Ireland, unlike most other European States, does not provide for paid sick leave. This means there is no legal right to be paid while on sick leave from work. This position has come under increased scrutiny since the beginning of the pandemic in March 2020. Many employees were not entitled to paid sick leave and there was pressure on employees to work despite being sick at a time when people were called upon to restrict their movements.
Sick Leave Bill 2021
The Government has published the text of the Sick Leave Bill 2021. The current legislative programme states that this will be subject to scrutiny by an Oireachtas committee before Christmas.
The Bill provides that an employee will be entitled to statutory sick leave if they are ill. In order to avail of a statutory sick leave day, an employee must provide a medical cert to their employer stating that they are unable to work.
Under this Bill the Government has set out that the statutory sick pay scheme will be phased in over a four-year period:
- 2022- three days statutory sick leave;
- 2023- five days statutory sick leave;
- 2024 – seven days statutory sick leave; and
- 2025- ten days statutory sick leave.
The Bill initially provides for three days statutory sick leave days per annum; however, the Bill allows this number of days to be varied by the Minister for Trade, Enterprise and Employment. Section 6 of the Bill states that before the Minister increases the days he must take into consideration: the state of the economy generally; potential for any disproportionate impact; earnings and labour costs; and expert opinion.
The Bill currently does not prescribe the rate of pay but the Minister envisages that it will initially be paid at 70% of regular earnings up to €110 per day, from the first day of illness, and this can be varied by ministerial order.
In order for an employee to be entitled to statutory sick pick they have to be an employee for 13 weeks. A record of statutory sick pay should be made for each employee and retained by the employer for 4 years.
If an employee takes statutory sick leave, it shall not disentitle them from any benefit and they should be treated as if they weren’t absent. If an employee is undergoing training and takes statutory sick leave, the training can be paused by the employer during this absence.
An employer is exempt from the Bill if they provide for more favourable sick pay in the contract of employment or under a sick leave scheme.
The Labour Court may exempt an employer from the Bill for a duration of three months up to a year. To avail of this exemption an employer needs to apply to the Labour Court and must prove:
- the employees consent to this application (this consent may be exempted by direction of the Labour Court) and
- the employer’s business is experiencing severe financial difficulties.
The Labour Court will make a decision in writing to this effect and maintain a register of all decisions.
In conclusion, the Bill as currently drafted will place the following new obligations on an employer:
- From 2022 each employee who is in continuous service for more than 13 weeks is entitled to statutory sick leave of 3 days (this may increase in 2023 and could be two working weeks by 2025);
- The rate of pay when an employee is on statutory sick leave is 70% of regular earnings up to €110 per day;
- The employer must keep a record of all statutory sick leave taken; and
- The employer shall not prejudice an employee for availing of this leave.
On application to the Labour Court, an employer who is experiencing severe financial difficulties can apply for an exemption from the Bill.
If an employer fails to comply with the new obligations, the employee can make a complaint to the Workplace Relations Commission and they may be awarded compensation for up to 20 weeks’ remuneration.
The Bill is not law and clearly is subject to change. We will update this note when the Bill becomes law.
If you require further assistance, please contact one of the following members of our employment law team: Elaine O’Flynn, Sarah Coughlan, Judith Curtin or Shane Crossan.