Koronavirus aiheuttaa tällä hetkellä erilaisia häiriöitä elinkeinoelämään. Pandemia voi useilla aloilla johtaa kysynnän hiljenemiseen, häiriöihin tuotantoketjussa tai muihin vastaaviin vaikeuksiin, jotka supistavat yritysten liikevaihtoa tai jopa keskeyttävät toiminnan kokonaan. Työnantajilla saattaa tällaisessa tilanteessa syntyä tarve työvoiman lomauttamiselle. Esitän tässä kirjoituksessa lyhyesti ja yleisluonteisesti muutamia erilaisia keinoja, joihin työnantajat voivat turvautua tällaisessa tilanteessa. Kirjoituksessa ei ole mahdollista vastata läheskään kaikkiin kysymyksiin, jotka työnantajan tulee selvittää tapauskohtaisesti. Read more…
This article is the second in a series aimed at assisting businesses through the current unprecedented COVID-19 situation. On this occasion Shane Costelloe discusses lay-off and short-time and sets out guidance based on questions that have arisen in the marketplace. The first in the series COVID-19: Practical Steps for Employers can be viewed here.
With a daily escalation of economic and social uncertainty for the people of Ireland, business owners and management teams have tough corporate decisions to make. When faced with a potential decrease in turnover, decision makers within businesses will need to cut costs in order to survive, and for most businesses their greatest overhead is personnel. Unfortunately, it may be inevitable that businesses consider if a temporary or permanent adjustment of staff numbers is required. Whilst we will look at redundancy in a future article, the purpose of this briefing is to inform employers on the process of implementing a lay-off or short-time restructuring of staff through a selection of FAQs.
Is an employee obliged to provide his employer with information about his state of health on request and / or to be tested for the Corona virus?
A general obligation to provide information regarding contagious diseases is to be answered in the affirmative if this disease could endanger work colleagues and other third parties. In the case of infectious diseases according to the epidemic law, such as the corona virus, the duty of loyalty owed by the employee also requires proactive information from the employer so that the employer can immediately take protective measures against the other employees.
If an employee has been infected with the corona virus or if he is in an officially ordered quarantine because of a specific suspicion of the infection, he is in any case obliged to inform his employer immediately.
However, without showing symptoms, an employee cannot be ordered by his employer to undergo a corona virus test, even if he has recently returned from an area at risk. In this case, the employer is only free to temporarily release the employee concerned to protect the rest of the workforce. Read more…
FORCE MAJEURE, LOSS OF BUSINESS FOUNDATION AND LOSS MITIGATION OBLIGATIONS
What is the recommended procedure for companies with contractual law problems with contract partners, especially from China, who rely on force majeure in connection with the corona virus
- Contract review
First, a look at the contract text is recommended. Many international contracts between entrepreneurs contain clauses on legal consequences in the event of force majeure (so-called “force majeure” clauses). These can be designed in very different ways. Most of the time, the requirements and the deadline for assertion and the effects on the contractual relationship are precisely regulated. In most cases, such a clause stipulates that performance obligations are suspended for the duration of the Force Majeure. Often, a disclaimer is agreed at the same time and obligations to communicate are triggered. Epidemics are mostly covered by the contractual definition of force majeure. Read more…
Impact of Coronavirus on Employment and Business Relationships: Force Majeure and Other Important Aspects
Undertakings who have difficulty in performing their obligations to cooperation partners and employees are faced with the following questions:
- Is the virus a force majeure event?
- Is the aggrieved party entitled to claim amendment of the contract from the other party?
Sopimukset laaditaan aina niillä tiedoin, mitä sopimushetkellä on tiedossa. Sopimusoikeuden keskeisin periaate on sopimuksen sitovuus. Oikeustoimen solmivat sopijapuolet voivat yhdessä sopimusvapauden nojalla päättää velvoitteista, joita he sopimuksellaan sitoutuvat noudattamaan keskinäisessä suhteessaan. Sopimusrikkomuksista voi seurata vahingonkorvausvelvollisuus, sopimussakko tai muita oikeudellisia sanktioita. Read more…
Quo vadis? – So as the ancient Romans said “where are you going”, or how many Austrians have recently had to say “where are you not going”?
