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Statutory Sick Pay FAQ’s: This Week’s Thursday Tip

Statutory Sick Pay FAQ’s is this week’s Thursday Tip from Canavan Byrne. The new Sick Leave Act is in place since the 1st January 2023.

It is important services understand the requirements under employment law to ensure compliance. Furthermore, to avoid any issues in relation to sick leave in the future.

We have answered the most frequently asked questions to help you understand what the Act is, what statutory sick pay etc. so that you can answer any queries staff members may have with confidence. 

What is the Sick Leave Act?

The Sick Leave Act was signed into law in July 2022 and is effective from the 1st of January 2023. The Act legislates for a statutory sick pay scheme for all Employees in Ireland, phased in over a four-year period.

What is Statutory Sick Pay?

Up until now employees in Ireland had no legal right to be paid sick leave. This changed in July 2022, when the Sick Leave Act 2022 became law. The entitlement to Statutory Sick Pay starts from 1 January 2023. The new legislation will mean that Employers must provide a minimum number of paid sick days every year.

How does an Employee become entitled to Statutory Sick Pay?

For an employee to be entitled to paid sick leave under the legislation, an Employee must be working for the Employer for at least 13 continuous weeks. An Employee will also need to be certified by a GP as unfit to work. Where an employee’s employment terminates and that same employee returns to the same employer within 26 weeks after the date of cessation, the initial period of employment can be considered as continuous service for the purpose of gaining an entitlement to statutory sick pay.

What is the Statutory Sick Pay Entitlement?

The entitlement to sick leave will be phased in over 4 years. Eligible Employees are entitled to paid sick leave for up to 3 days per year in year 1 – 2023. This is planned to increase to 5 days in year 2, 7 days in year 3 and 10 days in year 4.

Are these statutory sick days certified or uncertified?

An employee seeking to rely on the Act must provide their employer with a certificate from a registered medical practitioner outlining that the employee is unfit to work due to injury or illness. Once the entitlement to statutory sick leave from the employer ends, the employee may qualify for illness benefit.

What is the employee paid when on sick leave? What are the sick leave rates?

Employers are obliged to pay 70% of an Employee’s gross normal earnings (up to a maximum of €110 per day). For employees who don’t have regular hours or hours vary, normal earnings will be calculated over the four-week period immediately prior to the sick leave or, if no time was worked in that four weeks, the four weeks ending on the day on which time was last worked.

What is the entitlement for an employee who commences employment mid-way through a year.

Employees who commence employment mid-year are still entitled to the full statutory sick leave once they have accrued the minimum level of service of 13 continuous weeks. This is regardless of whether they have already been the beneficiary of statutory sick pay from a previous Employer.

Is the sick leave allowance for each time the employee is absent due to illness?

No. the entitlement is for the number of statutory sick days throughout the calendar year.  Statutory sick leave days may be consecutive days or non-consecutive days. For example, in 2023 the entitlement is for 3 days throughout the full year.

Does this statutory sick leave entitlement apply to fixed term contracts/ term time or temporary contracts?

Yes, all employees are entitled to benefit from the full statutory sick leave after accrual of 13 weeks service. Under the Protection of Employees (Fixed-Term Work) Act 2003, Employers cannot treat a fixed-term worker less favourably than a comparable permanent Employee, unless the reasons can be objectively justified.

What happens when the statutory sick leave is used fully?

Employees who exhaust the sick leave allowance may qualify for illness benefit from the Department of Social Protection, subject to PRSI contributions.

What happens if my employee is in probation? 

Probation has no impact on the entitlement. However, employees must have completed 13 weeks continuous service before the Act applies.

As an employer do I need to keep a record of the sick leave taken?

Employers are obliged to keep records of Statutory Sick Leave (including the dates and times of leave, rate of payment and the amount of service of the applicable Employee) for a period of four years. Failure to comply with the record-keeping requirement may result in a fine of up to €2,500.

What happens if an employer does not comply with the Sick Leave Act?

If an employer does not comply employees have the right to take a complaint to the WRC if they are not provided with a compliant Company sick pay scheme. The penalty for non-compliance is up to four weeks’ full pay on top of your unpaid sick pay. The Act also provides protection against penalisation for any Employee exercising their right to avail of Statutory Sick Pay.

What happens if an employee’s contractual sick leave that exceeds of the statutory scheme?

If the employer has a contractual sick pay scheme in place that exceeds the entitlements of the Act i.e., allows Employees to take more than 3 days paid sick leave per year, there is no need to change the sick leave scheme. Employees must retain their contractual allowance.

I cannot afford to pay this entitlement. Do I have to?

If an employer is experiencing severe financial difficulties, they may apply to the Labour Court for an exemption.

If you require any templates to bring your service up to date then you can check out our different products on the Early Years Shop. This includes the Sick Pay Addendum to Contract, Sick Leave Policy and the Sick Management Pack. All packs were developed by Canavan Byrne and come in downloadable format for instant use. Simply order, download and edit to suit your own service requirements.