First published in Silicon Republic on Friday 15 February 2022. 

Towards the end of January 2022, employers were given the green light to return to offices and potentially leave remote working behind.

After many false starts and a lot of waiting, the door was suddenly open to bring staff back to workplaces if that’s what employers wanted to do.

But with a delay in updating the Work Safely Protocol at the time and a lot of confusion around the right to request remote working, many employers were hesitant to bring staff back straight away.

According to a survey from the Institute of Directors at the end of last year, 37pc of respondents indicated they do not see the majority of staff returning to the workplace until at least April of this year. However, it’s worth noting that this survey was conducted before the Government’s announcement in late January.

But with staff starting to trickle back in and employers still needing to figure out the right way to return to offices, we got in touch with William Fry’s Richard Smith and Oisín O’Callaghan to find out what employers need to consider when it comes to bringing their employees back to the workplace.

What are the major areas employers need to think about when bringing staff back to the office?

There are several areas employers should bear in mind when thinking about bringing staff back to the office.

• Current public health guidance

Public health guidance is currently very dynamic. The rules relating to close contacts of confirmed Covid-19 cases, for example, are constantly evolving.

Employers should regularly check the HSE website to confirm the public health guidance currently in place. This guidance is fluid and is updated in response to the status of the country’s health system and the emergence of new Covid-19 variants, among other things.

• Current return to work guidance

Similarly, the guidelines surrounding the return to work are regularly updated. At the time of writing, the most recent guidelines are contained in the transitional protocol, published 31 January 2022, which is a revision of Work Safely Protocol, last updated on 14 January 2022.

The transitional protocol is a good-practice guide that assists employers and employees in navigating the phased return to the physical workplace in the context of continued relaxation of restrictions.

The transitional protocol emphasises continued vigilance in the workplace through hand and respiratory hygiene, the maintenance of Covid-19 response plans and the continued use of isolation procedures – while recognising that the formal requirement for many restrictions such as social distancing, mask wearing and close contact logging have been removed.

• Employee contracts

Irish employment contracts are required to specify an employee’s place of work – usually the employer’s premises. However, the Government is planning to introduce legislation that will give employees a right to request remote working.

As we know from various surveys carried out since the start of the pandemic – and the remote working wave that came with that – many employees enjoy and want to continue remote working.

However, some employers may wish to be careful not to create an environment where an employee might claim that it has become an implied term of their contract that they are entitled to refuse to return to in-office working (or work only from home) through custom and practise. This is something we would encourage all employers to consider carefully.

• Health and safety and risk assessment

Under Irish law, employers are required to carry out health and safety and risk assessments for anywhere that their employees might work – this includes assessments of home offices in cases of remote work and updated assessments in response to new risks.

The transitional protocol makes it clear that employers should update their health and safety statements in advance of any planned return to the office.

• Special category health data

While engaging with employees about their return to the office – or managing outbreaks of Covid-19 – it is inevitable that employers will encounter special category health data of employees. Employers should take great care to ensure they comply with relevant data protection rules in the processing and storage of such data.

How can employers prepare for the right to request remote working?

The Government is planning to introduce legislation which will give employees a right to request remote working – which is different to a right to remote working. The draft legislation is currently in the very first stages of its development and it is too early to say with any certainty what the finished legislation will look like.

However, it is something that is recognised in the transitional protocol, which says:

“The Government has also called on employers, in consultation with their employees, to start to develop or finalise their long-term arrangements for blended or remote working and draft legislation has been published to formalise this. The employer should develop and consult on any remote or working from home policy and in conjunction with workers and/or trade unions. Guidance on working from home is available from the HSA.”

It is important that employers take full advantage of this transitional period to decide what their future workplace will look like. We know that many employees prefer to work remotely at least some of the time and may seek opportunities in the future that will accommodate that.

We also know that many employers have found that remote work was an efficient and cost-effective model for their business. At the same time, working together in-person can foster relationships, collaboration and learning.

Employers can best prepare now by taking genuine stock of where they want their business to go and how they want to achieve that taking everything into consideration – while being aware of the general trends in a jobs market that is increasingly accommodating to alternative and flexible ways of work.

Where do employers stand in terms of vaccine policies for their staff?

Employers are advised not to implement a vaccine policy or enquire as to an employee’s vaccine status – save in limited circumstances, such as in the healthcare sector and only then in roles where it is entirely necessary.

The guidance from the Data Protection Commissioner has not changed. Employers are not required to collect any data on vaccination status and a confirmation of vaccination status is not required for pre-return-to-work forms or assessments.

How should an employer address an employee’s concerns around returning to the office due to safety because of Covid-19?

If an employee raises any concerns about returning to the office on health and safety grounds, an employer should identify those concerns and ask the employee to clarify as necessary.

Employers are obliged under Irish law to provide a safe place of work – this has not been varied by the occurrence of the Covid-19 pandemic. Therefore, where health and safety concerns come to the attention of the employer, the employer needs to consider those concerns and show that they are either unfounded or have been addressed.

Employers should be able to demonstrate that everything practicable has been done to provide a safe place of work with appropriate measures in place to mitigate the risks of Covid-19 infection.

Obviously, the easiest way to do this to regularly review the official guidance as it emerges – and continuously update internal policies and procedures as appropriate.