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Employers demanding workers return to office could face ‘legal risk’ in cases of medical concerns

Covid-19 restrictions on non-essential work are easing from today.

Image: Shutterstock/nito

DURING THE COVID-19 vaccine rollout, Tim* was in cohort four – people with a medical condition that put them at very high risk of severe disease.

Tim’s wife is immunosuppressed and he would prefer to continue working from home rather than return to the office full-time – but his employer has “ordered” workers back.

Covid-19 restrictions on non-essential work are easing from today, allowing a “phased and staggered” return for specific business needs, and lifting fully on 22 October.

Some workers have eagerly anticipated recovering a sense of normality, while others are hesitant about the risk the virus still poses or prefer the advantages that working from home brought them.

Meanwhile, employers must navigate official guidelines on reopening workplaces and preventing the spread of Covid-19.

But if an employer demands that a worker who has a medical concern returns to the office, it could come with a legal risk, according to an employment law expert. 

Speaking to The Journal, employment lawyer Karen Killalea of Maples and Calder said that employers will need to engage with employees in a “reasonable fashion”.

“There are going to be employees who will say ‘I’m just not comfortable coming back’… someone is coming and saying ‘look, I suffer from asthma’, for example, or ‘ I have a child who suffers from asthma, I’m not comfortable travelling into work on public transport and coming into an office where I don’t know if people are vaccinated or not’,” Killalea said.

“What employers are going to have to do in that situation is a) have regard to the public health guidance but b) they’re going to have to respond reasonably,” she said.

It’s not going to be an answer to that to say to the employee well sorry, the law has changed. That’s not going to cut it and that’s going to create legal risk.

“The employer will need to engage in a reasonable fashion with the employee and equally the employee will need to articulate the specific challenge and issue and together the employee and employer are going to have to work out a solution, but a solution will not, in the short-term, be a directive to return to the office for an employee who is unwilling to do so on medical grounds,” Killalea said.

As of today, the new government guidelines allow attendance at work for specific business requirements on a phased and staggered basis.

From 22 October, most remaining Covid-19 restrictions will be lifted, including requirements for physical distancing, masks in private indoor settings, and limits on numbers at indoor events.

Killalea cautioned that the change to the rules from today is more of a signpost than a significant change to how we work at present.

“What’s happening is the public health guidance is indicating that it is appropriate for employees to start working from the office, so returning to office work for specific business needs using a cautious and gradual approach,” the lawyer said.

It is “not a green light” for a mass return to the office.

You still need to have your physical distancing, have your prevention and control measures in place, you need to make sure you have personal protective equipment and you need to make sure your ventilation is working properly.

For employers who have been trying to risk-assess their workplaces ahead of the restrictions easing, a common question is whether they can ask their employees if they have been vaccinated.

Killalea said employers are coming to her law firm and asking if they can request information from their workers on whether they’re vaccinated as part of their risk assessments.

“It’s a very sensible question, very sensible concern, and it seems to be a data point that has to be relevant to the analysis. But unfortunately, and rather frustratingly for a lot of employers, the response to that is you cannot compel an employee to tell you if they are vaccinated or not vaccinated,” Killalea said.

“The reason is that vaccination is voluntary. Anybody can opt-out and that derives from our constitution. The State has recognised that citizens have the right to decide whether or not they want to receive a vaccine,” she said.

“Long story short, that is very relevant when answering a very sensible question from employers as to whether or not they can demand accurate information about vaccination status. ‘No’ is the answer, you can’t.”

The Irish Congress of Trade Unions (ICTU) agrees that employers should be flexible with their employees as workplaces reopen.

Dr Laura Bambrick, ICTU’s Head of Social Policy and Employment Affairs, said it is “in employers’ best interest to come to agreements that suit both the staff and the needs of the business during this transition to blended working”.

“Many workers’ circumstances have changed over the past eighteen months. Top-down orders to be in the office on specific days from Monday may not fit with childcare availability,” Bambrick said.

She outlined that “people need time to readjust their care arrangements and commutes to and from the office”.

“New research this week found workers are willing to quit their jobs if flexible working arrangements are not part of the package going forward.”

One such worker is Rory,* whose workplace – which is looking for a 100% return to the office staggered over the next few months – “refuses to even communicate regarding continuing remote work”.

