Employment Law

Updated Work Safety Protocol October 2021

Introduction

On the 21st October last, the Government published an updated Work Safety Protocol (“the updated Protocol”). This is the fourth revision since the Protocol was first published in 2020.  The previous revision was in September 2021 and our Insight published at that time can be accessed here.

The updated Protocol follows the Government’s announcement on 19th October last, in relation to Ireland’s further steps in re-opening the economy, that important and necessary public health guidance would remain in place after 22nd October, despite previous hopes that public health measures could be removed after that date.

For employers, the upshot is that the work from home guidance remains in place for the time being, along with face masks and social distancing measures, but a “phased and staggered” return to the workplace can continue “for specific business requirements”.

The updated Protocol

The updated Protocol is accompanied by an Updated Guidance Note dated 20th October from the LEEF Consultative Group (“the Guidance Note”) which has been incorporated into the Protocol. The Guidance Note can be found here and the updated Protocol is here.

It had been hoped that the public health measure to “work from home, where possible” would be removed after October 22nd which would allow for a more substantial return to workplaces. However, in light of the recent deteriorating public health situation and advice from NPHET, it appears that the working from home guidance will remain in place until Spring of 2022.

Since late September, workers have been able to return to the workplace for “specific business requirements” and on a “phased and staggered basis”. This will continue under the updated Protocol with Leo Varadkar stating that a 'cautious and careful return to workplaces should take into account appropriate attendance levels, with the use of staggered arrangements such as non-full-time attendance and flexible working hours, and that attendance is for specific business requirements’.

 In particular, the updated Protocol advises “a cautious and careful return to workplaces” which should take into account the following:

  • appropriate attendance levels, cognisant of public health guidance as reflected in the Work Safely Protocol and associated checklists;
  • the use of staggered arrangements, such as non-fulltime attendance and flexible working hours, and
  • that attendance is for specific business requirements.
  • each workplace will still be required to nominate a lead worker representative “to work with the employer to prevent the spread of Covid-19 in the workplace”, according to the document.

It is important for employers to bear in mind that the updated Protocol sets out the minimum Public Health infection prevention and control measures required in every place of work to prevent and reduce the spread of COVID-19 following temporary closures and in the ongoing safe operation of workplaces. It is not designed to prohibit the introduction of additional measures in particular sectors or workplaces which could further enhance the measures set out in the updated Protocol.

Specific Business Requirements

Many employers have expressed concern that the phrase “specific business requirements” is not defined. Unfortunately, the updated Protocol has not shed any further light on this phrase and only states that the interpretation will depend on the specific circumstances of each workplace and should be informed by consultation with workers.

In light of the potential delay to a full return to workplaces until at least Spring 2022, the Government has also called on employers, in consultation with their employees, to start  developing or finalising their long-term arrangements for blended or remote working having regard to their operational requirements and in line with Public Health advice.

For employees and employers that will be returning to work on a staggered basis, Leo Varadker reiterated the importance of the basic measures such as making sure indoor spaces are well ventilated, the importance of acting fast, self-isolating, and getting tested when experiencing symptoms, social distancing and mask-wearing when appropriate.

Any employee who develops symptoms of COVID-19 must stay at home and stay out of the workplace, getting tested and self-isolating in accordance with public health guidelines. Employers should facilitate this. The Government’s current enhanced illness benefit payment arrangements for COVID-19 will remain in place.

Vaccinations

The legal position has not changed regarding vaccinations. Employers in Ireland cannot mandate that their employees are vaccinated before returning to the workplace, neither can they ask about vaccination status, apart from some limited exceptions in specific sectors, such as healthcare. 

The updated Protocol advises that, irrespective of the vaccination roll out, Public Health infection prevention and control measures (such as physical distancing, hand and respiratory hygiene, face coverings/masks, increased ventilation), and working from home as much as possible to facilitate reduced numbers in workplaces, should remain in place.

In that regard, employers and workers should continue to adhere to the requirements set out in the Work Safely Protocol and ensure that their COVID19 response plan and workplace risk assessments are kept up to-date.

Conclusion

The Government’s decision to keep the work from home advice in place after 22nd October, means that many employers will have to delay plans to return all staff to the workplace, likely until February 2022 at the earliest.  

The Government has committed to continuing to engage with trade unions and employment representations in relation to guidance required for employers and workers for the period ahead, taking account of latest public health advice. There will also be proactive communication by Government, and through trade unions and employer representatives, of the key public health messages, and the importance of their full application in workplaces.

In the meantime, employers are continuing to look at hybrid working arrangements for the longer term and of course the promised legislation on the right to request remote working is eagerly anticipated by all. That is due before the end of 2021.

Our Employment Team at RDJ will continue to keep you fully advised and updated and we are always available should you require our assistance.

For more information on the content of this insight please contact:

Jennifer Cashman, Partner | E. jennifer.cashman@rdj.ie | T. +353 21 4802708

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