What has been ordered – On Tuesday, March 10th, 2020, the government presented far-reaching restrictive measures to deal with the coronavirus for the next few weeks. Among other things, all outdoor events with over 500 participants and indoor events with over 100 participants are prohibited until the beginning of April (03.04.2020). However, what the government has not said is what that means for everyone. Read more…
Coronavirus travel warnings. Since December 2019, when the disease COVID-19 caused by the corona virus (SARS-CoV-2) was first diagnosed in the Chinese city of Wuhan, the new virus has spread rapidly worldwide and has already led to numerous victims in neighboring countries . The Austrian Federal Ministry for European and International Affairs initially issued a general travel warning with the highest security level 6 for Iran and South Korea and now for the whole of Italy; for China (Hubei with Wuhan) there is currently at least a partial travel warning with security level 5 (as of March 10, 2020; for the latest travel warnings, see https://www.bmeia.gv.at/reise-sitzhalt/reisewarlungen/). However, the travel warnings of each country only apply to their own citizens (for travel warnings from all EU member states, see https://ec.europa.eu/consularprotection/content/travel-advice_de ). Read more…
As travel restrictions increase, and law firms begin to close their offices and reduce their client meetings, it’s time to get creative about the ways in which we keep in touch. “Collaboration” sounds like the sort of thing that requires you to be in the same room to achieve, but in fact, you can use content collaboration as a way to build relationships with clients, potential clients, and others all while remaining in your office (home or otherwise).
With six official cases of COVID-19 confirmed in the Republic of Ireland in recent days and the decision taken by schools to close where those diagnosed with the virus are students or family members, it appears to be only a matter of time before employers will face a similar dilemma regarding closure.
There is no advice from Government to close workplaces just yet but with the pace of contagion seemingly refusing to slow down employers must now consider what steps may need to be taken to protect their workforce and business in the face of such uncertainty.
Below we set out some practical steps that employers may need to consider when faced with potential workplace disruption.
Practical Steps for Employers
1. Carry out a Risk Assessment
Management would be well advised to undertake a full scale review of the risk that may present should COVID-19 spread further.
Depending on the industry, sector particular aspects of a business may be more affected than others. For example, a business that requires regular travel to affected regions to meet customers and suppliers or a business heavily reliant on staff being on-site, i.e. the retail or construction sectors.
The remainder of these practical steps below act as a guide through common areas of concern for employers.
2. Existing Policies and Procedures
A key step for employers is to review the existing policies and procedures which may apply in such a scenario. For example, relevant policies may include those regarding:-
- Absence from work;
- Pay whilst absent;
- Health and safety;
- Working from home; and
- Bullying and harassment.
If these policies are not adequate it would be prudent to issue a “COVID-19 Policy” which could capture the relevant sections of many of the above named policies in one document. It is important that any change to an existing policy is notified in advance to employees. Legal advice should also be sought in such circumstances.
Key questions for employers to address when reviewing existing policies in the context of a COVID-19 outbreak are:-
- Is an employee entitled to be paid for absence, for sickness or isolation?
- If an employee is not entitled to be paid, will such a fact encourage them to return to work when they may still be potentially carrying the virus?
- Does a leave policy require certification that the employee is fit to return to work? This could be problematic where employees are being advised not to attend a GP.
- Should an employer consider temporarily amending the leave or sickness policy due to the extreme circumstances? If so, notice to the employees is essential.
3. Sick Pay and Sickness Certification
There is no legal obligation to pay an employee in Ireland if they are on sick leave from work. Some employers do pay sick leave for defined periods and such benefits, if any, are set out in the employer’s policies or an employee’s contract of employment.
