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HR Buddy Newsletter January 2022

The GDPR issue with regard not being allowed to ask, learn  or disclose vaccination status of employees is particularly awkward and almost conflicts with the safety, health and welfare act. But the pandemic has thrown up some confusing and difficult situations and it is no different when it comes to workplace relations and employment law.
Damien McCarthy - CEOHR Buddy

 

We will start with statutory sick pay which is due to be introduced?

Statutory sick pay has not been passed into law as of yet, the legislation is yet to go through the Dail and the Seanead.

The Government had announced in 2021 a new Statutory Sick Pay Scheme. And that draft scheme will introduce:

  • Paid sick leave for up to 3 sick days in 2022. This is planned to increase to 5 days in 2023, 7 days in 2024 and 10 days in 2025.
  • A rate of payment for statutory sick leave of 70% of normal wages to be paid by employers (up to a maximum €110 per day).

Now, to be entitled to paid sick leave under the new scheme, you must be working for your employer for at least 6 months. And You will also need to be certified by a GP as unfit to work.

Legislation to bring the changes into effect is expected in early 2022. So, we are still awaiting that legislation to be signed into law. It is not in place as of yet.

 

Covid Stigma returning to workplaces as a result of relaxed guidelines

While the new guidelines introduced from the 14/01/2021 will release thousands of close contact workers into the workplace and be largely very welcome, there will be a flipside to this.

Businesses will find it easier to maintain operations and services and keep their doors open. However, this will not be for everyone and some individuals may feel a greater threat from the new guidelines. Some workers may come from households where a loved one is immunosuppressed or has an underlying medical condition. These individuals will need to be supported and compassion and understanding shown towards their fears. Indeed, many of these individuals may decide that the workplace is now not a safe environment for them and employers will need to show empathy and compassion for this.

We may also see an increase in the stigma being attached to being a close contact worker. This may be from fellow colleagues or from customers for those who work in customer facing roles.

A great deal of expertise is going to be required from a people management perspective in order to achieve a safe and happy workforce.

 

A lot of sickness and absenteeism currently

It has been and probably will remain very difficult for businesses and workplaces, and many have had to close to their doors because they could not continue to operate for periods.

So high rates of cases in the workforce and even higher numbers of close contacts.

Now some employers will provide sick pay, some wont and they do not have to. It is not a legal entitlement that an employee receives sick pay, as of yet anyway as we mentioned. That is at the hands of the employer to decide.

 

A company’s sick leave and sick pay policy will or should be set out in the employment contract and staff handbook. Now, it is important to mention that a close contact does not qualify under employment law for a workplace sick pay scheme as the law states that the individual must provide a sick cert.

So, it is welcome for people in this circumstance that guidelines have relaxed surrounding close contacts from this week onwards and that most certainly will be an ease to a lot of businesses who were struggling to operate under the guidelines in place for close contacts over the last few weeks.

 

 

 

So ,if someone does not have a sick pay scheme available in the workplace at the moment, what is available to them whilst they are off sick or impacted as a close contact.

 

Well thankfully, minister Heather Humphries introduced welcome changes with regard to this over the Christmas and new year period. And this was proactive on the governments part.

So, to avail of the Enhanced Illness Benefit which is €350 per week, depending on your circumstances, the Department of Social Protection will accept: 1 of 4 things.

  1. Confirmation from the HSE that you have ordered an antigen test. That system is in place
  2. Text message from the HSE that you are a close contact
  3. Certification from your GP that you have symptoms of Covid-19 and/or are a probable source of infection.
  4. As has been the case to date, a positive PCR test result will also qualify you for Enhanced Illness Benefit.

So at least it has been made a lot easier for workers who are being impacted to access the enhanced illness benefit payment.

 

 

 

Another question that has cropped up is holidays. A lot of annual leave may be used by people over the Christmas and new year period whilst individuals may have been sick?

Given the high number of cases recently, a lot of workers may have ended up being sick during their annual leave days. But again, there can be confusion in the current circumstances with regard to this.

 

So, to explain, if you are sick during your annual leave, if you can provide a medical cert for your sickness, you can have your annual replaced and receive those annual leave days at another time. But you must provide a cert. Can it be a positive pcr test, no. Can it be a  positive antigen test, no. It must be a medical sick cert.

Where some of the confusion lies here, is with close contacts. So, if you are a close contact, you are not sick.

 

Technically by law if you are sick and can provide a medical cert, you can have those annual leave days cancelled and banked for a later date.

