Covid 19 legal considerations Employment issues

The first thought in ever employer’s mind is what we do to protect staff and make sure that we can manage cash flow so we can re-open.

Some businesses have been told to shut down already.  Some businesses have closed voluntarily.  Some look like they’re going to be closed shortly.

The first reaction came in by email enquiry almost immediately after the crèches were closed.  Employers were asking about Lay Off and how to go about it.

 Lay off

Lay off is a temporary situation whereby an employer suspends an employee’s employment because there is no work available.  This usually arises where a business is subjected to a fire, a problem with supplies or some other calamity.  Workers are laid off with the intention of returning to work in the short term.

Lay off has 3 main characteristics:

  1. Employer is unable to provide work for you to do
  2. Employer believes this will be a temporary situation
  3. Employer serves you the formal notification

The formal notification is the form RP9.  It sets out names and details of the employer and employee, the date from which the lay off will apply.  It gives a form for the employee to send in if he wishes to claim redundancy and the form for the employer to serve if it wishes to dispute the redundancy claim.

Short time

Short time is essentially the same process as lay off.  However, it arises where the employer because it has less work available for an employee than is normal, reduces that employee’s earnings to less than half the normal earnings or reduces the number of hours of work to less than half the normal hours.  The employer again must expect this situation to be temporary and serve the formal notice.


Both lay off and short time can give rise to redundancy claims if the situation continues for 4 weeks.  The employee is entitled to serve notice of his intention to claim redundancy lump sum once the situation has gone on for 4 consecutive weeks, or for a broken series of 6 weeks out of a 13 week period.

Redundancy must be claimed within 4 weeks of the end of the lay off or short time period.  To qualify, an employee must have worked for 2 years for the employer.

Statutory Redundancy is 2 weeks’ pay for every year of service plus 1.  There is a statutory limit of €600 per week. It can be varied by custom and practice and many employers operate 6 weeks per year of service.

Counter Notice to Redundancy

If the notice claiming redundancy is served, the employer can choose to dispute the redundancy entitlement on the basis that within 4 weeks of service of the employee’s notice, that the employee will be provided a minimum of 13 weeks of continuous employment.

Sick Pay

The other area of enquiry that I was met with was the area of sick pay.  Some employers were met with staffing issues – staff who did not wish to go to work, staff who claimed to be unwell and were self-isolating.  Most employers will have come around to the view that the risk of bringing in an employee who was actually infected was not a risk worth taking.  The usual sick pay policies and procedures continue to apply, but employers would do well to ask employees who are not well or who may have been exposed to stay at home.

If you ask an employee to stay at home and they are available for work, then the employee would be entitled to be paid.

Safe Place of Work

Section 8 Safety, Health & Welfare at Work Act 2005

8.—(1) Every employer shall ensure, so far as is reasonably practicable, the safety, health and welfare at work of his or her employees.

Obligation is to provide and maintain a safe place of work, a safe system of work and such information, training and supervision as may be necessary to ensure the health, safety and welfare of employees.

Risk Assessments

19.—(1) Every employer shall identify the hazards in the place of work under his or her control, assess the risks presented by those hazards and be in possession of a written assessment (to be known and referred to in this Act as a “risk assessment”) of the risks to the safety, health and welfare at work of his or her employees, including the safety, health and welfare of any single employee or group or groups of employees who may be exposed to any unusual or other risks under the relevant statutory provisions.

The Risk Assessments should be updated to include the risk of Covid-19.  Employers do owe a duty of care to their staff.  It is important that employers follow the advice of the Health Authorities.  The method of carrying out a Risk Assessment is very beneficial.  As the employer, you essentially go through every step of the employee’s role and step by step identify the risk, consider the level of risk and what steps could or should be taken to reduce that risk.  Those steps are then implemented as appropriate.

So for example, our business like many others has adopted a locked door policy with no meetings currently taking place.  Many staff are working from home.  When we come into the office staff are maintaining social distancing.  Surfaces are cleaned and sprayed regularly.  Post is opened using gloves.  Hand washing is taking place whenever something external is handled.

Cleaning & Quarantine

A safe place of work does not include working alongside people who have COvid-19 exposure.  It does not include working in close quarters.

Scenario Test

The Risk Assessment should include analysing how the Covid-19 virus would spread within your organisation if someone entered who was a carrier of the virus.  Consider how it could spread, and what steps could be taken at each point of the operation to prevent further contamination.

Landlord & Tenant Issues

In the last recession, the first area of the economy to be hit was landlord & tenants and rents.  Tenants stopped paying rent and many landlords ran into banking issues as a result.

Rent Reductions

There is no doubt that tenants are going to stop paying rent in order to try to maintain some cash.  The better tenants will try to agree rent reductions.  Experience has shown that orally agreed rent reductions or letters given by landlords without the benefit of legal advice have given rise to unnecessary litigation.  This was on both sides – landlords who said the reduction was temporary or was a postponement as opposed to a waiver of the reduction – and tenants who claimed that the reduction was permanent or was the new rent for rent review purposes.

Clarity in Scope and duration

Landlords should be clear as to what rent reductions, if any, are agreed.  How long does the reduction last?  Is a portion of rent being waived or merely delayed?  Is the reduction dependent on other things happening – e.g. the balance rent being paid in full and on time?   Is the reduction reversed if the tenant does certain things e.g. sublets, assigns the lease etc?

Written Agreements

The agreement should be made in writing.  Spending a little on legal advice in getting the agreement formalised will save in the long run and is in the best interests of the landlord.

Insurance Policies

Business Interruption

While every policy is different, the running theme seems to be that the insurance companies have very limited exposure.  Most business interruption policies seem to require an element of property damage.  Some provide cover for business interruption.

I’ve looked at our own policy for the office out of interest.  We would be covered under business interruption, but there’s an Infectious Disease limitation limiting claims to €25,000.

SARS is also specifically excluded in our policy – Covid-19 being technically SARS-COV-2.  Also excluded are all variations of H1N1 (bird flu) and H5N1 (swine flu). I don’t know whether Covid-19 will end up being a variation of SARS-COV.  They sound alike but I’ve read that this is a brand new disease!

If you’re considering making a claim under your policy, make sure you continue to pay your policy premium.  Your policy will be disclaimed if you cease paying your premiums.

Data Protection issues

  • Common Sense lacking in all GDPR
  • Minimum necessary amount of data

If you are gathering and processing data due to the coronavirus, then consider whether the data is necessary and restrict yourself to that which is necessary.

  • Questionnaires for visitors to premises re travel & symptoms

The Office of the Data Protection Commissioner has given this the all clear on the basis that it’s reasonable for the protection of staff.

  • Avoid disclosure of personal medical information of employees to other staff

Medical information attracts the highest level of protection and should not be disclosed save where necessary.  This must be weighed against the right of other staff to be informed if they have potentially been disclosed to the virus.  They may have elderly or fragile dependents.  In my view, the right to data protection does not outweigh health and safety obligations.  However, you don’t need to say Tom Dowling has the virus.  One of your colleagues has tested positive…

Stay Safe.

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