“They want ‘bums in seats’ regardless of situation, commute, mental health concerns. There’s no offer of hybrid or any other model. The owners/president of the company believe the company should be ‘in-person’ full time, regardless of the work done over the last 18 months,” Rory said.

“Personally, I would prefer to stay home and I am currently starting to look for a full-time remote position elsewhere,” he said.

“I, like many others, had to move out of the city where I was born in order to afford housing. There are little to no jobs out my direction that suit my education and experience, so it’s either 10+ hours of commuting every week or working remotely.

“Any company not offering remote work to those who have proven themselves should be ashamed.”

Tim, who said his employer has “ordered” workers back to the office, is in a similar position.

“No exceptions are being accepted by HR. I’m in cohort four [vaccine group for those at high risk of severe disease] and my wife is immunosuppressed. There’s no requirement for people to be vaccinated,” Tim said.

“They are offering two days a week of remote working, but this requires an ergonomic assessment by a third party company. As people have been working from home since March 2020, it feels rather late and stupid. My application (as you have to apply, and your manager has to approve) keeps getting lost in a robot system HR invented,” he said.

“The workload hasn’t slacked off during the past 18 months – if anything, it’s increased.”

And for many of the essential workers who have been working on-site throughout the pandemic, even the potential of an option to work flexibly or from home seems dim.

Max* works in an airport and feels they have handled Covid-19 and working arrangements “terribly”.

He has been on-site while the office-based staff have worked from home.

Now, his company is offering staff working from home a hybrid arrangement while essential workers are being asked to work more nights, weekends, and move to a longer working week, he said.

“It seems that new flexible working arrangements are only ever going to be for office workers. I feel all workers in Ireland should be given some degree of flexibility from their employer but sadly it doesn’t seem like that will be the case.”

shutterstock_1751409962 Source: Shutterstock/Halfpoint

Keith has already been in the office for the last two months between two and three days each week.

His company, which has moved to a hot-desk model where workers book a desk, is not currently requiring workers to come into the office, and the average attendance is around five to ten people per day compared to 60 pre-pandemic.

“I wanted to go back as I was fed up working from home. I missed my cycling to the office and interactions with work colleagues,” Keith said.

His company has set up a return-to-office committee and measures like limited capacity, only one person being allowed into a lift at a time, signs and facemasks while away from desks.

But the hotdesking system means “personal touches like family photos are now a thing of the past” and equipment like keyboards must be stored at work or brought to and from.

Another worker said their company has required employees to attend the office daily since last year in a role that is “purely a desk job and I work mostly over email with businesses outside of the EU”.

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“I asked to work from home and I received a negative answer and I have seen multiple colleagues leave the company as no flexibility or understanding has been offered,” they said.

In contrast, the 23 employees at the company where Sarah* works are all working at home. As of earlier this week, they had received no information from their employer on what the future arrangement would look like, other than that they were waiting for government guidance.

“All the employees want one or two days max in the office. It’s very stressful not knowing what is going to happen,” Sarah said.

Bryan, who has been working from home since last March, has been told it will be at least next February before workers return, and even then not on a full-time basis.

For Bryan, working from home has meant spending more time with his daughter, and will give him more time with his new daughter who is due to arrive in four weeks.

Working from home really suits me as we work 6am to 6pm. I’m getting up at 5.50am instead of 5pm and when I’m finished at home, I’m finished, instead of a 45-minute drive after a very long day.”

“I get to spend much more time with my daughter. When I was working in the office she would be in bed when I was leaving for work and when I got home around 7pm it would nearly be her bedtime.”

Similarly, Rose* has been working from home during the pandemic. During the first lockdown, she was asked to move out of her accommodation in Dublin, and moved home to family in the Midlands, where she is now a three-hour round trip from her workplace.

“Given I was working from home and we were all in lockdown, it wasn’t a big deal and it gave me an opportunity to save more towards a house deposit,” Rose said.

“But now, returning to Dublin seems near to impossible any time soon and I would give anything to just get back to my normal Dublin life,” she said.

“It’s probably the biggest factor impacting the work situation for many – living circumstances and the suitability of the home workspace is not something employers take into consideration.”

*All names marked with an asterix have been changed on request. The workers who contributed to this article responded to a call-out from The Journal last week for readers’ stories on current changes to work patterns post-Covid.

About the author:

Lauren Boland

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