Background 

With coronavirus becoming increasingly widespread in Ireland, the government has introduced various emergency measures as part of its response to the pandemic and has drafted emergency legislation outlining these measures – the Emergency Measures in the Public Interest (Covid-19) Bill 2020. The Taoiseach (Prime Minister) announced travel restrictions and further restrictions regarding the closure of non-essential retail business and facilities.

Hotels will be required to limit occupancy, and cafes and restaurants will only be permitted to offer takeaway or delivery services. Essential retail outlets are permitted to remain open but will have to implement measures to ensure physical distancing, both inside their business and outside, where people are expected to queue and wait for entry. Otherwise, those who can work from home must work from home unless their work is considered an essential service (e.g. health workers).

As a consequence of the COVID-19 pandemic, many employers have had to already close their businesses. Others have found that there is a reduction in their workforce requirements. In both instances, employers have not been able to provide work and have had to lay off employees and cease pay. In the wake of these latest measures, more businesses are facing a similar prospect with the inevitable risk of further job losses. At present, 118,000 people have already applied for the COVID-19 Pandemic Unemployment Payment and it is estimated that up to 500,000 jobs could be lost as a result of the pandemic.

The new wage subsidy scheme 

In an effort to reduce job losses, the government has now introduced the Temporary COVID-19 Wage Subsidy Scheme. It will replace the COVID-19 Employer Refund Scheme, which was introduced previously by the Department of Employment Affairs and Social Protection (DEASP) as an emergency measure. Like the previous scheme, the Temporary COVID-19 Wage Subsidy Scheme is being rolled out in partnership with the Revenue Commissioners of Ireland.

The government has been encouraging employers to retain employees on the payroll where possible and the purpose of the new scheme is to incentivise them to do so. It will be available to employers who keep their employees on payroll throughout the COVID-19 pandemic; effectively, the scheme will avoid employers dismissing employees as redundant or putting them on unpaid lay-off. Importantly, the scheme will enable employees to receive financial support directly from their employer, and will be available in respect of employees retained on payroll who may be temporarily not working (i.e. laid off) or working under reduced hours or pay.

One of the main benefits of the scheme is that employers who retain employees on their payroll will be ready to bring those employees back to work as soon as possible, since they will have maintained a link with them. This is assuming businesses will begin to operate as normal prior to the end of the scheme. The scheme will also reduce the administrative burden on DEASP, which is dealing with and administering other emergency unemployment benefits directly to impacted employees.

What we know so far 

This Temporary COVID-19 Wage Subsidy Scheme is due to run for 12 weeks from 26 March 2020, and draft legislation governing it is expected shortly. Here are some of the key features:

• Initially, the scheme will refund employers for each qualifying employee’s normal take-home pay, up to a maximum of €410 per week (net).
• In April 2020, the scheme will move to a subsidy payment based on 70% of the average take-home pay for each qualifying employee up to a maximum of €410 per week (net). Further details are expected on this shortly.
• Employers are asked to pay or ‘top up’ an employee’s pay during the subsidised period to maintain their current level of earnings. While employers are not obliged to make any payment if they are not in a position to do so, they are expected to make their best efforts to maintain as close to 100% of normal income as possible for the subsidised period. If an employer cannot make any contribution, it may rely wholly on the subsidy to pay the employee.
• Employers will be reimbursed for amounts paid to employees and notified to Revenue via the payroll process. It is expected that the reimbursement will be made within two working days of the payroll submission being received.
• Income tax, Universal Social Charge (USC), and Pay Related Social Insurance (PRSI) (employee and employer) will not be deducted from the Temporary Wage Subsidy.
• Income tax and USC will still be payable on any top-up payment. It appears that the subsidy received will not be taken into account when calculating income tax and USC deductions. Revenue have advised that in many cases the payment of the subsidy and any additional income paid by the employer will result in a refund of income tax or USC already paid by the employee.
• Employee PRSI will not be payable on any top-payment but employer PRSI will be, although it will be reduced to 0.5%.

Revenue is expected to publish further details on how this scheme will work in the coming days.

Who does the scheme apply to? 

The scheme will be available to all Irish employers, of any size and in any sector, whose business activities are being adversely impacted by the COVID-19 pandemic. (The public service and non-commercial semi-state sector bodies are excluded.) Unlike the furloughing scheme introduced in the UK, it is not a condition of the scheme that the employee cannot do any work. It is available for employers who retain employees on payroll, some of whom may be temporarily not working (laid off) or working under reduced hours or pay.

Eligibility 

The scheme is targeted at employers hit by a collapse in economic activity triggered by COVID-19. Where employers meet the conditions for participation, a subsidy will be available for some or all employees. The conditions are that the employer must:

• be experiencing significant economic disruption due to the COVID-19 pandemic;
• demonstrate, to Revenue’s satisfaction, at least a 25% decline in turnover (employers will be expected to self-declare);
• be unable to pay normal wages and outgoings fully; and
• retain employees on payroll.

To participate in the scheme, eligible employers must ensure that they:

• are registered with the Revenue Online Service (ROS);
• register for the new Temporary Wage Subsidy Scheme.; and
• are up to date with their payroll returns.

Employers already registered with Revenue for the purposes of the Employer COVID-19 Refund Scheme will not be required to take any action. They may make payroll submissions from 26 March 2020 under the scheme arrangements on the same basis and will be refunded.

Employees who come within the scheme are those who have been working with the employer and who have been included on a payroll submission made by the employer from 1 February 2020 to 15 March 2020.

Interestingly, the names of all employers operating the scheme will be published on Revenue’s website after the scheme has expired. The government has also stated that there will be severe penalties for any abuse of the scheme.

Suspending employees’ right to convert lay-off or short-time working to redundancy 

Where employees are laid off or placed on short-time working, there is a specific statutory provision in Irish employment legislation which provides a right for them to convert lay-off or short-time working to redundancy. Employees who have been laid off or placed on short-time working for four or more consecutive weeks, or six weeks in any 13-week period, can notify their employer of their intention to claim redundancy. An employer can prevent this if, within four weeks of this notice, they can guarantee the employee 13 consecutive weeks of work without lay-off or short-time working.

With the current economic climate in the wake of the COVID-19 pandemic, an employer may not be able to provide this guarantee. So, if an employer is required to lay off employees or place them on short-time working, there may be a fear that it would not be able to afford to pay redundancy due to obvious cash-flow difficulties. In some cases, this could propel businesses into insolvency.

The Temporary COVID-19 Wage Subsidy Scheme is designed to prevent this outcome, but only time will tell whether it is enough. The Emergency Measures in the Public Interest (Covid-19) Bill also proposes to suspend the operation of the redundancy provision mentioned above in the case of employees who have been laid off or placed on short-time working by their employer due to the effects of measures required to be taken by the employer in order to comply with (or because of) government policy to prevent, limit, minimise, or slow the spread of COVID-19. The suspension will last for the duration of the emergency period – 12 March to 31 May 2020 in the current draft – but the bill provides for this to be extended.

Conclusion 

Both the wage subsidy scheme and the proposed suspension of the redundancy provision are welcome news for businesses struggling in the wake of the COVID-19 pandemic crisis. Operationally, many employers and employees are likely to see value in retaining employment links. Employers will want to avoid having to engage in a recruitment drive when business picks up after the crisis has passed, while employees are likely to favour job security once they can return to work.