Categories
Health and Safety

Illness benefit for Covid 19 absences from the workplace

Did you know that there is an enhanced illness benefit payment available for Covid 19 related absences?

When does it apply?

When a person has been told to self-isolate by a doctor or the HSE, or when they have been diagnosed with the coronavirus.

The illness benefit claim must be submitted online with a certificate of incapacity from work from a GP or the HSE and the rate of payment is €350 as opposed to the normal illness benefit rate of €203.

If you are ill and unable to work but it is not Covid 19 related then you are only entitle to the lower rate.

Also, if you are cocooning on health grounds you are not entitled to the enhanced rate but you may qualify for the normal rate of €203 per week. You will need a certificate of incapacity from work from your GP or the HSE.

You can apply online or by post for these payments.

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Health and Safety

Working from Home-Employment Law Issues to Consider

Working from home as a consequence of the Covid 19 pandemic has led to unanticipated areas of concern from an employment law perspective. The two principal areas giving rise to concern are to do with:

  1. Health and safety
  2. Data privacy/GDPR

The two statutory bodies in Ireland with responsibility for health and safety and data protection-the Health and Safety Authority and the office of the Data Protection Commissioner-have published useful guidance in this area.

Let’s take a look, shall we?

Safety, Health and Welfare at Work Act 2005

Generally, the employer’s duties regarding the employee’s workspace continues in force as set out in the Safety, Health and Welfare at Work Act 2005. These duties include ensuring the safety, health and welfare of employees, the provision of safe systems of work, safe equipment, risk assessments, and information/instruction regarding health and safety.

The employee has duties, also, and must cooperate with the employer, follow instructions and procedures, protect themselves as well as possible and report any injury without delay.

Regarding home working the responsibility for health and safety remains with the employer and he must ensure there is a suitable workspace and equipment and a means of contacting the employer.

Equipment already used in the workplace can be used for home working, provided it is in good condition and suitable. The employer must check with the employee that the workspace is satisfactory and that there is adequate light, heat, ventilation, sufficient space, free of clutter, and so on.

There are further considerations to be taken into account when the employee is a vulnerable worker or has a disability or is pregnant-that is, the employee is in a sensitive risk group and there are further guidelines on the HSA website (see link below).

When employees are using computers and digital technology the employer should consider doing an ergonomic assessment of the workspace. This could involve the use of a questionnaire from the employer to employee in the first instance and then an ergonomic risk assessment depending on the results of the questionnaire.

Employers should also consider regular contact with employees, arranging IT support if necessary, regular communication and feedback and contact details are up to date and there are agreed means of contact. The psychological aspects of working from home and perhaps a sense of isolation cannot be overlooked and the employer should maintain regular contact with the employee.

The employee, too, has responsibilities for her own safety and must cooperate with the employer and keep in regular contact, agree the work to be done, and identify the equipment you need to set up a safe work station at home.

The employee must ensure that she has adequate ventilation, heat, light and maintains a clutter free environment. The equipment the employee will need should be identified including stationery, phone headset, mobile phone, laptop, and so on.

It is most important for the employee to keep in regular contact with the employer as it is in the interests of both employer and employee.

This page on the HSE website is helpful in this regard.

Data privacy and protection

The Data Protection Commission has issue guidelines regarding working from home.

Devices

The safeguarding of devices, effective access controls, keeping the device locked up when not in use, ensuring devices have necessary updates, and fast reporting arrangements if a device is lost or stolen are areas to be looked at.

The usual precaution concerning the use of emails and ensuring you use work related emails for work emails is advised, along with ensuring you follow the employer’s applicable policies concerning email and internet access.

Employees need to be careful about accessing to cloud services and/or the employment network of the workplace, the use of logins being hacked/compromised, and so on.

