Employment Law & Covid – 19

Temporary Wage Subsidy Scheme (TWSS)

• TWSS – From March 26^th 2020
• Employee paid via Payroll System as ‘GovCov19 Wage Sub’. Employer’s duty to Register for Scheme.
• The sequence of events as a result of Emergency Legislation – PHASE 1;

1. March 15^th – March 25^th – Employer COVID-19 Refund

Scheme with Employer refund of €203 pw for each

Employee retained.

1. March 26^th to May 4^th – TWSS brought in with max of €410 for each eligible employee whether top up by an employer or not.

TWSS – From May 4^th 2020 – PHASE

Employee shall be paid a subsidy based on their Average Revenue Net Weekly Pay subject to the maximum weekly tax free amounts.

The Subsidy Scheme will last 12 weeks from the 26^th March.

Employers who avail of TWSS shall be published online in line with any other type of Governmental Grant process. This is required under the Legislation for transparency as employees should be aware their employers have signed up and that it is reflected in their payslip.

Self Employed are paid via the Covid-19 Pandemic Unemployment Payment (PUP) and is issued by the DEASP

TWSS – Employer Eligibility – Process of Self Declaration

An employer must be experiencing significant negative economic disruption regarding decrease or ‘likely’ decrease in turnover by 25% in Q2 with comparable periods shown. Entitled to compare Q1 this year or last for an established business for instance.

Revenue has stated that a fair, reasonable and pragmatic approach will be taken in applications for the Subsidy.

TWSS – Employees

Employees must remain on the payroll to benefit from the Subsidy.

The subsidy applies to employees who are laid off or on short time.

The Employee should have been on the payroll as of 29^th February 2020.

An employee earning €76k per year can qualify for a Wage Subsidy but only if significant pay cut applies and their net weekly will be less than €960 pw.

PUP – Employer Eligibility

Here the Employee has been laid off and the employee has no income coming in.

If this is the case, an employee entitled to a weekly payment of €350 and this applies in the 12 week period already referred to.

The employee must have been in employment prior to 12^th March 2020 to qualify.

The Social Welfare Options & Other Benefits available

Amendments made to Illness Benefit to increase to €350 p.w. where self-isolating with medical certificate or actually have Covid-19.

This payment is accessible for;

1. 2 weeks when self-isolating applies and are medically certified OR
2. Have medically certified Covid-19 and is absent for the duration of the illness

Some employers may top up (if applicable) their enhanced illness benefit if there is a sick pay policy by way of contract.

Other Benefits available

All other benefits are not materially different such as;

Job seekers benefit or allowance where the employee applies for these and are still set at €203 p.w.

The HR aspect of this Crisis.

The crisis has shaped how Employers are acting in response to this crisis.

However, all the usual Employment Legislation still technically applies and the Emergency legislation has just added another legal layer to what is, we hope, a temporary condition.

The main issues Employers are faced with in the downturn as a result of the crisis mean managing the employee/staff through the crisis in a transparent and pro-active manner as much as possible.

The HR aspect of this Crisis

What is acceptable to the Employee in the present crisis as presented by HR/Employer?

There are four particular areas of Employment Law that have arisen;

1. LAY OFF & SHORT TIME (Redundancy Payments Act 1967 section 11)

1. Lay off – Employer; unable to provide work

(Employee status remains)              believes situation is temporary

gives prior notice to the employee

2. Short Time – Situation where;

(Employee Statue remains)

1. Weekly pay is less than ½ normal weekly pay
2. Weekly working hours reduced to less than ½
3. The employer believes this will be temporary and you are given notification of reduction.

**Both Lay off & Short time require Employer to notify employee/s and

Covid-19 may have shortened this Notice considerably

Lay Off & Short Time during Covid-19

Redundancy Rules changed for this Crisis;

Normal Rules: Employee can claim redundancy after 4 weeks of lay off / short time or 6 weeks in the previous 13.

Covid-19 Rules: Employee cannot claim redundancy during Covid-19 period (12 weeks) &

No minimum reduction in hours/days required to access TWSS.

