21/05/2020

Click here to view this briefing in PDF format.

COVID-19 Restrictions

On 1 May, the Government announced that as part of its COVID-19 restrictions everyone should continue to stay at home until 18 May 2020, except in the following circumstances:

  • to travel to and from work, or for purposes of work, only where the work is an essential health, social care or other essential service and cannot be done from home;
  • to shop for essential food, beverage and household goods or collect a meal;
  • to attend medical appointments and collect medicines and other health products;
  • for vital family reasons, such as providing care to children, elderly or vulnerable people;
  • from 5 May, to take brief individual physical exercise within 5 kilometres of your home, which may include children from your household, as long as you adhere to strict 2 metre physical distancing;
  • for farming purposes, that is food production or care of animals.

The Government’s guidance to employers and employees as to what constitutes an essential service where workers cannot work from home and have no option but to travel to work is available here. The Government’s updated list of essential retail outlets available here.

Preparing to Reopen Society & Business

The Government also announced that the restrictions would be eased on a phased basis from 18 May 2020. The Government’s Roadmap for Reopening Society & Business is available here. In preparation for the reopening of workplaces, on 9 May the Government published the Return to Work Safely Protocol which is discussed in our briefing here.

Phase 1 of the Roadmap

Ireland moved to Phase 1 of the Roadmap on 18 May.  At Phase 1, everyone should stay at home, except in the following circumstances:

  • to go to work, if your place of work is open and you cannot work from home
  • to shop for items you need
  • to exercise within 5km of your home
  • for medical reasons or to care for others
  • to meet friends or family outside, within 5km of your home, in groups of no more than 4

The list of retailers and facilities that can open under Phase 1 is available here.

State supports for employers and employees

What is the Temporary Wage Subsidy Scheme?

In response to the COVID-19 crisis, the Government introduced a COVID-19 Temporary Wage Subsidy Scheme, which is available to employers for 12 weeks from 26 March 2020.  The scheme is expected to extended beyond this timeframe but no details on any such extension have yet been announced.  It is available to employers who keep employees on the payroll throughout the COVID-19 pandemic, meaning employers can retain links with employees for when business picks up after the crisis. Employers are encouraged to facilitate employees by operating the scheme, by retaining employees on their books and by making best efforts to maintain employees’ net income as close as possible to normal net income for the duration of the subsidy period.

The scheme replaced the COVID-19 Employer Refund Scheme.

For further information on this scheme, please see our COVID-19 Temporary Wage Subsidy Scheme briefing and COVID-19: Employer Alert here. General information on the operation of the scheme is available from Revenue here.

Which employers are covered by the Scheme?

The scheme is available to employers from all sectors (excluding the public service and non-commercial semi-state sector) whose business activities are being adversely impacted by the COVID-19 pandemic. Employers must retain their employees on payroll; some staff may be temporarily not working or some may be on reduced hours and/or reduced pay.

In order to qualify for the scheme, employers must self-declare to Revenue that they have experienced significant negative economic disruption due to COVID-19, with a minimum of 25% decline in turnover, and an inability to pay normal wages and other outgoings fully, in accordance with the guidance published by Revenue on employer eligibility and supporting proofs which is available here.  Advices and guidance from Revenue are updated as practical considerations arise in implementing the subsidy. The scheme applies to employers who top up employees’ wages and to those that are not in a position to do so.

What is the level of subsidy under the Scheme?

The scheme will operate in two phases.

Phase 1 – Transitional Phase

Phase 1, which applied until 4 May, was intended to be a short, transitional phase during which employers were refunded based on the employee’s average net weekly pay as follows:

  • For employees who earned less than or equal to €586 per week net, the subsidy was capped at the level of 70% of previous average weekly take home pay, to a maximum of €410 per week; and
  • For employees who earned over €586 but less than or equal to €960 per week net, the subsidy was capped at €350.

