The continuing effects of COVID-19 have caused unforeseen disruption and uncertainty for many industries and, unfortunately, the construction industry has not been spared by the virus’s continuing spread.

On March 27, 2020, the government announced the enforcement of stringent measures that affect our society throughout, including major restrictions on the movement of persons.

The government has declared that, until April 12, 2020, persons can only travel to and from work where that work is to provide an essential health, social care or other essential service and if it cannot be carried out from home remotely.

This article sets out the implications that the new measures will have on employers in the construction industry, how these measures should be adopted and the options available to employers during this time.

Is your business providing an essential service?

The government recently published a list of essential services:

https://www.gov.ie/en/publication/dfeb8f-list-of-essential-service-providers-under-new-public-health-guidelin/

The government has recognised the following construction services as essential:

  • Essential health and related projects relevant to the COVID-19 crisis and the provision of supplies necessary for such projects.
  • Repair/construction of critical road and utility infrastructure.
  • Delivery of emergency services to businesses and homes on an emergency call-out basis in areas such as electrical, plumbing, glazing and roofing.

The Construction Industry Federation has advised that all workers contracted by government departments or public bodies will be advised as to whether a project is deemed necessary or not.

If you are involved in any ‘essential’ projects falling within the categories above you should ensure that:)

  • You notify relevant employees (including sub-contractors); and
  • You follow public health guidance to ensure that your employees can continue to work safely and within the HSE guidelines. This includes the implementation of satisfactory social distancing rules and ensuring that hand washing areas are available on site and in other places of work.

The government allowed employers until 6pm on March 30, 2020, to wind down projects if necessary. However, it is worth noting that the government’s guidelines also provide that “in exceptional circumstances, it is accepted that some extra time will be needed for a wind down of activity, or necessary for a site to continue to operate at a reduced level of activity, for example in complex manufacturing processes or very large construction projects”.

What if my business is not deemed an essential service?

If your business is not involved in the essential provision of services then your employees should be informed that they are not permitted to travel for the purposes of attending work until April 12, 2020.

Employees should be given the option to work from home if possible - every organisation is encouraged to consider employees home working, if it contributes to ensuring continuity of the business throughout this time.

Options available to employers

Given the varied nature of construction and project management it will not be possible for all employees to work from home. Business may temporarily slow down or even grind to a halt completely. Consideration must then be given to employee retention.

There are a number of options available to employers at this juncture:

Temporary COVID-19 Wage Subsidy Scheme

Commencing from 26 March 2020, this new scheme supersedes the Employer Covid Refund Scheme. The Scheme should be the first option for employers who wish to retain employees on the payroll until business picks up again.  We have highlighted the key elements of the scheme below:

  • The scheme is open to employers across all sectors, excluding public sectors and businesses operating in the non-commercial semi-state sector.
  • To qualify, the business must be experiencing significant negative economic disruption due to the ongoing pandemic. This may be based on the employer’s inability to currently pay employee wages or on the basis of the employer’s prediction that the business turnover will decrease by 25% in quarter 2.
  • The scheme offers a refund to employers based on 70% of the normal net weekly pay for each employee, up to a maximum of €410.00 per week per employee (whichever is the lesser) where the average net weekly pay is less than or equal to €586.00; or 70% of the normal net weekly pay up to a maximum of €350.00 per week  per employee (whichever is the lesser) where the average net weekly pay is greater than €586.00 and less than or equal to €960.00.
  • To avail of the scheme, employees must have been on the company payroll since 29 February 2020.

If an employer has already chosen to lay off an employee because of the effects of the COVID-19 crisis and (1) that employee was on the payroll as of the February 29, 2020, and (2) details were returned to Revenue in February’s payroll submissions by March 15, 2020, then the employer can take back the employee onto the payroll.

Full guidelines on criteria to be met by employers to avail of this scheme can be found at the following link to Revenue website https://revenue.ie/en/news/articles/guidance-on-the-temporary-covid-19-wage-subsidy-scheme.aspx

Temporary lay-offs

If as an employer you have decided to close your business due to the uncertainty of being able to trade as normal by the end of the crisis, and if you do not have the ability to pay your staff, you may opt to temporarily lay off employees.

An employer may lay off an employee if the employment contract provides for this, if it is within the custom and practice of the workplace or provided it is in compliance with the Redundancy Payments Act 1967- 2014. You should explain to the employee why they are

being laid off and make it clear that this is only a temporary measure. Employees will then be able to claim the COVID-19 Pandemic Unemployment Payment.

Redundancy

In normal circumstances, where an employee has been laid off for more than four weeks or six weeks during the last thirteen weeks, he/she may give their notice in writing to the employer of their intention to apply for a redundancy payment under the Redundancy Payments Act 1967-2014. On March 20, 2020, the Health (Preservation and Protection and Other Measures in the Public Interest) Act 2020 was enacted into Irish law.

As part of the Act, employees will be prevented from claiming redundancy during the emergency period. The emergency period has been set as 13 March 2020- 31 May 2020 and may be subject to extension.

Conclusion

These are unprecedented times and we understand that employers’ situations are changing on a daily basis. This article seeks to provide some clarity as regards the position of the construction industry as at the time of going to press. We are closely monitoring the situation and will provide further updates as matter progress.

Please note that this mailshot is for information purposes only and specific legal advice should also be sought depending on your individual situation.  For further information, please contact Niamh Loughran at: n.loughran@beale-law.com or at (01) 536 9614; Sarah Conroy at: s.conroy@beale-law.com or at (01) 536 9613 if you have any specific query.