up. This scheme replaces and supersedes the existing restart grant schemes (which previously provided grants between €2,000 and €10,000). In order to be eligible to avail under the scheme, a business must have (i) 250 employees or less, (ii) have a turnover of less than €100,000 per employee (i.e. a total turnover of up to €25m) and (iii) have its turnover reduced by 25% as a result of COVID-19. Businesses that accessed funding through the previous round of the scheme are eligible to apply for a second top-up payment to a total combined value of the revised maximum grant level. Applications are made through the relevant Local Authority (with the exception of non-rated B&Bs, which must apply through Fáilte Ireland). More details are available on the Department of Business, Enterprise and Innovation’s website here; please also see here for other Government support schemes available to COVID-19 impacted businesses.

Also contributed by Emma Flood, Ivan Gendelman and Adam Boyle.