02 03 2020 Insights Employment Law

Coronavirus – Guidance on Employee Issues

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By David McCarroll
02 March 2020

How do I handle it? We are in the tourist sector and concerns around the Coronavirus have led to one employee questioning whether they can object and refuse to service persons of a certain nationality, ie from counties that have affected regions? What should we do?

This is obviously an evolving public health issue and employers need to be mindful that staff are genuinely concerned about risks to their health. Some sensitivity needs to be adopted in handling such concerns. So, firstly, what are the employment issues that arise for review and consideration:-

Health & Safety

First and foremost this is a public health issue. The first and most important port of call for employers on assessing and understanding the health risk side should be the official guidance available through the Health Service Executive and the Health Protection Surveillance Centre (https://www.hpsc.ie/a-z/respiratory/coronavirus/novelcoronavirus/) and, with regard to travel, the Department of Foreign Affairs ( https://www.dfa.ie/travel/travel-advice/coronavirus/).

Clearly, if and as risk levels change the official advice reflects those changes.

The legal framework for assessing and addressing health and safety concerns in the workplace lies predominantly within the Safety Health & Welfare & Work Act, 2005 (the 2005 Act). It’s the 2005 Act that requires employers to identify hazards and undertake risk assessments, which in turn feed into the employer’s Safety Statement (which is periodically reviewed). The Safety Statement addresses the measures to protect and prevent identified risks. The issues that the 2005 Act addresses are hazards in the place of work under the employer’s control. So, for example it is understandable that the HSE have undertaken and published a range of risk assessments for front line impacted staff - ambulance staff, receiving hospital staff and other non-hospital receiving general practice & health care professionals. However, for most employers their risk assessment will not at this point directly address Coronavirus any more than it would address influenza, measles or chickenpox. If a risk within the workplace arises, a risk assessment may be carried out and that will necessitate taking advice from the appropriate public health officials.

As matters stand, for most employers it is sufficient to merely provide reliable public health information on the wider public health risk to staff.

Certainly, many employers will use established safety committees or task forces to convey recommendations, policy changes and employer actions that are to be implemented on foot of risks to staff and business operations or indeed “above and beyond” measures that they wish to put in place. It is obviously preferable to have one, managed message communicated on such matters. We have, for example, seen many employers communicating and promoting good hygiene practice through postering and many others have elected to provide alcohol based wipes for equipment or hand sanitiser for staff. Employers will need to review and assess business travel arrangements to affected areas and can take guidance from the authorities in that regard. In terms of employees returning from affected areas, again employers and employees need to adhere to the public health advice in place at the time.

Legally, an employer will be able to compel employees’ adherence to such public health guidelines. From an employer perspective the 2005 Act provides that an employer must manage and conduct work activities in such a way as to ensure, so far as is reasonably practicable, the safety, health and welfare at work of their employees. That also extends to the prevention, so far as is reasonably practicable, of improper conduct or behaviour that would put the employees safety, health and welfare at work at risk. Thus an employer needs to act in line with the public health advice in place from time to time and take account of travel advice from the Department of Foreign Affairs. The 2005 Act provides some teeth for employers to compel employees to comply with their statutory duties of care, such as for example their duty to take reasonable care to protect both their own and other person’s safety, health and welfare and the safety arising from the employee's acts or omissions at work. Thus, an employer could refuse an employee’s request to travel for work to a business conference were that trip to breach Department of Foreign Affairs guidelines. Likewise, if an employee had confirmed that they fell into a category of persons that required self-isolation but then sought an early return to work, an employer could rely on duties arising under the 2005 Act to refuse to permit an early return to work and rely on the public health guidelines.

Employers should not compel employees to undertake precautionary measures that have no current basis within the public health guidelines, such as wearing masks or subjecting staff to forced temperature checks.

Sick Leave

An employee who is suffering from Coronavirus will be certified unfit to attend work.

There is no statutory obligation in place to compel an employer to pay staff absent on sick leave, though they may obviously qualify for some element of illness benefit from the State and/or any sick leave benefits which are provided for within any Sick Leave policy in the workplace. Our advice would be to apply the terms of your sick leave policy.

For those who are required to “self-isolate” they are by definition unfit to attend work. At the time of writing, for example the public guidelines provide that someone who had close contact with a person with coronavirus will be monitored for 14 days, rung everyday by a doctor to make sure they remain well and asked to stay separate from other people as much as they can for 14 days, which would include not going to work. That person may in fact not be sick but nevertheless cannot attend work. For many employees that will simply mean they are treated the same as those out sick and they may be certified as unfit to attend work by their GP in the usual manner.

However, there are obviously a wide range of workers who can and do regularly work from home. People who are actually sick should not be asked to work from home. You would not expect someone suffering from influenza to log in and work from home. However, if a self-isolating employee is not in fact sick and can work from home, they will of course be entitled to be paid for work they are doing at home.

Also, employers need to be careful to act in a measured fashion, in line with the advice of public health officials. Were an employer to decide themselves to shut down its operations, without any requirement or basis from public health advisors, any employee left unpaid could likely challenge that decision.

Employment Equality & Equal Status Considerations

Many employers are having to field a rage of concerns from staff worried about contagion form other staff, customers or from the physical workplace. We have seen demands for gloves and masks, we have seen staff saying they won’t service clients from affected countries, demands to be able to work from home for fear of contagion (without any actual risk identified).

Indeed, many of the concerns raised give rise to potential discrimination concerns. Is a refusal to work with an employee from affected country (upon an assumption they are a health risk) not discrimination against persons of a certain race or nationality? Is imposing blanket prohibitions on persons who have a certain temperature reading not merely discriminating against someone who may be unwell due to an unconnected disability, which may not require a 14 day period of isolation? How should an employer approach and assess such issues?

Really, one needs to assess is there an actual risk (based on public health advice and any specific on site factors) and then assess whether proposed measures to address that risk “objectively justified”. That is obviously a term used within the equality legislation and it is useful to consider how the term is assessed by the Courts. To be “objectively justified” any measure put in place needs to be underpinned by a legitimate aim and the means of achieving that aim must be deemed appropriate and necessary. Thus, employers should apply that three tier test for each such issue arising.

So, if you apply that to the issue of temperature screening - based on current public health advice, there is no basis to temperature screen staff. Thus, whilst the preventing of Coronavirus is of course a legitimate aim, the imposition of such a measure would not be deemed appropriate or necessary in light of public health advice. There are also serious data protection concerns with regard to the issue of temperature screening staff.

Finally, how does the above knowledge apply to the query raised – if a staff member is concerned about servicing persons of a certain nationality, on foot of a baseless assumption of infection, what can you do? The risk of not servicing the customer is that a race discrimination claim may arise under the Equal Status Act. The question arising would be whether the refusal was objectively justified. Applying the test – Yes, the preventing of Coronavirus is a legitimate aim. But a refusal to serve all customers of a certain nationality would not be deemed appropriate or necessary in light of public health advice. Thus the employee should have the existing extent of the public health advice communicated to them, their concern addressed and the instruction to continue serving customers would remain a valid reasonable instruction. Obviously, some degree of understanding and sensitivity would be advisable and thus employers should be careful not to unnecessary escalate matters through a threat of follow on disciplinary action if that can at all be avoided.

For more information on the content of this insight please contact
David McCarroll, Partner | E: david.mccarroll@rdj.ie I T: +353 91 895333

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