The Sick Leave Act 2022 has been signed into law by the President. The Act, once commenced, will introduce an entitlement to statutory sick leave and pay for the first time in Ireland. A commencement order, along with regulations under the Act, which will set out the prescribed daily rate of payment, are still awaited. Employers should act now to ensure that policies are updated to reflect the obligations contained in the legislation.
Employee’s entitlement to statutory sick leave
The Act, once commenced, will introduce an entitlement to statutory sick leave for an employee who would ordinarily work but is incapable of doing so due to illness or injury. Initially, an employee will be entitled to up to three statutory sick leave days per year but the Act provides that this number can be increased by Ministerial order.
Currently, employees who are not paid sick pay by their employers do not receive any payment for the initial three-day period of their illness/absence, as State illness benefit does not become payable (to those employees eligible to receive it) until after the first three days of illness/absence. The new statutory sick leave payment will ensure that qualifying employees will now receive the sick leave payment from the first day of their illness/absence, covering the period until illness benefit is payable. The Government has indicated that it intends to increase this period to 5 days in 2024, 7 days in 2025 and 10 days in 2026.
Statutory sick leave payment
Importantly, the Act also provides that employees will be entitled to statutory sick leave payment from their employer for each statutory sick leave day. The employee must provide their employer with a medical certificate signed by a registered medical practitioner stating that they are unable to work.
Employers will be required to pay a “statutory sick leave payment”, in respect of each statutory sick leave day. The Minister will prescribe in Regulations the daily rate of the statutory sick leave payment. The Regulations may specify the percentage rate of an employee’s pay, up to a maximum daily amount, at which statutory sick leave payment will be paid. The Government has indicated that the rate of payment for statutory sick leave will 70% of normal wages (up to a maximum €110 per day).
In order to benefit from the entitlement to statutory sick leave days, the employee must have completed 13 weeks continuous service.
More favourable provision in a contract of employment
The Act does not prevent the inclusion in a contract of employment of a provision that is as favourable (or indeed more favourable) to an employee than the entitlement to statutory sick leave set out in the Act. Helpfully, it also confirms that any such provision will be in substitution for, and not in addition to, the statutory entitlement. Furthermore, any provision in a contract of employment that is, or becomes, less favourable to an employee will be deemed to be modified so as to be in line with the statutory entitlement.
Non-application of obligations
The obligations contained in the Act will not apply to employers who provide their employees with a sick leave scheme the terms of which confer benefits that are, as a whole, more favourable to their employees than statutory sick leave.
Exemption from obligation to pay statutory sick leave payment
The Act provides that the Labour Court may exempt an employer from the obligation to pay an employee or employees statutory sick leave payment in certain limited circumstances where the employer’s business is experiencing severe financial difficulties. The Labour Court is required to maintain a register of all these decisions which will be publicly available.
Protection of employment rights
The Act provides that an employee, during a period of statutory sick leave, must be treated as if he or she had not been absent from work and such absence must not impact on any of the employee’s employment rights.
Protection of employees from penalisation
The Act also contains a protection against penalisation for an employee proposing to exercise, or having exercised, his or her entitlement to statutory sick leave.
Requirement to keep records
The Act requires an employer to keep records for four years of the statutory sick leave taken by each employee. Failure to do so is an offence and a person guilty is liable on summary conviction to a maximum fine of €2,500.
Complaint to the Workplace Relations Commission
An employee who believes that their employer has failed to comply with the provisions of the Act may make a complaint to the WRC. An adjudication officer may award compensation of up to 4 weeks’ remuneration.