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In brief

1. Return to work. Physical attendance in workplaces should proceed on a phased and cautious basis appropriate to each sector and for specific business requirements. Employers should consider adopting flexible working hours and staggered start times if workers are required to be present in the office for specific business requirements.

2. Lead worker representative. Employers are required to appoint at least one Lead Worker Representative. The identify of this person should be communicated clearly to all workers.

3. Vaccination status. Employers should refrain from asking workers about their vaccination status.

4. Preventative measures continue.

5. ‘At Risk’ workers. The advice contained in the Work Safely Protocol differs if a worker is deemed to be ‘at risk’.

6. Antigen testing regimes can be initiated but participating is voluntary and if a worker displays any COVID-19 symptoms they should stay at home and contact their doctor, notwithstanding the fact that they have received an antigen negative test result.

7. Mental Health. Employers should put in place support for workers who may be suffering from anxiety or stress.

 

On 31st August 2021, the Government published ‘Reframing the Challenge: Continuing our Recovery and Reconnecting’, which set out the national approach to the gradual and careful re-opening of society from 20th September. A full return to the physical workplace was initially scheduled to take place on 22nd October 2021, however developments since September have resulted in the Government taking a more cautious approach to re-opening.

On 21st October 2021, the Government published the latest version of the Work Safely Protocol, which provides helpful guidance for employers. Shane Costelloe outlines the key takeaways for employers from the most recent Work Safely Protocol.

1. Return to Work

Employees have not returned to the physical workplace on mass, as was initially envisioned by the Government in August 2021. Rather, the Work Safely Protocol states that the return to physical attendance in workplaces should proceed on a phased and cautious basis appropriate to each sector and for specific business requirements. Employers should consider adopting flexible working hours and staggered start times if workers are required to be present in the office for specific business requirements.

2. The Lead Worker Representative

Employers are required to appoint at least one Lead Worker Representative; whose role is to work together with the employer to ensure compliance with the safety measures contained in the Work Safely Protocol and to prevent the spread of COVID-19 in the workplace. As workers begin to return to the physical workplace, the role of the Lead Worker Representative will become particularly important. The identity of the Lead Worker Representative should be communicated clearly to each worker and if concerns arise in the workplace regarding compliance with health and safety measures, workers should engage with their employers through the Lead Worker Representative.

3. Vaccination Status

The Work Safely Protocol refers employers to the Data Protection Commission’s Guidance on Processing COVID-19 Vaccination Data in the context of employment. The processing of vaccination status data is likely to represent unnecessary and excessive data collection for which no clear legal basis exists. Consequently, employers should refrain from asking workers about their vaccination status.

However, the Work Safely Protocol also notes that employers may wish to provide workers with advice and information on the vaccination programmes so that workers have the necessary information to make an informed decision. Consequently, employers are free to provide workers with information on the benefits of vaccination from COVID-19.

4. Preventative Measures

Employers are still required to maintain appropriate physical distancing in the workplace. The current recommended distance to be maintained between people to minimise the risk of transmission is 2 metres. Additionally, employers are required to ensure that the workplace is well ventilated and the appropriate hygiene facilities are in place to accommodate workers adhering to hand hygiene measures. Workers should wear face masks when physical distancing is not possible, and employers should provide employees with advice on the use, storage and disposal of face masks and the safe cleaning of face masks. If a worker displays any COVID-19 symptoms, they should stay at home and contact their doctor.

5. ‘At Risk’ Workers

The advice contained in the Work Safely Protocol differs if a worker is deemed to be ‘at risk’. Employers should allow workers who are deemed to be at risk to work from home where possible. If a worker who is deemed to be at risk cannot work from home, employers must make sure they are supported to maintain a physical distance of two metres from others in the workplace. In planning a return to the workplace for a worker in the at risk category, a fitness for work medical risk assessment may need to be completed with the Occupational Health practitioner (where available) and/or the worker’s family doctor.

6. Antigen Testing Regime

The Work Safely Protocol also provides advice for employers who are seeking to introduce an antigen testing regime in the workplace. It is important to note that the introduction of an antigen testing regime does not mean that employers and workers do not have to comply with other measures such as physical distancing, mask wearing and hand washing.

An antigen testing regime should only be put in place after consultation with workers and their representatives. Worker participation in an antigen testing regime is voluntary and workers are not required to submit to antigen tests if they do not wish to do so. If a worker displays any COVID-19 symptoms they should stay at home and contact their doctor, notwithstanding the fact that they have received a negative test result.

7. Mental Health

The Work Safely Protocol also states that employers should put in place support for workers who may be suffering from anxiety or stress. The Work Safety Protocol notes that as workers return to the physical workplace following a prolonged period of isolation or working from home, they may have concerns about the safety measures put in place to prevent the spread of COVID-19 in the workplace. Employers should provide workers with information on publicly available sources of support and advice and information regarding the prevention and control measures adopted in the workplace to reduce the risk of infection.

Article by Shane Costelloe and Cian Clifford. 

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Practice head: George Kennedy. Key lawyers: Stephen Walker; Shane Costelloe

Shane Costelloe

Corporate, Commercial and M&A | Legal 500 EMEA 2021

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Associate Shane Costelloe has been advising clients on Covid-19-related employment issues, such as pay reductions, lay-offs and the Return to Work Safely Protocol.

Shane Costelloe

Employment | Legal 500 EMEA 2021

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‘Shane Costelloe, one of their associate solicitors, demonstrated expert knowledge in his field and was a very reassuring help to us while guiding us through difficult decisions in our business. Calm, collected, knowledgeable, practical, realistic, expert.’

Shane Costelloe

Employment | Legal 500 EMEA 2021

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