Now that we have a roadmap for reopening, the government's Return to Work Safety Protocol sets out the measures that employers and their employees will have to follow in order to reopen, and adherence to this protocol is vital, writes Tara Cosgrove of Beale & Co.

In time there will be a return to some sort of normal, however, it is clear that this will be an entirely different normal to that which existed for us all prior to March 2020. 

Collaboration

The protocol is a result of a collaborative effort between the Health & Safety Authority (HSA), the Heath Services Executive (HSE) and the Department of Health.

It was also developed following discussion and agreement with the Labour Employer Economic Forum and overseen by the Department of the Taoiseach and the Department of Business, Enterprise and Innovation.

The Return to Work Safety Protocol is a 29-page document and nothing will replace an in-depth analysis of every single one of the measures which will need to be considered.

Every workplace and business is going to have different concerns and considerations and a bespoke risk management exercise will need to be carried out by each and every employer regardless of size, skills and turnover.

The protocol may well be amended in the future and it makes clear also that the requirements are non-exhaustive and subject to change. It is somewhat unusual for such a document to be described as a 'living document'. All stakeholders will need to be alert to any changes or further recommendations.

Throughout the document and any government commentary, the principle of shared responsibility is pervasive. Collaboration is essential.

Of critical importance for all employers to be aware of is that Section 8 (1) of the Safety, Health and Welfare at Work Act 2005 requires every employer to ensure so far as is reasonably practicable, the safety, health and welfare of employees in the workplace.

Employers will also have an obligation to visitors and users of their premises, so risks in relation to such persons should also be borne in mind in the new era of risk assessments to be carried out by businesses.

You can click on the following link to see a copy of the Return to Work Safety Protocol, however the key obligations include:

Plans and training

1. The development and updating of a COVID-19 Response Plan and the updating of Occupational Health & Safety Risk Assessments and Safety Statements.
2. The appointment of at least one lead worker representative who will work with the employer to ensure that the measures are implemented.
3. Employers will be required to provide information to employees including signs and symptoms of COVID-19, how it spreads, cleaning routines and waste disposal as well as advice on hand and respiratory hygiene, physical distancing, the use of PPE and work equipment where relevant.
4. Employees must complete pre-return to work forms at least three days in advance of their return to work. In these forms, the employee will have to confirm that, to the best of their knowledge, they have no symptoms of COVID-19 and that they are not self-isolating or awaiting the results of a COVID-19 test. There are important data protection issues that must be considered in such declarations to ensure they are handled appropriately.

Assessments and accommodations

• Work activities will need to be assessed in both the COVID business plans and Occupational Safety and Health Risk Assessments.
• Employers will have to identify what sources might expose workers to risk, including the general public, customers and co-workers.
• Employers will need to take into account in their COVID-19 Response Plan individual risk factors, how to deal with suspected cases of COVID-19, controls to address risks and contingency measures to address increased rates of absenteeism.
• They will now be required to develop and amend policies for prompt identification and isolation of workers who may have symptoms of COVID-19 as appropriate, which may have to include keeping a log of contact group working to facilitate contact tracing and guidance to workers.
• The revision and revising of existing sick leave policies where appropriate will need to occur.
• If there is a suspected case of COVID-19, a designated manager must direct that person to a designated isolation area together with a pre-planned route. The protocol also contains isolation procedures to be followed.
• As expected, there are requirements in relation to hand washing, good respiratory hygiene and of course requirements in relation to physical distancing.
• Employers will have to have a plan for free office capacity and organise workers into teams to consistently work and take breaks together. These teams should be as small as possible.
• Canteen facilities will need to close if social distancing cannot be facilitated and staggered break times will need to be considered.
• There are requirements to provide one-way systems of access and egress in a workplace where practicable.
• Business trips and face-to-face interactions are to be discouraged. As expected, there is an encouragement to conduct as many meetings using online remote means. Data and cyber security is essential if this is done.
• There are requirements to adapt existing sign in/sign out measures and systems, for example, biometrics and turnstiles to ensure physical distancing can be maintained. This may well be where new technology will be of benefit to larger employers.
• Collective accommodation and transport will need some particular consideration and careful managing.
• Where two-metre worker separation cannot be ensured there are provisions in relation to installing physical barriers and the making available of certain equipment including perhaps localised sanitising, hand hygiene and potentially facemask equipment.
• There is an encouragement that at home office work should continue where practicable and non-essential for work.

Cleaning and PPE

First and foremost, COVID-19 is a health and safety issue and cleaning and PPE features significantly. Features of the protocol include:

• As expected provisions in relation to cleaning. There is particular reference to the guidance document on the 'Disinfection in Healthcare and non-Healthcare settings potentially contaminated with SARS-CoV-2', dated March 2020 by the European Centre for Disease Prevention and Control. This contains very detailed provisions.
• Employers will need to consider the provision of PPE gear, which will obviously be dependent on the type of hazard and employee role.
• Employers need to put in provisions in support of workers’ mental health and wellbeing. This is so important at all times but even more so now.
• Heating, ventilation and conditioning may need to be considered as well as obligations in relation to Legionnaire’s disease before reopening and employers would be well advised to take specialist engineering advice on this.

Summary

Nothing will substitute a comprehensive COVID-19 Response Plan and risk management as well as detailed consideration of your own workplace and industry recommendations and standards.

Government guidance, which is under constant review, must be adhered to at all times. Offsite workers and where there are locations such as say, site visits, equally will need extra careful consideration.

The HSA has been given the role of overseeing compliance with the protocol and will both respond to any complaints and have the ability to carry out inspections.

Inspectors can serve Improvement Notices or Prohibition Notices if they identify breaches and employers who do not take this seriously or are in breach can leave themselves open to either being shut down and/or prosecuted.

This is a continually evolving situation and no doubt work practices, risk factors, risk assessments and COVID-19 Response Plans will have to be kept under constant review.

For more information on any of the topics raised in this article, please contact Beale & Co partner, Tara Cosgrove on +353 (0) 1 536 9612 or at t.cosgrove@beale-law.com