Employer Alert: Introduction of statutory sick pay scheme one step closer
The Government has published the Draft Sick Leave Bill here which will commence pre-legislative scrutiny before the Joint Committee on Enterprise, Trade and Employment tomorrow, 10 November. When the Government announced its intention to introduce a statutory sick pay scheme, it indicated that it would be phased in over a four-year period, starting with three days in 2022, five days in 2023, seven days in 2024, and ultimately increasing to 10 days in 2025.
The draft Bill provides for the following:
Employee’s entitlement to statutory sick leave
The Bill introduces 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 annum but the Bill provides that this number can be increased by Ministerial order.
Statutory sick leave payment
Importantly, the Bill also provides that the employee will be entitled to statutory sick leave payment from his or her employer for each statutory sick leave day.
An employee will be paid by his or her employer a prescribed daily rate of payment, the “statutory sick leave payment”, in respect of each statutory sick leave day. The Minister will prescribe in Regulations the daily rate of 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.
In order to benefit from the entitlement to statutory sick leave days, the employee must have completed 13 weeks continuous service with his or her employer. The employee must also provide his or her employer with a medical certificate signed by a registered medical practitioner stating that the employee named in the certificate is unable to work.
More favourable provision in contract of employment
The Bill confirms that it 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 Bill. Helpfully, it also confirms that any such provision will be in substitution for, and not in addition to, the statutory entitlement. The Bill also provides that 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 Bill provides that the obligations contained in the Bill will not apply to an employer who provides his or her employees a sick leave scheme where the terms of the scheme confer benefits that are, as a whole, more favourable to the employee than statutory sick leave.
Exemption from obligation to pay statutory sick leave payment
The Bill 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 Bill 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 Bill 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 Bill requires an employer to keep a record of the statutory sick leave taken by each of his or her employees for four years. 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
Where an employee believes that his or her employer has failed to comply with the provisions of the Bill, the employee may make a complaint to the WRC. An adjudication officer may award compensation of up to 20 weeks’ remuneration.