knowledge 10 June 2020 |

COVID-19: Getting Back to Business – The Return to Work Protocol

Introduction

The topic of “lockdown exit strategies” has dominated headlines in recent weeks, with governments around the EU and further afield beginning to announce plans for the reopening of businesses and economies in their jurisdictions. The Irish Government’s Roadmap for Reopening Business and Society sets out the likely timeline for the reopening of the various sectors of the Irish economy. The Government, in conjunction with the Health and Safety Authority and the HSE, has also published a Return to Work Safely Protocol which sets out in very clear terms the steps employers must take, both before a workplace reopens and while it continues to operate. Businesses should therefore plan for their return to work by reference to the timelines and guidelines set out in the Roadmap and the Protocol and we consider some of the key issues in this respect below.    

The Roadmap for Reopening Business and Society

The Roadmap sets out the likely timeline for the reopening of the Irish economy and society. While the Roadmap originally provided for five phases, the acceleration of the Roadmap announced by Government on 5 June, now envisages four phases of easing restrictions and means certain sectors and public amenities can open earlier than previously planned. As of 5 June, the Roadmap provides for the following four phases with further guidance expected on the steps to be taken in Phases 3 and 4 in the coming weeks:

Phase 1 (18 May)	Outdoor workers (e.g. construction workers and gardeners), with social distancing requirements continuing to apply.
Phase 2 (8 June)	Phased return of workers, such as solitary and other workers that, due to nature of work, can maintain 2-metre distance constantly, with social distancing requirements continuing to apply. Retail outlets may re-open if appropriate safety measures are in place, including staggered opening hours and methods of operation including, for example, priority times for the vulnerable.
Phase 3 (29 June)	Organisations where employees have low levels of daily interaction with people and where social distancing can be maintained. The recent acceleration plans envisage a return of domestic tourism, and the re-opening of hotels, restaurants, hostels, caravan parks, galleries and museums again with appropriate safety measures.
Phase 4 (20 July)	The original Roadmap provided that organisations whose employees cannot work remotely should begin their onsite return in Phase 4 with appropriate safety measures. Phase 5 provided for returns to onsite working for all employees while higher risk organisations were advised to implement plans at this stage for an eventual onsite return of all staff. Although further detail on the precise measures which will occur in Phase 4 is expected in the coming weeks, the removal of Phase 5 is likely to mean an acceleration of the return to onsite working for all employees.

 

It is important to note however that the Roadmap is intended to be applied flexibly and restrictions may be maintained or indeed re-introduced if an upsurge in the spread of the virus occurs. 

It is also important to emphasise that both the Roadmap and Protocol make it clear that all workers who can work remotely should continue to do so.  Remote working is therefore likely to remain the norm for many workers and businesses. 

The Return to Work Protocol

Having established when it is likely that their business will be able to welcome employees back to the workplace, employers should set out a Return to Work plan. The key concern underpinning any Return to Work plan is the health and safety of employees and the plan should therefore take account of existing obligations under health and safety law, as well as the obligations introduced by the newly published Return to Work Safely Protocol.

The Protocol sets out general and non-exhaustive guidelines for businesses which are applicable to all industry sectors. This includes guidance for essential businesses who must review their existing measures to ensure they are in line with the Protocol. Further specific measures can be introduced in particular sectors or workplaces, as long as they enhance the measures set out in the Protocol. The Protocol is described as a living document, which may be supplemented by further guidance as necessary. Employers should therefore keep up to date with the latest measures introduced by Government and any advice issued as a result. Compliance is to be monitored by the HSA using their existing powers under the Safety, Health and Welfare at Work Acts, which include inspection powers and the power to issue Improvement Notices and Prohibition Notices requiring the cessation of work activities in cases of serious non-compliance. The usual penalties for breaches of health and safety obligations (which include criminal sanctions for employers and senior management as well as fines of up to €3 million) will also apply. 

The Protocol imposes the following key obligations on employers:

• Develop and/or update a COVID-19 Response Plan

  In effect, this obligation supplements an employer’s existing obligations to carry out risk assessments and prepare safety statements under the Safety, Health & Welfare at Work Act 2005. The Response Plan should address the risks arising from COVID-19 which are specific to the workplace and set out appropriate preventative and protective measures which can be put in place to minimise those risks. It should also provide for contingency measures to address issues such as increased absenteeism, and measures necessary to minimise the spread of COVID-19. The Protocol outlines that existing risk assessments and safety statements should be updated in line with the Response Plan and that plans should be developed in consultation with workers

• Appoint a worker representative/worker representatives

  The number of representatives will depend on the number of workers. The function of the representative(s) is to ensure that COVID-19 measures are strictly adhered to in their place of work. Each representative must receive training and be provided with a framework to assist them in carrying out their functions. Employers should also communicate with safety representatives selected or appointed under existing health and safety legislation and consult with workers on safety measures to be implemented.