In addition, from 16 April, the wage subsidy is available to support employees where their pre-COVID-19 salary was greater than €76,000, and their post-COVID-19 salary had fallen below €76,000, subject to the following tiered arrangements and tapering to ensure that the net pay did not exceed €960 per week. In these cases, where the employee’s earnings have now been reduced by:

  • less than 20%, no subsidy is payable;
  • between 20% and 39%, a subsidy of up to €205 is payable; and
  • 40% or more, a subsidy of up to €350 is payable.

In order for Revenue to be able to get the scheme up and running quickly, it advised that, during Phase 1, employers would be refunded a flat rate of €410 per week for each eligible employee, regardless of the amount of the subsidy to which individual employees were entitled under the scheme. Where the €410 subsidy received by the employer exceeded the subsidy that the employee is entitled to, employers were advised to retain the excess of the subsidy received from Revenue, as recoupment of any amounts overpaid to employers by Revenue during the transitional phase would occur in Phase 2. Information on the operation of the transitional phase of the scheme is available from Revenue here.

Phase 2 – Operational Phase

On 15 April, the Government announced significant changes to the Temporary Wage Subsidy Scheme for Phase 2, the operational phase of the scheme. From 4 May, for eligible employees, the wage subsidy rates are as follows:

(a) For employees with an Average Revenue Net Weekly Pay (ARNWP) of not more than €586:

  • Where the ARNWP does not exceed €412, a subsidy of 85% of ARNWP, to a maximum of €350, is applicable.Tapering Exception: Where the ARNWP does not exceed €412, the employer may pay an additional gross payment such that the gross pay plus the temporary wage subsidy does not exceed €350 per week. The effect of this is that an employee earning less than €412 per week will not have their wage subsidy tapered where the combined wage subsidy plus their gross pay does not exceed €350.
  • Where the ARNWP is more than €412 but not more than €500, a subsidy of €350 is applicable.
  • Where the ARNWP is more than €500 but not more than €586, a subsidy of 70% of ARNWP is applicable to a maximum of €410.

(b) For employees with an ARNWP of greater than €586 per week but not more than €960 per week:

Where the eligible employee’s ARNWP is greater than €586 per week but not more than €960 per week and the employee’s current gross pay, as reported in the payroll submission, is:

  • not more than 60% of the ARNWP, a subsidy of €350 is applicable.
  • more than 60% and not more than 80% of the ARNWP, a subsidy of €205 is applicable.
  • more than 80% of the ARNWP, no subsidy is payable and J9 PRSI class should not be applied.

(c) For employees with an ARNWP of more than €960, and current gross pay is below €960 per week:

The wage subsidy is available to support employees whose ARNWP is more than €960, and their current gross pay is below €960 per week.

Where the employee’s current gross pay, as reported in the payroll submission, represents:

  • not more than 60% of the ARNWP, a subsidy of up to €350 is applicable (This is Tier 1).
  • more than 60% and not more than 80% of the ARNWP, a subsidy of €205 is applicable (This is Tier 2).
  • more than 80% of the ARNWP, no subsidy is payable and J9 PRSI class should not be applied (This is Tier 3).

For such employees, the maximum additional gross payment an employer can make, to receive the full subsidy, is the difference between €960 and their maximum weekly wage subsidy.

Guidance from Revenue on the operational phase of the scheme is available here.  In addition, Revenue’s sample calculator to demonstrate the calculation of the wage subsidy is available here. Our COVID-19 Employer Alert on the operational phase is available here.

Who can access the COVID-19 Pandemic Unemployment Payment?

Where the Wage Subsidy Scheme is not available, employees will be able to access the COVID-19 Pandemic Unemployment Payment, of €350 per week, which the Government states represents around 75% of the average earnings in the sectors most affected by this crisis. This payment will also be available to the self-employed.

As the Department of Employment Affairs and Social Protection (DEASP) is experiencing significant volumes of jobseeker applications the payment has a simplified application process. The Government stated that this payment will be in place for the duration of the crisis. More information on the payment, and how to qualify for it, is available on DEASP’s website here.

What changes were made to Illness Benefit for those affected by COVID-19?

