Ireland is one of the few advanced European countries without a statutory mandatory employer sick pay scheme. While many employers provide sick pay to their staff, this is often not the case for lower-salaried workers. As a result of the ongoing COVID-19 pandemic, the government introduced an enhanced Illness Benefit, paying €350 a week to workers who were out of work due to COVID-19. The government now intends to ensure all workers are covered by a sick pay scheme regardless of the illness. As part of this process, the Department of Enterprise Trade and Employment (Department) conducted a public consultation and an international review of sick leave schemes in other jurisdictions. In June 2021, the Tánaiste obtained cabinet approval to draft the Sick Leave Bill 2021 (Bill). The Bill has recently been published on the Department’s website.
Sick Leave Bill 2021
The Bill provides for statutory sick leave payment (SSP) for an employee, in respect of a day which they ordinarily work but are incapable of doing so due to illness or injury, of up to three days a year. An employee is entitled to SSP from their employer in respect of each statutory sick leave day. An employee will have to provide a medical certificate stating that they are unable to work. An employee becomes entitled to SSP after they have completed 13 weeks of continuous service with their employer.
The Bill will not apply to employers who provide more favourable sick leave schemes to their employees. This will be determined by reference to;
- “the period of service of an employee that is required before sick leave is payable;
- the number of days that 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.”
SSP and Employer Exemptions
The Department has stated that the initial SSP will be paid at 70% of regular earnings up to €110 per day. This rate can be altered by ministerial order.
Employers who genuinely cannot afford to pay the SSP can apply to the Labour Court for an exemption from the Bill. Such an exemption can apply to the employer from between three months to a year. The Labour Court will look for an agreement between the employer and their employees consenting to the exemption. Failing this, the Labour Court may still grant an exemption if satisfied that the employer has informed its employees of its financial difficulties and attempted to reach an agreement, and that if the employer was compelled to pay SSP the viability of the business would be adversely affected, or likely lead to a material number of employees being laid-off or made redundant.
12 months following the commencement of the Bill, and at 12-month intervals after that, the relevant Minister (Minister) is entitled to specify additional sick leave days under the Bill having regard to;
- “the state of the economy generally, the business environment and national competitiveness;
- the potential impact, including the potential for any disproportionate or other adverse impact, that the making of an order will have on the economy generally, specific sectors of the economy, employers or employees;
- annual and quarterly data on earnings and labour costs as published by the Central Statistics Office;
- expert opinion, research, national or international reports relating to the matters specified at paragraphs (1) to (3) that the Ministers considers relevant;
- such other matters as the Minister considers relevant.”
However, the Minister cannot reduce the number of statutory sick leave days below three, or increase by more than three, the number of days accounted for in the previous order.
The Department has indicated that the current plan is to increase statutory sick leave days as follows;
- Year 1: Three days covered
- Year 2: Five days covered
- Year 3: Seven days covered
- Year 4: Ten days covered.
How Can We Help You?
For more information on employment-related matters please contact Catherine O’Flynn or your usual William Fry contact.
Contributed by Jack Feehan & Lisa Shannon