In terms of the rights of particular employees and pay:-
- People who are diagnosed with COVID-19: normal workplace arrangements in respect of sick-absence should apply. Employees diagnosed with COVID-19 can, as is the case of any other illness, apply for income support from the Department of Employment Affairs and Social Protection in the form of illness benefit based on social insurance contributions or supplementary welfare allowance based on a means test.
- People who are not diagnosed with COVID-19 but who self-isolate: if their employer ceases to pay their wages, such employees can apply for income support from the Department of Employment Affairs and Social Protection. A person who self-isolates in accordance with the up-to-date guidelines from the HSE but does not have a medical certificate from a medical practitioner, may apply for an income support in the form of supplementary welfare allowance.
- People who are requested to stay at home by their employer: Anyone who is not advised to self-isolate in accordance with the up-to-date guidelines of the HSE, but is requested to stay at home by their employer as a precaution against the spread of COVID-19, should continue to be paid but in situations where the employer cannot continue to pay their wages employees can apply for income support in the form of a jobseeker payment or supplementary welfare allowance.
- People who need to take time off work to care for a person affected by COVID-19: employers can, and do, agree compassionate leave arrangements with staff who need to take short periods of time off to care for another person.
Certification of potentially infected employees is clearly a practical challenge, to both employers and employees, where employees are unable to attend their GP for a diagnosis.
If an employee is self-isolating the employer will need to trust that the employee is not abusing the instruction not to attend work. Any breach of this trust could be a disciplinary issue and should be set out as such in any COVID-19 Policy. Nevertheless, considering health and safety (discussed further below), it would be advisable that their employer take a conservative view here rather than rush any employee back to work where they are reporting symptoms.
If an employee is verified as having the virus, they should request a medical certificate from their doctor and supply these to HR until certified as “fit to return” by their GP.
4. Obligation to Provide a Safe Place of Work
In accordance with section 8 of the Safety, Health and Welfare at Work Act 2005 (as amended) an employer is obliged to provide a safe place of work for all employees. For this reason, it is essential that employers make sure any employee who suspects that they may have been exposed to COVID-19 is told not to report for work and self-isolate until the advised 14 day incubation period has safely expired without diagnosis of the virus.
If an employee refuses to self-isolate when recommended by the employer and the employer is concerned that such employee is a high risk person, it may be possible for the employer to suspend such an employee so that they do not report for work at a workplace but only in cases where the policies and procedures of the employer allow for such action. We strongly advise that legal advice is taken before any suspension is contemplated.
Employers should also circulate the following guidance to employees and facilitate such practices in the workplace:-
- Wash hands frequently;
- Use alcohol based hand sanitiser;
- Practice good respiratory hygiene;
- Maintain social distance; and
- Self-isolate if symptomatic (fever, cough, shortness of breath).
5. Discrimination, Equality and Bullying & Harassment
Employers should be very careful not to discriminate against employees who are from high risk regions or of a nationality that is strongly associated with the virus. Further, employers have an obligation to protect against bullying and harassment in the workplace which could arise in the context of such employees.
6. Working from Home
An employer may request multiple employees to work from home should they self-isolate or for other reasons for the benefit of reducing any contagion. If an employee starts to work from home but does not normally work from such a location, it is essential that an employer takes steps to protect the business, as follows:-
- Identify if any device that is to be used to work from home is safe from a cyber security and data protection point of view and complies with company policy;
- Perform a sweep of devices and install virus protection software or other security tools to protect previously unregistered devices on the company server;
- Train staff sufficiently in the use of devices at home and to be vigilant in terms of cyber and data security; and
- Remind staff of their confidentiality obligations particularly if working from a public location or on a public broadband or wifi.
The infrastructure required to enable all staff to work from home may not be readily available to every employer but businesses should at least enable “essential staff” (i.e. HR staff, accounts staff and management) to work from home in case of emergency.
In summary, employers must be vigilant to protect the spread of COVID-19 while balancing the need to continue their business. Should any employers have concerns about best practice and suitable action to protect staff and business continuity, including the drafting of a COVID-19 policy, please do not hesitate to contact us.