The Government also announced changes to Illness Benefit for those affected by COVID-19. The current 6-day waiting period for Illness Benefit does not apply to anyone who is diagnosed with COVID-19 or is a probable source of infection of COVID-19. In addition, the personal rate of Illness Benefit has increased to €350 per week for a maximum of 2 weeks medically-required self-isolation or for the full duration of absence from work following a confirmed diagnosis of COVID-19.

Protection of Employees

What measures should I take to protect employees?

On 9 May, the Government published the COVID-19 Return to Work Protocol which is designed to assist employers and workers in working together to suppress COVID-19 in the workplace as Ireland re-opens for business on a phased basis.

Employers and employees both have a general duty of care to ensure the safety, health and welfare at work of employees/colleagues as far as reasonably practicable, under the Safety, Health and Welfare at Work Act 2005. These obligations are in addition to common law duties of care.

Exposure to COVID-19 may present a health risk to employees and other persons at a workplace. The COVID-19 pandemic has now changed the steps an employer will reasonably be required to take, to discharge its duty under the 2005 Act.

Our briefing on the COVID-19 Return to Work Protocol which is available here, considers the additional obligations now imposed on employers who will be opening their workplaces over the comings months as restrictions are lifted on a phased basis.

In preparing to re-open workplaces, employers should take into account the Protocol as well as the most up to date official advice and guidance from the Health Service Executive, Department of Health and the Health Protection Surveillance Centre on how to mitigate the health risk to employees and others at the place of work.

Guidance for employers on COVID-19 from the Health and Safety Authority is available here.  Our Health and Safety Group’s briefing on HSA Advice on COVID-19 is available here.

Working Remotely

Should my employees continue to work remotely/from home?

During Phase 1, everyone should continue to stay at home except for certain limited situations. For more information on what constitutes an essential worker, an essential retail outlet and retailers and facilities that can open from 18 May, see section on COVID-19 Restrictions.  It is clear from the Government Roadmap and the recently published Protocol that all employees should continue to work remotely from home if at all possible throughout all 5 phases of the lifting of restrictions.

Guidance from the HSA for employers and employees in relation to home working on a temporary basis during COVID-19 crisis is available here.  An employee who is working remotely and who is fit for work should carry out as much of their normal duties as is practicable. Ideally, this will be an arrangement by agreement. It is important that the employee has an appropriate/safe working environment at home. Employers should provide practical support and assistance to ensure that employees have the capability to work remotely in a safe environment.

Perhaps stating the obvious, employees who are sick cannot be asked to work from home and where an employee is absent due to sick leave, the employer’s normal sick leave/sick pay rules should apply. If an employee is medically unfit for work, they must not be required to work remotely or otherwise.

Self-isolation is not sick leave, it is a precautionary measure, although it is possible the employee may become sick over the period of isolation. For more information on sick leave and sick pay, see section on Entitlement to Pay.

Entitlement to pay

Are employees entitled to pay if they are in self-isolation?

Employees’ pay entitlements during periods of illness related absence will depend on the terms of their contract of employment and the employer’s sick pay rules. There is no statutory entitlement to paid sick leave in Ireland. For more information on changes to the State Illness Benefit for those affected by COVID-19, see section on State Supports for Employers and Employees. Employers may wish to review existing “sick pay” polices to refer to any social welfare benefit received in this context and align those payments with any sick pay rules.

The Department of Public Expenditure and Reform has confirmed that Civil and Public Service employees are entitled to special leave with pay in the event that they contract COVID-19 or if they are forced to self-isolate following recommendation by the Government/HSE. However, there is no such entitlement for employees generally.

If an employee is unable to work due to self-isolation on foot of HSE advice, it may be considered good practice for their usual sick leave entitlements to apply, however that is not compulsory. Suspending pay where an employee has been advised to self-isolate could open an employer to a claim under the Payment of Wages Act 1991 on the basis that pay is “properly payable”. While such    a claim would not be a certainty for an employee, it is not difficult to envisage the WRC looking at future cases with the benefit of hindsight and having sympathy for employees who have acted proportionately and responsibly. Questions such as who imposed the isolation (employer or employee), the extent to which the employee can perform his or her duties and if the employee has refused to perform his or her duties will all be material considerations.

