QUESTIONS ANSWERED IN THIS SECTION:

• An employee is displaying symptoms, can I ask them not to come to work?
• An employee has reported that they are waiting for a covid-19 test. Do I need to close the department/business?
• Do employees have a right to be notified if a colleague has contracted coronavirus?
• My employee is not attending work, am I obliged to pay them?
• What state benefit is someone diagnosed with covid-19 or self-isolating under medical advice due?
• We have reopened, but my employee is refusing to return to work, what can I do?
• An employee is living with a vulnerable person and is worried about the risk to their family member if they return to work. How do I handle this?
• I have explored all of the options but need my employee back in the workplace, can I insist that they return.
• My employee cannot come back to work as they have no access to childcare. How do I handle this?
• My employee travelled abroad to go home during shut down, and is now refusing to travel back as they are not comfortable with undertaking air travel. What can I do?

An employee is displaying symptoms, can I ask them not to come to work?

The employee should be advised to leave the workplace and contact their own GP. Their GP will then advise them if self-isolation is necessary. If you ask them to leave the workplace for an extended amount of time without medical advice, you will be obliged to pay them as they will not be eligible for any welfare payments.

 

An employee has reported that they are waiting for a Covid-19 test. Do I need to close the department/business?

This will be a judgement call for a business owner to make, based on their internal risk assessment. If the measures have been in place to allow for social distancing, good hygiene, hand sanitisation etc., and the risk of infection is low, there is no guidance to state a business must close.

It is also important to remember that should someone on your team test positive, the HSE contact tracing procedure will be put in place, and employers will be advised as to who would be considered to have had close contact with the employee.

In these circumstances an employer must remember that medical information is protected data and should not be disclosed to other employees without consent.

 

Do employees have a right to be notified if a colleague has contracted Coronavirus?

No, there is no specific right. Employers owe employees a duty of confidentiality which would normally apply to health matters, but they also have a duty to protect the health of all employees so far as they reasonably can.

The Data Protection Commission guidance advises that employers would be justified in informing staff of a suspected case but employers should avoid disclosing the affected employee’s identity in the interests of maintaining the confidentiality of the employee’s special category personal data.

The disclosure may be required by the public health authorities in order to carry out their functions and in such circumstances the disclosure should come from the authorities and not the employer.

 

My Employee is not attending work, am I obliged to pay them?

There are a number of scenarios where an employee may not be attending the workplace, the table below outlines payment obligations for these:

 

Scenario	Can Work from Home	Can’t Work from Home
Employee requests to self-isolate	Employee should be paid	No obligation for employee to be paid. If employer is agreeable, annual leave or parental leave could be used here
Employer request to self-isolate	Employee should be paid	Employee should be paid
HSE/Dr recommended self-isolate	Employee should be paid	Employee has entitlement to enhanced illness benefit in this case, Employer should apply normal sick pay policy
Employee temporary lay-off (insufficient work)	If contract allows for temporary layoffs, no payment necessary, Emergency Covid-19 payment will be applicable If Contract does not allow for this, temporary layoff may not be an option for the employer	If contract allows for temporary layoffs, no payment necessary, Emergency Covid-19 payment will be applicable If Contract does not allow for this, temporary layoff may not be an option for the employer
Employer voluntary shut down	If work is continuing from home, employee should be paid as normal.	If contract allows for temporary layoffs, no payment necessary, Emergency Covid-19 payment will be applicable. If Contract does not allow for this, temporary layoff may not be an option for the employer
Government forced shut down	If work is continuing from home, employee should be paid as normal.	If contract allows for temporary layoffs, no payment necessary, Emergency Covid-19 payment will be applicable. If Contract does not allow for this, temporary layoff may not be an option for the employer
Certified absence (during normal business hours)	Employee has entitlement to enhanced illness benefit in this case, Employer should apply normal sick pay policy.	Employee has entitlement to enhanced illness benefit in this case, Employer should apply normal sick pay policy.

What state benefit is someone diagnosed with Covid-19 or self-isolating under medical advice due?

The Illness Benefit for COVID-19 absences has been increased to €350 to bring it in line with the payment under the emergency Covid-19 pandemic unemployment payment.This is to encourage self-isolation and is in line with the payments for people who have lost employment. The payment is available for 12 weeks.

We have reopened, but my employee is refusing to return to work, what can I do?

An employer must engage with the employee to discover the reason around the refusal, and to discuss whether there are any accommodations that can be made, or processes that can alleviate concerns.

An Employee is living with a vulnerable person and is worried about the risk to their family member if they return to work. How do I handle this?

An employer will need to assess whether it is possible to accommodate working from home, or working during hours when there may be lower numbers in the workplace. Staggered start times may be an option to help the employee avoid rush hour on public transport.

There should also be a discussion had, and documented, with the employee to discuss the safety protocols and procedures in place in the workplace to help alleviate their concerns. If there is an employee assistance programme in place, the employee could be referred to this to help alleviate any concerns.

If the employee is still reluctant to return to work, they may be eligible to take a period of carers leave, or the employer may agree to grant unpaid leave. This has the benefit of putting a formal agreement in place, so the employer can plan to cover a defined period of absence.

I have explored all of the options but need my employee back in the workplace, can I insist that they return.

Yes, however you must ensure that there are no accommodations that could be made for the employee’s circumstances in the first instance. Failure to follow reasonable management instruction can be considered a disciplinary matter, and can be actioned under your disciplinary policy. It is important to note that while we do not know for certain how Covid-19 related cases will play out in the WRC, legal opinion is that employers should be aware that the exaptation for reasonable accommodations to be explored and given where appropriate will be higher due to the current environment.

My employee cannot come back to work as they have no access to childcare. How do I handle this?

The employer will need to engage with the employee to discuss are there any mutually agreeable solutions. If not, an employee may opt to take a period of Parental leave if eligible, which would formalise the agreement and allow an employer to plan around the absence. An employer in this situation must remember that family status is one of the nine grounds for discrimination under legislation, and therefor accommodations that are reasonable must be made in this situation.

I have asked my employee to return to work but they have stated they are worried and not willing to take the risk. What can I do?

If the employer has made all reasonable efforts at engagement, and there are no medical issues involved, it may ultimately be a reasonable approach to discipline that employee, after communicating with the employee as outlined above in an effort to re-assure them.

If an employer does not action this, and allows a worried employee to remain off work while others who did not object are required in the workplace, they may open themselves up to employee relations issues with those that are in work. In those circumstances, triggering the Company’s disciplinary procedure may well be the correct approach, but it should only be done having engaged fully with the employee and having explored all other avenues as outlined above.

My employee travelled abroad to go home during shut down, and is now refusing to travel back as they are not comfortable with undertaking air travel. What can I do?

Again, communication is key in these circumstances. An employer should engage with the employee, give them reasonable notice of the expected return to work date (including allowing for required self-isolation periods) and outline all protocols and procedures in place to ensure that an employee understands that safety in the workplace is of paramount concern for all.

An employer can expect an employee to be available to work as per contract, and refusal to return to the country does constitute unauthorised leave, and internal disciplinary procedures can be followed. However, it is important to note that while we do not know for certain how Covid-19 related cases will play out in the WRC, it is expected that employers will need to demonstrate that they have acted in a reasonable manner and have followed fair procedure in all cases, therefor documentation and record keeping are key if any disciplinary action is to be taken. ISME have a guide to disciplinary procedures here.