Vaccinations and The Workplace
With vaccinations rolling out we expect to see the vast majority of healthy adults receiving the vaccine over late summer and early autumn. Thus, providing some optimism for employers who can start planning to return their employees to the workplace. This raises questions such as; can employer’s ensure employees’ health and safety when they return to the workplace? Can employers mandate that all their employees be vaccinated before returning?
Under the Safety, Health and Welfare at Work Act, it is the employer's responsibility to provide a safe working environment for their employees, therefore it is not unreasonable for an employer to want to have their workforce vaccinated. In November 2020, The Work Safely Protocol was introduced making it essential for employers to ensure these protocols are fully implemented if they intend on having their employees return to the workplace, subject to the restriction levels in force.
While it has been highly recommended by the Health & Safety Authority that everyone receives the Covid-19 vaccine, it is not mandatory in Ireland and it is a person’s fundamental right to bodily integrity which is covered under the Irish Constitution. This leaves employers in a challenging situation; while they are seeking to ensure they have a safe workplace for their employees, they cannot force their employees to get vaccinated and it is very unlikely that the Irish Government will introduce any laws stating employees are obliged to take the vaccine. Therefore, what are the main considerations for employers?
1.Assess the Risk
Under the Safety, Health and Welfare at Work Act, an employer must carry out a risk assessment of the workplace and any potential risks that have been identified must be addressed, The Work Safely Protocol should be adhered to in all workplaces. As scientists are still not clear on whether the vaccine prevents the spread of Covid-19 it is vitally important that employers insist that all employees follow the safety protocols in place whether they have been vaccinated or not.
Employees also have responsibilities under the Safety, Health and Welfare at Work Act to work together with their employer to protect themselves and their colleagues from potential risks; this could reasonably include the risk of Covid-19 infection. Employees must adhere to all guidelines and protocols implemented by their employers.
Communication is crucial; while employers cannot force their employees to get vaccinated, they can emphasise the importance of the vaccine to their employees and that it would help to return business to normal. Employers should also provide as much information from appropriate sources to educate and inform their employees. An employer may also highlight legitimate circumstances where vaccination is not recommended.
2. Avoid Potential Discrimination
Under the Employment Equality Acts 1998 – 2011, employees are protected from discrimination on the nine grounds including religion, age and disability. An employee may decide not to get the vaccine for a number of reasons that would fall under these specific grounds, such as a medical condition or their religious beliefs. Therefore, it is important to note that any mandate by an employer that employees need to take the vaccine could constitute discrimination under this Act.
3.Managing Employees who Refuse Vaccination
There is little an employer can do if their employee refuses to get the vaccine however, understanding their concerns is important and finding solutions that meet the business needs without infringing on their rights is crucial in managing their integration into the workplace. Extending remote working may be a solution however this may not be viable for all sectors of your company. Employers need to think carefully about any action they take and consider the potential legal consequences associated with these actions.
4.Data Protection Concerns
As part of assessing the risks, employers will certainly want to know who has or has not been vaccinated before bringing employees back to the workplace. In order to process this personal data, there must be a legal basis to do so, the grounds for which are set out in Article 6 of the General Data Protection Regulations. Employees are not legally obliged to provide personal medical information.
While employees are not obliged to provide personal medical information, employers may seek vaccination information on the foundation that they are meeting their legal obligations under the Safety, Health and Welfare at Work Acts. It will be up to the employee if they wish to volunteer this information to their employer. If they choose to volunteer this information, then employers should not disclose this information to other employees. As this type of medical information falls under the sensitive category of Special Category Personal Data, then under GDPR and data protection laws there are additional protections afforded to the processing of this information. If an employee volunteers the fact that they have not nor intend to avail of the vaccine, it should be emphasized that there may be legitimate medical reasons why someone may not receive the vaccine.
In conclusion, given the fact the vast majority of the working population will not be returning to the workplace until later this year, it is hoped that the vast majority will have availed of the vaccine. However, communication and planning are essential in ensuring a smooth transition when the return to the workplace occurs. Employers must ensure health and safety policies and procedures are updated, risk assessments are carried out and adhering to the Work Safely Protocol, all of which are essential in getting people back into the workplace. Remember to be mindful and respectful of an individual’s right to not avail of the vaccine and plan accordingly by offering alternative working arrangements where appropriate and avoid any situation which may constitute discrimination thus leading to legal issues.
