What should I do?
Question: One of my employees got Covid in 2021 and has since been diagnosed with post-Covid syndrome or long Covid. She suffers from extreme fatigue and joint pain and she often has to leave work early because she’s too exhausted to finish her shift.
She tries to catch up on her work at the weekend or by working late the following week, but it’s got to a point where she is no longer the dependable, efficient employee she once was.
I’m very fond of her and I have huge sympathy for what she’s going through. At the same time, I’m a small business owner and I simply can’t afford to have an employee who is unable to work five days a week.
I’m thinking of dismissing her and finding somebody else to take on her role, but it feels disloyal and unkind. What should I do?
Answer: There is no right or wrong answer to your situation and to add an extra layer of complexity to this particular workplace challenge, there is no legal precedent to help weigh up your decision.
I shared your dilemma with employment law expert Richard Grogan, who notes that business owners like yourself are treading a minefield.
“The problem we have with all this is that it has not been decided yet whether long Covid is or is not a disability,” he says. “It is very much an issue and one that has not really been grasped by employers yet, but it is going to have to be grasped fairly soon and unfortunately, we don’t have a provision in Ireland to have what I would call a ‘test case’.
“The view by a lot of employment lawyers is it’s not a disability, but that is going to have to be tested at some stage.”
Grogan says cases like the one you are dealing with will invariably end up in the WRC and the Labour Court in due course, but until then, “we’re all walking around in the dark”.
In normal circumstances, if an employee develops a disability while in your employment, you would be obliged to make reasonable accommodation. “That is not giving the employee a new job,” says Grogan. “That is seeing can their role be structured in such a way that they are able to perform their job or are there elements of the job taken away that would enable them to do their particular job and that is going to depend on the particular circumstances of a particular job that someone is doing.”
If an employee’s illness is not classified as a disability, the employer must follow appropriate procedures before they can dismiss them.
“Effectively, the employer has to deal with this issue as if it is a disciplinary matter,” says Grogan. The process involves getting a medical report done by a registered medical practitioner and determining whether the employee can come back to work full-time in the future.
“The employer has to tell them their job is at risk, give them the right of representation, whether it’s a fellow employee or a union official, give them the medical report — and the opportunity to challenge it — and give them the opportunity to produce their own report.”
Legal precedent would help you determine which of these routes is more likely, says Grogan, but for now, he advises you to err on the side of caution.
“Unfortunately, where you’re advising an employer and employees, the advice is you’re going to have to pay your money and take your chances until there is a ruling.
“When you know there is a minefield ahead, the easiest thing to do is to go around it. It puts you through the additional cost and expense, but that minimises the risk then of a successful claim against the employer.”
As a business owner, it’s only natural for you to look at this issue through a legal lens, but before you go down that road, it’s worth exploring the emotional side of this particular issue.
I also shared your dilemma with Chris Dunne, who is a member of the panel of mediators at One Resolve. He says issues around dismissal are rarely straightforward but, as a prerequisite, you could try to “accurately assess the fall off in the employee’s productivity and measure the financial/reputational cost to your business”.
“That could provide you with baseline values for any decisions,” he says. After that, he suggests that you move from a position of “I’m thinking of” to “I have considered and this is my best thinking”.
“An approach might be to schedule a meeting with the employee, giving them notice of the topic you wish to discuss,” he says. “Sit down with the employee and invite them to take notes.
“Acknowledge that they are struggling with Covid and that you appreciate their efforts to deliver their work, and invite them to describe how it is impacting them and options they see for how things could progress. The employee may become emotional, you would need to let them talk, hold the space, and listen.
“You might then explain what you have observed in terms of a fall-off in productivity, what you see as options for how things might progress (mange workload or potential exit) and get a sense of their response. After that meeting, you may then have a better view of which outcome is more likely.”
From reading your letter, it sounds like you haven’t discussed the situation with your employee beyond the brief and perfunctory exercise of managing her sick leave. You’re clearly concerned about your business. Likewise, she’s clearly concerned about her dwindling productivity and the impact it might have on her career.
It seems there’s a communication gulf between the emotional and the procedural and I wonder if it’s making the situation worse. Trying to predict what someone is really thinking takes an awful lot of energy — and energy is at a premium for your employee right now. An honest, compassionate conversation is required, no matter what decision you make.
And when you adopt a compassion mindset, you might be surprised by the decision you ultimately arrive at. Sure, there are plenty of people who will tell you that all is fair in love, war and business, but perhaps there’s an opportunity here to transcend the transactional nature of commerce and cultivate a deeper and more trusting employee relationship.
To put it simply, employees are more loyal to employers who have their back during thick and thin — and employee loyalty is worth its weight in gold.
If you have a dilemma, email email@example.com.