The Sick Leave Act 2022 has been passed by the Oireachtas, signed by the President on 20th July 2022,and a date of implementation is expected in the autumn after a commencement order is made. This Act legislates for a statutory sick pay scheme to give employees the right to paid sick leave, starting with three paid days in a year and increasing to ten days by 2025.
The intention is that the Sick Leave Act will provide a floor level of protection to all employees and that existing less favourable sick pay arrangements will be rendered null and void.
However, it is not intended that existing more favourable sick pay arrangements will be undermined by this legislation.
An employee will only become eligible for statutory sick pay once they have worked for their employer for a continuous period of 13 weeks.
An employee must obtain a medical certificate to avail of statutory sick pay, and the entitlement is subject to the employee having worked for their employer for a minimum of 13 weeks.
The sick leave days do not have to be continuous.
Part-time or irregular hours workers will receive statutory sick leave for days they would ordinarily work.
Rate of Payment
An employee will be entitled to 70% of their gross normal earnings in respect of their sick leave entitlement up to a maximum of €110 per day. The upper earnings threshold is designed to prevent excessive costs being imposed on businesses and reflects Quarter 4 2019 national mean weekly earnings from the Central Statistics Office (CSO).
Method of Calculation
The method of calculation is taken from S.I. 475/1997 Organisation of Working Time (Determination of Pay for Holidays) Regulations, 1997 and is intended to ensure that part-time employees or those who work irregular shift patterns will receive an appropriate rate of compensation when absent through illness or injury.
Minister may set the Rate and Days
The Minister will have the power to amend the number of paid sick leave days an employee will be entitled to under this Act.
The initial entitlement of three days is to provide employers with an opportunity to adjust to costs and the administrative burden, however, it is intended that over time the level of coverage will increase incrementally to 10 days by 2025.
The Minister will have the power to amend:
- the number of sick leave days provided for under this Act;
- the percentage rate that shall be paid and
- the upper earnings maximum cap provided for.
Amendments will be made following consideration and due regard by the Minister to:
- the economic climate;the CSO annual and quarterly data on earnings and labour costs;
- the possible impacts an amendment will have on both employers and employees;
- views of employer representatives and
- expert opinion and research that the Minister deems relevant.
Recording and Counting of Statutory Sick Leave
Employers must also ensure that they have a system in place for keeping proper records of the statutory sick leave taken by each employee, to include the period of employment of each employee who availed of statutory sick leave, the dates and times of the statutory sick leave and the rate of sick leave payment. Such records must be retained for a period of four years and an employer who without reasonable cause fails to keep records shall be guilty of an offence and liable on conviction to a fine of €2,500.
Employers will be prevented from recording sick leave to which an employee is entitled under this Act as any other form of leave.
Furthermore, an absence related to sick leave under this Act need not be counted towards the time required to complete a period of probation, training or apprenticeship.
Protection from Penalisation
An employee cannot be penalised for availing of sick leave as provided for under this Act in line with similar provisions in existing legislation e.g., availing of sick leave will not be considered as appropriate grounds for dismissal, for selection for redundancy or cannot result in an unfavourable change in employment conditions upon the employees return.
An employee who considers that their employer has failed to comply with the Act may make a complaint to the WRC. Where the employee’s complaint is upheld, there may be an award of up to 4 weeks’ pay.