Bright Contracts has recently updated its software to include a COVID-19 vaccine policy applicable to any business/ industry. This policy is in addition to the COVID-19 Response Plan and Temporary Working From Home Policy currently available on Bright Contracts.
You can avail of a free trial of the software or purchase a Bright Contracts licence to adapt these policies to your business today. If you are looking to adopt or change your HR Software book a free 15-minute online demo to see how Bright Contracts can change your world of HR.
Webinar: The Vaccine & The New World of Work Register Today!
Related Articles:
- Role Changing During COVID-19: Can employers ask this of their employees?
- Out of Hours Communication: The Right to Disconnect
- Covid-19 mandatory policy now available on Bright Contracts
Role Changing During COVID-19: Can employers ask this of their employees?
An employer can expect its employees to carry out different roles within the business where their contract of employment permits this. The employer should consider the relevant job descriptions to see if they comprise of the proposed changes, or if the contract contains a flexibility clause that allows the employer to vary the employees' roles and/or duties. If the employment contract does not allow for this, employers must be aware of the difficulties of imposing contractual changes which could potentially result in claims for constructive unfair dismissal. Any changes to the contract of employment should therefore should be undertaken with early consultation and with a view to reaching agreement with employees.
During the COVID-19 outbreak, employees may be more prepared to accept changes to their contract of employment where there is an imperative need for the work to be carried out, or where the viability of the business may be at risk. Employees may be willing to take on different roles if they are aware that it is for a brief period. The employer should be as transparent as possible with employees about the duration of any changes to their roles. An employee may be seen as having agreed to contractual changes if they carry out the varied role without any complaint.
Employers should ensure that suitable training is provided to any employees who may be required to carry out unfamiliar tasks and a risk assessment should be carried out to cover the temporary redeployment. For example, young or pregnant workers should not be substituted into inappropriate work.
Related Articles:
- Out of Hours Communication: The Right to Disconnect
- 1 Year On – COVID-19 & Working from Home
- Covid-19 mandatory policy now available on Bright Contracts
Free Webinar: The Vaccine & The New World of Work | April 28th, 11AM Register Today
Bullying in the Workplace: What constitutes as bullying?
Workplace bullying is repeated inappropriate behaviour, direct or indirect, whether verbal, physical or otherwise, conducted by one or more persons against another or others at the place of work and/or in the course of employment, which could reasonably be regarded as undermining the individual’s right to dignity at work.
Examples of bullying behaviour includes but is not limited to the following:
- Exclusion with negative consequences
- Verbal abuse/insults
- Being treated less favourably than colleagues in similar roles
- Belittling a person’s opinion
- Disseminating malicious rumours, gossip or innuendo
- Socially excluding or isolating a person within the work sphere
- Intrusion - pestering, spying or stalking
- Intimidation/aggressive interactions
- Excessive monitoring of work
- Withholding information necessary for proper performance of a person's job
- Repeatedly manipulating a person's job content and targets
- Blaming a person for things beyond their control
- Use of aggressive and obscene language
What is not considered workplace bullying?
An isolated incident of the behaviour described in the above definition may offend dignity at work, but, as a once off incident, is not considered to be bullying. Workplace bullying should meet the criteria of an on-going series of accumulation of seriously, negative, targeted behaviours against a person or persons to damage their esteem and standing in a harmful, continuous way.
Under the Code, the following examples set out behaviours that do not constitute as bullying:
- Expressing differences of opinion strongly
- Offering unwelcome constructive feedback, guidance, or advice about work-related behaviour
- Ordinary performance management
- Acceptable corrective action taken by an employer/ supervisor which relates to the management and direction of an employee (for example, an employer managing a worker’s performance, taking reasonable disciplinary action against the employee, or assigning the employee work)
- Complaints relating to instructions issued by a manager, assignment of duties, terms and conditions of employment or other matters, which are appropriate for referral under other normal grievance procedures, do not constitute bullying.
How does bullying manifest in the workplace?
