A safe place of work?

The Safety, Health and Welfare at Work Act 2005 (the 2005 Act) places a statutory obligation on employers to ensure the health, safety and welfare of employees while at work so far as is reasonably practicable. What does this mean in practice and what legal considerations should employers be taking into account?

Protective and preventative measures

COVID-19 poses a significant threat to employee’s health and safety, which applies whether employees are working in the office or remotely from home. The 2005 Act requires employers to, amongst other things: 

• manage and conduct working activities in a way to prevent any improper conduct or behaviour likely to put the safety, health and welfare of its employees at risk;
• provide systems of work that are planned, organised, performed, maintained, safe (as reasonably practical) and without risk to health;
• provide information and instruction to employees on health and safety; and
• provide protective clothing and equipment to employees.

Employers should proactively consider what reasonable steps should be taken to mitigate the health and safety risks within the workplace (both on-site and when working remotely) that may arise in connection with COVID-19. 

Risk Assessment – Essential Services

Where staff fall within the ambit of an “essential service” that cannot be performed at home, they may travel to and from the workplace to conduct that activity. Employers of essential workers should conduct a risk assessment to identify measures to protect such staff, minimise risk to their health and safety and, in particular, prevent (to the extent possible) their exposure to COVID-19 in the workplace. Certain employees may be more at risk, for example employees whose duties include human-to-human contact and employees who are categorised as more vulnerable or “at risk” by the Government.

Appropriate protective and preventative measures should be identified and put in place by way of a contingency plan. Such measures may include providing protective equipment such as face masks, visors or hand sanitiser to all staff. Employers should ensure that staff are frequently provided with appropriate up-to-date information and educated on the potential risks associated with their role and any preventative steps employees should take e.g. regular handwashing, social distancing, cleaning frequently touched surfaces etc.

An employer can require an employee to send an employee home where the employer has a reasonable suspicion that an employee may be infected with COVID-19. This may be deemed reasonable to enable an employer to ensure a safe place of work. The employee may be entitled to enhanced Illness Benefit where he/she has been requested to self-isolate by the HSE, see our article here for further information. 

See our article here for information as to whether and how an employer can tell its employees if another employee has contracted COVID-19. 

Risk Assessment – Non-essential services

While some employers are set up by their employers to work remotely from home, this will not be feasible for all “non-essential” employees. Employers may need to consider short-time, lay-offs and potential redundancies. See our article here for further information on these options in addition to income supports that may be available. Alternatively, an employer may be eligible to avail of the Temporary Wage Subsidy Scheme. See our article here for further detail.

Where employees are working remotely from home, a risk assessment should be conducted to assess what risks are posed by this, potentially new, way of working e.g. feelings of isolation and stress. Employers can then determine ways to mitigate these risks, for example, by way of frequent virtual check-ins and meetings with employees. Employers should ensure that assessments are undertaken to ensure, as far as is reasonably practicable that the employee’s work station is in line with requirements.  This can be done via online training, where not practicably feasible to be done in person. Employees should be kept updated and educated in relation to potential risks in the workplace. 

Potential Sanctions for Breach 

Employers, alongside their senior officers and management, could face serious sanctions for failure to comply with their obligations under the 2005 Act. This is notwithstanding the negative media attention that such a failure or shortfall could attract. 

Enforcement notices may be served on employers by the Health & Safety Authority (HSA) to deal with any failures by the employer to comply with its duties under the 2005 Act. The HSA may also apply to the High Court for an order prohibiting or restricting the use of a place of work.

The 2005 Act allows for “on-the spot” fines of up to €1,000 for certain offences, with some breaches attracting penalties of up to €3m on conviction. 

If the breach is attributable to senior officers and management, there is a risk that they may face personal criminal liability. Up to two years imprisonment per offence can be awarded on criminal conviction.

Employees and employers may also be liable to potential convictions under the new regulations, which give effect to emergency powers for the Gardaí, under the Emergency Measures in the Public Interest (COVID-19) Act 2020. 

Key Takeaways for Employers

• Risk assessment. Conduct a risk assessment and put in place appropriate preventative and protective measures, whether employees are working on site or at home.
• Education. Calmly educate staff on effective methods of disease prevention such as regular handwashing and using hand sanitisers when entering and leaving the office and where applicable educate staff on protective equipment.
• Engagement with staff. Communicate with employees regularly and encourage staff engagement with virtual meetings and check-ins, where relevant. Ensure any actions taken are applied in a reasonable and consistent manner. 
• Stay informed and keep under review. Regularly check the Department of Health and the WHO’s website for the most up to date information and advice

We will continue to keep you abreast of all developments via our dedicated COVID-19 Hub.

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

Contributed by: Therese Chambers

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