GDPR relates to all records concerning personal data, including electronic and paper records. Therefore you need to be prudent and cautious about the secure storage and maintenance of paper records, especially records with personal data such as health data.Guidance from the Office of the Data Protection Commission can be found on this page

Categories
Health and Safety

The Return to Work Safely (COVID-19) Protocol-What You Need to Know

The Department of Business, Enterprise and Innovation have published an important document-the Return to Work Safely Protocol-to help employers and employees return to work safely after the Covid-19 lockdown.

The Return to Work Safely Protocol sets out the steps that businesses must take before reopening, and once the workplace is opened for resumption of normal activities.

The Return to Work Safely Protocol is the product of a joint effort of the Health and Safety Authority (HAS), the HSE, and the Department of Business, Enterprise and Innovation.

Read the Return to Work Safely Protocol here.

The specific steps to be taken include

  1. Having a Covid-19 response plan which includes updating safety statements, taking into account individual risk factors such as older workers or those with underlying conditions, contingency measures regarding increased absenteeism
  2. A policy and procedure to identify employees who may have symptoms of Covid-19
  3. The development of workplace changes or policies, including a review of existing sick leave policies
  4. The implementation of prevention and control measures to minimise risk for everyone in the workplace including hand hygiene, respiratory hygiene, and physical distancing, working from home, cleaning of the workplace, use of PPE equipment, where appropriate, and return to work protocols such as the completion of a return to work form
  5. The role of the worker and, in particular, those individuals in a customer facing role
  6. Occupational health and safety measures including reporting obligations if a worker contracts coronavirus, first aid, mental health and welfare, heating, ventilation and air conditioning

The document also sets out where employers and workers can get further advice and information:

Categories
Data Protection

GDPR, Subject Access Requests, and Coronavirus/COVID-19

How does COVID-19 impact on your GDPR rights and obligations?

The Coronavirus/COVID-19 pandemic has caused problems in all areas of life, including the difficulties posed regarding responding to data subject requests.

The Irish Data Protection Commission (DPC) has issued guidelines, whilst pointing out that the timelines for responding to requests has not changed.

Advice for Individuals

The DPC outlines that members of the public should be aware and appreciative to the frontline and critical services organisations such as healthcare providers, government departments (in particular the Department of Employment Affairs and Social Protection), Revenue and local authorities as they may need to divert resources and to prioritize work areas. This channelling of resources will have an impact in sectors of these organisations such as handling access requests.

The closure of schools, universities and other private sector organisations has further compounded the difficulty in processing data access requests. Based on this the DPC has asked the public to bear these factors in mind if an access request is not processed in the requisite time. These are unprecedented times that call for unprecedented understanding.

Problems for Organisations/Data Controllers

The DPC has acknowledged that many organisations, especially ones on the frontline and/or provide a critical service may need to divert resources to priority work areas. The diversion of work resources will impact other areas such as processing access requests. With regard to the regulatory requirements set out by statute that deal with the same, the DPC is alive and aware of these challenges and is proposing a proportionate regulatory response to these extraordinary circumstances.

The main point is that organisations experiencing delays in responding to access requests should note that the organisation should, where possible, notify the subject of the delay or possible delay in processing their request for data. This also includes an extension for a period of two months to respond to an access request, this extension is provided for by the GDPR.

Another option open to Organisations would be to respond to access requests in stages. If this is an option open to an organisation the DPC implore organisations to communicate clearly with the individuals concerned.

Finally, where an organisation, due to the impact of COVID-19, cannot respond to a request either in full or in part that organisation remains under an obligation to comply with the request and action same as soon as reasonably possible.

Organisation must note that the statutory obligations to comply with access requests cannot be waived however if an individual complains to the DPC regarding a organisations failure to comply with a DSR, the commission will assess the specific extenuating circumstances that led to the initial delay.

Conclusion

The Data Protection Commission encourages organisations to document their reasons for not complying with the timelines set out by statute.

If an organisation feels that it will not be able to deal with a subject’s access request within the statutory timeframe the organisation should properly communicate these reasons to the data subject.

Finally, even though the GDPR does not allow statutory timelines to be waived the DPC will take into account the extenuating circumstances surrounding the delay in delivering the access request.