Rights of Employer to Introduce Lay off or Short time??

Does a contract of employment exist or is there an implied contract?

Right to lay off / short time is usually provided for expressly in the contract when a downturn occurs/operational requirements change.

Otherwise, there would have to be an implied right to do so.

If Lay off or Short time applies then;

• Annual Leave accrual will not apply during Lay Off
• Annual Leave accrual will apply during Short Time (on a pro rata basis)
• In the first 13 weeks of lay off, employees entitled to Public Holidays.
• Of course, the Employer should keep communications updated with Employees.
• Red Flag issue – Employer cannot make any unilateral decisions in relation to pay cuts/restrictions of Employee benefits. Consult Employees as consent to temporary measures may be found on maintaining a business into the future.

3. REDUNDANCY

• Redundancy rules apply as per normal even during the Covid-19 crisis.
• In other words, some precautions to be taken regarding identifying employees at risk, selection criteria to be used, consult and once criteria satisfied, this can then be applied.

4. PAY CUTS / CUTS TO BENEFITS

• Only on a voluntary basis through consultation and consent of employees.

Health & Safety

• A hugely important aspect in Covid-19 for the Employment Environment.
• Correct resources for Employer / Employee are;
• https://www2.hse.ie/coronavirus/ https://www.hpsc.ie/ https://www.who.int/ https://www.ecdc.europa.eu/en https://www.gov.ie/en/campaigns/4cf0e2-covid-19-coronavirus-information-for-employersand-employees-test/
• The same duty of care applies to the Employer to make sure Employees are safe while working remotely.

• Emergency Legislation recognises that remote working is a temporary situation but that same duty of care applies so that risk assessment, insurance and technology are considered.
• Adjustments in the workplace to apply social distancing (2 metres)
• If distance not feasible, alternate times in office and remote working or additional controls to maintain the distance.
• Suspected cases on site. What is the response? The Best guidance in this instance is found on the HSPC (Health Protection Surveillance Centre)
• The suspected case at work;
• Employee exposed or travelled from a place in which Covid-19 present and is suspected case.
• Put other employees in a position to know that positive Covid-19 present on site.
• Make sure distancing protocol in place.
• Employers must communicate guidance on HSPC and not just refer employees to the guidelines.

Remote Working Advice

• Collective Risk assessment – Where REMOTE is new NORMAL
• Assess technology requirements, Data Protection, business risk, health & safety before setting up employees at home and this will determine decisions to be taken.
• One to ones with employees as to their own risk if any underlying health concerns.
• Issues may arise but focus on what can be achieved for the remote worker.

Expenses incurred when working remotely may;

• Be contractual
• Be company / firm policy
• E-Wokers guidance on Revenue website which provides a guide on e-working and explains and has updated the statement re Covid-19 under Tax Exemptions i.e. where all or substantial work done remotely and this complies with National Public Health guidelines during Covid-19, then additional €3.20 per day for employee. Should Employer not provide such payment employee may have a claim against the Employer under sec. 114 of the TCA in respect of vouched expenses in the performance of their duties.

Insurance Cover for Employees working at home.

• Employer to make enquiries with an insurance company and ask for cover for work-related activities i.e. computer / PC at home.
• Movement of business equipment to employees’ homes and care in doing so, safety, insurance, moving, pairing with other machines at home re Data risk.

Scheduling of Work for Employees.

• Employers build in communications with Employees via video conferencing as to the daily work duties either one to one or in groups. Ensure breaks are taken as per the Organisation of Working Time Act 1997.

Data  Protection Concerns

• Employee devices at home attached to work computers should not be accessible by other family members
• Files being brought home. Same data protection measures to apply.
• Testing of employees going forward re temperature testing on employees will require special processing (medical) data, then the legal basis, health & safety basis must be given to the employees in line with Public Health / WHO guidelines.
• Disclosure of employee identity who has Covid-19. Employee’s privacy must be protected at all costs and this is the default position. However, an employer has observed or knows employee in contact with another employee with Covid-19. Further investigation to be done by HSE.