29/07/2020

Below are the three main categories of employees that employers have recently been asking the Arthur Cox Employment Law practice group about in terms of their obligations to pay during the pandemic. There are many other scenarios not covered below but the principles outlined may also be of assistance in these cases.  Our recent briefing on Key July Updates also addresses this issue along with other COVID-19 updates for employers (here).

We have also set out data protection considerations for employers when requesting information from employees in relation to travel during the pandemic.

 

Self-isolating for 14 days  –obligation to pay employees only if there is an entitlement to company sick pay

Employees who are required to self-isolate for 14 days in line with public health guidance are those who are experiencing COVID-19 symptoms, or flu-like symptoms or have tested positive for COVID-19.  The employee will be instructed by a doctor or the HSE to self-isolate, will be obliged to stay indoors and not to attend work. This period should be treated as a period of sick leave and the normal company sick leave policy will apply (which may or may not include an entitlement to company sick pay).  Such employees are likely to be entitled to the enhanced Illness Benefit of €350 per week (if they have sufficient PRSI contributions).

Employees who are ill for another reason or self-isolating because they are medically vulnerable will be entitled to the standard Illness Benefit.

 

Restrict movements for 14 days – no obligation to pay employees

An individual will be required to restrict their movements for 14 days in line with public health advice if they:

  • are a close contact of a confirmed case of COVID-19;
  • live with someone who has symptoms of COVID-19, but do not have COVID-19 symptoms; or
  • returned to Ireland from abroad (except from Northern Ireland or a Green List country).

A period of restricted movement is therefore not sick leave, it is a precautionary measure. It is possible the employee may become sick over the period of restriction in which case they will be required to self-isolate (see above).  Employees should notify their employer of any such change to their circumstances during a period of restriction.

An individual who is obliged to restrict their movements should not attend work but could be required by their employer to work remotely if fit to do so.  Where an employee is prohibited under Government restrictions from attending work, and are unable to work remotely, there is no obligation on an employer to pay an employee as they are unavailable to work and fulfil the duties under their contract of employment.

On 14 July, the Department of Public Expenditure and Reform (“DPER”) published guidance in relation to any non-essential travel undertaken by public servants which provided that:

  • If an employee intends to undertake non-essential travel overseas, they must make provision by way of an annual leave or unpaid leave application for the additional period of restricted movement (14 days).
  • The requirement that the employee advise their employer of travel abroad is necessary for the protection of public health.

It is open to an employer to take a similar approach to that adopted by DPER by requiring an employee to apply for annual leave or unpaid leave for the 14-day period of restricted movement as a result of non-essential travel.  No Government guidance has been published as to what constitutes “essential” travel but in the context of the ongoing pandemic, the bar is likely to be extremely high.  By way of an example, it is not believed that travel abroad to visit family would satisfy this threshold, although travel to comply with a court order in relation to child visitation rights is likely to.

While there is no obligation to pay employees during a period of restriction, employers may want to consider paying employees who are required to restrict their movements as a result of essential travel, or if they fall within categories i) and ii) above with a view to encouraging people to comply with their obligations not to attend work and to protect the health and safety of colleagues.  In deciding whether or not to pay employees during this period, employers should ensure that they treat employees consistently and that they do not discriminate against employees under the Employee Equality Acts 1998-2015.

 

All other employees – employer obliged to pay if want to prevent employees coming to work

With the publication of the Green List of countries, the Government’s advice is that individuals returning from a Green List country should be treated the same as individuals who have not travelled abroad (regardless of whether the foreign travel was essential or non-essential). The advice is that ‘normal precautions’ apply to these individuals. This means that employees returning from a Green List country can return to work but 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 (eg 14 days) it may not have a legal basis to prohibit the employee attending work unless it has demonstrable health and safety concerns.

  • Employee can work remotely: the employer can seek to rely on the Government’s revised Roadmap for Reopening Society and Business which provides that employees who can work from home remotely should continue to do so throughout all 4 phases.  If an employee is continuing to be paid, there is a low risk of a breach of contract claim.
  • Employee unable to work remotely: where the employee is available and willing to work, the employer will be obliged to pay the employee for the duration of any period the employer requires the employee to stay out of the workplace. If an employer does not pay an employee during a period of an employer enforced restriction, this is likely to lead to claims under the Payment of Wages Act 1991 and /or breach of contract claims.

We have set out below some options for employers for this category of employee below by way of suggestions.  The options will of course depend on an employer’s appetite for risk.

Any non-payment of employees during an employer-enforced restriction will likely be a breach of the Payment Of Wages Act 1991 and/or breach of contract but some employers may be willing to take the risk (i) to protect health and safety of staff (ii) to avoid having to close their business if large numbers of staff contract COVID-19/are close contacts of an individual with COVID-19 (iii) to discourage employees from going on two weeks holidays, followed by a two week paid restriction period at home.

