Currently, there is no statutory obligation on employers to pay employees who become sick and are absent from the organisation, whether for the short or long term.

However, this discretion will be removed by the enactment of the Sick Leave Bill 2021 ("the Bill") which will become law in 2022. The Bill is currently before the Oireachtas and though it may be subject to future amendments some of the key details of the new scheme are apparent.

Payment for Statutory Sick Leave

The legislation will, for the first time, provide a statutory entitlement to a minimum period of paid sick leave from employers, if employees become ill or sustain an injury which prevents them from being able to attend work.

The Bill states that employers will provide employees, who have 13 weeks’ continuous service, with sick leave pay for up to three days of certified sick leave per year.

However, this entitlement will increase over a period of four years with the number of days being covered by the scheme going from three in 2022, to seven in 2024 and to ten in 2025.

Rate of Sick Pay

Employers will not be required to pay an employee's full salary for the days on which they are entitled to paid sick leave. The rate of payment for statutory sick pay will be of 70% of the employee's normal daily wages and is capped at a maximum of €110 per day.

Enforcement and Liability for Employers

Once enacted, the Minister of Enterprise, Trade and Employment will set a date from which the Act will take effect and employers will be expected to comply with it from that date.

The Bill provides that where an employee believes that his or her employer has failed to comply with the provisions of the legislation in relation to statutory sick pay, the employee can make a complaint to the Workplace Relations Commission (“the WRC”).

A determination of the WRC under the Act can include an award of compensation of up to 20 weeks’ of the employee's pay.

Non-application of obligations on employers under Act

The Bill also states that the obligations under the legislation shall not apply to an employer who already provides his or her employees with a sick leave scheme where the terms of that scheme are, as a whole, more favourable to the employee than statutory sick leave.

Exemption – Financial Difficulty

Fortunately, the Bill recognises that some organisations may not have the financial capabilities to take part in the payment of sick leave in line with the proposed sick leave scheme under the Bill.

The Bill outlines that the Labour Court may, on application to it by an employer or an employer's representative, exempt an employer from the obligation to pay an employee or number of employee's statutory sick leave payment if the company can show, amongst other things, that it is experiencing severe financial difficulties. Such an exemption cannot exceed one year, and cannot be for less than 3 months.

Conclusion

Employers are advised to watch the progression of this Bill cautiously, especially those employers who do not currently offer any sick leave entitlements to their employees.