As Covid-19 continues to spread, William Fry’s employment team has some practical health and safety advice for employers.
The Safety, Health and Welfare at Work Act 2005 places a statutory obligation on employers to ensure the health, safety and welfare of employees while at work. To discharge this duty, employers must take reasonable steps to identify and address any health and safety risks within the workplace.
What does this mean in practice and what legal considerations should employers take into account in the context of a potential coronavirus outbreak?
Start with a risk assessment
A prudent employer should conduct a risk assessment to identify the likelihood of employees contracting the coronavirus while performing their duties.
Certain employees may be more at risk, for example, employees that travel frequently, in particular to China, employees whose duties include human-to-human contact and employees with a vulnerable immune system.
Appropriate protective and preventative measures should be identified and put in place by way of a contingency plan. Such measures may include handing out face masks or hand sanitiser to all staff, reducing or temporarily suspending international business travel and educating staff about the symptoms of the coronavirus and preventative steps employees should take such as frequent hand-washing etc.
Should your employees stay at home?
As a precautionary measure, an employer may require some employees to stay out of the workplace for a temporary period, particularly where it is on notice of potential exposure by one or more employees to the coronavirus.
While some employees are set up to work remotely from home, the approach to be taken in relation to non-agile office staff should be considered. Employees have an implied right to work and any steps by an employer to prevent them from accessing work could be a breach of this right.
Any employer temporarily barring staff from the workplace in an effort to prevent the coronavirus spreading should continue to pay affected staff members their normal remuneration. Employers should clearly communicate the rationale behind this protective measure.
Claims in respect of disability discrimination or even constructive dismissal could be raised by employees who are required to remain out of the workplace. Provided staff continue to be paid and understand the precautionary nature of the measure, it is unlikely that such claims will arise in the circumstances.
Employers should also prepare for situations where, despite the workplace remaining open, certain employees refuse to attend work due to fear of infection. A measured and reasonable approach should be taken in advance of disciplinary action to understand and potentially allay the employee’s concerns.
Race discrimination
A more targeted approach, for example requiring only Chinese employees to stay out of the workplace during any outbreak, may give rise to race discrimination claims.
Seeking to temporarily restrict staff who have recently been to Wuhan from returning to the workplace may be a reasonable and proportionate step to preventing the potential spread of the coronavirus within the workplace. However, blocking an entire cohort of employees solely on grounds of their race is likely to be discriminatory.
Employers should also be aware of the possibility of racial abuse in connection with the coronavirus, which could give rise to potential harassment claims.
Employers should take reasonable steps, by way of education and disciplinary action if necessary, to prevent or address any employee conduct that could amount to harassment of other employees on account of their race (ie Chinese individuals).
Can employers require employees to be tested for coronavirus?
An employer can require an employee to undergo an independent medical assessment if the employer has a reasonable suspicion that an employee may be infected with the coronavirus, and there is an express provision within the employee’s contract providing for such a referral.
In the unique circumstances of the coronavirus outbreak, referring an employee for testing or subjecting all staff to temperature checks on arrival at work may be deemed reasonable to enable an employer to ensure a safe place of work, even where such a referral is not provided for in contractual documentation. A refusal to attend for testing in these circumstances may warrant disciplinary action.
In addition, from a data protection perspective, the contents of any such medical report would constitute ‘special category’ data. Employers seeking to use or ‘process’ such data should be mindful of their obligations under the Data Protection Acts 1988–2018.
The key for employers is to communicate with their employees and ensure that any actions taken are applied in a reasonable and consistent manner. Employers should also regularly check the Department of Health and the WHO’s website for the most up-to-date information and advice.
By Ailbhe Dennehy, with contributions by Maeve Griffin
Ailbhe Dennehy is a partner at William Fry with a background in employment law. Maeve Griffin is an associate in the Employment & Benefits department with extensive experience in employment law, commercial contracts, civil litigation and data protection.
A version of this article originally appeared on the William Fry blog.