Workplace bullying ought to meet the criteria of a reoccurring cycle and accumulation of negative directed behaviours against a person or persons to damage their esteem and standing in a harmful, sustained way. A pattern and trend are involved so that a reasonable person would regard such behaviour as clearly wrong, undermining and humiliating. Bullying activities involve actions and behavioural patterns, directly or indirectly, spoken and/or written and could include the use of cyber or digital means for the goal of bullying.
The Bright Contracts Handbook has now been updated to reflect the bullying code of practice for employers and employees on the prevention and resolution of bullying in the workplace. To access the update, log out of your Bright Contracts company file and log back in, you will then see a yellow bar across the top of the page asking you if you would like to upgrade the content.
If you are not a Bright Contracts customer but are looking to adopt or change your HR Software please don’t hesitate to get in touch. Book a free 15-minute online demo to see how Bright Contracts can change your world of HR.
The Parent's Leave & Benefit Act 2019: Extension of Leave
The Parent’s Leave and Benefit Act 2019 came into effect on the 1st of November 2019 and provides for 2 weeks Parent’s Leave with protection of employment for a relevant parent in respect of a child born or adopted on or after the 1st of November 2019. The purpose of the Act is to enable the relevant parent to provide, or assist in the provision of, care to the child.
In acknowledgement of the difficulties experienced by parents during the COVID-19 pandemic, the Cabinet has announced that parents of children born or adopted from the 1st of November 2019 can avail of an additional three weeks of Parent's leave from April 2021 and will be paid at the rate of €245 a week. The benefit is now for five week’s paid leave for each parent up to their child's 2nd birthday which can be taken as either five consecutive weeks or in smaller separate block of a minimum of 1 week duration each.
Currently the Parent’s Leave and Benefit Act 2019 sets out the entitlements and criteria applicable to Parent’s Leave available to the relevant parent. Eligibility for Parent’s Leave depends on the employee meeting specific criteria including the following,
- The employee’s status as a relevant parent,
- The employee taking the leave within 52 weeks of the birth of the child or in the case of adoption, from the placement date, and,
- The employee providing certain notice requirements.
Entitlement to leave is for a relevant parent which is:
- A parent of the child
- A spouse, civil partner or cohabitant of the parent of the child
- A parent of a donor-conceived child as provided for under section 5 of the Children and Family Relationships Act 2015
- The adopting parent or parents of a child
- The spouse or civil partner of the adopting parent of the child (if the parents have not adopted the child together).
Parent’s Benefit can be applied for at any time to be taken within the first 2 years the child’s life and does not need to be taken directly after maternity leave, paid or unpaid. This leave can be taken within 24 months, up to a child's second birthday or within two years following adoption. This measure will be available from April 2021 as it requires primary legislation to commence the extension of the parent’s leave and the development of the IT system to process the benefit.
Paid parent leave can be taken in addition to existing Maternity Leave, Adoptive Leave, Paternity Leave and Parental Leave rights, as applicable to each "relevant" parent.
To exercise the right to Parent’s Leave, the employee must give their employer at least 6 week’s written notice of their intention to take the leave. To apply for Parent's Leave visit here.
View entitlements under Maternity Benefit and Paternity Benefit.
If you are looking to adopt or change your HR Software please don’t hesitate to get in touch. Book a free 15-minute online demo to see how Bright Contracts can change your world of HR.
Out of Hours Communication: The Right to Disconnect
In line with government health guidance and roadmap for the re-opening of business activities, Employers and Employees alike moved quickly to flexible working arrangements for over the past year. While some Companies have remained in a remote working space, others are introducing a hybrid form of remote and office working.
Since the outbreak of the COVID-19 pandemic, working from home has increased by almost 30% which is expected to remain high or even rise. Research by Eurofound, an agency of the European Union, indicates that people who work from home on a regular basis are more than twice as likely to exceed the maximum of 48 working hours per week, compared to those working in the office. Almost 30% of those working from home reported they work in their free time every day or a number of times a week, compared to less than 5% of office workers.
With the prospect of remote working becoming more normalised, Employers must ensure safety, health and well-being are a priority as a company’s legal duty of care still applies when Employees are working from home. Employers need to be mindful of the employee’s right to disconnect as remote working has the potential to distort the boundaries between work and home spatially.
