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.

Categories
Redundancy

Lay-off and Short Time and Coronavirus-the Essentials

“Lay-off” and “short time” are phrases that are being bandied about now because of COVID-19. Do you know what they actually mean from an employment law perspective?

“Lay-off” is defined in the Redundancy Payments Acts 1967-2014 and happens when the employer is temporarily unable to provide work for the employee.

“Short time” describes the situation where the employer cuts the wages or hours of the employee to less than 50% of the normal hours or pay.

The employee is supposed to be given notice, although no time period is specified, and the employer must reasonably believe it is only for a temporary period of time. Choosing employees for lay off or short term should be done fairly and in a way that will not give rise to a claim of discrimination.

Pay

The employer cannot, at common law, put an employee on lay-off without pay or place him on short time unless

  1. There is a clause in the contract allowing lay-off or
  2. There is an implied right to do so

The implied right would derive from custom and practice in the industry or in the particular employer’s business.

However, there has been decided cases in the WRC (Workplace Relations Commission) or the Rights Commissioner Service/Employment Appeals Tribunal that held there is an established practice in Ireland that lay-off without pay can be permitted where it can be shown that it is custom and practice in the industry/trade.

Redundancy

The employee may be entitled to redundancy. If she has been laid off or on short time for 4 or more consecutive weeks or for 6 weeks (not more than 3 consecutive) in a 13 week period the employee can serve a notice on the employer to claim redundancy. The employer, however, can serve a counter-notice denying the redundancy if he can give the employee 13 weeks work without lay off or short time. This work must be available within 4 weeks of the employee’s notice.

Alternatives to lay-off and short time

Alternatives to lay-off and short time include 

  1. Annual leave
  2. Parental leave
  3. Unpaid leave

Both employer and employee need to be flexible at this time.You can learn more about short time, lay-off, and redundancy here.

Categories
Blog

Coronavirus/COVID-19: Law Consultations By Phone, Email, Video

We all have an important role to play at this worrying time of Coronavirus/COVID-19. We need to follow the best medical advice by keeping face to face contact to a minimum and  practice “social distancing”.

It is obviously in all our interests that we do everything we can to ensure the spread of COVID-19 is slowed down as much as possible. This will allow our health service to help those most in need, for example persons with an underlying condition or older people who are more susceptible to the effects of the virus.

So, we all need to do what we can in our own small way. Each and every one of us can play our small part.

And the best thing we can do now is follow the advice of the HSE public health experts and try to keep social contact and face to face meetings to a minimum. If we all do this we have a great chance to avoid the type of chaos you are seeing in Italy, and now Spain.

So, if you need legal advice or a consultation during this worrying time we can give you a consultation by phone, email, or video, without any difficulty.

Our office remains open and we can meet face to face because there are some necessary face to face meetings-for example for the signing of contracts, statutory declarations, or affidavits. 

But we are trying to avoid them if email, phone, or video will do the same job and not carry any of the risks.

Stay safe, and follow the advice of the HSE to counter COVID-19.

Here is a couple of articles about some employment law aspects of Coronavirus: