Complainant

Respondent

Anonymised Parties

 A Nurse

A publicly funded healthcare system.

Representatives

Anne Burke Irish Nurses and Midwives Organisaiton

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 13 of the Industrial Relations Act

CA- 00055232-001

22/02/2023

The worker is seeking payment whilst on long term sick leave due to post Covid 19 viral illness. The Respondent argues that the worker is not entitled to the payment as she does not meet all of the criteria. 

The Employee relies on her written submissions. In addition, gave evidence as follows:

The Employee has a medically confirmed diagnosis of Post Covid Syndrome. She is a Staff Nurse in one of the Respondent’s hospitals. On 28th March 2020 she became acutely unwell. She had her first covid swab on 3rd April 2020 and her second on 9th April 2020. Both came back negative. There was no PCR testing at that time. On 10th April she was advised that as she was a close contact and because she had symptoms of Covid, her tests were being deemed false negatives. She was advised that she should self- isolate. She was paid “special leave” pay for eight weeks from 2nd April to 26th April as was provided for in Circular 064/2020. On the 27th May she commenced “sick leave”. She was paid full pay up to 5th August and half pay until 8th September 2020. Following an application for “Temporary Rehabilitation renumeration” she was paid a modest sum up until 16th March 2022.

On 13th August 2020 Dr. Fitzpatrick diagnosed the Employee as suffering from Long Covid. That diagnosis was reconfirmed by two other occupational health physicians. The Employee was then referred to Professor Seamus Linnane, Consultant Respiratory Physician in the Beacon hospital. He also confirmed the diagnosis.

The worker invoked the grievance procedure in relation to the issue seeking compliance with circular 073/2020. The relevant section of the circular states:

3. Special provisions for Consultation of SLWP beyond 28 days.

SLWP may be extended beyond 28 days for certified Covid -19 related illness in circumstances where a manager determines that all four criteria below are met:

(i)                  An employee had been in the work premises at any time during the 14 days prior to commencing the self- isolation period of a positive case of COVID- 19. The work premises includes any location, outside the home, an employer requires an employee to attend as part of their work role e.g. in community settings, home visits. The attendance at the work premises/on site must have been known to and/or approved by the manager in advance.

(ii)                The employee provides their employer with medical evidence of a positive-19 test  including the date of this test.

(iii)               In accordance with the employer’s standard management referral process, the Occupational Health Physician confirm that the employee is medically unfit to resume work. How this will work in practice in S38 organisations will be based on the normal arrangements that apply for medical referrals to determine an employee’s fitness to resume work or otherwise during sickness absence.

(iv)               The OPH confirms that the employee’s absence relates primarily to ongoing Covid- 19 illness, and that they are accessing medical care.

(It is recognised that at the start of the pandemic, universal COVID testing was not available. Thus, on a case – by case basis, medical evidence that the clinical presentation indicated a high probability of COVID – 19 may suffice)

The Respondent is relying on the fact that the Employee has only ever had negative covid swabs. However, at that stage of the pandemic, approximately 30% of swabs were false negatives. PCR testing was not available at that time. Those statistics are on the HSE website. The Employee’s long covid has been confirmed by four medical doctors. Her GP, Dr. Mc Mahon, Dr. Tom Fitzpatrick and Professor Seamus Linnane.

The Employer has seriously abdicated their responsibility to the Employee who is suffering from a life changing illness which illness she contracted during her employment.

She is extremely unwell physically and mentally as a result of Covid. It is very important that the Employer recognise that she is suffering from a medically confirmed diagnosis and treat her as such.

The workers loss of earnings to date is € 127,120.70 and continues.  

The Respondent relies on their written submissions. In addition, gave a summary of their evidence as follows:

The Respondent is not contesting the Employee’s evidence save for her argument that she meets the criteria pursuant to Circular 073/2020. The worker is out on sick leave since March 2020. She was tested for Covid -19 via the swabbing system, however, despite having symptoms following contact with a covid -19 patient, she never tested positive. She was afforded the covid sick leave pursuant to the sick leave policy. As she never had a covid positive test therefore she never submitted a positive covid certificate. She needed to have certified covid illness and all four criteria to be meet the criteria.

 Criteria ii) of states “The employee provides their employer with medical evidence of a positive -19 test,  including the date of this test” She did not meet the criteria which required her to produce a positive Covid – 19 test result.

Whilst the Respondent is sympathetic towards the Employee situation they are obliged to ensure that all criteria are met before sanctioning a payment pursuant to circular 073/2020.

The only issue to be decided is whether or not, the worker meets the criteria as set out in Circular 073/2020. Whilst I note the worker never produced a positive covid test there is no doubt that did contract the virus and is now suffering from post - covid syndrome. That has been confirmed by four medical doctors. Supporting documentation in that regard was submitted into evidence by the Worker. Whilst I note that criteria 3 (ii) does require a positive covid test to be produced, the footnote states “It is recognised that at the start of the pandemic, universal COVID testing was not available. Thus, on a case-by case basis, medical evidence that the clinical presentation indicated a high probability of COVID 19 may suffice”. There is no doubt that the Worker had covid- 19 in April 2020 which she most likely contracted from exposure to a patient with the virus. Also, at that time PCR testing was not available. I can find no reason why the footnote should not apply to the worker based on the irrefutable evidence that she is suffering from long covid, a condition which can only exist from contracting the virus.

I am therefore making the following recommendations:

1.       The Worker is to be paid the sum of €127, 120.75 on or before the 1st October 2023.

2.       The Respondent is to continue to treat the working as complying with the criteria and footnote set out in circular 073/2020 for as long as she is medically certified as suffering from long covid syndrome.

3.       The Worker is to provide medical certificates to the Respondent monthly.

1.           The worker is to be paid the sum of € 127, 120.75 on or before the 1st October 2023.

2.           The Respondent is to continue to treat the Worker as complying with the criteria and        footnote set out in circular 073/2020 for as long as she is medically certified as suffering from post- covid syndrome.

3.           The worker is to provide medical certificates to the Respondent monthly.

Circular 073/2020. Long Covid. Pay.