June 18, 2021
By Florence Kenefick
Employers looking to get their workers back into the office over the coming weeks and months face unique circumstances as they have never emerged from a pandemic before. This presents considerable challenges for many businesses, a situation exacerbated by the less than clear and incomplete advice that exists.
In this blog, we will answer some of the key questions that employers like you are asking.
Can I make getting a vaccine mandatory for employment in my company? What if an employee refuses to be vaccinated?
The law in this area is complicated, but most HR and legal experts believe there is no legal basis for insisting that employees receive a Covid-19 vaccine. In fact, to do so could present significant legal difficulties for your business.
This position can be confusing for employers as you also have a responsibility in law to provide staff with a safe place to work.
However, unless there is further clarification from the Government or a change in the law, the best approach is to take steps to positively promote uptake of the vaccine among your employees. Making vaccines mandatory is not recommended.
What about keeping a record of whether employees are vaccinated or not?
At the moment, you cannot ask an employee if they have been vaccinated. They can voluntarily give you this information, but you can’t ask them, the same way you can’t ask about their sexual orientation or other personal issues.
As with all issues related to Covid-19, the above may change, particularly if the Data Protection Commissioner issues new guidance. If you do decide to keep a record of vaccinated employees, then it will fall under sensitive personal information under GDPR so what it is processed for or used for will need to be subject to a DPIA. Our previous blog post has some useful tips, links and resources.
How should I approach a phased return to the office? Who should I bring back first, and how do I ensure my return-to-work plan is safe?
Getting workers back into the workplace requires a process that is objective to ensure all employees are treated fairly. The best approach is to base your return-to-work phasing on business needs. For example, start with roles where remote working results in a significant reduction in productivity or roles that are mission critical.
The steps required to protect workers who have returned are essential considerations, too, particularly in terms of the space you have available and the continuing need for social distancing.
Thinking about costs is also important, i.e., what additional costs will be involved to bring employees back to the workplace. Examples include PPE and cleaning costs. Would it make financial sense to continue with remote working instead of getting employees back into the office?
Consulting and communicating with staff will be an important part of the process. This includes taking into consideration any concerns or issues raised by your employees.
You should also consult with staff who want to adjust their hours and where they work, including if the employee wants to work from home for all or part of the week. It is worth noting that consulting does not imply an obligation to agree to anything which is not in the interests of the business.
For larger organisations, establishing a return-to-work task force will help your business work through the above issues and points. You should also follow all Government guidance, as well as guidance from bodies like the Health and Safety Executive (HSE) and the Health and Safety Authority (HSA). The HSA has produced a checklist for employers when planning a return to work for employees.
What should I do about workers who are reluctant to return to the office? What approach should I take, and what options do I have with those who can’t or who refuse to return?
One group of people to consider first are high-risk and vulnerable employees. It’s important to remember the controls that apply to employees deemed to be at high risk of Covid-19 still apply even after they have been vaccinated. If you have employees in this situation, you will need to operate on a case-by-case basis, taking advice from Occupational Health.
More generally, it is important to understand the reasons behind an employee being reluctant to return to work without judging or jumping to conclusions. Everyone has different personal situations when it comes to things like childcare, personal health concerns, and caring responsibilities.
Mental health issues have also been a big part of the Covid-19 pandemic, and that is unlikely to end when employees are asked to return to the workplace. In fact, returning to the workplace might cause anxiety in some workers. As an employer, you need to be aware of this so you can offer support to workers.
However, if you believe the business needs an employee in the workplace and the employee doesn’t have a legitimate reason for refusing (such as a medical consideration), you will need to explore other options. As an initial step, you could inform the employee that the expectation from the Department of Social Protection is that employees should return to work once work is available. After that, the options available include your normal disciplinary process with sanctions up to and including dismissal.
If the employee submits a sick certificate, you should ask them to inform the Department of Social Protection that they had returned to work but are on sick leave.
If an employee refuses to return to work you can also offer the work to the next person continuing with short time working or lay off as appropriate.
In normal times, employees had redundancy rights in situations of short time working and layoffs. Those rights have been suspended by the Government to help employers get through the pandemic, but this is only a temporary situation. Currently, redundancy rights are expected to return to employees on 30 September 2021. You could incur additional redundancy costs at this point if the situation with the employee is not resolved before then.
If I want to enable an element of remote working for the long-term, what are the steps I should take? What are my responsibilities, and what should I consider?
Remote working was something that many employers had to adapt to overnight at the start of the pandemic. Even employers with some experience of remote working had to ramp up to accommodate larger groups of employees.
Today, many employers look at the experience positively and have now decided to allow all or some of their employees to continue working remotely, at least for part of the working week.
It is essential you are properly prepared if you have taken this decision. You will need to update and adapt your health and safety policy, for example, to account for remote workers. After all, you are still responsible for the health and safety of employees when they are working from home.
You will also need a general remote working policy that covers as many key areas as possible. Examples include:
- Expected working hours, including start and finish times.
- Communication procedures and expectations.
- Reporting procedures and expectations.
- Policies on dress codes, break times, recording completed tasks, and the availability of employees during the working day.
- Key performance indicators and how you will measure productivity.
It is important there is clear communication in relation to remote working policies to ensure everyone understands what is expected of them.
The home workplace would also require to be reviewed to ensure that it is acceptable from a Health and Safety perspective.
What happens if my workplace suffers an outbreak of Covid-19?
There are various conditions under which a Covid-19 outbreak can be declared, including when two or more cases of Covid-19 are confirmed in a workplace. If you have cases of Covid-19 in the workplace, or if you suspect an outbreak, the clear advice is to contact the HSE without delay. You should also contact your local Department of Public Health. The HSE Health Protection Surveillance Centre has published detailed guidance on what to do if there is a Covid-19 outbreak in your workplace.