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14 October 2020
The Labour Party has proposed the Sick Leave and Parental Leave (COVID-19) Bill 2020 which, if passed, would give employees in Ireland the legal right to paid sick leave for the first time.(1) It also proposes paid leave for employees whose children must stay at home from school due to COVID-19 measures.
At present, employees have no legal right to sick pay in Ireland. Some employers may decide to pay their employees during sick leave but, if they do, the duration and level of pay is at the employer's discretion. Employees can apply for an illness benefit from the government, which is currently paid at €203 per week before tax for full-time pay-as-you-earn workers. The illness benefit is paid only from the seventh day of illness and employees must have at least two years of pay-related social insurance contributions to be entitled to the payment. Until 31 March 2021, workers certified as diagnosed with or suspected of having COVID-19 can apply for an enhanced illness benefit of €350 per week. The rules which apply to the COVID-19 enhanced illness benefit are different than those which apply to the normal illness benefit. The enhanced illness benefit is payable from the date on which the employee is certified as diagnosed with or suspected of having COVID-19.
Employees can be paid force majeure leave where, for urgent family reasons, their immediate presence is indispensable owing to an injury or illness of a close family member. The maximum amount of leave is three days in any 12-month period or five days in a 36-month period.
The Labour Party has pointed out that Ireland is "an outlier in Europe", as almost all European countries require employers to pay some level of sick pay to their employees by law. Further, the absence of sick pay has been highlighted by the National Public Health Emergency Team and the acting chief medical officer as "a problem in controlling outbreaks" of COVID-19. In particular, recent outbreaks in a number of meat plants have shed light on the potential impact of employees having no legal right to sick pay on the spread of COVID-19. Labour Party Leader Alan Kelly, who sponsored the bill, said that:
The current rules on sick pay and illness benefit act as a disincentive for workers to comply with public health guidelines as they may be left with reduced or no income. This Bill would create a level playing field.
What are the proposals?
The bill provides that after four weeks' service, employees will be entitled to sick pay for a continuous period of six weeks, or 30 days in any period of 12 months, for any day that they are incapable of working as a result of illness or injury. Sick pay will be paid at the same rate as annual leave. There is no waiting period set out in the bill, so employees would be entitled to sick pay from the first day of illness or injury. It will be impossible to contract out of the above entitlements (other than by way of collective agreement or registered employment agreement).
According to the World Health Organisation, three to six weeks is the average recovery time for moderate to severe cases of COVID-19, and this coincides with the proposed duration of sick pay provided for in the bill. After sick pay entitlement has been exhausted, employees will move on to the illness benefit. Kelly has indicated that under the new proposals, employers will be entitled to receive any illness benefit due to the employee while they are in receipt of sick pay. However, it is unclear whether the government or the employee will reimburse the employer for the illness benefit due. Where employers (voluntarily) pay employees on sick leave, they will normally include a provision in the contract which provides that employees will refund the employer with any illness benefit that they have received.
Any complaints about an employee's entitlement to paid sick leave can be brought to the Workplace Relations Commission in the same way as a complaint regarding an employee's entitlement to paid annual leave.
The bill also proposes to extend the right to receive paid force majeure leave to circumstances where, as a result of COVID-19 measures introduced by the government, a school or pre-school service is closed or a child cannot attend their school or pre-school service. In these circumstances, paid leave is available for an employee whose child is affected for as long as the child is unable to attend the school or pre-school service and the employee is required at their home in order to care for that child.
The bill is currently at the second stage before the Dáil. Employers and unions will be consulted on the proposals set out in the bill and the government has indicated that it will take at least six months to examine the effects and cost that such a measure would have on small and medium businesses. This delay has been criticised by Kelly, who said that "the scheme is needed now, not in six months".
Some private sector employers already provide for a level of contractual sick pay in their sick leave policies, but for those that do not, this bill, if passed, will result in a potentially significant increase to employee costs.
While it is too early to tell what the final scheme will look like, it seems likely that employers will be legally obliged to pay their employees during sick leave in the near future.
For further information on this topic please contact Niamh Crotty at Lewis Silkin Ireland by telephone (+353 1566 9876) or email (email@example.com). The Lewis Silkin Ireland website can be accessed at www.lewissilkin.com/en/ireland.
(1) The draft bill is available here.
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