On 18 May 2020, the Health Act 1947 (Section 31A – Temporary Restrictions) (COVID-19) (Amendment) (No. 3) Regulations 2020 (S.I. 174 of 2020) (the “Phase 1 Regulations”) came into operation.

The Phase 1 Regulations amend the Health Act 1947 (Section 31A – Temporary Restrictions) (Covid-19) Regulations 2020 (as amended) (the “COVID-19 Restrictions”).

The Phase 1 Regulations outline (amongst other things) the categories of business that may reopen during the first phase (“Phase 1”) of the Irish Government’s 5-Phase roadmap to ease the COVID-19 Restrictions and reopen Ireland’s economy and society. Phase 1 will last until 8 June 2020.

The Phase 1 Regulations have the effect of:

1. expanding the categories of services that constitute ‘essential services’, to now include;

• the manufacture of products necessary for all national and international supply chains;
• the sale, supply, repair and maintenance of mechanically propelled vehicles or bicycles, and any related facilities (including tyre sales and repairs);
• construction and development work;
• the provision of support services relating to construction and development work;
• the supply and delivery of essential or emergency maintenance and repair services to businesses and places of residence (including electrical, gas, plumbing, glazing and roofing services) (Note: Prior to the Phase 1 Regulations, such services were ‘essential services’ on an on an emergency call-out basis only);
• the operation and maintenance of botanical gardens, parks, forests, nature reserves, outdoor heritage sites, outdoor tourism sites, beaches, golf courses, outdoor tennis courts, outdoor sports pitches (but excluding playgrounds, funfairs, theme parks and circuses), and related facilities necessary for the use of, or carparks provided for, any of the foregoing;
• access by persons, for the purposes of their work in relation to the essential administration, organisation and distribution of remote learning services, to (i) schools, (ii) higher education institutions, or (iii) other education and training facilities; and
• dental services; (Note: Prior to the Phase 1 Regulations, only emergency dental services were ‘essential services’); and

2. expanding the categories of outlets that constitute ‘essential retail outlets’, to now include:

• hardware outlets, builders’ merchants, garden centres and outlets that provide, whether on a retail or wholesale basis, hardware products, supplies, tools, equipment or materials necessary for home and business maintenance, or construction and development, sanitation and farm equipment, or supplies and tools necessary for gardening, farming or agriculture purposes;
• markets that, wholly or principally, offer food for sale;
  optician and optometrist outlets;
• outlets providing hearing test services or selling hearing aids and appliances;
• outlets providing for the sale, supply, repair and maintenance of mechanically propelled vehicles or bicycles, and any related facilities (including tyre sales and repairs);
• outlets selling office products and services for businesses or for applicable persons working from their respective places of residence, whether on a retail or wholesale basis; and
• outlets providing electrical, information and communications technology and telephone sales, repair and maintenance services.

How may the COVID-19 Restrictions be enforced?

The COVID-19 Restrictions may be enforced by the Garda Síochána. A person who commits an offence is liable on summary conviction to a ‘class C fine’ (i.e. a fine not exceeding €2,500), or to imprisonment for a term not exceeding 6 months, or both.

Where the offence is committed by a body corporate and it is proved that the offence was committed with the consent or connivance, or was attributable to any wilful neglect, of a person who was a director, manager, secretary or other officer of the body corporate, or a person purporting to act in that capacity, that person shall, as well as the body corporate, be guilty of an offence and may be proceeded against and punished as if he or she were guilty of the first-mentioned offence.

Where the affairs of a body corporate are managed by its members, a member may be liable for acts and defaults in connection with his or her functions of management as if he or she were a director or manager of the body corporate.

Comment

The Phase 1 Regulations will be welcomed by businesses who now fall within the expanded definition of ‘essential services’ or ‘essential retail outlets’, as they may now reopen.

It is particularly notable that ‘construction and development work’ is listed as an ‘essential service’, and that this is not limited to outdoor ‘construction and development work’, given the Government had previously indicated that that would be the case during Phase 1.

Some businesses may be uncertain whether they are covered by the Phase 1 Regulations or not. For instance, it may not be clear whether a market “principally, offers food for sale”, if a portion of its sales are non-food items. If such ambiguities arise, businesses should always promptly seek advice from their legal advisors, given the potentially serious consequences of an infringement.

In all cases, businesses that are reopening should adhere to the Government’s comprehensive and important ‘Return to Work Safely Protocol’ so that they can facilitate a safe return to work for their employees. Please see our guidance on the Protocol here.