• Establish and issue pre-return to work checks

  The Protocol states that employers must provide workers with a “pre-return to work form”. The form should be completed and returned by workers at least 3 days before any return to work and should include specific questions on whether an employee has been diagnosed with or experienced symptoms of COVID-19, whether they have been in close contact with an affected person and whether they have been advised by a doctor to self-isolate or cocoon. The Protocol provides that temperature testing should be implemented in line with public health advice.

• Provide training and information to employees

  The Protocol outlines that COVID-19 induction training should be provided to employees before any return to work as well as to contractors or visitors to the workplace. It also specifies that employers should communicate regularly with employees to provide them with information and guidance on measures to minimise the spread of COVID-19. This includes up to date information on the Public Health advice issued by the HSE and Gov.ie as well as instruction for workers to follow if they develop signs and symptoms of COVID-19 during work. Employers must also display information on signs and symptoms of COVID-19. The Protocol contains specific reference to workers’ obligations and these should be communicated to staff as part of any information or training exercises. Where an employer provides an occupational health service, training should be provided through that service and it should be made available to address any worker concerns. Workers with a specific role in acting as first responders should be provided with updated training on infection prevention and control principles including performance of hand hygiene and appropriate use of personal protective equipment when delivering first aid.

• Implement adequate prevention and control measures

  Such measures include the provision of appropriate hygiene facilities as well as advice and training on hand hygiene and good respiratory hygiene and etiquette. The Protocol requires employers to provide for physical distancing across all work activities and suggests a number of ways in which this might be achieved including:

  • a no hand shaking policy;
  • organising workers into teams to facilitate social distancing;
  • rearranging working and break areas to facilitate maintenance of physical distancing;
  • staggering canteen use, implementing queuing systems and put in place card payment facilities where possible;
  • closing facilities where social distancing is not possible;
  • allocating specific times for collections, appointments and deliverables;
  • conducting meetings as much as possible using online remote means;
  • providing one way systems for access/egress routes in the workplace where practicable;
  • preventing gatherings of workers in the workplace at the beginning and end of working hours (such as at time recording terminals and in changing rooms, washrooms and showers);
  • reducing business trips and face-to-face interactions to the absolute minimum and, as far as is reasonably practicable, making technological alternatives available (eg telephone or video conferencing);
  • discouraging and minimising the use of the same vehicles by multiple workers where work-related trips are necessary; ensuring alternative measures are put in place where 2 metre worker separation cannot be ensured including physical barriers, face masks and increased hand hygiene facilities.

• Ensure adequate procedures are in place for prompt identification and isolation of workers who may have symptoms of COVID-19

  Employers are specifically required to keep a log of contact/group work to facilitate contact tracing and must inform workers and others of the purpose of the log. The Protocol also provides that a system for recording visits to the site(s) by workers/others as well as visits by workers to other workplaces should be put in place by employers and completed by workers as required.

  The Response Plan should also include a defined response structure that identifies the team(s) responsible for responding to a suspected case of COVID-19. Employers should also identify isolation areas for workers with suspected cases of COVID-19 and provide masks for affected individuals where possible. The Plan should include a procedure for transporting the individual from the workplace and/or facilitating contact with a medical professional or the HSE where necessary.

• Provide supports for employees

  The Protocol notes that employers should put in place support for workers who may be suffering from anxiety or stress. This includes ensuring workers are made aware of and have access to any business provided Employee Assistance Programmes or Occupational Health service and providing information to employees on publicly available sources of support and advice.

  The Protocol also provides that if an ‘at risk’ or vulnerable worker cannot work from home and must be in the workplace, employers must make sure that they are preferentially supported to maintain a physical distance of 2 metres.  However, employers should enable vulnerable workers to work from home where possible.

• Review and Update Policies

  The Protocol requires employers to examine and, where necessary, update a number of existing policies including sick leave policies, remote working policies and travel policies. It outlines that in so doing, employers should consult with and communicate to workers, in line with normal procedures

Useful guidance in relation to the practical implementation of the guidelines set out in the Protocol can be found in the NSAI’s COVID-19 Workplace Protection and Improvement Guide. The HSA has also produced a number of checklists and templates based on the Protocol which can be accessed on its website. Both the NSAI Guide and the additional HSA guidance should be read in conjunction with the Protocol.

How can we help?

Our Employment, Pensions & Incentives team can advise you on all aspects of employment law and assist your organisation in preparing a bespoke return to work plan, reviewing, amending or updating policies, or indeed with any other queries you may have in this respect. Our experienced team is also available to assist with any issues arising for employers in this challenging and uncertain time.

Also contributed by Declan O’Rourke