The recent developments of the coronavirus in Ireland have continued to raise questions amongst employers about scenario planning and obligations towards their employees.
There are a number of scenarios that employers need to consider where employees are unable to attend work. Each situation will be different and common sense will need to be used where there are clear health and safety risks to certain employees.
If an employee is required to “self-isolate”, employers should adhere to their own internal policies and procedures, for example the sick leave policy. Where possible, employees may be permitted to work from home during this self-isolation period, however where this is not possible, employers will need to make a decision on whether or not the employee should be paid during this time. When making this decision, employers are encouraged to take into consideration their duty of care for all employees within the workplace, and what may occur if the employee in question returns to work in order to be paid for this time.
From a strict legal standpoint, there is no obligation to pay employees when they cannot attend for work. Payment in such circumstances is discretionary.
Any more beneficial arrangement is a matter for agreement between the employer and the employee. Employers are encouraged to take a long-term view of the working relationship, recognising that demonstrating concern for the welfare of employees and treating employees fairly translates into a better working environment to the benefit of both the staff and the employer. The custom and practice in the Organisation in previous similar instances may be of relevance. In circumstances where there are no sick pay provisions and the employer is not in a financial position to provide for discretionary pay, an employee may elect to apply for annual leave.
In the event that the Organisations premises is unable to open for and reason outside of the Organisations control, the Organisation should make every effort to notify Employees as soon as possible and Employees will not be entitled to be paid.
Where the Organisation decides that it is possible to open the premises but determines that it is impractical, then in such circumstances employees will be entitled to be paid.
However, employment contracts may contain provisions enabling Employers to put employees on short time working or lay-off when an event outside the employer’s control impacts on work. For those employers, it may be permissible to send employees home without having to compensate for the reduced hours of work although caution should be exercised when relying on these clauses for short closures. For employers without such a clause in the employment contract, a decision to send employees home could amount to a breach of contractual terms. If found that this was the case, full pay for the lost hours would therefore be due under the Payment of Wages Act 1991.
What happens where a roster needs to be changed at short notice?
Normally, employees are entitled to notice of at least 24 hours of a roster change. However, this does not apply where the change arises from unforeseen circumstances justifying a change in the notification period.
Working from home:
Where appropriate, consideration should be provided to allowing employees to work from home. This will not be feasible for a number of roles where the employee’s presence is required. This may also put pressure on the Organisation’s IT infrastructure as demand increases.
Arriving late and / or leaving early:
Where employees arrive late or leave early due to commuter services being impacted, whilst some flexibility may be provided, employers need to consider paid leave where the employees will work up the time missed at a later date, preferably within one month of the occurrence. This is usually more feasible in Organisations that already operate a flexi-time system. Alternatively, the option of unpaid leave or annual leave (broken into hours) may be considered.
Some employees may fail to attend for work when suitable public transport is in operation. Unless authorisation has been received, this is not a justifiable reason for absence and should be dealt with under the Organisation’s disciplinary procedure, as with any unexcused absence.
Schools or crèches closing:
In the case of schools or crèches closing, an emergency leave situation may result for some employees. Generally, this would not fall under the legal definition of force majeure leave. Where the employee is unable to make alternative arrangements, annual leave or unpaid leave could be considered on a case-by-case basis.
Each situation will be different and common sense will need to be used where there are clear health and safety risks to certain employees.
Some key recommendations for the workplace:
Planning: adopt basic levels of precaution, including developing a business continuity plan and briefing employees on that plan, keeping the plan and your employees updated regularly. Clear policies and procedures in relation to absence, sick pay, remote working and health and safety are key for employers at this time.
Workplace Hygiene: deep cleaning of offices, particularly if any employee has been in an area where there is an outbreak of the disease and promote use of appropriate cleaning practices as recommended. Employers should make available hand sanitisers or similar products.
Travel: review travel arrangements for employees providing consideration to cancelling unnecessary work travel abroad and give consideration to attendance by employees at large scale work events or conferences. Organisations should be mindful and strictly adhere to the travel advice given by the Department of Foreign Affairs and Trade.
With the increase of “affected areas” comes the increased possibility of cross contamination. It can take up to 14 days for symptoms of the virus to show, and therefore it is recommended that employers request their employees to disclose to them whether they, in the last 14 days,
(i) have been in close contact with someone who has the virus
(ii) have been to one of these affected areas and have developed symptoms, or
(iii) recently been in a healthcare centre or hospital where patients with the virus were being treated, and have developed symptoms.
Symptoms may include a cough, a shortness of breath, breathing difficulties, or a high temperature.
If this the case, the HSE have advised that the person should “self-isolate” and:
Phone your GP, emergency department or student healthcare centre immediately. Do NOT go to your GP's surgery, ED or healthcare centre. This is so you do not accidentally put other people at risk. Your GP or doctor will tell you over the phone what to do next.
Avoid contact with other people.
Follow this advice even if your symptoms are mild.
For further information or advice, please contact your designated experienced HR Client Manager in Adare Human Resource Management – 01 561 3594 / 061 363 805 or firstname.lastname@example.org .