The Return to Work Safely Protocol

The Publication of the Government’s Return to Work Safely Protocol is something that employers and employees will welcome.

It is, however, essential that all employers carefully study and understand what is required of them as they look to return their staff to the workplace. The Health and Safety Authority (HSA) has the authority to shut businesses down should they find that they’re in breach of the regulations.

The Protocol emphasises that both employers and employees have responsibility in adhering to the regulations outlined. It’s also stated that communication and collaboration between employers and employees is essential. However, there is an onus on employers to provide a plan for return to work and ensure the working environment is adequately set up to facilitate social distancing and safe working.

See below, the main considerations for employers in ensuring their adherence to the Protocol before their employees return to work, when they return to work and in dealing with possible cases. We also look at some key issues that employers need to keep in mind when rolling out their response to the Protocol.

Pre-return to work

1. Employers must carry out a full risk assessment
2. Employers must create and issue a pre-return to work form for their employees to complete at least 3 days before they plan to allow them to come back to the workplace. The form should include questions about symptoms, cough, fever, and high temperature, whether the employee has been in close contact with a person diagnosed, has been advised to self-isolate or is awaiting Covid-19 test results. There are specific questions that employers must include, these are outlined in the Protocol.
3. The employer must provide training, including the latest public health advice, and what employees should do if they develop symptoms.
4. The employer must nominate a dedicated Covid-19 response officer, responsible for organising training, ensuring the company are adhering to the protocol rules and responding to suspected cases.
5. The employer must update, or if they don’t have one already create, a Covid-19 Response Plan. This should include each employee’s risk factors (i.e. underlying conditions, age etc.), include response plans for suspected cases, contingency measures for absenteeism etc.
6. The employer must put in place controls identified in its risk assessment to prevent the spread of COVID -19 and implement temperature testing.
7. The protocol sets out how workers must complete the pre-return to work form, attend the training and stay out of work if they have symptoms or have been in close contact with.

On return to work

1. Physical Distancing measures, no hand shaking, staggered canteen times, rules around meetings and engagement with the public must be ensured across all work activities.
2. Where physical distancing of 2 meters cannot be ensured by organisational means protective barriers must be installed.
3. Employers will need to provide workers with tissues, hand Sanitisers, disinfectant and safe waste disposal.
4. Organise workers into teams who consistently work together and take breaks together. These teams must be as small as is practicable.
5. Work areas should be reorganised to facilitate social distancing.
6. Employers are advised to consider closing canteens if public health measures, including social distancing, cannot be adhered to.
7. Canteen use is to be staggered and a queue system implemented.
8. Employers will need to make advice available on proper hand hygiene, respiratory practice, physical distancing the dos and don’t
9. Cleaning of work areas must be conducted at regular intervals. Contact touch surfaces such as door handles and handrails must be cleaned twice a day.

 Dealing with suspected cases

The Protocol states that employers must have a plan in place to deal with suspected cases. Some key points on this plan include:

1. It should include a defined response structure, including appointing a manager to deal with suspected cases, identifying a designated isolation area or areas for anyone with symptoms.
2. Employers are advised to keep a log of employee contact and any group projects undertaken. This will help with contact tracing in the event of suspected cases.
3. Employers will need to provide workers with tissues, hand Sanitisers, disinfectant and safe waste disposal.
4. If an employee displays symptoms they must be isolated in an area designated for that purpose. They should be provided with a mask. Cleaning of the isolation area and work areas involved must be arranged.  An assessment of the incident must be done and if contacted by the HSE advice and assistance provided

What other factors do employers need to consider when implementing the Protocol?

1. Work from home: Those who can work from home should continue to do so regardless of measures taken in the work place.
2. GDPR: There are potential issues in relation to GDPR in the context of disclosing personal information, so it would be prudent for employees to be asked to provide prior consent before sharing their details if required.
3. Reporting Requirements: There is no requirement for an employer to notify the Health and Safety Authority if a worker contracts COVID-19.
4. Cost of compliance: The costs of compliance will be a burden on employers in terms of providing signage, cleaning and in some cases masks and protective equipment
5. Ensuring employee safety and preventing negligence: When implementing the regulations, remember that any deviation from the Protocol could be considered as negligence on their part in the context of employee claims.
6. Occupational Health and Safety: Where the measures implemented require a change to work activities Employers are required to review and update their occupational health and safety risk assessment. If the Covid-19 response plan identifies a risk of exposure to COVID-19 an occupational health and safety risk assessment should also be carried out.
7. Consequences of non-compliance: As mentioned, HSA has been given oversight for compliance and enforcement powers. If a business doesn’t cooperate and comply with the Protocol after being asked to make improvements, the HSA will be able to order them to shut down the workplace.

If you need advice on the Return to Work Safely Protocol, or on any other employment law, please email Senior Partner and Head of Employment, Marc Fitzgibbon, at mfitzgibbon@lavellepartners.ie or Solicitor, Emer Murphy, on emurphy@lavellepartners.ie or call 01 644 5800.