Employers – Preparing for Returning to Work during COVID-19

3. Selection Criteria for Returning Staff

Clarity should be obtained on what the anticipated nature and volume of business will be. Thereafter a plan can be drawn up on the resources that may be required to meet that demand. Assessments should be made by role and objective criteria applied to support the selection of staff to be invited back to work i.e. where for example only 5 employees are required from a group of 10 people. Ideally the criteria should be drafted and shared with the staff in advance for input. A genuine effort should be made to explore concerns and adjust the criteria, where appropriate.

In this way employers can mitigate any allegations of bias or discrimination in their decision making process and staff can continue to feel part of the solution. The approach of collaboration and shared responsibility should be reinforced at all opportunities but particularly when managing contentious issues.

4. Annual Leave Entitlement during COVID-19

Many employers have allowed staff to cancel annual leave that had been scheduled to take place during this pandemic. As we are now at the end of May, most staff on statutory annual leave entitlement of 20 days would have accrued 8 days at this stage. Staff who are continuing to work and those who are receiving the Temporary Wage Subsidy Scheme (TWSS) will continue to accrue annual leave and public holiday entitlements in the normal way.

If a person is on temporary lay-off, they are entitled to benefit from the public holidays that fall within the first thirteen weeks of lay-off. However, they will not accrue annual leave during lay off but are entitled to take annual leave that was accrued before they were laid off. Staff on short time will accrue annual leave for the hours they work only.

Employers need to enact their annual leave policies to communicate with staff how annual leave will be managed for the remainder of the year. When businesses do return to work, they will be unable to cope with large volumes of staff taking annual leave at the same time.

Employers are permitted to require staff to take annual leave, provided they give at least one months notice. The leave should be spread out over the course of the year so perhaps set a minimum requirement to be taken by set time periods. This approach should be taken in a flexible way as employees who are struggling to return to work because of childcare restrictions for example, may prefer to take this annual leave to bridge the gap between the return to work and reopening of childcare facilities.

5. Staff Redundancy during COVID-19

Short time and lay off are implemented where an employer has a reasonable expectation that work will return to normal volumes within a relatively short period of time. It can only be applied if it has been included in the person’s contract of employment or if they agree to it as an alternative to redundancy. If not already included as a clause in the employment contract, this agreement should be captured in writing.

Normally, staff who are put on lay off or short time can claim redundancy from their employer after 4 continuous weeks, or 6 broken weeks in the last 13. This law has changed during the COVID-19 emergency period.

Under the Emergency Measures in the Public Interest (COVID-19) Act, employees are not permitted to claim redundancy during the emergency period, if they were laid off or put on short-time work as a result of the COVID-19 pandemic. The emergency period set out in the legislation is 13 March 2020 to 31 May 2020. This period may be extended.

However, if a business takes a decision that a role is not likely to be required in the medium to long term, they can make the role redundant now. There is no requirement to wait until the end of the pandemic to make this decision. If the employer is not sure, they should delay the decision but if they are sure, there is no need to draw out the process. Staff who are on lay off and staff who are made redundant will both be entitled to the COVID-19 payment. As businesses return to work, it is likely that evaluations of sales forecasts versus labour costs will, unfortunately, result in more redundancies. Normal legal obligations will apply when managing such decisions. We are available should any business want to discuss their individual situations in more detail.

6. Staff are unable to attend work due to COVID-19 childcare restrictions

What happens if the workplace reopens but staff are unable to attend due to childcare restrictions? It appears a change has been made two weeks ago to allow people in this situation to avail of the Pandemic Unemployment Payment (PUP), provided their employer can prove they are not receiving any payment. I am yet to see an application be submitted and approved so watch this space but this would be a big relief for parents whose workplaces are open and therefore lay off does not apply. However, they cannot physically attend work or work from home due to childcare demands.

Employers should try to be as flexible as possible with staff to accommodate the employees limitations. Staff who can work from home should keep a record of all hours they can work and submit this to their Manager weekly. They will be paid for all hours worked.

With regard to all remaining hours, staff will have the following options:

• Continue to be paid as normal and work back the additional hours at a later date, up to a capped number of hours i.e. 125 hours. Such hours should be tracked and reported to your manager.
• Take a period of paid annual leave to ensure payment can continue and the time will not have to be worked back at a later date.
• Take the time off as unpaid leave.

Where it is not possible to make appropriate compassionate leave arrangements, employees can call on some statutory entitlements.

• An employee is entitled to paid leave, known as ‘force majeure leave’ to provide urgent care for an immediate family relative such as a child, spouse, brother, sister, parent or grandparent. It is also available to a partner who is living with the employee. Force majeure is limited to a total of three days in a 12-month period or five days in a 36-month period. In the exceptional circumstances of COVID-19 companies should, if at all possible, facilitate people by allowing them to take the full 5 days entitlement in one block, as required.
• Parents are entitled, with 6 weeks’ notice, to take up to 22 weeks unpaid parental leave to care for each child up to 12 years of age (16 years of age in the case of a child with a disability).
• Parents are also entitled, with 6 weeks’ notice, to take parents leave of 2 weeks for each child under 1 year of age born on or after 1 November 2019. Parents taking parents leave are eligible to apply for Parent’s Benefit from the Department of Employment Affairs and Social Protection. Companies are encouraged to waive notice periods for parental/parents leave.

7. Staff who are uncomfortable or unwilling to attend work as they are a vulnerable person or are living with such a person

A vulnerable person is someone who is likely to suffer a very adverse reaction to COVID 19, should they contract it. This may be because they have an underlying condition or are pregnant. Staff may prefer to work from home or not attend work if in this situation and should be encouraged to consult with their GP.  If they are extremely high risk the doctor may certify them as ill if they are going through treatment and they will be managed through the sick leave policy. If they are not certified as ill then, where possible employers are encouraged to accommodate working from home. If this is not practicable, they should engage with the staff member to understand the exact nature of their concern and explore how they could alleviate it. This could be by:

• letting the employee travel to work at quieter times of the day
• reducing how much face-to-face contact they have with the public
• making sure that staff stay more than 2 metres apart in the workplace
• exploring a different role for them to do

If a solution cannot be agreed upon, the employee will have the following options:

• Continue to be paid as normal and work back the additional hours at a later date, up to a capped number of hours i.e. 125 hours. Such hours should be tracked and reported to your manager.
• Take a period of paid annual leave to ensure payment can continue and the time will not have to be worked back at a later date.
• Take the time off as unpaid leave

HR Webinars and Mentoring on COVID-19 Issues

We are currently delivering webinars and providing one-to-one HR mentoring for our Local Enterprise Office’s Business Continuity Voucher scheme. Follow our LinkedIn Company Page here to stay updated on our published articles as we progress through this pandemic.

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