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Can Employees Refuse to Return to Work?

As Ireland gradually returns to work in line with the Government's Roadmap for Reopening Society and Business many employees are expressing concerns and even objections to returning to work. Can employers compel them to return? Can employees refuse to return until such time as they are ready to do so? Our Adrian Twomey answers these topical questions.

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Under normal circumstances employers are perfectly entitled to expect employees to attend at work and an unreasonable refusal to do so can lead to disciplinary action or even dismissal. However, these are not normal times and the usual rule needs to be qualified in a number of particular circumstances.

An employee may, for example, have an underlying medical condition that would not normally prevent them from working but that places them in a high-risk category at a time when COVID-19 poses a significant threat to the health and safety of the community. Such employees are likely to be regarded by the law as having a "disability" for the purposes of the Employment Equality Acts, 1998-2015. As such, their employers are obliged to afford them such "accommodations" as may be reasonable in order to facilitate their continued employment. That may, in present circumstances, mean allowing them to take a period of leave until the pandemic ends or the threat to their health can be reduced or eliminated.

Similarly, an employee may lawfully refuse to attend at work where their employer is not taking such steps as are reasonably required to protect their health (under the Safety, Health and Welfare at Work Act 2005).

Where an employee has childcare concerns that would not normally be an issue and that are related to the pandemic, their employer may be deemed to be acting unreasonably if they attempt to coerce the worker to return to work or face the threat of dismissal.

In each of these and a number of other situations, only foolish employers or those who are willing to take significant risks will rush to dismiss or otherwise discipline employees who refuse to return to work at the time of reopening. However, it is an entirely different story if an employee refuses to return to work simply because, for example, they are earning more by staying at home and claiming the COVID-19 pandemic unemployment payment. Employers who are confronted by such a refusal to work should write to the employee noting their concerns and directing the employee to return before considering addressing the issue under their disciplinary policies. It is also advisable to contact the Department of Employment Affairs and Social Protection in order to notify them that the business has reopened and employees have been requested to return to work save where returning gives rise to genuine concerns such as those referred to above.

Please note that specific legal advice should be taken in relation to individual cases. It is also worth noting that input may be required from an appropriate medical practitioner in cases involving disability or health concerns.

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