When a worker refuses to return to the workplace

Dealing with COVID-19 concerns

In this article we look at what an employer can do when an employee refuses to return to work, because of their fears about COVID-19.

We examine the impact of the National Return to Work Safely Protocol (the Protocol) and the Safety, Health & Welfare at Work Act 2005 on the workplace for employers and employees preparing to return to the workplace.

The Protocol

It is compulsory and applies to all workplaces. HSA inspectors are empowered to carry out inspections to ensure its enforcement.

It emphasises that office work should continue to be carried out from home where possible.

Where employees will be returning to the workplace, there are strict steps which must be followed. There is an emphasis on communication and collaboration. As part of this, every employer must appoint at least one lead worker representative. They must be afforded sufficient training to enable them carry out their role. A detailed COVID-19 response plan must be prepared and implemented. This will cover updated safety statements and health and safety risk assessments. Each worker’s individual circumstances must be looked at when assessing the risk that a return to the workplace would pose in the current Coronavirus Covid-19 pandemic. Every employer must provide adequate physical distancing workspace and hygeine faciilities. Staggered shifts, working in pods, where a set group of workers work together at a distance, take their breaks together and avoid physical interaction with others where possible are some of the recommendations/requirements.

Existing sick leave policies must be rexamined in light of the impact that COVID-19 continues to have in the workplace.

The Safety, Health & Welfare at Work Act 2005 continues to apply. It imposes, among other things, an obligation on the employer to provide a safe system of work for all employees and visitors. This must be considered in the context of the threat that COVID-19 poses to health in the workplace.

Vulnerable workers

An employer is obliged to allow at risk or vulnerable workers to work from home where possible. Where at risk workers cannot work from home, measures must be put in place to ensure that a safe distance of two metres is maintained around the worker.

How do I deal with a worker who refuses to return to work, even after I have followed the protocol?

As mentioned earlier, communication is key. Ask the worker what their concerns are, in relation to returning to the workplace. You may be able to address these concerns.

If a worker is not in an at risk category, but is living with a vulnerable person, they may have fears regarding returning to the workplace. Can they work from home? Can the time spent in the workplace be reduced to a minimum, by a mixture of at home and at workplace shifts? By discussing their fears with them it can sometimes help reduce the stress and isolation that COVID-19 has brought to many workers. Where nothing works to resolve the matter, consider availing of appropriate leave provisions, eg carer’s leave etc where appropriate. Disciplining the employee for failure to follow instructions in the circumstances outlined above would only exacerbate the situation and would be likely to have a negative outcome if a claim was referred to the Workplace Relations Commission.

Where a worker is not in an at risk category and does not live with a vulnerable person but is simply anxious about going back to the workplace, even after you have had discussions with them, then it would be appropriate to warn them about disciplinary proceedings if they fail to follow a reasonable request.

There will be many other circumstances and worries which can arise. The main takeaway form all of this is to engage with the employee in communication and a common desire to help the business and its employees recover from the impact of COVID-19.

If you would like to discuss any aspect of this or any other employment law matter, please contact us using the orange Yes! Tell Me More button below.

 See also Return to work induction training here

 See also Lead Worker Representative training here

 See also Remote workers here

 See also Health & Safety at work here

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