There is no legal obligation on an employer to pay employees should they choose not to attend work due to the threat of the spread of the coronavirus. However, should an employee turn up for work and find the business closed, in that situation the employee may be entitled to payment. This would depend on the policies and procedures adopted by an employer to address such events.
For an employer in doubt as to their obligations, you are directed to review the National Directorate for Fire & Emergency Management’s Report which was published by the Department of Housing, Planning and Local Government, following hurricane Ophelia in 2017. The report at page 152 states that its purpose is to address “the issues associated with disruption of employment by weather (or other crisis situation)”.
What can Employers do when facing a crisis?
The report notes that there is no legal obligation to pay employees who are unable to attend work due to safety advice. The report further notes that it is best practice to have a policy in place which clearly sets out the procedures for dealing with such matters such as “contract arrangements, arrangements for working from home or other arrangements for minimising disruption to business while having regard to employee welfare”. In relation to safety at work, employers are under an obligation to provide a safe system of work for their employees. This is a contractual term implied by section 8 of the Safety, Health and Welfare Act 2005. If there is a risk to a workplace that is foreseeable such as that presented by the coronavirus, this could in theory leave an employer susceptible to a claim for a breach of this duty. Therefore, it is essential that employers have in place policies and procedures for addressing crisis situations such as the coronavirus.
What if an employee decides not to show up for work?
As above, there is no legal obligation placed on an employer to pay an employee who has not shown up for work. However, should an employee attend at their workplace to find that it is closed without adequate notice and in the absence of policies then they are entitled to be paid. The legislation governing the payment of wages is the Payment of Wages Act 1991. Guidance in this can be obtained from a review of a decision of the Workplace Relations Commission in An Employee v Milk Distributor ADJ-00019790. The adjudication officer made an award under the Payment of Wages Act 1991 for unpaid wages in circumstances where the complainant presented himself for work on three occasions where no work was provided to him.
Are there any leave entitlements that can be availed of in the event of an outbreak of the coronavirus?
There is no leave currently available in Ireland to address an event such as that presented by the coronavirus. It is however arguable that in the unfortunate event that an immediate family member of an employee becomes victim to the coronavirus and that employees immediate presence is required, then paid “force majeure” leave may be an option.
The Workplace Relations Commission has also issued guidance for employers stating as follows “Employers are encouraged to take a long-term view of the working relationship, recognising that demonstrating concern for the welfare of employees and treating employees fairly translates into a better working environment to the benefit of both the staff and the employer”.
Anyone wishing to read the report and the advice provided to employers as published by Department of Housing, Planning and Local Government may do so by visiting https://www.housing.gov.ie. Should you wish to discuss any of the above matters, please get in touch by contacting us at (01) 833 8147 or alternatively you can email us at [email protected]