With masks no longer mandatory, Linda Hynes from Lewis Silkin Ireland outlines what employers need to consider and outlines potential scenarios.
While the nation breathed a sigh of relief at 6am on the 22nd January with the lifting of most Covid-19 restrictions, employers started the difficult job of planning (again!) for the return to the physical workplace. This was particularly challenging given that Government had not updated its Work Safely Protocol which still included the full raft of measures for workplaces.
Employers were left in a confusing position where national restrictions had mainly been lifted but they were still adhering to a workplace guidance document based on all those restrictions remaining in place.
“Employee anxiety around ‘living with Covid’ means that the return to the workplace will give rise to various challenges for employers in relation to health and safety management, potential employee grievances and data protection risks”
To add further to the confusion, rules around close contacts also changed from 14 January. And although a Transitional Protocol was finally published on 31 January, outlining that employers should continue the good practices they have built up over the last two years, the protocol also stated that many measures employees have become used to (like social distancing) may no longer be required in many workplaces.
Additionally, the requirement for mask wearing in most settings including retail and public transport is no longer mandatory from today (28th February) – yet another change for employers to consider.
Given the major changes that have taken place since it was published, it seems the Transitional Protocol will need to be revised and re-published to give employers some guidance on navigating and living with Covid-19 in the workplace. All these changes are of course welcome and signpost a return to the ‘good old days’, but we should not underestimate the arduous times ahead for employers.
Employee anxiety around ‘living with Covid’ means that the return to the workplace will give rise to various challenges for employers in relation to health and safety management, potential employee grievances and data protection risks.
Scenario 1: Vaccination status
“Employers may inadvertently become aware of vaccination status when employees cannot attend the workplace. They will need to be careful what they do with that information”
From today 28 February asymptomatic close contacts are no longer required to restrict their movements.
Free PCR testing will no longer be available for most people even where they have symptoms (this is unless they are 55 or older and have not received a booster, have a high-risk medical condition, are immunocompromised, live in the same household or provide care and support to someone who is immunocompromised or are pregnant). This is a complete mind-shift from the rules and restrictions employees have been complying with for almost two years.
It will take us all time to get comfortable with the new ways of living with Covid-19. Employees will be returning to work alongside colleagues they may not have seen in person for nearly two years and will be cautious about the risks of Covid-19 being transmitted in the workplace. There will be a return to travelling with colleagues, meeting clients in person, attending in-person conferences and events, taking public transport where masks are no longer worn and sitting at a bank of desks with a group of people.
Tensions are likely to be high and employees may escalate perceived Covid-19 concerns to their employer especially in the first few weeks of returning. Some employees will be assessing their colleagues’ approach to Covid-19 risks and judging their behaviours and attitudes. High levels of anxiety from employees who are deemed vulnerable or who live with vulnerable persons could lead to employees seeking medical certificates that they are not fit to attend the workplace. This could be a result of work-related stress or connected to their or their household members’ vulnerable status.
Employees could easily become aware of the vaccination status of their colleagues which could present a major headache for employers. Take for example Tom and Mary who work together in a busy marketing office and are returning on a hybrid basis three days a week to facilitate collaboration.
Mary knows Tom is anti-vaccine from his posts on Facebook and is deeply uncomfortable with sitting near Tom or car-pooling with Tom to client meetings. Tom comes to work one day and announces his wife has tested positive for Covid-19 and is symptomatic. Tom has a bit of a cough too. Mary is extremely concerned; she doesn’t think Tom should be in work.
Mary complains to her employer flagging that Tom is not vaccinated. The employer in this scenario is in a very difficult position. Under guidelines issued by the Data Protection Commission it’s highly unlikely the employer has a legal basis for processing this personal data about Tom’s vaccination status. The employer will find it difficult to even challenge Tom on whether he should be attending the workplace. However, the employer will still need to try and resolve the issue between Tom and Mary while simultaneously treading the tightrope of data protection compliance, health and safety obligations and employee grievances.
Employers may inadvertently become aware of vaccination status when employees cannot attend the workplace. They will need to be careful what they do with that information. Colleagues themselves may easily identify who in the workplace is vaccinated or boosted. This could arise in discussions around previous close contacts incidents or through general discussion.
Scenario 2: Attendance in the workplace
Employers will need to trust their employees to do the right thing when it comes to attending the workplace.
“If an employee is concerned about the pay implications of not attending the workplace, they may decide to attend even if they should be self-isolating”
The reality is a lot of people are suffering from Covid-19 information fatigue and may not understand whether they should self-isolate or not. With some employees reluctant to return to the workplace, there is a risk some employees could misrepresent their situation to remain working at home i.e. they are not required to self-isolate but advise their employers that they are required to and cannot attend the workplace.
Alternatively, if an employee is concerned about the pay implications of not attending the workplace, they may decide to attend even if they should be self-isolating. These are all tricky scenarios for an employer to try to navigate and trust and communication between employees and employers will be key.
Let’s look at Paul and Jerry who work closely together in an office. Paul has a very low standard in terms of Covid-19 measures, he coughs without covering his mouth, doesn’t use the hand sanitiser provided by his employer and refuses to leave the window open for ventilation as he often gets cold. Jerry lives with an elderly relative and is extremely nervous about catching Covid-19 in the office. Jerry raises a grievance with his employer who must now investigate the matter, resolve the grievance, and take disciplinary action against Paul if appropriate. This process may take weeks and tensions between Paul and Jerry are likely to continue escalating in the background.
Employers will find it difficult to mandate masks in the workplace where they have no longer been deemed necessary by government unless they have carried out a specific health and safety risk assessment that deems them a necessary safety measure in the particular workplace.
Scenario 3: Work-related stress
Where employers recommend the use of masks and employees do not comply this could lead to grievances by employees in respect of their colleagues.
“While we don’t have a crystal ball on new variants of Covid-19, what is clear, is that employers and their HR teams have their work cut out for them in 2022.”
Consider Pauline and Dougal who work closely together on a manufacturing line. Their employer has suggested that all employees continue to wear masks in the workplace, but Dougal finds them very uncomfortable as they hurt his ears so doesn’t wear one.
Pauline makes a complaint to HR about Dougal not wearing a mask. HR will find it difficult to discipline Dougal where masks can’t be mandated and will need to try and mediate the issue between Dougal and Pauline as best they can. Pauline, not happy with the outcome, appeals the matter and raises further grievances.
As Pauline is so stressed about the situation, she is signed off by her doctor from work on work related stress. HR spends weeks trying to resolve the issue and encourage Pauline back to work.
While employers contend with issues like these, they will also be facing other challenges in the coming months including the raft of new employment legislation on matters such as sick leave, gender pay-gap reporting and the right to request remote work.
While we don’t have a crystal ball on new variants of Covid-19, what is clear, is that employers and their HR teams have their work cut out for them in 2022.
