15 05 2020 Insights Employment Law

Preventative planning required ahead of re-opening

Reading time: 3 min

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With An Taoiseach’s announcement of the ‘Roadmap for reopening society and business’ (the ‘Roadmap’) on 1 May last, many employers have rightly turned their attention to the measures required to reopen their businesses.

A separate, National Protocol (‘the Protocol’) to protect the health and safety of workers has been developed by Government, employers and trade union representatives, (collectively the Labour Employer Economic Forum ‘LEEF’) together with the assistance of the Health and Safety Authority (‘the HSA’), the Health Service Executive and the Department of Health. The Protocol incorporates current advice issued by the National Public Health Emergency Team (‘NPHET’). This advice will continue to evolve; the Protocol is non-exhaustive and remains a “living document”, therefore subject to change in the future. LEEF will continue to engage on implementation issues in light of evolving public health advice and other factors.

As a result of the publication of these documents, alongside the recognised progress being made with the fight against of the COVID-19 virus, employers should be aware that their existing procedures will require re-examination and revision as government restrictions are eased.

In a series of upcoming Insights, we will examine in detail the Roadmap, the Protocol and any forthcoming publications to understand how these documents interact with one another and to give guidance to businesses as they begin returning to the workplace.

We begin our series by outlining “Preventative” measures that the Protocol envisages employers implementing to maintain future ongoing compliance. It will also address some issues that have not been dealt with directly in the Protocol but will likely require serious consideration by employers.

The Protocol

The Protocol sets out the mandatory steps to be taken to mitigate the spread of COVID-19 in the workplace. The HSA is responsible for ensuring compliance with these measures and have powers under the Safety Health and Welfare at Work Act 2005, to close down non-compliant businesses. However, use of these powers has been described as “a final resort” by the HSA with on-site guidance, advice and direction being offered in the first instance. Caoimhe Heery from RDJ’s Employment Group has broken down these specific measures in a previous Insight here. It is important to bear in mind that the Protocol applies to all businesses and is not confined to those who are reopening following the period of shutdown. Importantly, many ‘essential service providers’ have continued to work through the shut-down and will likely already have some measures in place, however they will also need to immediately review such measures and ensure compliance with the Protocol.

As overarching guidance, employers should continue following the most up to date guidelines from the leading Irish health authorities the Health Service Executive (HSE) and Health Surveillance Centre (HPSC).

Preliminary Practical Considerations

Businesses should examine the Roadmap to determine the phase at which they can reopen, bearing in mind that it may be necessary for the Government to postpone, revert to an earlier stage or indeed go back into a form of lockdown.

The Roadmap is open to interpretation, in particular, to which phase each individual business can reopen with NPHET indicating that they will not be advising in respect of individual businesses. It will be a matter for businesses to determine themselves at which stage they can and should reopen, having regard to the Roadmap. Unfortunately, the Protocol offers no further detail to businesses who are uncertain at what stage they should return. The Protocol fails to expand upon the Roadmap’s stage process, instead leaving the decision in the hands of the employers. Careful consideration and a firm understanding of the both documents will, therefore be of paramount importance.

Response Planning

Employers should immediately put together a COVID-19 response management team, if one is already not in place. A strategy of re-opening should be implemented with external advice and guidance considered to ensure an effective COVID-19 Response Plan. To get ahead and ensure readiness for staff returning to work, employers must engage with their key stakeholders to formulate a plan (including those individuals responsible for health and safety, facilities, trade unions and HR individuals).

The Response Plan should address the level of risk to which a worker may be exposed to in their workplace. The risk assessment should also consider individual risk factors e.g. age or underlying health conditions. Health and safety risk assessments and safety statements must also be updated as appropriate. Employers must consider what risks are posed by their premises and business operations. Risk assessments in line with the advice outlined in the Protocol will be key to ensuring compliance.

Moreover, it is important that businesses engage with their Insurance providers to ensure that they are covered on return to work. Insurers will almost certainly require full compliance with the Protocol however, they may also impose other requirements or limitations on cover.

This is the first in a series of Insights on re-opening business following lockdown. In further Insights in this series, we shall delve into the practicalities surrounding employer/employee engagement, obligations posed by the Roadmap and Protocol surrounding employee representatives, training, and inductions, along with other areas that will be of concern to workplaces in the weeks and months to come.

AUTHOR: Alan Devaney, Associate | Leo Collins

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