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'I had to protect my staff' — Government green list could cause workplace disputes, expert says

Workers returning from abroad might still be asked by their employer to restrict their movements.

Image: Sam Boal

QUESTIONS REMAIN ABOUT the workplace implications of the government’s ‘green list’ of countries, according to employment law solicitor Richard Grogan.

Set to be published next Monday, the list will provide details of countries to which it’s safe for holidaymakers to travel to without the obligation to restrict their movements for 14 days upon arrival home.

But speaking to TheJournal.ie, Grogan said employers might still be entitled to ask workers to do so.

He believes that employers will still be “extremely nervous” about their employees getting on a plane and returning to work even if their foreign destination is on the green list.

In the case of non-green-listed countries, the situation is very clear, he said.

“The government’s recommendation is that you have to restrict your movements and so the employee is faced with a choice. The choice is you take the 14-day period as annual leave or you take it as unpaid leave,” he explained.

In that circumstance, the employer is entitled to “look at things from a health and safety perspective,” and to “say to the employee ‘I expect you to restrict your movements. I’m not having you back in the office.”

In the case of green-listed countries, Grogan believes some employers will still require workers to commit to the 14-day period before returning to the workplace. This, he believes, is something of a grey area that could lead to disputes.

Employers, he says, will enforce the quarantine and tell employees, “If you don’t like it, I’ll see you in the Workplace Relations Commission. They’ll argue, ‘Well, I had to protect my staff’.”

He also said that requiring an employee to stay at home for two weeks would not be grounds to argue for constructive dismissal.

Medically vulnerable

As restrictions are lifted, more and more people will be going back to work in the next few weeks but Grogan said that the obligations and rights on both sides of the employer-employee relationship are largely unchanged since the government’s return-to-work protocol was announced in May.

One long-standing question is if a certificate from a GP stating that an employee has pre-existing condition is sufficient proof to delay returning to the workplace if an employer requires it.

Grogan says that the situation is very clear — a standard doctor’s note saying that a person is ‘medically vulnerable’ is not enough.

Unless the worker has a disability, as confirmed by a medical specialist, he says that they are not protected under equality legislation should they refuse an employer’s demand to come back to work.

He explained, “If you’re suffering from a disability, of course, the employer has to take account of that. If you’re not suffering from a disability, then the answer is the employer is entitled say, ‘Come back to work’.”

“Either you have a disability or you don’t. There isn’t a single person in the country who isn’t medically vulnerable to Covid.”

On the other side of the equation, he said that employers are still required to put in place health and safety measures that were announced in early May.

Among other things, employers have to ensure strict adherence to social distancing, provide hand sanitiser and create designated isolation areas for workers who fall ill over the course of the working day.

“If it’s a workplace where the employer says that they can’t, for whatever reason, put the safety measures in place, then that’s a business that should not be reopening”, he said.

In that circumstance, a complaint can be made to the Health and Safety Authority, which is entitled to shut down the business.

Government advice is still that people who can work from home should continue to do so.

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Anyone who has arranged that with their employer is entitled to keep at it but again, Grogan says that there is no obligation on business owners to facilitate remote working.

If the worker has a disability, the employer does have to make reasonable accommodations for them.

In all other circumstances, the employer is perfectly entitled to say, “I want you back in the workplace,” Grogan says.

“This comes down to a very simple issue. You will have employees who say, ‘I believe I can do my work from home.’ You will have employers who say, ‘I don’t believe that.’

“In those situations, the employer wins out.”

“Ultimately, your contract of employment will probably say that you have to go into work. Unless the contract provides for a right to work from home, you have to go to the workplace.”

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