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Opinion 'Reopening your business today? Here's the legal advice you need to know'

Solicitor Jason O’Sullivan outlines all the practical steps businesses should have taken ahead of today’s reopening.

TODAY IS THE day many businesses have longed for in the past few difficult months. Ireland’s exit from lockdown restrictions due to Covid-19 has been accelerated, and today we expect to see more of a return to as close to normal as we can hope for in a pandemic.

It means that from today, apart from some exceptions, many more businesses and activities will resume including places of worship, cinemas, gyms, hairdressers and sporting activities.

The speed of the initial lockdown restrictions was then followed by a cautious phased lifting strategy, which has been swiftly fast-tracked, creating a minefield for businesses to navigate as they struggle to adapt to the ever-changing landscape. Many businesses across all sectors have been sadly unable to cope or absorb such economic shock and will not be reopening today, or may never reopen.

For those businesses that are reopening today, heightened compliance requirements regarding health and safety measures present fresh challenges and risk of potential liability.

Such workplace challenges must, therefore, be met to ensure the requisite safeguards are in place to protect the general public and employees, whilst limiting the contributory risks of a potential second wave of the pandemic.

Accordingly, businesses and employers throughout the country and across all industries have many compliance planning and legal considerations to make in adapting to this new regulatory landscape.

The primary legislation covering the health and safety of people in the workplace is the Safety, Health and Welfare at Work Act 2005.

It sets out the rights and obligations of both employers and employees. Whilst also providing for substantial fines and penalties for breaches of these health and safety laws including the potential for criminal prosecutions. This legalisation applies to all employers, self-employed and employees, including fixed-term and temporary staff.

Initial health & safety steps

Employers should by now have carried out risk assessments to see if there is a risk of Covid-19 outbreak in the workplace and taken whatever measures are necessary to mitigate such risk.

Businesses this morning should be confident they’ve updated their safety statements and ensured staff have received the necessary training as required. They should take into consideration the views of their staff and any reservations they may have about their return to the workplace.

Staff should also by now have completed a “return to work questionnaire” devised by the Health and Safety Authority (HAS) before returning to the workplace.

This self-declaration document asks a series of questions of staff, relating to potential symptoms, diagnosis or contact with Covid-19 patients.

Data protection issues

Employers will be obliged to ensure that any precautionary measures taken which may involve the use of personal data to include health data, must be “necessary and proportionate” as advised by the Data Protection Commission (DPC).

Employers will need to ensure that existing data rights and entitlements of staff are not now disregarded or breached, for instance, they need to tread carefully when handling receipt of and storing such sensitive information as contained within the “return to work questionnaire” or face complaints being lodged with DPC.

Isolation areas

Employers should by now have allocated a designated area within the workplace that can act as an isolation zone for any suspected cases of Covid-19 amongst staff. The purpose is that the member of staff is kept in that room until arrangements are made for their safe removal from the work premises.

This measure, along with other HAS protocols such as good hand hygiene, social distancing, additional cleaning and disinfection controls, will all need to be by now and such mandatory standards will need to be maintained.

It is also crucial for employers to keep up to date with the guidelines being devised and tweaked by the Department of Health and the National Public Health Emergency Team (NPHET) in their efforts to combat and suppress the virus.

These are understandably testing times for both employers and employees in this post lockdown period. However, it is vital for employers to remain diligent and compliant with such health and safety standards or risk not only the adverse health effects of this pandemic but also the cost implications of potential employment law claims or statutory fines for perceived failures.

Jason O’ Sullivan, is a Solicitor and Public Affairs Consultant at J.O.S Solicitors.

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