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Employee Who Refused To Take Covid-19 Test Deemed To Be On Temporary Lay-Off For Period of Isolation After Date Of Notification

Facts: Michael Caulfield (the “Complainant”) is employed as a Maintenance Engineer with Hickey Fabrication Services Ltd (the “Respondent”) since 1 March 2007, earning €1,070 net weekly. He claimed that he was owed €2,140 in unpaid wages for two weeks that he was not permitted to work being 1-14 February 2021 due to his refusal to take a PCR test.  

On 1 February 2021 the Complainant was alerted to the fact that he may have been exposed to Covid-19 at work and was instructed to stay at home and take a PCR test, which he refused to do. He was not allowed to work for two weeks after refusing to take this test and was informed in writing on 4th February 2021 that he would not be paid for this period. He determined this to be unfair as other workers potentially exposed to the virus were allowed back on site before receiving the results of their PCR test. He believed that he had been discriminated against. The Complainant accepted that the HSE had made a recommendation on the ’15 minutes of presence’ rule but he did not fall into the category of ‘close contact’ to justify submission for testing. He had personal reasons for absenting from the test and disputed the reduction in his wage.

The Respondent rejects the claim for unpaid wages and submits that they had several positive cases of Covid-19, fourteen of which were linked to an on-site transmission during the week of 25 January 2021. The Respondent was subject to Public Health advice where they submit that the Complainant met the criteria for testing, the ’15 minutes of presence’ rule mentioned above. The Respondent does not pay sick leave. The Respondent reaffirmed that his decision to not allow the Complainant to return to work for this period was to ensure the safety and wellbeing of other employees.

Decision: The Adjudicator clarified that the case centres on how, firstly the Respondent categorised the Complainant in terms of his proximity to a confirmed Covid case and secondly, how the Complainant took issue with this and sought to dispute it. The deduction of two weeks wages was at issue.

Due to the Covid-19 outbreak in the workplace, the Complainant was requested to be tested for the virus and, upon his refusal, to stay home for 14 days. Correspondence from the Respondent to the Complainant accepted that he had a right to refuse a test. However, the acceptance was qualified by a statement that the Complainant would not be required to work as a result of his requirement to self-isolate, intending to exercise the temporary lay-off clause in his contract.

The Adjudicator established that notice of lay-off was only issued to the Complainant in writing on 4 February and the period from 1-4 February did not fall within the definition of temporary lay-off period as no advance notice was given. Accordingly, the Complainant was awarded €877.76 for these four days prior to the commencement of temporary lay-off on 5 February.

Takeaway for the Employers: Employers should ensure that when an employee is requested to do a PCR or Antigen Test due to being a close contact, or otherwise identified as a person who is at risk of having contacted Covid, the employee should be notified at the same time in writing that should they refuse to do the test that they will be immediately be put on unpaid Temporary Lay-off for 14 days in order to self-isolate. In addition to this, employers should note that employees are entitled to refuse a Covid-19 test where desired and correct procedures must be implemented during the period that the employee cannot work when self-isolation is necessary.

Link  – https://www.workplacerelations.ie/en/cases/2021/october/adj-00033066.html

Authors – Anne O’Connell and Hannah Smullen

Anne O’Connell Solicitors

19-22 Lower Baggot Street, Dublin 2

www.aocsolicitors.ie

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