In August 2019, the Government announced their intention to introduce legislation which would ensure Employees have the right to disconnect and no longer feel the obligation to check work-related emails outside office hours. A Code of Practice on the ‘Right to Disconnect’ has been proposed before the Dáil which if passed will amend some statutory provisions of the Organisation of Working Time Act 1997, the Terms of Employment (Information) Act 1994 and application of the Safety, Health and Welfare at Work Act, 2005.
Organisation of Working Time (Amendment) (Right to Disconnect) Bill 2020
Section 15 of the Organisation of Working Time Act, 1997 is amended through the provision of:
- the right to disconnect from work related e-mails, texts or calls outside of working hours.
- implementation of a right to disconnect policy establishing hours to disconnect
- the production of a report on the right to disconnect detailing ways to:
- minimise out of hours contact.
- establish a standby allowance.
- deliver an overtime payment.
- ensure all working time does not exceed 48 hours.
This amendment to the Act will make it an offence for an employee to be reprimanded, punished, or subjected to disciplinary action if they ignore a work-related communication sent outside of normal working hours, unless already agreed under the terms and conditions of a relevant right to disconnect policy.
The responsibility for Health and Safety at work rests with the employer regardless of whether an employee works remotely therefore it is good practice to ensure employees know how to protect themselves from potential injury and ill health during this time and that they understand their health and safety obligations whilst working remotely.
On April 1st 2021, Tánaiste and Minister for Enterprise and Employment Leo Varadkar signed the new code of practice on the right to disconnect meaning the code comes into effect immediately and will be admissible in evidence in proceedings before a court.
The Code states that the Right to Disconnect Policy should be referenced in an employee’s contract of employment in the same way as any other company policy would. The Code also states that, where appropriate, a company’s Policy should recognise that certain businesses and roles do not always operate on a standard hours basis but in a manner responsive to customer needs where flexibility is required to meet business needs, and as agreed in the employee’s terms of employment. Employers with operations in multiple time zones may consider putting agile working arrangements on a more formalised footing with a view to ensuring balance between the need for clarity in relation to employees’ ‘normal working hours’, and the employer’s operational needs.
It will be important for employers to ensure that the policy is ‘equality proofed’ in order to avoid unintended negative consequences and to ensure that it does not result in employees being directly or indirectly discriminated against on any of the protected grounds under the Employment Equality Acts 1998 - 2015.
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Parent’s Leave increases to 5 weeks
Budget 2021 announced that parent’s leave is to increase from 2 weeks to 5 weeks. It is expected that this change will be effective from April 2021.
What is Parent’s Leave
Parent’s leave entitles each parent to additional leave during the first year of a child’s life / first year of an adoption placement. It is generally not permissible for parents to transfer the leave to the other parent. Parent’s leave may be taken as one block or in single weekly blocks. Parents should give at least 6 weeks’ notice of their intention to take the leave.
Where an employee is entitled to take another form of family leave, such as maternity leave, additional maternity leave, adoptive leave or paternity leave, the parent’s leave must start the day immediately following the end of the appropriate family leave.
Pay and other benefits during Parent’s Leave
Eligible parents will be entitled to statutory parent’s leave pay, currently €245 per week. Employers are not obliged to top-up this payment.
Employment rights are preserved during parent’s leave, including annual leave which will continue to accrue.
Covid-19 mandatory policy now available on Bright Contracts
The Return to Work Safely Protocol (“the Protocol”) sets out essential measures employers must take to help prevent the spread of Covid-19.
Under “the Protocol”, all employers must put in place a Covid-19 Response Plan. A Response Plan is best thought of as a comprehensive, catch-all document that deals with all points of relevance relating to COVID-19 and the workplace. This will deal with issues such as hand hygiene, respiratory hygiene and physical distancing, amongst others.
The Bright Contracts software has now been updated to include a template Covid-19 Response Plan. This document is the perfect starting point for any small employer getting to grips with Covid-19 and preventative workplace measures.
Download Bright Contracts here.
Other Requirements of the Protocol include;
- Nominating a Worker Representative to help ensure measures are implemented and adhered to.
