The health care sector is a constant source of public scrutiny and has come into more focus in recent years in the areas of nursing home and home care services as we come to terms with an ageing population. While all employees in the health care sector are entitled to the same protections as every employee, the health care sector brings its own individual employment law challenges. These areas require special consideration by business owners and HR managers working in the sector. We have outlined below these focus areas and the issues to watch out for:
1. Safety, health and welfare risks
Due to the nature of the health care sector there are of course potential additional risks to those working in the industry. From risks that arise through working with patients right through to maintenance issues health care organisations need to ensure they carry out specific risk assessments to identify and prevent those risks. Safety statements should identify the specific hazards those workers and contractors may be subject to. This could include violence, biological risks, musculoskeletal risks, slips, trips and falls, stress at work, burnout etc.
2. Lone workers
This is particularly relevant in home care and community based health care industries. A lone worker is a person who works without close or direct supervision. The HSA has been very clear that the definition of lone worker also includes those who work from home. If there are lone workers in an organisation specific risk assessments must be carried out on where they work and when they work. If the employee must travel to remote locations late at night they may be subject to additional risks that require additional safety measures being put in place. Employers may also have to visit the place at which the worker will be working to assess it. Special policies and procedures should be put in place for lone workers.
3. Organisation of working time – night workers
Working time in the healthcare sector is an entire article in its own right! Those working in the health care sector often work night shifts or long shifts. Night shifts are specifically regulated by the Organisation of Working Time Act 1997. Night workers are those who work at least 3 hours between midnight and 7am and work at night for at least half of their working hours in a year. A night worker should not normally work more than 8 hours in any 24 hours period when averaged out over 2 months. There may be union agreements that allow a longer period. Employers are required to carry out specific risk assessments for night workers to determine if there are special hazards or physical or mental strain by virtue of night working. Individual health assessments must also be carried out with each worker to assess any potential effects of night working.
The Protected Disclosures Act 2014 applies to all employers but has a significant impact on the healthcare sector. The act provides protection from unfair dismissal to those who make a protected disclosure. This is a disclosure of information which in the reasonable belief of the worker tends to show a relevant wrong-doing. This is a wide ranging definition of wrongdoing. Of specific relevance to health care organisations is the inclusion of health and safety wrong-doings, matters of misuse of public monies along with non-compliance with a legal obligation. However the act is not a mandate for public whistleblowing – this is in limited circumstances only. Health care organisations should ensure they have a whistleblowing policy in place to make it clear to workers when the protections apply and where they should report first before considering going public.
5. Agency workers
The use of agency workers in the health care sector is widespread and is on the rise due to demand for workers and flexibility requirements. The main risk for the health care provider is that they can inadvertently become the employer of the agency worker. The contracts between the end user and the agency must be clear and contain appropriate indemnities. Agency workers have equal treatment rights under the Protection of Employee (Temporary Agency Work) Act 2012 as well as rights under other legislation. The equal treatment protection extends to pay and access to facilities. This means that there are information sharing obligations between the agency and the end user. For unfair dismissal and health and safety rights the end user is deemed the employer of the agency worker.
6. Fixed term or specific purpose workers
Workers on these contracts have similar rights to those on permanent contracts except when it comes to the ending of the contract. However specific rules apply if employers want to avail of the exceptions under the unfair dismissal legislation. This means that specific clauses must be included in the contract. These contracts also cannot be renewed indefinitely. If an employee has been employed on 2 or more continuous fixed term contracts the total duration of those contracts cannot exceed 4 years. If an organisation seeks to renew any fixed term contracts they must provide objective reasons in writing to the worker. Otherwise the employee will automatically become employed on a permanent basis. Fixed term contract durations should be closely monitored to ensure they don’t roll over and create permanent contracts unintentionally.
7. Garda vetting
Those working in childcare, care homes for older people, youth work, those working with the HSE and agencies funded by the HSE where the work involves access to children and vulnerable adults and security staff are required to be Garda vetted. Other situations may not fall within the vetting process and it could in fact be a data protection breach for an organisation to force a prospective employee to undergo background checks. Currently vetting is carried out by the Garda Central Vetting Unit. The system is to undergo change with the introduction of the National Vetting Bureau (Children and Vulnerable Persons) Act 2012. The Act provides for the use of “soft” information in regard to vetting. This is information other than criminal convictions where such information leads to a bona-fide belief that a person poses a threat to children or vulnerable persons. Under the Act the Garda Central Vetting Unit will become the National Vetting Bureau and the vetting procedures will be put on a statutory basis.
8. Regulatory Inspections
Employees in the health care sector should be prepared and trained on how to deal with regulatory inspections such as HIQA, NERA and the HSA as well as Revenue and Dept. of Social Protection audits. Ensuring employees are trained on how to deal with audits will mean they run as smoothly as possible. For our handy checklist on preparing for inspections click here.
9. Work permits
As a result of the shortages in workers available for the healthcare sector there is an increase in the number of employees and agency workers being hired to work in Ireland from countries outside the EEA. Many of these workers will require a work permit and over a quarter of the work permits issued last year were to the healthcare industry. The Employment Permits (Amendment) Act 2014 replaced the previous permits system in Ireland. There are 9 different employment permits available in Ireland. If an organisation will be applying for permits regularly it would be worthwhile becoming a Trusted Partner with the DJEI to ensure a speedier turn around of applications and reduced fees.
10. Drugs at work policies
Given the health and safety risks that may be involved for health care workers, the fact that it may be a safety critical role and the potential easy access to intoxicants it would be wise for a health care organisation to implement an intoxicants in the workplace policy. Currently health and safety legislation states that employees should ensure they are not under the influence of intoxicants in the workplace where they might endanger themselves or others. Having a policy in place means that issues can be dealt with as they arise and ensures that correct and appropriate testing procedures are applied.
11. Data protection
This issue applies both to the information the organisation holds on the employee and the information the employee may process about patients. Data protection policies are essential so employees know how their data is collected and processed and how they can access it. It is also equally essential that they are aware of their obligations towards patient data given that it contains sensitive personal data as well as personal data. Employees who handle sensitive personal data should be given specific training on the organisation’s policies and what to do if they are concerned a breach has occurred. It is also important for organisations to include potential data breaches in their disaster recovery and PR plans.
These are just some of the specific employment issues that arise in the health sector. For more information on the above or to discuss employment law or health care services please contact Linda Hynes.
This publication is for guidance purposes only. It does not constitute legal or professional advice. No liability is accepted by Ogier Leman for any action taken or not taken in reliance on the information set out in this publication. Professional or legal advice should be obtained before taking or refraining from any action as a result of the contents of this publication. Any and all information is subject to change.