COVID-19: Top five employer queries in Ireland arising from week 1 of Coronavirus shutdown

It has been just over a week since schools and childcare facilities closed in Ireland, with workplaces in every sector immediately impacted and many other businesses quickly following suit, primarily those in the hospitality and retail sectors. The immediate and key challenges which employers have faced over the past week are set out below, along with some practical guidance and tips on how to handle these challenges, as other countries throughout Europe implement or increase similar social distancing and shutdown measures.

1. Employees need time off work because of lack of childcare

This is a common challenge facing employees and employers with childcare facilities closed and family carers unavailable.

Issues for employers to consider:

  • Is this a type of family leave?
  • Should employees continue to be paid?

Advice: Where employees can carry out some (or perhaps all) of their duties from home, they should be paid accordingly. Where employees are unable to work from home, they should be encouraged to make alternative childcare arrangements but this will not be possible for all employees. Employers should consider adjusting or reducing working hours and changing working times to assist employees in managing work and increased childcare responsibilities. Family leave options (paternity leave, parental leave, parents leave or perhaps force majeure leave) as well as annual leave may be solutions, at least in the short term. In Ireland, employers are being urged to continue paying employees where possible. Permitting employees to remain on pay in exchange for an agreement to work additional hours at a later time in the year may work in some instances. Consistency is key to avoid setting unmanageable precedents and in the circumstances, where the situation is so uncertain, employees should be informed that all measures are temporary and cannot be maintained indefinitely.

Action Points: Review annual leave and family leave entitlements for all employees. Review working from home or flexible working policies to ensure they are fit for purpose.

2. Employees are refusing to attend the workplace

Employees may be reluctant to attend work, to use public transport, to work with colleagues and so on and may choose to self-isolate and not attend work. Also, employees from other countries who had re-located for work, may wish to return to their home countries to be close to family there.

 Issues for employers to consider:

  • Are there any factors which justify this action?
  • Can employees be required to attend work as normal?
  • Do employees continue to be paid if they are not attending work?

Advice: There may be risk factors which justify an employee's decision to self-isolate. If so, options such as working from home or availing of some type of leave (e.g. annual leave, paternity leave, unpaid leave and so on as outlined above) may be agreed with the employee. If not, clear communication with employees is important so they understand that they are expected to attend for work and if they do not, they may be considered to be on unauthorised and unpaid absence. This is particularly relevant where employees cannot work from home and are needed in their workplaces to keep key services and functions operating in transport, retail, medical and other frontline sectors. Again, consistency is important to avoid setting unmanageable precedents.

Action point: Carry out/update a Coronavirus Risk Assessment. Employers must establish whether there are adequate safeguards in place to reduce the risk of employees contracting the virus, particularly those employees who may be particularly vulnerable to contacting the virus (e.g. employees with pre-existing respiratory issues, older employees, employees who are pregnant).

3. Employer needs to reduce headcount/working hours

With all businesses feeling the impact of social distancing and other measures adopted to tackle the Coronavirus, many employers will need to reduce headcount and consider restructuring and other cost saving measures in order to sustain their business.

Issues for employers to consider:

  • Can employees be redeployed?  
  • Can employees be laid off?
  • Can working hours be reduced?
  • What are the rules around paying employees in those scenarios?

Advice: Redeployment may work, if employees are agreeable and can be trained to carry out duties in more viable parts of a business. Lay-off is a measure used when an employer does not have work for some or all its employees and involves giving employees notice that they are not required to work for a period of time, due to a temporary lack of work, for example where all or part of a business is operating at a reduced capacity, or perhaps is not operating at all. Lay-off may also be applicable in respect of employees who cannot work remotely as their duties can only be carried out at a particular location, and that location is closed. Irish legislation does not state that lay-off is unpaid but it tends to be, unless the employee's contract of employment provides otherwise. Employers are largely relying on the custom and practice of lay-off being unpaid in Ireland. The COVID-19 situation has resulted in unprecedented measures regarding pay during lay-off as the Irish government has requested employers to pay employees a minimum of €203 per week during lay-off, which will be refunded to employers at a later date. Details of this scheme are still to be confirmed and it is understood that a further wage subsidy scheme is being considered.

Short-time essentially means reducing an employee's regular working hours and may be permitted by legislation (as in the case in Ireland) or by agreement with employees.

Action point: Review contracts of employment to establish whether lay-off or short-time may be appropriate. It may be the case that even where contracts are silent on lay-off or short-time, employers in the circumstances may be permitted to avail of these options.

4. New employees are due to commence but there is currently no work for them

Issues for employers to consider:

  • Have both parties signed a contract of employment?
  • Can start dates be deferred?
  • Can the contract be withdrawn?

Advice: Where a contract has not been signed by both parties, it is likely that there is no legal agreement in place. Promises and commitments (verbally or in writing such as email) can however create a binding contract so it may be necessary to review the exchange with the candidate as a whole and proceed on the basis that a contract has been signed.

Where a contract has been signed by both parties, a contractual relationship of employment exists and cannot be changed/withdrawn unilaterally by one party. Both parties can however agree to defer the start date or to withdraw from the contract altogether. In the circumstances, an open and reasonable conversation should go a long way in both parties agreeing on a solution, perhaps to defer the start date, particularly where the employer has already laid off employees or taken other such measures. The employer could also consider paying the employee a sum equal to the notice period under the contract in order to terminate the contract in accordance with its terms.

Action points: Carry out an audit to establish if there are any new hires due to commence employment in the coming weeks. Contact them to explain that it is no longer possible for them to commence employment as planned, and discuss options on deferring or terminating the contract.

5. Managing and communicating with employees remotely

For some employers, it will be more difficult to communicate effectively with employees and monitor progress and productivity as more and more employees work from home.

Issues for employers to consider:

  • How to communicate effectively with employees?
  • How can productivity and motivation be maintained?
  • Are there any data protection restrictions applicable to communicating data relating to COVID-19?

Advice: In order to ensure business continuity, employers must take steps to put a good communications system in place with employees so that important messages can get to employees, and workflow can be reviewed as normal. Assign responsibility to a certain group of employees/management for keeping the business up to date on the latest guidance and to coordinate responses to various COVID-19 matters as they arise. Communication with employees is particularly important during this time to confirm what is expected of them and what arrangements may be made in respect of pay, working hours and so on, in addition to what other health and safety actions are being taken, such as requiring employees not to attend the workplace (for example if a colleague has become ill with the Coronavirus).

Action points: Ensure up to date employee contact information is readily available. It may be necessary to review and update Data Privacy Notices to ensure that they adequately address COVID-19 related data processing. Also, employers should keep a record of any decision-making process regarding COVID-19 which involve the processing of personal data, particularly health data. Consideration should be given to alternative methods outputs and staying in touch with employees, for example re-adjusting employee targets and measuring those targets remotely, setting up daily group calls/video conferences and ensuring employees have an accessible point of contact.

Check out the ALG COVID-19 Hub for a suite of resources that have been prepared to assist companies in responding to this crisis. 

For further information please contact Bríd NicSuibhne, Associate or any member of the A&L Goodbody Employment team.

Date published: 23 March 2020