Statutory Sick Leave Signed into Law
The Sick Leave Act 2022 has been signed into law by the President, however the provisions of the Act have yet to come into force. Employees sick pay entitlement will start once the legislation is enacted. It is anticipated that the entitlement to statutory sick pay will apply from the final quarter of 2022.
Under the new regime, employees will have an entitlement to three days of paid sick leave this year, and this will be rolled out as part of a four-year plan, with employees having an entitlement to 10 days paid sick leave by year four.
The plan is as follows:
- Commencing with an entitlement to 3 days in 2022
- Increased to 5 days in 2024
- Increasing to 7 days in 2025
- Increasing to 10 days in 2026
The entitlement to paid statutory sick leave days is based on a calendar year i.e., per annum and not a rolling year. The legislation does not specify the amount of statutory sick pay; however, it provides that an employer must pay 70% of a worker’s wage to a maximum of €110 a day. There will be no compensation scheme introduced for employers to assist them with costs of sick pay, nor will there be a top up of salary from the State.
Section 9 of the new Statutory Sick Leave Act sets out that if an employer already provides a more favourable sick pay scheme to their employees, they will not be obliged to comply with the statutory sick pay rules. An employer will have to demonstrate that any discretionary or pre-existing scheme is definitely more favourable than that provided for in the legislation. SFA is seeking further clarification on what constitutes a more favourable pre-existing sick pay scheme.
An employee must obtain a medical certificate to avail of this statutory sick pay, and the entitlement is subject to the employee having worked for their employer for a minimum of 13 weeks. Statutory sick leave days may be taken consecutively or non-consecutively. Once entitlement to sick pay from their employer ends, employees who need to take more time off may qualify for illness benefit from the Department of Social Protection subject to PRSI contributions. In addition, it will be a mandatory requirement for employers to retain records of any statutory sick leave days taken by employees, and these records must be kept for a period of 4 years. Failure to comply with this requirement may result in a fine of up to €2,500.
Another point of note, an Employer may apply to the Labour Court to be made exempt from the payment of Statutory Sick Leave (Section 10) where they can show agreement with the employees, either directly or through representation and second condition being that they demonstrate the business is experiencing financial difficulties.
The Act provides that an employee, during a period of statutory sick leave, must be treated as if they had not been absent from work, and such absence must not affect any of their employment rights. The Act also states that employees cannot be penalised for having exercised their right to take Statutory Sick Leave. Penalisation could include lay off, demotion, suspension, or a disciplinary sanction, essentially, any unfavourable treatment. Employees can make a complaint to the WRC if they believe their employer has failed to comply with the provisions of the Act, and they may be awarded compensation of up to 4 weeks’ remuneration.
Employers should be preparing for its implementation by introducing a sick pay policy if none exists, reviewing their existing sick pay policies, company handbooks and contracts to ensure they align with requirements set out in the Statutory Sick Leave Act. Preparation must also include informing employees of their rights and obligations under the Statutory Sick Pay Scheme.
You can contact our HR Executive Fiona Mulligan on fiona.mulligan@sfa or ring 01 6051557 if you have any questions on the above. The SFA will continue to provide updates on this issue in the coming weeks.