- Train all staff on Covid-19 and preventative measure being taken
- Ask all staff to complete a return to work form
The full Protocol can be found here.
Returning staff to work
The Government’s “Return to Work Safely Protocol” sets out a number of measures employers must consider as they reopen their businesses and bring staff back to work safely.
In terms of bringing staff back to work, employers should put in place a number of measures, including:
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Employees must be issued with a pre-return to work form to be completed at least 3 days prior to their return. In completing the form, employees will self-declare as being fit to return to work. If a worker answers Yes to any of the questions, they are strongly advised to seek medical advise before returning to work. A template questionnaire including all required questions can be downloaded here.
- Induction training should be provided for all workers. At a minimum it should include:
- up to-date advice and guidance on public health
- details on what a worker should do if they develop symptoms of COVID-19
- information on how the workplace is organised to address the risk from COVID-19
- an outline of the Covid-19 response plan
- clarify points of contact from the employer and the workers
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any other relevant sector specific advice
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Following a risk assessment, employers should arrange for the necessary controls to be put in place to prevent the spread of Covid-19 in the workplace.
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Temperature testing should be implemented in line with Public Health advice.
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Review and revise existing sick leave policies and amend as appropriate and in line with Covid-19 procedures. A revised sick leave policy is now available in Bright Contracts.
The full Return to Work Safely Protocol can be viewed here.
Layoff and Short-time Working under Covid-19
Under the Redundancy Payments Acts 1967 to 2014 a lay-off situation arises if an employer is unable to provide work to an employee for which they are employed to do. A short-time situation arises if an employee's weekly pay or hours is less than 50% of their normal weekly pay or hours due to a reduction in the amount of work to be done for which they are employed to do.
Continuity of Service
Continuity of service is not normally affected by lay-offs. For example, if an employee has been working for an employer for 10 years and is laid off temporarily, their 10 years’ service will remain intact.
Annual Leave
Employees working short-time will continue to accrue leave for the hours they work.
Employees on lay-off will continue to accrue public holidays that occur during the first 13 weeks. They will not accrue annual leave during the period of lay-off.
The annual leave that they accrued up until the point of being laid off will remain intact. Employers should not pay employees in lieu of this annual leave. Rather, it should be made available to the employee to take once they return to work. Given the exceptional circumstances that we are living in, it could well be the case that an employee genuinely cannot take their accrued annual leave this year. If this situation arises employers should try to be flexible in terms of allowing an employee to carry over leave into the next calendar year.
Redundancy
The law on claiming redundancy following a period of lay-off or short-time working had been changed during the Covid-19 emergency period. The emergency period is currently set as 13 March 2020 to 31 May 2020, however this may be extended.
Normally, employees who are laid off or put on short-time hours, you can claim redundancy from their employer after 4 weeks or more, or 6 weeks in the last 13 weeks.
Under the Emergency Measures in the Public Interest (Covid-19), employees who have been laid off during the emergency period, as a result of the Covid-19 pandemic, are not able to claim redundancy.
Putting staff on layoff
As the country tries to get to grips with the Covid-19 pandemic and companies are struggling with temporarily closing their business and laying-off staff, here are some key things you need to know about layoff.
Layoff or redundancy?
As a result of the recent business closures, many employees have been layed-off. Layoff is a temporary measure, whereby the individual is still an employee of the company but they are not receiving any remuneration for the duration of the layoff. Normally, once the situation that led to the layoff is over, the employee will return to their previous role on the same terms and conditions, their length of service will not be impacted by the layoff. In the current situation, it is hoped that many business will be able to re-engage their staff once the current emergency situation eases.
Redundancy on the other hand occurs when the employee loses their job permanently, due to a business closure or a reduction in work levels.
Other Layoff Considerations
- Employers should give employees notice in writing that they will be put on layoff, although no time period is specified
- Notice can be given using form RP9
- Generally, in order to layoff an employee there should be a layoff clause in the contract of employment or it should be custom and practice in the company. It is imagined that flexibility will be shown at this exceptional time, if neither of these exist. However some employers may consider:
- including a layoff clause in the agreed terms of employment on a temporary basis,
- getting some form of confirmation, signature or email, from the employee to the layoff.
