Our William Fry COVID-19 Hub contains a number of articles outlining key employment law concerns that are arising in connection with the COVID-19 pandemic. The Government has now prohibited all but essential employees from travelling to and from work, and ordered that people remain at home except for in very limited circumstances. This measure has been put in place for a minimum of two weeks until 12 April 2020, but it is expected to be extended beyond that. The COVID-19 outbreak is raising difficult questions when it comes to employee pay for the multitude of jobs affected by the pandemic.

Income Supports

The Government has acted quickly to financially assist those who have fallen ill to the virus, and whose jobs have been affected by the measures currently in place in order to contain the virus. Emergency legislation has been rushed through, and the Government has brought in measures such as: 

• introducing a dedicated unemployment benefit amounting to a flat rate of €350 per week payable by the Department of Employment Affairs and Social Protection (the DEASP) direct to employees who have been let go in connection with the pandemic (the COVID-19 Pandemic Unemployment Payment);
• introducing a wholly new wage subsidy scheme to assist employers whose businesses are adversely affected by COVID-19 (subject to certain qualification criteria) (the Temporary Wage Subsidy Scheme);
• temporarily suspending the right of employees to claim a statutory redundancy payment from employers if laid off or placed on short-time for the duration of the crisis;
• waiving the six-day lead-in period before becoming eligible for Illness Benefit in respect of a COVID-19 diagnosis or medically certified cases of self-isolation (the Enhanced Illness Benefit);
• waiving minimum PRSI contribution requirements for the Enhanced Illness Benefit and Supplementary Welfare Allowance;
• increasing the level of Enhanced Illness Benefit from €203 to €350 per week for up to two weeks of medically certified self-isolation or for the duration of a person’s medically certified absence from work due to COVID-19;
• providing self-employed people with eligibility to the COVID-19 Pandemic Unemployment Payment, Illness Benefit or Supplementary Welfare Allowance; and
• removing the means test for the Supplementary Welfare Allowance in respect of medically certified cases of self-isolation.

The Government’s approach to providing financial assistance against the backdrop of this pandemic is evolving and employers should keep changes under review. We have set out below some practical guidance for employers on the various financial supports in circumstances arising from the COVID-19 pandemic. 

What happens if…

…the normal workplace shuts down or is required to close temporarily, but the employee can work remotely from home? 

The employee is still working and should be paid as normal.

…the workplace temporarily shuts down (for example where it is not an “essential service”), but the type of business means the employee cannot work from home? 

There are two alternative courses of action open to an employer. The first is to lay off affected staff (in which case they will be directed to the COVID-19 Pandemic Unemployment Benefit). An employer is not required to pay an employee during a period of lay-off if it is provided for in the contract of employment, it forms part of the employer’s or the relevant industry’s custom and practice or the employee agrees to the unpaid lay-off period. 

Alternatively, subject to qualification criteria, the employer may opt to apply for the Temporary Wage Subsidy Scheme. See our previous article detailing the key features of this Scheme here. It is not possible for employees to avail of both payments at the same time.

… there is not enough work to maintain employees’ normal working hours?

An employer may need to temporarily reduce the hours of employees during this period due to a lack of work or revenue. Where an employee who had been working full time is now required to work 3 days or less per week, and has sufficient PRSI contributions, they may be eligible for Short Time Work Support, which is a type of Job Seekers Benefit. 

If the employee does not qualify for Short-Time Work Support, they may be eligible for Job Seekers Allowance, which is means tested, but is not subject to PRSI contributions. 

…the employee becomes infected with COVID-19 and is unable to work for a number of weeks?

Whether an employee is entitled to be paid while sick and infected with the virus will be a contractual matter or addressed in a company’s sickness absence policy. There is no statutory obligation for an employer to pay an employee while off sick.. 

If an employer does not pay during sick leave, employees may be eligible to claim the Enhanced Illness Benefit. These payments may be made for up to 10 weeks, provided the sickness is medically certified. Normal social insurance contribution requirements have been waived for this period. 

…the employee, having come into contact with someone with the virus, is required to self-isolate?

As above, there is no statutory requirement to pay employees who are absent from work while self-isolating (unless they can work remotely). Where such self-isolation is medically certified, the employee may be entitled to the Enhanced Illness Benefit in line with emergency legislation. 

As part of their risk assessment and contingency planning, employers are advised to put in place a comprehensive policy addressing employee’s self-isolation requirements. 

…the employee cannot attend work as their child’s school has been shut down temporarily? 

Where the employee can work from home, albeit while minding their child, they should continue to be paid as normal. The Government has encouraged a high level of communication and flexibility between employers and employees in managing childcare obligations while working from home during the COVID-19 pandemic. 

However, where the employee is unable to work from home while minding children, the employer and employee should try to agree on the type of leave that may be taken. For example, unpaid parental leave may be available, or an employee may opt to use holidays to be paid during this period instead. 

If the employee has exhausted parental leave entitlements and has no annual leave remaining, the employer may agree to a period of unpaid leave.

…the workplace remains open, but the employee cannot attend the workplace if public transport is shut down?

Many employers now have an Adverse Weather policy in place to clarify whether the employee will be paid in circumstances where public transport is shut down with a consequent impact on the employee’s ability to get to work. 

Subject to any other contractual term or policy, where the employer’s workplace remains open and the employee cannot attend work (or work remotely) due to a shut-down of public transport, the employee is not entitled to be paid by the employer. 

…the employee is required to care for a person diagnosed with COVID-19? 

An employee is entitled to leave with pay if the employee’s immediate presence is indispensable to care for a close family member. A close family member includes a child, partner, parent or grandparent, sibling, or a person to whom the employee has a duty of care or a person in a relationship of domestic dependency. 

This is known as force majeure leave. The maximum amount of force majeure leave is 3 days in any 12-month period or 5 days in a 36-month period. 

The employee may also be eligible for carer’s leave to care for a person who requires continual supervision and frequent assistance. Separately, the employee may be eligible to claim Carer’s Benefit from the DEASP.

If you have any specific queries in relation to the COVID-19 virus, please get in touch with your regular William Fry contact.

Contributed by: Karen Hennessy