Employer options:

  • Oblige employees returning from Green List countries to take annual leave (assuming the employer consults with the employees at least one month prior to leave);
  • Take the approach that employees undertaking non-essential travel will not be paid (regardless of where they are travelling to/from) as this is in breach of Government guidance;
  • Impose an employer-enforced restriction (unpaid) on any employee which the employer believes is breaching Government and public health advice on the basis that the employee is in breach of his/her obligations under the Safety, Health and Welfare at Work Act 2005 towards his/her colleagues;
  • Take the position that undertaking non-essential travel and returning to the workplace (or any intentional breach of Government/public health advice) is a breach of mutual trust and confidence (however, the employer would still have to pay the employee while investigating the matter).

 

Employee Travel Outside Ireland and Data Protection Considerations

In light of recent Government guidance on foreign travel, there are potentially competing considerations of (i) employee travel outside Ireland and (ii) employer compliance with health and safety obligations and public health advice. These competing considerations also raise a number of data protection concerns i.e. what enquiries are employers permitted to make about employees’ holiday plans?

As stated above, DEPR has published guidance in relation to non-essential travel undertaken by public servants which provided that, for the protection of public health, employees are required to advise their employer of travel abroad. Private sector employers may adopt a similar approach.

The Department of Business, Enterprise and Innovation published explanatory guidance on the processing of personal data pursuant to the Return to Work Protocol.  The Data Protection Commission also published guidance for employers on the implementation of the Protocol. Although this guidance was prepared prior to the publication of the “Green List” and recent Government guidance on foreign travel, this guidance is nonetheless useful in understanding what enquiries employers may lawfully make about employees’ holiday plans in light of the COVID-19 pandemic.

The Commission’s guidance reminds employers that they must have a valid lawful basis for processing personal data under Article 6 of the GDPR. When processing special category personal data, such as data relating to an employee’s health, the Commission reiterates that an employer must also be able to satisfy one of the exceptions of Article 9(2) GDPR, having regard to the relevant provisions of the Data Protection Act 2018 (“DPA”).

In line with previous guidance issued by the Commission, employers are cautioned against relying on employee consent as a suitable legal basis where an employee’s personal data is going to be processed in connection with a measure that is introduced to meet a legal obligation or for public health reasons, as the employee does not have a genuine choice as to whether to provide or decline consent. Specifically when acting on the guidance or directions of public health authorities or other relevant authorities where national measures are taken to protect against COVID-19, the Commission’s guidance provides that Article 6(1)(e) and Article 9(2)(i) of the GDPR (set out above) and Section 53 of the DPA may permit the processing of personal data, including health data, where it is deemed both necessary and proportionate.

  • An enquiry by an employer in relation only to countries of travel does not involve processing of any health data.  For example, an employer may simply ask employees to complete a form before a period of annual leave, replying “yes” or “no” to a question on whether or not they intend to travel outside of Ireland during a period of leave and if so, whether the countries they intend to visit are on the Green List. Provided that there is a valid lawful basis for this enquiry i.e. that public health advice continues to warn against non-essential travel abroad and requires a period of restriction following travel outside of Ireland and/or this falls within an employer’s obligation to protect their employees under the Safety, Health and Welfare at Work Act 2005, this question should not, in and of itself, pose a data protection concern.
  • On return from a period of leave where employees may have travelled outside of Ireland, employers may ask employees to complete a Return to Work form, where an employee is asked to provide specific information related to COVID-19 and any symptoms they may be experiencing. In circumstances where the Green List country is subject to review and amendment, employees could be asked to re-confirm whether or not they are returning from a Green List country prior to returning to the workplace. This Return to Work form should be processed in line with the Commission’s specific guidance on the Return to Work form. This form is also likely to involve processing health data and therefore, in addition to a valid legal basis for processing, one of the exceptions in Article 9(2) must be satisfied.
  • Processing of personal data should be limited to that which is necessary to achieve the objective being pursued and all processing should comply with all of the principles of data protection (Article 5 of the GDPR).  Notably, the Data Protection Commission has advised that questionnaires should have “a strong justification based on necessity and proportionality and on an assessment of risk,” taking into consideration “specific organisational factors such as the travel activities of staff attached to their duties, the presence of vulnerable persons in the workplace, and any directions or guidance of the public health authorities.” From this perspective, employers should ensure that only the minimum amount of medical and personal data is collected when making enquiries about employees’ annual leave plans. Enquiries should be devised based on up to date public health advice and regularly reviewed, for example, as the Green List is updated from time to time.
  • Suitable safeguards must also be implemented by an employer, such as restrictions on access to the data, strict time limits for deletion and appropriate staff training.  Employers should therefore retain information about employees’ annual leave plans securely and delete this a short time after they have returned from the period of leave.
  • Existing Privacy Notices and data protection policies may also need to be updated and provided to all employees setting out how this medical information will be used, securely stored and ultimately destructed when the information is no longer required.

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.

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