QUESTIONS ANSWERED IN THIS SECTION:

• Where can I find guidance on reopening?
• What documents do I need to prepare in advance of opening?
• What procedures should I have in place before employees return to work?
• Do I need to update my absence policy?
• How do I conduct a risk assessment?
• What should I have in my updated safety statement?
• I am/supply an essential service, and have been open all along. Do I need to implement further safety measures?
• Do I need to amend my health and safety statement?
• What is considered to be close contact working?
• Can I introduce temperature checks?
• Do I need to provide masks to my employees?
• Can a vulnerable person return to work?
• What precautions should I take for my vulnerable employee?
• What should I do if an employee begins to display symptoms of COVID–19 in the workplace?
• What should I do if an employee has been in work and suspects they may have COVID-19?
• What should I do if an employee has been diagnosed with a confirmed case of COVID-19?
• If an employee contracts covid-19 in the workplace, can the employer be found liable?
• Can I introduce private Covid-19 testing to the workplace?

Where can I find guidance on reopening?

• The NSAI guidance on workplace improvement and protection can be found here.
• The national protocols on returning to work can be found here.
• HSA guidance on COVID-19 and the workplace can be found here.
• ISME  have produced an Employee Declaration template which can be found here and a COVID-19 Risk Assessment template found here.

What documents do I need to prepare in advance of opening?

Employers should ensure that the have reviewed and amended the following documents:

• Health and Safety Statement
• Risk assessment
• Absence and reporting policy
• PPE policy if required

Employers should ensure they have developed the following:

• Covid-19 Employee declaration
• Covid-19 induction programme and sign off sheet
• Covid-19 response plans
• Covid-19 social distancing procedure
• Temperature checking policy and privacy statement if required.
• Log of “Close contact work”

What procedures should I have in place before employees return to work?

An employee induction program in place

• A robust social distancing procedure, along with appropriate signage
• Handwashing and respiratory hygiene signage displayed in prominent locations throughout the premises.
• If implementing temperature checking, procedure and privacy information circulated
• Employee declarations filled in and reviewed
• Sneeze guards in place where necessary

Do I need to update my absence policy?

Absence policies should be updated to include the instruction that any employee returning to work after a suspected or confirmed case of Covid-19 will be required to provide a fit to work cert.

Employers may wish to update their reporting procedures to include the importance of reporting if an absence is due to suspected or confirmed Covid-19. This should also be covered in the induction and should be included on the employee declaration.

What should be in an induction programme?

The national protocols on safe return to work requires that every employee completes a Covid-19 induction. The employee should sign an induction training sheet to document that this training has been done. An induction should contain the following:

• The nominated Covid-19 contact person(s) in the organisation
• Signs and symptoms of Covid-19
• Reporting procedure for anyone who displays symptoms of Covid-19
• Covid–19 Precautions in place – Social distancing, hand hygiene, respiratory hygiene etc.
• Covid-19 Response plan
• New procedures implemented as a result of Covid-19
• Temperature checking if appropriate
• Employee declaration, and importance of notifying the employer if any circumstances on this declaration change
• Any changes to break procedures
• Any GDPR considerations relating to measures put in place.

How do I conduct a risk assessment?

In line with Section 19 of the aforementioned 2005 Act, the HSA instructs employers to adopt a step-by-step approach to risk assessment and the preparation of the safety statement. These steps may be summarised as follows:

• Identify Hazards – a hazard is defined as anything with the potential to cause harm (e.g. COVID-19, falls, trips, vehicle movement, fire).
• Assess Risks – having identified the hazards, one assesses the risks arising (i.e. the likelihood of the harm occurring and the severity of the consequences if it does). Categorising the risks, from high to low, allows one to prioritise the necessary measures.
• Select & Apply Control Measures – with the hazards and their associated risks categorised, one then selects the appropriate control measures to eliminate the hazards and to reduce the risks (e.g. workplace design, PPE, training).
• Record and document the risk assessment

What should I have in my updated safety statement?

Each organisation is different and there is no standard template for this, however the statement should at a minimum:

• List the control measures to be taken to avoid the risks
• Name those responsible for implementing and maintaining the measures
• Contain plans to deal with an emergency or any serious and imminent risks and
• List the names of the safety representatives (if any).

