Pregnant Tusla worker loses case over special leave during pandemic

A pregnant State employee with underlying health conditions who self-isolated to avoid Covid-19 on medical advice was not entitled to special leave on full pay, the Workplace Relations Commission has ruled.

Tusla assistant staff officer Irene O’Connor made the complaint under section 6 of the Payment of Wages Act against the Child and Family Agency in November 2020.

Representing herself in a remote adjudication hearing last November, she said her employer had unlawfully deducted half her salary of €1,058 per week between May 19th and July 6th, 2020.

Tusla argued it was a proper application of the same rules governing Covid-19 leave which applied across the public service, denying any contravention.

Ms O’Connor gave evidence that she was pregnant and had underlying conditions which left her vulnerable to the virus and showed a medical cert reading “unfit for work” and “Covid-related – isolate”.

She cited a set of guidelines for public service employers dated April 28th, 2020 and argued that she should have been placed on special leave with full pay.

These stated that “special leave with pay” was to be paid in line with advice from the HSE or a doctor, requiring “advice on the need to self-isolate and/or a diagnosis of Covid-19”.

Ms O’Connor argued that these were the guidelines which applied to her situation and not a document issued on March 4th, 2020 by the Department of Public Expenditure and Reform.

This stated: “only staff who have Covid-19 or have been exposed to it and are medically advised to self-isolate can avail of Covid leave”.

Tusla’s representatives said they accepted Ms O’Connor’s medical certs stated she should self-isolate.

The state body said Ms O’Connor was available to work from home up until May 19th but became unfit to work because of pregnancy-related illness, citing occupational health reports submitted in evidence.

“The complainant was paid on the basis of the normal sick leave arrangements. She did not have Covid-19 and was not isolating awaiting a test or test results but was unfit to work from home,” it said.

Ms O’Connor did not put a value on the deductions from her pay, but did not contest a sum of €1,614 put forward by Tusla.

In her judgement, adjudicating officer Máire Mulcahy noted that a guidance for Public Service employees during Covid-19, published on April 9th, 2020 stated that any non-Covid-19 illness would be treated as ordinary certified leave and the usual rules governing sick leave would apply.

Ms Mulcahy said that, while the complainant was not ill with Covid, she was unfit for work due to her pregnancy-related illnesses which rendered her vulnerable meant she had to isolate.

“You cannot isolate the guidelines of April 28th and treat them as a standalone entitlement, detached from and unaffected by the relevant circular letters governing sick leave,” she wrote.

She said they also could not be isolated from the “clear and distinct” message that special leave with pay was available for staff who were isolating themselves but were “nevertheless available for work”.

“The complainant does not fit into this category,” she wrote. “The recommendation to isolate was matched by the complainant returning her laptop and materials… and ceasing all engagement with the workplace. There were valid medical reasons for this but they are not reasons peculiar to Covid.”

Ms Mulcahy said that what was missing in the complainant’s analysis was her availability to work. She said the complainant had failed to establish any entitlement to her full pay and ruled that her claim was not well founded.