COVID-19: Employers’ Health & Safety obligations

As businesses continue to navigate this unprecedented time, employers should review their health and safety practices, in light of the COVID-19 guidance and restrictions, to ensure compliance with the Safety, Health & Welfare at Work Act 2005 (the 2005 Act). The 2005 Act imposes a general duty on employers to ensure “so far as is reasonably practicable” that the safety, health and welfare at work of his/her employees is safe-guarded. This is a dynamic obligation that requires to be revisited as circumstances require.

What does the 2005 Act require?

Employers need to be proactive in order to protect their employees' health, and minimise the risk of the virus spreading in their workplaces.  Their main responsibilities are to provide: (i) a safe workplace; (ii) a safe method of work; (iii) safe equipment; (iv) appropriate supervision and training; (v) protective equipment, where appropriate (vi) and provision and maintenance of facilities and arrangements for the welfare of employees at work.

These obligations apply equally to those who work remotely or from home, and those who continue to attend the workplace in person.

In short, employers must comply with all HSE guidance. This will require a review, and where necessary, amendments to existing risk assessments, to reflect the changed work landscape as a result of COVID-19. Employers must be alert to the fact that this is an evolving health emergency, which will require agility and regular review in order to determine how best to manage and address health and safety issues.

How do the new public health guidelines impact employers and employees?

On 27 March 2020, the Government announced that everyone should stay at home until 12 April 2020, with a limited number of exceptions. For example, travel to and from work is permitted where the work is an essential health, social care or other essential service and cannot be done from home. A full list of the essential services can be found here and includes the following activities:

• Manufacturing (food and beverage products, animal feeds, work-wear apparel or footwear, newspapers, refined petroleum products and chemicals, pharmaceutical products and products necessary for the supply chain of essential services)
• Construction (but only essential to health and related projects relevant to the COVID-19 crisis, and supplies necessary for such projects; repair/construction of critical road and utility infrastructure and delivery of emergency services to businesses and homes on an emergency call-out basis in areas such as electrical, plumbing, glazing and roofing)
• Financial and legal activities (banking and financial services and accountancy, legal and insurance services necessary to support essential services and vulnerable people)
• Human health and social work activities (hospital services, public health activities, lab services, hospice, pharmacy and blood donation services, social work and social care activities)

The Government's guidance is that all employees should work remotely from home, if at all possible. Where people are not engaged in the provision of essential services, they are not permitted to travel to and from work until 12 April 2020.

The Government has advised that employers should refer to this guidance to decide whether it is offering an essential service. If so, employers should identify those employees (including sub-contractors) who are essential to the provision of that service and notify them. Where an essential service is provided, employers should follow the latest public health guidance. This should be reviewed regularly in light of the fast paced nature of change in this space.

What measures should employers adopt in their workplace to combat the spread of COVID-19 and protect their employees' health?

If your employees are required to continue to come to work there are a number of practical and sensible measures that must be considered, as follows:

• Implement physical distancing and ensure that the layout of workstations and/or design of work activities maintains a distance of at least 2 metres
• Make alcohol-based hand sanitising dispensers available in prominent places around the workplace and ensure they are regularly refilled
• Ensure that employees have easy access to facilities where they can wash their hands with soap and water whilst maintaining social distancing
• Promote good hand and respiratory hygiene and disinfecting products so employees can clean their work surfaces
• Provide closed bins for hygienic disposal of used tissues
• Ensure that high touch surfaces (e.g. counters, desks and tables) and objects (e.g. telephones, keyboards) are wiped with disinfectant regularly
• Ensure that employees can take meal breaks whilst adhering to social distancing requirements
• Supervise employees to ensure that the updated requirements are adhered to
• If it is not possible to comply with guidance whilst carrying out an essential service then guidance should be sought from HSA.ie
• All employees should be given a written confirmation to produce to Gardai to evidence the requirement that they travel to work

What should an employer bear in mind for employees working from home?

• Employers continue to owe their employees the same duty of care. An employer's responsibility to take all reasonably practicable measures to safe-guard their physical and mental well-being does not end because their employee is not physically present in the workplace
• Many employees have had no prior experience of working from home for an extended period of time. Employers should be mindful of this and alert to the mental health effects that this may have on some employees, and the feelings of isolation and loneliness that it can create. Whether through daily calls with your team, regular emails or video-conferencing, it is important to stay connected and check in regularly with your employees
• Employees may need time to adapt to new routines away from day-to-day direct contact with their managers. Difficulties with childcare arrangements and challenges with domestic workstations and "work from home kit" may also present obstacles to how and when work is completed

What should employers do?

This is an exceptionally challenging time for employers and employees alike. Employers should be attentive to this and be as supportive to their employees as they can. To ensure that employee welfare is best protected, employers should review their health and safety policies and procedures, evaluate their business continuity and other plans that have been used to protect their employees' well-being and introduce changes as appropriate.

Employees can also be reminded to ensure that they work safely, by using suitable equipment, taking breaks, ensuring as much as possible that they adhere to ergonomic principles.

The Health & Safety Authority website contains a lot of COVID-19 related information for employers; this should be consulted in the first instance.  In addition, all relevant Department of Health guidelines must be followed.

Risk assessments should be reviewed and revisited as necessary to ensure employee safety. Particular care is needed where any incremental changes to work practices are planned: as the risk profile evolves so must the corresponding assessment of that risk. Employers should use in-house or an external health and safety advisor to review current practices against COVID-19 required precautions, and document and implement carefully the updated assessments to best protect themselves.

What are the consequences of not implementing these health and safety measures?

In addition to employee loss of confidence in their employer, low morale and increased anxiety in the workplace, failure to implement appropriate health and safety measures carries serious legal risks for not just the company, but also its officers.  Where it can be shown that the company's directors, managers or officers have, themselves, managed safety and health inadequately, they can be prosecuted personally under the 2005 Act. The standard is high – you must be able to show you did all that was reasonably practicable and to do more would have been grossly disproportionate to the risk.

Ultimately, the obligation is on employers to demonstrate that they did all that could be reasonably expected of them under the 2005 Act. This is a very challenging standard to achieve. That said, employees are also  under obligations for example to comply with health and safety requirements and not endanger fellow employees.

In the event of a prosecution, the penalties for breaches of health and safety obligations vary and will be dependent on a variety of factors. However, the upper regions of sanctions under the 2005 Act include a fine of up to €3m and/or two years imprisonment, per offence, on criminal conviction.

Date published: 30 March 2020