You can read the statement/advisory from the Office of the Data Protection Commission here.

Categories
Health and Safety

The Emergency Measures in the Public Interest (COVID-19) Act 2020-Important Employment Law Changes

The Emergency Measures in the Public Interest (COVID-19) Act 2020 came into effect this week. The act contains some remarkable provisions in the public interest to help fight the effects of the coronavirus.

Let’s take a look at at some key aspects of the Emergency Measures in the Public Interest (COVID-19) Act 2020 as the act impacts on employment law in Ireland.

The Temporary Wages Subsidy Scheme

Part 7 of the act provides for this scheme which has been the subject of two sets of guidelines from the Revenue Commissioners. Here is the most recent guidelines on employer eligibility to the wages subsidy scheme.

Key points regarding the guidelines are

  • The employer must self declare that he has been seriously impacted and is a statement that as a result of the coronavirus he will be unable to pay normal wages, wants to retain employees, and will suffer a decline of at least 25% of turnover during the COVID-19 pandemic
  • An employer who has significant cash reserves will be expected to pay a significant proportion of the employee’s wages, even if he has suffered a decline in business
  • The 25% turnover decrease calculation can be carried out on any basis that is reasonable
  • There is some supporting proofs required for Revenue
  • The names and addresses of employers availing of the subsidy will be published
  • There are 2 phases: phase 1 from 15th March 2020 to 20th April 2020 and phase 2 from April 20th, 2020
  • Employees must have been on the payroll on 29th February 2020

There has been criticism of this scheme from various quarters and, no doubt, it is not perfect. But given the circumstances and the need for speed it is inevitable that some infirmities or anomalies would arise. Nonetheless, with goodwill on all sides it is probably worth a fair chance to see the wages subsidy scheme in action.

Redundancy payments changes

Part 8 of the act makes a change to the Redundancy Payments Act 1967 and provides clarity concerning layoffs and short time working during the COVID-19 crisis.

This emergency legislation suspends the employee’s right to a redundancy payment pursuant to section 12 of the Redundancy Payments Act 1967.

Section 12 provides

F31[12.—(1) An employee shall not be entitled to redundancy payment by reason of having been laid off or kept on short-time unless—

(a) he has been laid off or kept on short-time for four or more consecutive weeks or, within a period of thirteen weeks, for a series of six or more weeks of which not more than three were consecutive, and

(b) after the expiry of the relevant period of lay-off or short-time mentioned in paragraph (a) and not later than four weeks after the cessation of the lay-off or short-time, he gives to his employer notice (in this Part referred to as a notice of intention to claim) in writing of his intention to claim redundancy payment in respect of lay-off or short-time.

(2) Where, after the expiry of the relevant period of lay-off or short-time mentioned in subsection (1) (a) and not later than four weeks after the cessation of the lay-off or short time, an employee to whom that subsection applies, in lieu of giving to his employer a notice of intention to claim, terminates his contract of employment either by giving him the notice thereby required or, if none is so required, by giving him not less than one week’s notice in writing of intention to terminate the contract, the notice so given shall, for the purposes of this Part and of Schedule 2, be deemed to be a notice of intention to claim given in writing to the employer by the employee on the date on which the notice is actually given.]

This new legislation inserts a new section 12A which suspends the employee’s right to claim redundancy during the emergency period which is defined as the period from 13th March 2020 to 31st May 2020. This period oculd be extended, however, depending on how the coronavirus is being dealt with.

The critical impact of this provision is to give employers some comfort regarding the fear they had that they would face a large number of claims for redundancy arising from forced layoffs or short time working.

Here is the bill as it was passed by the Dail on Friday 27th March 2020: Emergency Measures in the Public Interest (Covid-19) Bill 2020.

This act also makes emergency provisions regarding the operation of the Residential Tenancies act 2004, time limits relating to planning and development, health and social care professions, the Mental Health Act 2001, the Defence Act 1954, the Civil Registration Act 2004, the Redundancy Payments Act 1967.