What if an employee does not want to attend work?

If your business premises are permitted to open at any point during the 5 Phases in the Government’s Roadmap, and it is not practical for home/remote working you will need to adhere to the Return to Work Safely Protocol to ensure the safety of your employees on their return to work.  If an employee is reluctant to return to work, it is important to engage with the employee to understand the reasons for their concerns, which may include, physical or mental health issues or lack of childcare.

Under the Protocol, if an at risk or vulnerable worker (e.g. pregnant workers or those with underlying health conditions) cannot work from home and must be in the workplace, employers are obliged to ensure that they are preferentially supported to maintain a physical distance of 2 metres.  However, employers should enable such employees to work from home where possible.

The Protocol also stresses the importance of employer-worker engagement, communication and training and it is advised that employers are flexible in relation to supporting employees in their return to work.

Employers should listen to concerns of employees and explore all reasonable and practical solutions. Employers may be able to offer flexible working arrangements or agree with employees that they take annual leave or unpaid leave. Some employees may look to commence maternity leave early or take parental leave or other forms of leave. All requests should be looked at reasonably, particularly in light of the Government restrictions and the Protocol.

While an employer does have a duty of care to provide a safe place to work, a refusal to work by an employee without a valid reason, could lead to withdrawal of pay or disciplinary measures.

Travel Advice

Can I prohibit employees from travelling?

The Government advises against all non-essential travel within the country or overseas. This applies to Great Britain but not Northern Ireland.  It also includes all cruise ship travel. Anyone coming into Ireland, apart from Northern Ireland, will be required to self-isolate on arrival for 14 days and 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. Up to date information is available on the Department of Foreign Affairs here.

Employers should prohibit all non-essential travel by their employees.

While employers cannot prevent employees from travelling in a personal capacity, there are very limited circumstances under which they will currently be entitled to travel overseas under the current Government restrictions. Therefore, it is advisable to ask all employees to inform their managers if they are planning to travel outside of Ireland.

Best practice suggests the employee’s normal contractual sick leave entitlements be applied for the mandatory 14 day self-isolation period, as supplemented by the Government’s extended social welfare benefits. However, the decision on whether to pay or not may still require case by case consideration e.g. if the employee travelled contrary to the employer or Government restrictions.

It must be noted that employees are also responsible for ensuring that they do not pose a threat to the safety of others at work under the Safety, Health and Welfare at Work Act 2005.

Finally, it is worth noting that the Government has a range of further control mechanisms available to it under public health legislation should such controls become necessary.

Guidance for employers on business disruption, lay-off and short-time 

What happens if I must close some or all of my operations and require employees to work from home?

Under current Government advice, people should work from home if at all possible. Given this advice, the requirement for individuals to work from home is clearly a proportionate response to the situation.

However, proactive engagement and communication with employees is still important to reduce the risk of any claims for alleged discrimination or breach of contract.

It should be noted that if the employee is ready, willing and available for work, and it is the employer who seeks to suspend the contract of employment (and in particular, pay), there may be consequences for the employer. However, these consequences are less likely to materialise where the employer is following the latest Government/HSE guidance. Conversely, an employee cannot elect to “opt out” of their contract of employment where the employer is following the latest guidance.

What is “lay-off” and what is “short-time”?

The impact of COVID-19 on the economy means that many employers are now considering whether to lay off employees or put them on short-time for longer periods of time.

In certain circumstances, if employees are laid off or put on short-time, they may be entitled to a payment under the Redundancy Payments Acts 1967-2014. This payment is separate to any State benefit that such employees may be entitled to when laid off or placed on short-time. For more information on these State benefits, see section on State Benefits For Employees On Lay-Off Or Short-Time.

In order to qualify for redundancy payments, the lay off or short-time must come within the specific definitions contained in the Redundancy Payments Acts 1967-2014. For the purposes of the Acts, lay-off occurs where an employer is temporarily unable to provide an employee with the work for which they were employed. Short-time occurs where an employee’s hours of work or pay are reduced to less than 50% of normal weekly working hours or normal weekly pay.