Section 19 of the 2005 Act provides for a review of the risk assessment (and as a consequence, of the safety statement), should there be ‘a significant change’ – as with the COVID-19 crisis.

I am/supply an essential service, and have been open all along. Do I need to implement further safety measures?

Yes, you should ensure that your business is compliant with the national protocols. This documents what procedures are necessary to be compliant should the HSA inspect the workplace. The HSA have the authority to close a business if they find it to be non-compliant.

A business that has remained open throughout Covid-19 should still review this document, and ensure that all required precautions, policies and procedures are in place as soon as possible.

Do I need to amend my health and safety statement?

Yes, your health and safety statement should be updated to reflect the Covid – 19 risk assessment and response procedures.

What is considered to be close contact working?

Any individuals who have had greater than 15 minutes face-to-face (>2 meters distance) contact in any setting.

For those who have shared a closed space for longer than two hours, a risk assessment should be undertaken taking into consideration the size of the room, ventilation and adherence to the social distancing measures in place.

Can I introduce temperature checks?

The national protocols states that temperature checks should be done in line with public health guidance. There is no current guidance stating that temperature checks are mandatory or recommended.

If an employer is introducing this, they need to ensure that they are doing so in a manner that is compliant with general data protection regulations. The employer must ensure it has a lawful basis for such checks and processing of the subsequent health data, meaning that it must be able to identify a legal basis under Article 6 of the GDPR, and an exemption under Article 9 of the GDPR.

Since this is a novel type of processing for most organisations involving sensitive employee health data, the employer should also conduct a data protection impact assessment to set out the probable risks to staff privacy rights and the safeguards in place to mitigate these risks. Employers should adopt a less is more approach to processing sensitive health data.

Do I need to provide masks to my employees?

The protocols state that masks should be worn in the workplace in line with public health guidance on the matter. The current guidance is that it is advised that people wear face coverings on public transport, in retail environments and in crowded places indoors, but this is not a legal requirement.

Non-medical cloth masks made from strong tissue and dust masks (usually worn to stop construction workers or decorators from breathing in dust particles) are believed to be of benefit in public settings.

It is important to note that providing face coverings does not mitigate the need for social distancing measures in the workplace. Some employees may not be able to wear face coverings due to respiratory conditions. Employees should confirm they are fit to wear face coverings before being required to do so.

Guidance on safe use of face coverings is available here.

Can a vulnerable person return to work?

The HSPC define vulnerable people as:

• People aged ≥ 70 years
• Solid organ transplant recipients
• People with specific cancers
  • people with cancer who are undergoing active chemotherapy or radical radiotherapy for lung cancer
  • people with cancers of the blood or bone marrow such as leukaemia, lymphoma or myeloma who are at any stage of treatment
  • people having immunotherapy or other continuing antibody treatments for cancer
  • people having other targeted cancer treatments which can affect the immune system, such as protein kinase inhibitors or PARP inhibitors
  • people who have had bone marrow or stem cell transplants in the last 6 months, or who are still taking immunosuppression drugs
• People with severe respiratory conditions including cystic fibrosis, severe asthma, pulmonary fibrosis/ lung fibrosis/ interstitial lung disease and severe COPD.
• People with rare diseases and inborn errors of metabolism that significantly increase the risk of infections (such as SCID, homozygous sickle cell).
• People on immunosuppression therapies sufficient to significantly increase risk of infection.
• Women who are pregnant with significant heart disease, congenital or acquired.

The current guidance for these people is that they should continue to work from home where possible to do so. If an employee who has been advised to cocoon intends to return to the workplace, a fit to work cert should be provided before their return by their GP.

What precautions should I take for my vulnerable employee?

If it is not possible for these people to work from home a number of measures should be taken into consideration to protect them from exposure in the workplace:

• If possible, they should work in a well-ventilated workplace that is separated from the general employee population
• PPE should be given if of benefit
• Contact with members of the public should be limited, and a temporary role change may be required if the employee’s role is customer facing.
• Extra cleaning and disinfecting should be completed daily for their workspace.
• If possible, separate break facilities should be provided. If not, there should be a dedicated time for a vulnerable employee, and wipes, sanitiser etc. provided to ensure any shared surface can be disinfected.

