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Statutory sick pay: What Irish employers need to know and do now

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Currently, there is no legal obligation for employers in Ireland to pay workers during time off due to illness.

However, following an announcement by the government in June 2021 of plans to establish a statutory sick pay (SSP) scheme, a draft Sick Leave Bill 2021 was published on 5 November 2021.

This article will explain the new scheme to employers at small businesses and medium businesses and how they can prepare for the scheme coming into effect in 2022.

Here’s what we cover:

The new statutory sick pay scheme

What is statutory sick pay?

When will the scheme start?

How will it affect employers?

What employee protections are included in the Bill?

What employers need to do now

What your employees might ask about the scheme

Final thoughts on statutory sick pay

The new scheme aims to bring Ireland in line with other European countries that have mandatory paid sick leave for workers in place.

The move by the government is in response to the recognition during the pandemic for the need for greater security for lower-income workers.

Announcing the proposed Bill in June 2021, Tánaiste and Minister for Enterprise, Trade and Employment, Leo Varadkar said the legislation’s primary aim is “to provide a minimum level of protection to low paid employees, who may have no entitlement to company sick pay schemes”.

Under the legislation, employers will be obliged to provide a minimum number of paid sick days annually from 2022.

Currently, an employee whose employer does not provide paid sick leave can apply for Illness Benefit.

However, the payment is a flat €203 per week and the worker must satisfy a minimum level of PRSI contributions. The applicant does not get paid for the first three days they are absent called ‘waiting days’ – this was reduced from six days in March 2021.

Different conditions and payment amounts apply to Covid-19 related absences.

The new legislation gives employees the right to a minimum period of paid leave if they become ill or sustain an injury that makes them unfit for work.

The scheme is set to be rolled out in four phases, with an initial three days’ sick pay from 2022 and a total of 10 days by 2025.

The eventual 10 days or two working weeks of sick pay per year will be in addition to other leave entitlements including annual leave, parental and maternity leave as well as public holidays.

Both full and part-time employees can avail of paid leave under the scheme.

Currently, a rate of 70% of usual daily earnings and a cap of €110 is being proposed and this is designed to avoid placing an excessive financial burden on employers.

The Sick Leave Bill 2021 was published in November 2021 and is expected to be passed by the end of 2021.

The scheme will start on 1 January 2022 with an initial three days in 2022 and will be phased over four years, increasing to five days in 2023, seven days in 2024 and 10 days in 2025.

The roll-out is being staggered to give employers – particularly owners of small and medium businesses – time to plan for and budget for the additional cost.

If your business doesn’t already have a sick leave scheme in place, the new legislation will impose costs on your company.

Additionally, indirect costs may include administrative costs in relation to setting up and implementing the scheme and maintaining records for each employee.

However, the Sick Leave Bill 2021 Regulatory Impact Assessment document sets out the potential benefits for employers, including reducing presenteeism and managing absenteeism.

Other benefits include reduced employee turnover and promoting a safer work environment where those who suffer injury or infectious illnesses take time to recover and which results in less productivity loss overall.

As an employer, you must keep proper records for each employee. The records must be maintained for four years and include information in relation to each employee who availed of sick leave.

The following information must be included in the records:

  • The employee’s period of employment
  • The dates of statutory sick leave in respect of each employee
  • The rate of statutory sick leave payment in relation to each employee

An employer who fails to maintain accurate records may be convicted and subject to a fine of up to €2,500.

In certain circumstances, an employer whose business is experiencing severe financial difficulties may apply to the Labour Court for an exemption to pay sick leave.

If an exemption is granted, it will be for a minimum of three months and up to one year.

The scheme will be enforced through the Workplace Relations Commission and the courts system.

As an employer, you are obliged to ensure that employees who express their intention to take or do take statutory sick leave are not treated differently.

An employee who avails of their right to statutory sick leave should not be penalised for their absence. Penalisation, as described in the Bill, includes dismissal or layoff, coercion, demotion or transfer of duties.

Additionally, any absence in relation to SSP should not affect any other employment rights – whether statutory or contract.

The Bill provides protection for an employee to lodge a complaint to the Workplace Relations Commissions if they believe their employer has failed to comply with the provisions of the statutory sick pay legislation.

Under the current draft legislation, a successful complaint allows for the adjudication officer in the case to award “just and equitable” compensation to the employee in the amount of up to 20 weeks’ pay.

The decision can be appealed to the Labour Court.

It’s worth noting that claims must be submitted to the Workplace Relations Commission within six months of the dispute under the legislation.

If you already provide for paid sick leave through your employment contract or through collective sector or union agreements, you’ll need to review the contracts in light of the upcoming legislation. If you have a dedicated HR manager or team, you’ll need to look at the draft Bill and how it relates to your company.

The Sick Leave Bill 2021 states that if an existing provision for paid sick leave in an employment contract is as favourable or more favourable than the statutory provision, then the employer’s obligation under the legislation is met.

The Bill further states any such provision shall be a “substitution for, and not in addition to” the entitlement.

However, if a provision for sick leave in your standard employment contract is less favourable than the entitlement provided under the legislation, it will be “deemed to be so modified so as to be not less favourable”.

In summary, an employer who provides a sick leave scheme to employees more favourable than the terms of the statutory scheme will not have additional obligations under the Bill.

The Bill sets out the criteria for employers to determine whether their existing sick pay scheme is more favourable than the proposed statutory provisions provided in the Bill:

  • The period of service of an employee required before sick leave is payable
  • The number of days an employee is absent before sick leave is payable
  • The period for which sick leave is payable
  • The amount of sick leave that is payable
  • The reference period of the sick leave scheme.

The draft Bill sets out the conditions under which employees can take statutory sick leave:

  • Employees must have completed 13 weeks’ continuous service before availing of statutory sick leave. (Note: this is a change from the initial announcement in June 2021 where it had been proposed an employee’s entitlement began after six months’ employment.)
  • The employee must provide their employer with a certificate from a registered medical practitioner and the certificate must state that the employee named is unfit to work due to their illness or injury.
  • The leave must be in relation to a day or days when an employee would ordinarily work but is incapable of working due to illness or injury.
  • The leave can be taken on consecutive days or non-consecutive days.

Additionally, once the entitlement to statutory sick pay from the employer ends, employees who haven’t recovered and are still unfit to return to work may qualify for Illness Benefit.

The Sick Leave Bill is currently passing through the Dáil and Seanad and amendments to the Bill may be introduced before it’s signed into law.

If you currently operate an occupational sick pay scheme, it’s advisable to conduct a review before the end of the year and keep up to date with the Bill as it proceeds through the legislative process.

If you currently have no provision for paid sick leave, you still have some time to prepare for the legislation to come into effect.

Preparation should include communication to employees about their rights and obligations under the terms of the scheme and the set up and implementation of processes to manage the scheme.

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