In both cases the employer must reasonably believe that the situation will not be permanent and must give employees notice to this effect. The legislation does not stipulate a minimum period of notice. Exceptional circumstances, such as the COVID-19 pandemic, are likely to justify a short notice period.

The employer’s reasonable belief regarding the temporary nature of the period of lay-off or short-time will be construed in accordance with the circumstances prevailing when the decision is made.

A period of lay-off should not be confused with sick leave or a period of self-isolation in accordance with current HSE guidelines. For more information on sick leave, sick pay and self-isolation, see section on Entitlement to Pay.

Employers should exercise care when selecting employees for lay-off or short-time, apply objective selection criteria and be mindful of not discriminating, directly or indirectly, against employees on any of the nine grounds prohibited by the Employment Equality Acts 1998-2015.

Am I legally obliged to pay my employees during a period of lay-off or short-time?

At common law an employer cannot unilaterally place an employee on unpaid lay-off or short-time working with reduced pay unless there is an express contractual right to do so. An example of an express term is a provision in the employee’s individual contract of employment or in a collective agreement which applies to the employee concerned.

Alternatively, the employer might have an implied right to do so, for example, pursuant to an established custom and practice within the employing entity of laying employees off without pay in circumstances of economic downturn or other periods of financial hardship.

Furthermore, there have been first instance decisions in relation to claims under the Payment of Wages Act 1991, which found that even where there was no contractual right to impose lay-off and no evidence of custom and practice in the employment concerned, that the employer may still be permitted to lay off employees without pay. In one such case the rationale for the decision was expressed as follows: “It is a well-established practice in this jurisdiction that lay-off without pay is operable where an employer can demonstrate it has been the custom and practice of the trade and/or workplace and that the custom must be reasonable, certain and notorious”.

Is an employee on lay-off or short-time entitled to a statutory redundancy payment?

Traditionally, if an employee had been laid off or on short-time for (i) 4 or more consecutive weeks, or (ii) 6 or more weeks within a 13-week period of which not more than 3 are consecutive, the employee was entitled to notify their employer in writing of their intention to claim a statutory redundancy payment assuming they satisfy the qualifying criteria, for example, having at least 2 year’s continuous service.

However, in a move that was welcomed by many employers, the Emergency Measures in the Public Interest COVID-19 Act 2020, which passed into law on 27 March 2020, amends the Redundancy Payments Acts 1967-2014 suspending, for the duration of this crisis, the entitlement of an employee, who has been laid off or kept on short-time due to the effects of measures required to be taken by his or her employer in order to comply with, or as a consequence of, Government policy to prevent, limit, minimise or slow the spread of infection of COVID-19, to make this notification to his/her employer.

Can I require employees to take annual leave at this time? Are there other options available?

An employer can decide when employees take their annual leave provided the employer takes account of the employee’s family responsibilities, opportunities for rest and recreation and consults with employees (or their trade union) at least one month in advance. It is of course open to employees to waive the one-month notice period and take the annual leave on a voluntary or agreed basis, notwithstanding the absence of that notice.

Employers can also facilitate requests from employees to take annual leave in order to discharge family obligations they have as a result of the current school closures. Other options that can be explored are facilitating parental leave or other unpaid leave or employees commencing maternity leave early.

State benefits for employees on lay-off or short-time

What benefits are available to employees on lay off or short-time?

Employees who are laid off by their employer due to a reduction in business activity related to COVID-19 may apply for the COVID-19 Pandemic Unemployment Payment or other Jobseeker’s Payments, as appropriate. Further information on the different payments available and eligibility requirements is available here.

Employees who are put onto short-time working by their employer due to COVID-19 may apply for a Short Time Work Support payment. For example, if an employee’s working week has been reduced from a 5day work pattern to a 3-day work pattern, the employee may be entitled to receive support under the Short Time Work Support under the Jobseeker’s Benefit scheme for the other 2 days. Further information on the payments available and eligibility requirements is available here.

Has the Government put in place any additional measures to assist employers and employees as a result of the disruption caused by COVID-19?