What should I do if an employee begins to display symptoms of Covid–19 in the workplace?

If an employee reports any symptoms while in the workplace, they should move to an isolated area.

If they are not a medical emergency, they should be provided with a face covering and gloves, and directed to leave the premises without any interaction with other employees. They should be advised to go home, without using public transport, and contact their primary healthcare provider.

If the employee is a medical emergency, they should be taken to the nearest urgent care facility. The facility should be advised in advance of their arrival, and will advise as to the correct method of transport. If an employer is concerned that immediate urgent care is required, they should contact the emergency services.

Any response to a symptomatic employee should be detailed in your Covid – 19 response plan and employees should be made aware of the contents of this on return to work. If an employer is unsure what response is required a medical professional should always be contacted.

What should I do if an employee has been in work and suspects they may have Covid-19?

If an employee reports that they are absent due to suspected Covid – 19, it is important to remember that the employee’s medical information is considered protected data. It is important that you do not disclose the name of any employee suspected of having Covid-19.

An Employer should immediately clean and disinfect any work station of a suspected case, along with any shared surfaces such as breakrooms, washrooms etc. An employer should then conduct a risk assessment, and refer to their own response plan, as well as their log of close contact work.

Employees can be advised that there is a suspected case in the workplace and that they should monitor their own health carefully, restrict movements for 14 days and avoid close contact with vulnerable relatives.

It may be deemed necessary to ask close contacts to self-isolate, depending on the measures in place.

What should I do if an employee has been diagnosed with a confirmed case of Covid-19?

If an employee tests positive for Covid – 19 the HSE contact tracing procedure will commence. This process will involve contacting those any confirmed case has come into close contact with. The place of employment will be included in the assessment done by the HSE.

If your employee confirms that they have tested positive, the following information may be useful to give other employees you feel may be contacted:

• Calls from contact tracers come up as a private number
• If you may need extra help with the call, for example, if English is not your first language you can give us the name and number of a person who can take the call on your behalf.
• The contact tracers will confirm the person’s name and address.
• They will ask about symptoms and the name and phone numbers of their close contacts, if necessary.
• If they don’t answer, the contact tracer will leave a message, if voice mail is working. They will let them know that they have tried to contact the person. They will call them a few times if necessary.
• Contact tracing is confidential.

If an employee contracts Covid-19 in the workplace, can the employer be found liable?

There are two key pieces of legislation to consider. A breach of either of these Acts could give rise to civil liability for an employer.

The first is the Safety, Health and Welfare at Work Act 2005. It imposes a general duty on employers to ensure “so far as is reasonably practicable” that the safety, health and welfare of their employees is safe-guarded.

The Health Act 1947 is another key piece of legislation in the context of the current health crisis. This Act contains the legal force behind our current restriction regulations. Section 43 of the 1947 Health Act is one of its lesser known provisions, and means that a person can initiate civil proceedings for damages if the other person failed to take actions required by him pursuant to Regulations which result in the first person being infected with a disease.

Therefore, any breach of the Health Act or the regulations by an employer could lead to civil liability if their failure resulted in a COVID-19 infection. In the case of a confirmed COVID-19 infection in the workplace, damages could be awarded for severe pain and suffering.

If your employees cannot work from home and they must still come to work it is important to take, and document, all the measures outlined in the national protocols document to ensure that you are providing a safe place to work.

Can I introduce private Covid-19 testing to the workplace?

If an employer intends to introduce testing in the workplace, outside of that done by the HSE they should be aware that there is no current public health guidance in place advising this. As a result the employer will need individual consent from each employee before commencing. Any employee who does not agree cannot be penalised or victimised in any way.

The employer would need to consider the data protection implications of this. Medical data is a special category of data and requires extra precautions to be take. It should be communicated clearly in advance of testing commencing what data will be recorded, who has access, how long will it be kept for and how will it be disposed of at the end of this period.

A policy detailing the actions arising from a positive test such as payment, time off, procedures for contacting their own GP, procedures for follow up tests etc. should be clearly communicated in advance of implementing testing in the workplace.