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Matheson COVID-19 Employer Return-to-Work Survey Results

AUTHORs: Deirdre Crowley, Geraldine Carr, Bryan Dunne Date: 05/06/2020
As businesses turn their attention to reopening their workplaces, we asked 250 in-house counsel and HR professionals who participated in our recent COVID-19: Returning to the Workplace webinar for their perspectives on the reopening of their organisations. Participants came from a wide range of businesses in Ireland across various industries.

In our webinar, we considered the various measures set out in the Return to Work Safely Protocol published by the Department of Business, Enterprise and Innovation on 8 May 2020 and the extensive employment law, health and safety and data privacy issues for organisations to take note of. The results indicate a cautious approach is being taken by organisations in reopening their workplaces.

The majority of respondents (62%) believe that less than 50% of their workforce will be back in the workplace by October 2020, indicating that for those workplaces where employees can work from home, many employees will be continuing to do so for the next number of months. Only 38% of respondents believe that more than 50% of their workforce will be back in the workplace by October 2020.

The response is in line with the Roadmap to Reopening Business and Society (the “Roadmap”), published by the Irish government on 1 May 2020. While the Roadmap is subject to review, it gives us a sense, for now, of what the timetable for reopening workplaces will look like if all goes according to plan. Up until phase 5 (currently scheduled for 10 August 2020), organisations are required to maintain remote working for all employees and workers that are in a position to do so. Even in phase 5, the government’s summary of the Roadmap provides for continued remote working for all that can do so. Indeed, many large technology companies have announced that they have extended their work from home policies until 2021.

52% of respondents confirmed that their organisations do intend to carry out temperature testing of employees when employees return to the workplace. The current advice on temperature testing set out in the Return to Work Safely Protocol (the “Protocol”), published on 8 May 2020, is that employers must implement temperature testing “in line with public health advice”. Mandatory temperature testing in workplaces is not part of the public health advice issued by the Health Service Executive (“HSE”) in Ireland at this time, with the exception of certain healthcare settings. That is not to say employers cannot implement temperature testing of employees as part of their health and safety protocols. However, before doing so, employers should carefully consider the associated data privacy and employment law issues.

While the vast majority of respondents (80%) said that they do not intend to carry out other forms of COVID-19 testing of employees when employees return to the workplace, 20% of respondents said that they do plan to carry out such testing. COVID-19 testing will involve a novel type of processing of sensitive employee health data for most organisations and it can present a myriad of issues and associated risks for employers. Employers must be able to identify a legal basis under Article 6 of the GDPR, and an exemption under Article 9 of the GDPR in order to legally carry out such processing. A data protection impact assessment should be carried out in advance of any such testing to review the probable risks to employees’ data privacy rights and the safeguards in place to mitigate these risks.

Visit our COVID-19 Insights Centre page for further legal updates and insights regarding COVID-19.