For more information on the measures put in place to assist employers and employees, please see section on State Supports for Employers and Employees

Data protection/privacy considerations

Can I impose mandatory checks on employees? Are there data protection/ privacy concerns?

Where additional information is requested from employees regarding their health or travel there must be a valid lawful basis for doing so under both Articles 6 and 9 of the GDPR. Any information that is collected must also be necessary and proportionate for the purpose of ensuring the safety and health of employees. This means excessive information gathering or sharing, over and beyond what is required to determine if an employee poses a material risk or has the virus and to protect other colleagues, is not lawful. Employers should also be transparent about any new practices that involve processing of additional information that may not be covered in existing employee privacy notices which may need review or temporary amendments.

As a reminder, employers should be wary of relying on consent to request health or travel information from an employee as the employee may feel they do not have a genuine choice in which case the consent would not be valid. However, health information may be processed without the consent of the employee on the basis of certain exemptions, the most common of which is where processing of this information is necessary and proportionate for specific employment law obligations  (such  as  the  obligation to ensure the safety and health of employees).

Employers should also be vigilant of employee confidentiality and ensure where an employee has confirmed they have the virus that their identity is not shared with other employees.  While, it may be necessary to ask other employees in contact with this person to work from home, this may be communicated as a general direction without including any identifying details.

As always, all employees should be treated equally regardless of nationality, race or ethnicity. Employers should also be aware of the risk of bullying or harassment in the workplace towards people of certain ethnicities and people who have travelled to high risk countries.

Can I carry out temperature checks on employees?

The Return to Work Safely Protocol provides that employers should implement temperature testing in line with Public Health advice. As it currently stands, there is no Public Health advice that requires employers to submit employees (outside of the healthcare and residential care settings) to mandatory temperature checking.

Although the Data Protection Commission has not yet issued any guidance on how employers can adhere to the Protocol in compliance with data protection law, in its guidance on data protection and COVID-19, available here, it noted, “in circumstances where organisations are acting on the guidance or directions of public health authorities, or other relevant authorities, it is likely that Article 9(2)(i) GDPR and Section 53 of the Data Protection Act 2018 will permit the processing of personal data, including health data, once suitable safeguards are implemented.”

We recommend that employers continue to exercise caution in considering temperature checking as a matter of course and should continue to keep abreast of Public Heath advice in this regard. Our article on data protection and COVID-19 is available here.

Further emergency measures

What further emergency measures have been implemented?

The Health (Preservation and Protection and other Emergency Measures in the Public Interest) Act 2020 was signed into law by the President on 20 March 2020. The Act allows the Government to impose restrictions on travel, prohibit the holding of events, allow the designation of affected areas, provide for the temporary closure of places, and for the detention and isolation of persons in certain circumstances. For more information on this legislation, please see our COVID-19: Key features of Irish Emergency Legislation briefing.

The Emergency Measures in the Public Interest Covid-19 Act 2020 was signed into law by the President on 27 March 2020. The Act, for the duration of this emergency, will: freeze rents, prevent evictions, make it easier for health care professionals to re-register and return to work, and enable former members of our Defence Forces to rejoin at the rank they left. For more information on this legislation, please see our COVID-19: Key features of Irish emergency health legislation and COVID-19 Practical Considerations: Legislative Measures to Assist Residential Tenants briefings.

Key points

As the situation is constantly evolving, these advices will be updated from time to time to try and keep abreast of the latest developments.

  • It is essential that employers keep themselves constantly up-to date with HSE recommendations and Government guidance as the situation evolves daily and sometimes more frequently.
  • Employers should provide practical support and assistance to enable employees to work remotely, where possible.
  • Communication and proactive engagement with employees is
  • Employers should prohibit all but essential business travel.
  • Employers should implement the measures in the Return to Work Safely Protocol.
  • Stress test business continuity plans in line with the Government Protocol.
  • Review/implement flexible working measures.
  • Review sick/absence and sick pay policies in light of the changing environment and to align with revisions to social welfare benefits and
  • Review existing privacy policy/notice to ensure it is adequate in light of any additional measures being considered.