Sick Leave Bill 2021

Illness and injury can have a devasting impact on an employee’s livelihood.  While many employees have the benefit of a sick leave payments policy under a contract of employment, there is currently no statutory entitlement to such a payment.  The minimum statutory entitlement of employees on sick leave is the benefit of public holidays, provided certain requirements under the Organisation of Working Time Act are satisfied.

Ireland is one of the few advanced countries in Europe that does not have a mandatory sick pay scheme.  The COVID-19 pandemic highlighted this issue when many low paid essential workers were forced to attend work while feeling unwell out of financial necessity until the Government introduced the enhanced illness benefit payment.  In June 2021, the Tánaiste and Minister for Enterprise, Trade and Employment, Leo Varadkar, announced details of a proposed new law which will provide all workers with a right to paid sick leave.

 

Sick Leave Bill 2021

The Government published the Sick Leave Bill 2021 in November 2021.  The Bill provides for a statutory sick leave entitlement for an employee in respect of a day on which that employee would ordinarily be working but is incapable of doing so due to illness or injury.  This entitlement will not commence until the employee has completed 13 weeks continuous service with his or her employer.  In order to avail of the leave, an employee must provide his/her employer with a medical certificate signed by a registered medical practitioner stating that the employee named is unable to attend work.  The Bill provides that statutory sick leave days can be consecutive or non-consecutive.  An employee will be entitled to 3 statutory sick leave days per annum.  However, the Bill does allow for the Minister to vary the number of statutory sick leave days to such number of days that he/she considers appropriate having regard to considerations set out in the legislation.

The Government previously indicated that the statutory entitlement to sick pay would be phased in as part of a 4-year plan with provision for 3 days per annum in 2022 and eventually 10 days per annum by 2025.  The Government had proposed the following phased entitlement:

 

Statutory Sick Leave Payment

The Bill provides that an employee shall be paid a prescribed daily rate of payment in respect of each statutory sick leave day.  The Bill allows for the Minister to make regulations for the purposes of prescribing the daily rate of the statutory sick leave payment.

The Government has indicated that the initial statutory sick pay will be at a rate of 70% of an employee’s wage, subject to a daily maximum of €110.00.  The Bill does not prevent an employer from providing a more favourable sick leave scheme in a contract of employment.

The Bill provides an exemption for employers who cannot afford to pay the statutory sick leave payment.  An application for such an exemption can be made to the Labour Court with the consent of the employer and its employees.  If consent is not forthcoming, the Labour Court can still grant an exemption if satisfied that the employer has informed its employees of its financial difficulties, has attempted to reach an agreement and payment of the statutory sick leave payment would adversely impact the viability of the business or lead to a number of employees being placed on lay off or being made redundant.

 

Employment Rights

The Bill provides that a period of statutory sick leave from work be treated as if that employee had not been so absent so as not to affect any right related to the employee’s employment whether conferred by statute, contract or otherwise.  The Bill specifically sets out that statutory sick leave shall not be treated as part of any other leave from employment including annual leave, maternity leave, additional leave under section 16 (1) and (4) of the Maternity Protection Act 1994, adoptive leave and additional adoptive leave under the Adoptive Leave Act 1995, paternity leave, transferred paternity leave and parents leave.

The Bill also provides that where an employee on probation, training or employed for an apprenticeship takes statutory sick leave, an employer may require that the probation, training or apprenticeship be suspended during the period of statutory sick leave and completed at the end of that period, if it considers that the absence from employment on statutory sick leave would not be consistent with the continuance of the probation, training or apprenticeship.

 

Protection against Penalisation

The Bill provides that an employer shall not penalise or threaten penalisation of an employee for proposing to exercise or having exercised his or her entitlement to statutory sick leave.  The Bill defines penalisation as any act or omission by an employer or a person acting on behalf of an employer that effects an employee to his or her detriment with respect to any term or condition of his or her contract of employment including but not limited to:

 

Obligation to Maintain Records

The Bill provides that employers must maintain a record of the statutory sick leave taken by each employee.  Such records must be retained by the employer for a period of 4 years and contain the following information:

An employer who, without reasonable cause, fails to comply with this obligation shall be guilty of an offence.

 

Enforcement of Rights

When an employee believes that his or her employer has failed to comply with the provisions of this legislation, he/she can make a complaint to the Workplace Relations Commission.  An Adjudication Officer’s decision may include an award of compensation of such an amount as the Adjudication Officer considers just and equitable but shall not exceed the value of 20 weeks remuneration.

 

Conclusion

The Bill is still in its infancy and will doubtless be amended as it proceeds through the legislative process.  Many employers will be of the view that it is being introduced at a time when businesses are already under significant financial pressure because of the pandemic.  Others are of the view that the necessity to provide a medical certificate will be a significant financial burden on low paid workers.   It seems that the Government is trying to adopt a balanced approach by providing for a more inclusive economy for all workers but on a phased basis and with thresholds for rates of pay so that employers do not face excessive costs.

 

If you require further information, please contact Cara Walsh or Michelle Loughnane by telephone on 01 676 5473 or by email at cwalsh@mwmlegal.ie or mloughnane@mwmlegal.ie

 

*Before acting or refraining from acting on anything in this guide, legal advice should be sought from a solicitor.

**In contentious cases, a solicitor may not charge fees as a percentage or proportion of any award or settlement.