24/07/2020

Move to Phase 4 Paused

On 16 July it was announced that Ireland’s move to Phase 4 of the revised Roadmap for Reopening Society and Business was paused. Restrictions in place at Phase 3 will remain effective until 10 August. Progression to Phase 4 is subject to COVID-19 infection levels remaining low. Details of the restrictions in place at Phase 3 are available here.

In addition the Government set out five steps that should be taken to further protect public health.

1. Face coverings

Face coverings are now mandatory on public transport and regulations are to be introduced making them mandatory for customers in shops and shopping centres. Retail staff will also be required to wear a face covering unless there is a partition between them and members of the public or a distance of two metres can be maintained.

2. Pubs, bars, nightclubs

Pubs, bars, hotel bars, nightclubs and casinos will remain closed until 10 August.

Pubs and bars serving food can remain open once they are fully compliant with the public health guidance.

3. Social visits

Social visits to people’s homes are limited to a maximum of 10 visitors – from no more than 4 households.

4. Mass gatherings

The existing restriction of 50 people at indoor gatherings and 200 people at outdoor gatherings is extended until 10 August.

5. Foreign Travel and the Green List

The Government continues to advise against all non-essential travel outside of Ireland while COVID-19 restrictions are in place. Anyone coming into Ireland, apart from Northern Ireland, is required to complete a Public Health Passenger Locator Form. This includes Irish residents. Essential supply chain services such as hauliers, pilots and maritime staff are exempt from these obligations. The obligation to complete the form is currently in place until 10 August.

On 21 July, the Government published a list of countries, referred to as the “Green List” countries which will be reviewed on a fortnightly basis. If an individual travels into Ireland from a Green List country, that individual will not have to restrict their movements on their return to Ireland. Individuals travelling into Ireland from a country not on the Green List are required to restrict their movements for 14 days following their return. HSE guidance on restriction of movements is available here and includes an obligation not to attend work. Up to date information, including the Green List is available on the Department of Foreign Affairs website here.

What does this mean for employers?

While employers cannot prevent employees from travelling abroad in a personal capacity, the Government advice remains against non-essential travel abroad. Therefore, it is advisable while travel restrictions remain in place, to ask all employees to inform their managers if they are planning to travel outside of Ireland and if their destination is on the Green List. This information will allow the employer to safely manage their return to work and to ensure compliance with public health advice and health and safety obligations. Guidance published by the Data Protection Commission, “Data Protection and COVID-19”, is useful in relation to requesting information from employees during the pandemic (available here).

Where an employee can work remotely, the employer can continue to pay the employee during the period of restriction. However, where an employee cannot work from home and is therefore unavailable for work, there is no obligation on an employer to pay an employee during this period. In these circumstances, the employer should consider the status of this leave. Employees may be given the option to take the period as unpaid leave or potentially as annual leave. This is the approach taken by the Department of Public Expenditure and Reform in relation to public servants undertaking non-essential travel. Advance communication and employee consultation is advised on this issue. Although there is no obligation to do so, employers may consider paying employees on a case by case basis, for example, if the travel is essential or where the employee is required to restrict their movements because they are a close contact of a confirmed case of COVID-19. Employers may take this approach in order to encourage employees to comply with their obligations not to attend work, to protect the health and safety of colleagues and/or to avoid a potential shut down of the workplace should large number of employees contract COVID-19. If the employer does exercise discretion in this regard, care will need to be taken to ensure this is done in a considered way to avoid any complaint that discretion is being exercised in an unreasonable or potentially discriminatory manner.

If an employee becomes unwell during the period of restriction, due to COVID-19 or otherwise, the employee should inform the employer and the time out of work should be treated as sick leave and managed in accordance with the employer’s sick leave policy.

Finally, employees are obliged to treat employees returning from a Green List country the same as all other employees who have not been required to self-isolate or to restrict their movements. The Government advises that such individuals should take ‘normal precautions’. In the workplace context, this means that they must comply with all health and safety measures put in place by the employer in line with the Return to Work Safely Protocol and the employer’s COVID-19 response plan.

If an employer does not want an individual returning from a Green List country to attend work for a period (e.g. 14 days) it may not have a legal basis to prohibit the employee attending work unless it has demonstrable health and safety concerns. If an employer imposes a period of restriction on an employee, in these circumstances it is advised to pay an employee during this period. Failure to do so could lead to breach of contract or payment of wages claims. Employees should however be reminded of their own obligation to protect the health and safety of their colleagues under the Safety, Health and Welfare at Work Act 2005 and any intentional breach of this obligation may warrant disciplinary action.