 

It is the same with regard to a company that provides sick pay, if a medical cert cannot be provided. An employee technically does not qualify for sick pay. Now it might not seem fair and it isn’t, but some parts of employment law do not seem fair during Covid-19.

That is unfortunate for some who may have missed out as close contacts recently, but now that the close contact guidelines are going to be relaxed somewhat from this week on, it will be very welcome news, particularly considering that the peak apparently is still ahead for us.

 

 

 

 

As mentioned, A lot of Businesses have had to close their doors over the last few weeks. So, if the employer sends you home or tells you to stay at home, are you still entitled to be paid?

 

Ok so, if an employee is rostered and/or simply told to stay at home or off work, then yes, they are still entitled to be paid. If a business closes its doors and staff are remaining off work, more than likely the employer should lay the employee off for that period of closure. Now the employee will be entitled to the pup payment in that circumstance.

 

Some would ask can an employee just be laid off like that…, well yes, they can, but only as long as the employment contract has a clause in it that the employer can lay you off, if that clause is not there in the contract or if a contract does not exist, then the employee is entitled to paid their normal wages as the layoff clause does not exist.

 

So, it is very important for the employer to have a contract of employment and that that clause exists within it. Equally so an employer can have your Hours reduced or wage reduced.  But again, only IF it is in your contract, that the employer can put you on short time.  And if it is more than a 50 per cent reduction, you can apply for redundancy after 4 weeks. But again, all employers need to ensure that they have these clauses in employment contracts. Otherwise, the employee is entitled to their normal wage

 

 

 

 

Antigen testing is another hot topic, some workplaces run antigen testing, some don’t.

Well,

The cost has been an  issue and there has been no financial support provided by the government for employers that implemented it or maybe wanted to explore implementing it. Generally, antigen testing never really received any great guidance or support to be implemented in workplaces, although some companies have implemented it very successfully.

Now it’s worth mentioning and to be clear,  An employer cannot direct an employee to antigen test, it is obviously easier to implement if the employer is paying for antigen testing. But the employee does not have to comply. So, it can be problematic and difficult to implement across the board.

 

More clarity needed with Antigen Testing in the workplace

It has been further confused this week with the relaxed guidelines implementing antigen testing into guidelines with regard to close contacts attending the workplace.

There are other complications of course such as working and start times in allowing time for antigen testing before starting work and so on so it’s a costly and tricky business.

 

I would feel sorry for businesses and workplaces that have tried to do what they would view as a responsible and safety conscious method of protecting the welfare of their workers, customers and clients by implementing antigen testing and face a lot of procedural  and financial barriers in doing so, you would have to wonder why the government haven’t provided more guidance and support in the areas of antigen tests in workplaces.

Certain things remain very difficult for employers and implementing antigen testing is only the tip of the iceberg.

 

The GDPR issue with regard not being allowed to ask, learn  or disclose vaccination status of employees is particularly awkward and almost conflicts with the safety, health and welfare act. But the pandemic has thrown up some confusing and difficult situations and it is no different when it comes to workplace relations and employment law.

 

 

Finally, Remote working: obviously those who may not normally work remotely may be doing so again during the current peak?

 

Yes, and the fact that many businesses have been able to pivot to remote and hybrid working successfully has been one of the success stories over the last 2 years now. I myself have operated entirely remotely over the last week or so whilst I have been isolating. But there are some very important legal obligations for an employer when operating working remotely. From a legal perspective, the key risks of retaining a remote workforce fall into the five categories:

  • Health and SafetyErgonomics. Same rules apply, different environment – different challenges. Every employee is entitled to a work station.
  • Working Hours – working time act, documentation & availability
  • Data Protection – GDPR
  • Confidentiality – Home becomes a place of business – different challenge
  • Monitoring employees – Clearly define how performance is assessed

It is very important to mention that:

  • Employers should also reserve the right to amend a home working policy and oblige home workers to attend at the office on request.
  • Employers should also be aware that if an employee works from home for an extended period that the right to work from home could become an implied term of their contract through custom and practice.

 

A Clear thought-out policy should be developed containing all and more of same.

Also, we were due to have legislation enacted in the 3rd quarter of 2021 that would allow workers to request the right to work from home. That has not been legislated for as of yet and like statutory sick pay legislation, we are awaiting this and it is not in place, so the employer still holds the balance of control when it comes to deciding whether remote working will be in operation or not.

 

www.hrbuddy.ie  064 6698034  info@hrbuddy.ie

 

 

 

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