Bríd Smith (Dublin South Central, People Before Profit Alliance)
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798. To ask the Minister for Education and Skills if a chief executive of an ETB can make a discretionary referral to the occupational health service of an employee who has been certified fit by a doctor citing the condition from which the employee has recovered. [33398/20]

Bríd Smith (Dublin South Central, People Before Profit Alliance)
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799. To ask the Minister for Education and Skills if a chief executive of an ETB can demand that a doctor who has certified an employee as fit for work should certify that employee as unfit for work while awaiting an appointment arranged for the employee with the occupational health service; and if this is an breach of the protocols issued by her Department. [33399/20]

Bríd Smith (Dublin South Central, People Before Profit Alliance)
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800. To ask the Minister for Education and Skills if the chief executive of an ETB can refuse an employee who has been certified fit for work by a doctor access to their workplace following a judgment of medical unfitness made by the chief executive in breach of the occupational health service protocols issued by her Department; and if she will make a statement on the matter. [33400/20]

Bríd Smith (Dublin South Central, People Before Profit Alliance)
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801. To ask the Minister for Education and Skills if the chief executive of an ETB can arrange an appointment for an employee with the occupational health service when such is in breach of the protocols issued by her Department. [33401/20]

Norma Foley (Kerry, Fianna Fail)
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I propose to take Questions Nos. 798 to 801, inclusive, together.

Employers have a responsibility under Section 8 of the Safety, Health and Welfare at Work Act 2005 to “ensure, so far as is reasonably practicable, the safety, health and welfare at work of his or her employees”. The Employment Equality Acts also requires employers to take reasonable steps to accommodate the needs of employees and prospective employees with disabilities.

In order to discharge these statutory management responsibilities effectively and efficiently, it is essential that employers have access to professional occupational health advice on medical fitness for work. The Occupational Health Service (OHS) is in place to assist employers in carrying out this duty in respect of teachers, special needs assistants (SNA)s and also clerical officers/caretakers employed under the 1978/79 Scheme. The OHS provider, contracted by the Department, is the sole recognised provider of independent medical advice for these employees and their employers. It is a requirement of the Sick Leave Scheme that all employers and employees abide by the OHS medical assessment.

The OHS provides services that include pre-employment medical assessments, medical assessments of fitness for work, sickness absence management and ill health retirement assessments. Paragraph 3.3 of the Sick Leave Scheme (Chapter 1) for teachers contained in my Department’s Circular Letter 54/2019 and also paragraph 3.3 in Circular Letter 60/2019 for SNAs details the basis for an employer referral to the OHS for an independent medical assessment. This includes an employer who is obliged to make a discretionary referral to the OHS for an independent medical assessment where reasonable concerns exist as to the capacity of the employee to undertake his/her duties in a manner that is safe, such as repeated short-term Sick Leave absences, concerns regarding performance of duties as a result of health factors, work-related factors that may be adversely affecting an employee’s health or alcohol/drug related problems. The Employers Procedures Manual contained at Appendix A of these Circulars includes the step by step process for referral of an employee to the OHS for an independent medical assessment.

Paragraph 12.3 of the Sick Leave Scheme for teachers and paragraph 13.3 of the Sick Leave Scheme for SNAs states the following:-

‘Confirmation of fitness must also be obtained by the employer from the OHS, prior to resumption of duties, in the case of a teacher/SNA who is (i) absent on paid Sick Leave for 4 or more continuous weeks (or a shorter period where the employer has reasonable grounds for concern), or (ii) absent for any period of TRR/unpaid Sick Leave.’

Based on the terms and conditions of the Sick Leave Scheme, where an employer has reasonable concerns about an employee resuming duties, the OHS advice should be sought prior to a return to the workplace. The OHS Occupational Physicians offer a unique perspective, insight and skill set that allows them to provide an appropriate assessment and informed opinion with respect to an employee’s medical fitness for work, as distinct from an opinion on the nature and severity of their medical complaint.

Where there is a difference of medical opinion between the OHS and the treating Doctor/Consultant on an employee’s medical fitness for work, the OHS will consult with the treating Doctor/Consultant before providing final advice to the employer. If there is a specific need for an independent medical assessment, this can be facilitated through the OHS.

Bríd Smith (Dublin South Central, People Before Profit Alliance)
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802. To ask the Minister for Education and Skills if ETBs can impose different conditions of work on teachers who teach students in mainstream post-primary classes as against colleagues on the same contact of employment who teach students pursuing further education courses in relation, for instance, to availability of online teaching and staggered lessons; and if she will make a statement on the matter. [33402/20]

Norma Foley (Kerry, Fianna Fail)
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My Department published the Roadmap for the full return to school on 26^thJuly 2020 (updated on 5^thAugust 2020) for the Primary and Post Primary sectors. Afterwards it published the Guidelines for Further and Higher Education for returning to on-site activity in 2020 - Roadmap and Covid-19 Adaptation Framework on 22nd July 2020 (updated on 29th August, 2020).

The Department's guidance for schools to operate in a safe and sustainable manner for students and staff does not impact on the existing terms and conditions of teachers. It has been developed in line with public health advice and followed comprehensive and intensive engagement with education stakeholders including the school management bodies and staff representatives. It also reflects a consideration of approaches adopted in other jurisdictions, which have been finalised in recent weeks.

In-person primary and post primary schooling have been deemed essential services up to and including level 5.