Government Protocol for a Safe Return to Work
On Saturday, 9 May 2020 the Health Service Executive (HSE), the Health and Safety Authority and the Department of Business, Enterprise and Innovation published the Return to Work Safety Protocol (“the Protocol”). The Protocol is a living document subject to change and updates as updated advice emerges accordingly there is a firm obligation on employers and employees to constantly review the document to ensure they are following the most up to date practice and procedure.
The Protocol provides guidance for employers and employees on how to return to the workplace in a safe manner when workplaces eventually re-open. The advice remains that anyone who can work from home should continue to work from home. However, for those that cannot work from home workplaces will re-open on a phased basis which is due to commence on 18 May 2020 with outdoor workers returning to work where possible.
The Protocol sets out the measures that must be taken by both employers and employees prior to returning to the workplace. There is a clear need for collaboration and open communication between both parties to ensure that everyone is clear on the measures and recommendations set out in the Protocol. At lease one lead worker representative must be appointed to work with the COVID-19 response management team to ensure that the correct procedures are consistently being followed. “The person(s) undertaking the role must receive the necessary training and have a structured framework to follow within the organisation to be effective in preventing the spread of the virus. Employers will have regular and meaningful engagement with their worker representative.” (The Protocol)
Part E of the Protocol sets out the steps that must be taken by employers in consultation with the lead worker representative/s before opening the workplace as follows:-
Develop/Update the COVID-19 Response Plan.
Develop or amend policies and procedures for prompt identification and isolation of workers who may have symptoms of COVID-19.
Develop, Consult, Communicate and Implement Workplace Changes or Policies – in particular this may involve reviewing existing sick leave policies.
Implementing the COVID-19 Prevention and Control Measures to Minimise risk to Workers – the Protocol outlines specific steps which must be taken to keep the risk of infection within the workplace to a minimum as follows:
- Return to Work Form
This form must be issued to employees at least 3 days prior to the return to work. The Protocol sets out what must be included in the form such as – confirmation that employees are not exhibiting symptoms of COVID-19, that they are not awaiting test results or currently self-isolating.
- Hand Hygiene / Respiratory Hygiene
Employers must provide appropriate hygiene facilities to staff and staff must be made aware of the appropriate hygiene measures they need to take.
- Physical Distancing
The existing recommendation of people remaining at least 2 metres apart must be followed. Employers must provide for physical distancing across all work activities. Work spaces should be reorganized where necessary to ensure compliance. Further steps that may need to be taken are to reorganise break times; use online facilities for meetings; no hand-shake policy. In circumstances where physical distancing is not possible measures such as physical barriers; face masks and other forms of PPE should be considered.
At Risk/Vulnerable Workers
The Protocol specifically provides that if an at risk or vulnerable worker cannot work from home and must be in the workplace “employers must make sure that they are preferentially supported to maintain a physical distance of 2 metres. However, employers should enable vulnerable workers to work from home where possible”. The Protocol does not go into further detail on this issue however the HSE has provided additional information on the “at risk” categories and has further broken it down into those “at very high risk” and those at “high risk”. It is essential that an employer asks an employee whether they fall into wither of these categories and ensures that such employees are dealt with appropriately.
Inevitably gathering further data on employees means that employers have regard to their data protection obligations. Employers should be mindful that they do not gather more information than is strictly necessary for the purpose of ensuring adherence to the Protocol. The Data Protection Commissioner has acknowledged the unprecedented nature of the COVID-19 pandemic and notes that public health considerations must be balanced with compliance with data protection obligations. Data Protection is an area employers should be particularly mindful of and ensure that best practice is in place as regards gathering and storing sensitive data.
Overall Advice
In order to prepare for re-opening workplaces employers should read the Protocol and implement the advice provided. While there are undoubtedly questions left unanswered and issues that will present themselves as the nation returns to the workplace these will likely be addressed in subsequent drafts of the Protocol and updated advice from the Government.