COVID-19 update: Rapidly evolving situation – new concerns

Since our first update (see here), as anticipated the situation has evolved rapidly. There are now thirty-three cases of COVID-19 confirmed on the island of Ireland. By the time this article is published, that figure is likely to have increased further.

The Government has warned that more than half the population could contract COVID-19 and experts predict the spread pattern may follow that of Italy and France. The rapid spread including some cases of community-based transmission has caused many employers and the Government to re-evaluate and re- assess their contingency planning measures. The latest Government press release demonstrates that its strategy now is to slow the spread of the virus and while the country remains in the containment phase this could progress to the delay phase. It also means many employers have to re-examine their policies in relation to sick pay particularly in cases where self-isolation has been promoted as a disease containment measure. The Government has announced new emergency measures in the form of an income support plan for workers who have to self-isolate.

Sick pay – the legal position

There is no statutory obligation to provide sick pay in Ireland. An employee's entitlement to sick pay is usually provided for in their contracts of employment and/or the staff handbook. This may or may not provide for sick pay. If there is no contractual entitlement to sick pay, under the current social protection rules workers who fall ill or self-isolate on medical advice may be entitled to Illness Benefit subject to having sufficient PRSI contributions. This benefit however does not apply for the first six days of illness. One of the primary concerns is that workers who do not have contractual sick pay entitlements and who cannot afford the loss of income will refuse to take time off and will risk spreading the virus by turning up for work while ill or infected. The same logic applies to the self-employed and gig economy workers.

Emergency measures

On 9 March the Government announced plans to alleviate the financial hardship for those required to self-isolate. The six day waiting period before illness benefits kicks in will be waived in respect of medically certified self-isolation. The personal rate of illness benefit will be increased from €203 per week to €305 per week for a maximum of two weeks self-isolation or the duration of a person's medically certified absence from work due to a diagnosis. This will also apply to self employed workers and those who would not normally have the required PRSI contributions.

Self-isolation – is there an obligation to pay?

Requiring employees to self-isolate poses numerous challenges in different scenarios.  An employee may have been requested to self-isolate by a medical professional or by an employer.  If an employee is directed to self-isolate at an employer's direction, following contact with a person infected with the virus or after travelling from an affected area, then an employee should receive their normal pay in those circumstances.  Strictly speaking, they can be regarded as being available for work. Obviously, if they are well and can work remotely then they should continue to be paid as normal. If an employer refuses to pay in this scenario then it is likely they would find themselves exposed to a claim for unlawful deductions of wages. If they are well but their role does not lend itself to working remotely then the position may be a little less clear cut. The Workplace Relations Commission (the WRC) has cautioned employers against not paying in such circumstances and to look at other possible arrangements (work back of days/hours etc).

Employers should advise staff who have to absent themselves to look after an ill family member to avail of force majeure leave if applicable or use annual leave to cover these shorter absences. If the situation was to escalate and cause an effective shut down of an employer's business to the extent that the ability to provide work for its employees is impacted, an employer may then have to consider laying off employees. Periods of lay off are unpaid but employees may qualify for certain social welfare entitlements.

GDPR issues

If an employee is diagnosed with COVID-19 employers should be bear in mind their obligations under the General Data Protection Regulation (GDPR) to maintain employee privacy and not disclose the identity of the employee to the rest of the workforce. Under GDPR medical information falls within the category of special data and employers need to ensure that suitable and enhanced measures are taken to protect an employee's privacy.

Practical steps

Employers should continue to promote a culture of good hygiene within the business particularly in relation to hand washing etiquette. They should also review any travel plans whether business or personal which employees have in a bid to minimise exposure to affected areas and consider holding meetings remotely through Skype etc to keep social interaction minimised. Businesses should continue to facilitate and implement the appropriate IT resources, where possible, to ensure that a significant proportion of their workforce can work remotely should it be necessary to close some or all a business on a temporary basis.

The key takeaway for employers is to review the advice from official sources such as www.who.ie and www.hse.ie on an ongoing basis and be ready to adapt and implement emergency contingency measures as circumstances evolve further. 

For more information, please contact Paul Gough, Sinead Grace or your usual contact in Beauchamps.