Cork legal experts: Covid is a minefield of complications for employers

IN the second day of our series on litigation as a result of the Covid-19 pandemic, Ann Murphy looks at the area of employment.
Cork legal experts: Covid is a minefield of complications for employers

In recent weeks, the Government announced that it plans to legislate to give employees the right to request remote working as part of a National Remote Working Strategy after the pandemic.

WITH remote working set to remain in place after the Covid-19 pandemic, the onus is on employers to ensure they meet their duties and obligations for their staff.

That is according to Cork-based solicitor Brigid O’Donnell, of Cantillons Solicitors.

In recent weeks, the Government announced that it plans to legislate to give employees the right to request remote working as part of a National Remote Working Strategy after the pandemic. As a result, an employer will have to provide a reasoned justification as to why a request for remote working by an employee would be rejected. The strategy is called Making Remote Work.

According to Ms O’Donnell, almost a third of office workers are currently working from home because of the pandemic, which she argues has both advantages and disadvantages.

She says that workers miss out on the social interaction they previously enjoyed while working in their offices.

But she says that staff now have less of a commute and also have more time to spend with their children.

However, she points out that employers still have a duty of care to their staff, even if they are working in their own homes.

She explains: “Everyone has a reasonable expectation of having a safe working environment.”

And she says that some employers have contacted her office with concerns about what they need to do to ensure the welfare of staff, which would in turn deter any cases being taken against them in the long term.

She says employers need to check their insurance policies to make sure they are covered if anything happens to a staff member while working away from the employer’s premises.

She warns that in cases where insurance policies do not cover this, employers could be left with a big problem if such a scenario occurred.

She also stressed the importance of carrying out a risk assessment of their employees’ working conditions since working remotely, if they have not already done so. An ergonomic assessment for example is one such step she recommends an employer to take, which can be carried out by a health and safety consultant.

She points out that if an employee fails to take up the advice then given to them by their employers, regarding health and safety measures to be undertaken, employers will have a good defence if a personal injuries claim is taken against them.

Ms O’Donnell says the “always on” culture has become a bigger problem now that remote working has become the norm for office workers. She said a survey by LinkedIn showed that 50% of staff feel stressed as a result of their new working conditions. And she said employees reported working an average of 38 hours extra a month.

She elaborates that employers are obliged to ensure their staff take the necessary breaks, which are covered by the Working Time Act 1997.

HEALTHCARE WORKERS

However, for healthcare workers, working remotely is not an option and they are at the frontline of the pandemic. In a message to its members on its website, the Irish Nurses and Midwives Organisation (INMO) says: “As members are aware, there has been unacceptably high healthcare worker infection during this pandemic which has increased since Christmas. 

"We have met with your employer on multiple occasions in December and January and have pursued the matter of increased protections. We have also raised the matter with the Health and Safety Authority and are constantly raising the matter in the public domain. It is important that members protect themselves by redoubling their efforts regarding best practice around infection prevention and control. Also, members should ensure they have adequate personal protective equipment (PPE) to protect themselves.”

Liam Conway, who is an industrial relations officer in Cork with the INMO, says that staff are appealing once more to the public to obey public health guidance because hospitals are inundated with the virus.

He said that since before Christmas, Covid-19 has been classed as a biohazard under the Safety, Health and Welfare Act, obliging employers to have enhanced PPE and high grade masks for workers in the health sector.

Mr Conway is swift in his praise of hospitals in Cork, particularly the Cork University Hospital, in providing such equipment before the classification of the virus as a biohazard.

Liam Conway, INMO industrial relations officer in Cork, says staff are appealing once more to the public to obey public health guidance because hospitals are inundated with the virus.	Picture: Sam Boal/Rollingnews.ie
Liam Conway, INMO industrial relations officer in Cork, says staff are appealing once more to the public to obey public health guidance because hospitals are inundated with the virus. Picture: Sam Boal/Rollingnews.ie

But he acknowledges: “We have had a high rate of infection though and there are quite a lot of healthcare workers who have symptoms of long Covid. The common ones are respiratory issues and chronic fatigue.”

He adds that a number of healthcare staff in the Cork area have been out of work since last May because of continuing symptoms related to long Covid.

He says the INMO will be looking for a scheme for staff affected by the virus, similar to the Injuries at Work scheme.

Those who have not been able to return to work are currently on special leave, as opposed to exhausting their sick leave.

This week sees the recommencement of first dose vaccinations of healthcare workers getting underway again, after the concentration in recent weeks was on ensuring the roll out of the second dose to employees who had already had their first dose.

Healthcare workers are not legally obliged to take the vaccine, under the Constitution.

However, solicitor John Ringrose of HOMS Assist said: “We have had a number of initial queries in recent weeks from medical personnel on whether they could refuse the vaccine. The concern of some frontline workers is about the moral and peer pressure about taking it.”

He said some frontline workers had concerns about the vaccine and did not want to take it. They are not legally obliged to take it.

Mr Ringrose said: “There may be no legal obligation on them but they may feel pressurised to take it.”

But Mr Conway says no members in Cork have raised such fears with the INMO and adds that very few members have refused the vaccine when offered it. The vaccine issue is facing many employers in the coming months.

In a blog, A&L Goodbody Solicitors outlined: “While widespread vaccination of the workforce might be desirable, it is highly unlikely that employers will be able to insist that all of their employees are vaccinated. 

"An employer who issues a mandatory instruction to an employee to be vaccinated is in unchartered waters and could be exposed to legal claims and employee relations issues as a consequence. Under the Irish Constitution, there is a fundamental personal right to bodily integrity. While fundamental rights are not absolute and may be balanced against the common good, there is currently no indication that the government plan to legislate for mandatory vaccination.”

The blog also says: “As the vaccine is rolled out risk assessments will need to be updated and kept under review. Consideration will need to be given to alternatives to the vaccine, bearing in mind that some employees may not receive the vaccine for some time and others may simply refuse to be vaccinated. 

"It will also need to be borne in mind that current medical evidence indicates the vaccination does not necessarily mean an employee is no longer capable of being infected or transmitting the virus and therefore, it is likely adherence to the Work Safely Protocol will be required for some time yet.”

It is becoming clearer as the pandemic rolls on that workplaces will not be the same as they were pre-pandemic for a long time, if at all.

Brigid O’Donnell says: “The reality of the situation is that going forward, it is likely that remote working will be here to stay, particularly for certain cohorts of society.”

And she concludes: “Where done remotely, remote working can enhance an employee’s work/life balance, leading to increased productivity and benefiting all parties.”

More in this section

Sponsored Content