Extension of State Supports for Employees and Employers

COVID-19 Temporary Wage Subsidy Scheme (TWSS)

 The TWSS has operated from 26 March 2020, to enable employers affected by the COVID-19 pandemic to receive supports from the State in the form of a subsidy of employee wages. From 4 May, the subsidy paid to employers has been based on each individual employee’s Average Revenue Net Weekly Pay (based on January and February 2020 payroll). Details on the Operational Phase of the TWSS is available in Revenue’s FAQ document here.

On 23 July, it was announced that from 1 September, the TWSS will be replaced with a new Employment Wage Support Scheme which will run until 31 March 2021. Further details on this new scheme will be announced by the Government in due course.

COVID-19 Pandemic Unemployment Payment (PUP)

Where the Temporary Wage Subsidy Scheme is not available, employees may be entitled to the COVID-19 Pandemic Unemployment Payment. The PUP is also available to the self-employed and was due to operate until 10 August.

On 23 July it was announced that the PUP will operate until April 2021. Payment rates will change on 17 September 2020, 1 February 2021 and 1 April 2021. Details of the rates are set out in the table below.

29 June 2020 – 16 September 2020 17 September 2020 – 31 January 2021 1 February 2021 – 31 March 2021 1 April 2021
Employees whose prior earnings were up to €199.99 per week will receive €203 per week.

 

Employees whose prior earnings were up to €199.99 per week will receive €203 per week.

 

Employees whose prior earnings were up to €199.99 per week will receive €203 per week.

 

Employee will need to apply for either Jobseeker’s Benefit or Jobseeker’s Allowance.
Employees whose prior earnings were €200 per week or higher will receive €350 per week.

 

Employees whose prior earnings were between €200 and €299.99 per week will receive €250 per week.

 

Employees whose prior earnings were between €200 and €299.99 per week will receive €203 per week.

 

Employees whose prior earnings were €300 per week or higher will receive €300 per week.

 

Employees whose prior earnings were €300 per week or higher will receive €250 per week.

 

The scheme will close to new applicants from 17 September 2020.

New legislation – PRSI contributions for PUP and TWSS recipients

It was announced on 13 July that new legislation would be enacted to ensure COVID-19 PUP/ TWSS recipients are credited with full PRSI contributions. When enacted, the legislation will ensure that people who lost their jobs, or were temporarily laid-off, during the COVID-19 pandemic will be credited with full or ‘paid’ PRSI contributions on their social insurance record, equivalent to what they would have made if they remained in work. This is a welcome development to protect individuals’ entitlements to future State payments such as pensions, Illness, Maternity, Adoptive, Parent and Paternity Benefits.

Employment Support Measures

As part of the July Stimulus package, the Government also announced a number of employment support measures to the value of €112 million, to include a Work Placement and Experience Programme, Short Term Specific Skills Training, Enhance Recruitment Subsidies and a Back to Work Enterprise Allowance. The official announcement is available here.

Extension of Parent’s Leave?

At a post-Cabinet briefing on 13 July, the Minister for Children, Disability, Equality and Integration stated that the Government is considering extending the existing two weeks Parent’s Leave to five weeks for parents of children born after 1 November 2019 and to allow Parent’s Leave to be taken in the first two years of the child’s life. It currently must be taken within a child’s first year. Parent’s Benefit is currently paid by the State at the rate of €245 per week.

The Department of Employment Affairs and Social Protection subsequently advised that “[t]he recent announcement proposing an extension to Parent’s Leave and Benefit entitlements to increase to five weeks, will be examined as part of the budget process in the upcoming 2020 Budget. There is no further information on the implementation date, and any changes to entitlements will require legislation.” While this is something to keep an eye on, no changes are imminent and employers are not required to take any action at this point.

Immigration

On 16 July, the Irish Naturalisation and Immigration Service (INIS) announced the extension of immigration permission due to expire between 20 July and 20 August 2020 by 1 month due to the uncertainties caused by the COVID-19 pandemic. Any immigration permission extended in March and May 2020 is also automatically renewed for a further month.

An online registration renewal system for non-nationals based in Dublin is also live since 20 July. The relevant notices from INIS are available here.

Data Protection Guidance

The implementation by employers of obligations under the COVID-19 Return to Work Safely Protocol throws up a number of data protection issues. As a result the Department of Business, Enterprise and Innovation published an explanatory guidance in relation to the processing of personal data pursuant to the Protocol. The Data Protection Commission has now published guidance for employers on the implementation of the Protocol in a manner that complies with their obligations as data controllers under data protection legislation. Employers should review both guidance documents, and ensure that they have complied with their data protection obligations in implementing measures under the Protocol such as the return to work form and contact tracing.

Government guidelines are changing frequently, therefore it is imperative that employers check the most up to date advice from the relevant government authority before implementing any particular approach.