Bláthnaid Evans's popular Annual Review session on statutory sick pay generated quite a few questions.

Here, she answers questions on the Act's interaction with company sick pay schemes, policy considerations, pay issues, long-term sickness, penalisation/absence management and certification.

Definitions:

• The Act – The Sick Leave Act 2022
• CSP – Company sick pay
• SSP – Statutory sick pay
• SSL – Statutory sick leave

Interaction with Company Sick Pay Schemes ⚓︎

If an employee has used all their discretionary sick pay already, are they also entitled to these statutory sick leave days at 70%? 

The SSP applies from 1 January 2023. Employers need to pay the first 3 days in 2022 as SSP once the employee has 13 weeks service and has provided a medical certificate. The company can choose to incorporate SSP into its own CSP policy if it wishes.

SSP should always be considered as taken first, and thereafter discretionary sick pay.  However, if your sick leave year does not run from 1 January each but started earlier on 1 April 2022, for example, then in that instance if an employee has exhausted the discretionary sick pay come 1 January 2023, they would still be entitled to their SSP for 2023, as SSP only comes into force from 1 January 2023.

Many sick pay schemes are much better than this but would have their own nuances. I understand if those schemes are better (for example, up to 60 days of full pay) this SSP does not count. Is that correct?

Once SSP obligations have been met by the employer (i.e. an eligible employee with at least 13 weeks service has received payment for the first 3 days of sick leave in 2023) the employer can implement its own CSP scheme as it wishes.

An employee is part of a sick pay scheme. The scheme pays the employee when they are sick, however there is no payment for their 1st day of absence. Eg: If they are sick for 5 days they will get paid for 4 days. In this case do we need to pay statutory sick pay for the first day or not?

Yes. Once the employee has 13 weeks service and obtains a medical certificate to cover day 1 of their absence, they must be paid as required under legislation. Once the 3 SSP are satisfied, the company can choose whether or not it wishes to implement CSP with or without any requirements.

Would you expect the regulations to be issued in regards to Section 9, where an employer can be excluded from obligations under SSP before the end of the year?

No guidance has been given in this regard.

Many 'more favourable' Company Sick Pay Schemes are linked to a 12 month rolling period rather than the calendar year. Do these Schemes need to be realigned?

SSP should be linked to the calendar year. If the company wishes to implement a CSP scheme based on a 12 month rolling period, it can do, provided that the SSP requirements are still met (i.e. eligible employees remain entitled to 3 paid sick days per calendar year in 2023).

Operating two different periods for paid sick leave may be quite cumbersome from a HR perspective, however it can be done if the company wishes.

If your current sick leave policy has 6 paid sick per year - how can we apply the additional SSP days come the increase to 7 days, 10 days etc.?  For example, I'm presuming we have to keep the 6 days as full pay as it's in place and this can't be changed to meet legislation of paying 70% of pay?

If the company wishes to amend its current sick pay policy, it should give employees at least one month's notice of this change and obtain their written consent to do so.

Where the company already pays 6 paid days (as CSP), the company can either:

• choose to pay these 6 days on top of the 3 SSP days; or
• seek to include the 3 SSP days within those 6 days (i.e. pay 3 as SSP and 3 as CSP).

It is important to note that SSP will apply in the first instance, with CSP applying thereafter.

The company cannot make the initial 3 SSP days dependent on any other requirements save as otherwise set out in the Act (i.e. 13 weeks service and a medical certificate from day 1 of their absence). Any further requirements (e.g. the employee must have passed probation) can only apply to CSP.

Regarding the increase to 7 and then 10 days etc, you will need to update your policy to accommodate those extra days. This does not need to be done now as these increases will not come in for another couple of years. However, it will be a matter for the employer whether they wish to pay these additional SSP at the full pay or the 70%, provided for in the legislation.

While our current policy is more generous - it is over a rolling 4-year period so for some employee who may use it all up in Year 1 - we will have to use SSP for the 3 subsequent years. If we decide to change the policy from rolling to a lower amount per year (still more generous) will we have to consult with employees before making this change?

Regardless of whether the company's policy is more generous, employees are entitled to SSP in the first instance under the Act. The company's existing sick pay policy must compliment the Act. If it does not, the policy will need to be amended and employees should be put on notice of any such change.

Are there any implications for Public Sector Schemes? e.g. payment of TRR / Pension Rate of Pay?

Any other schemes will need to compliment the Act. Employees are entitled to SSP as provided for under the Act. Eligibility to any other entitlements thereafter will be subject to the terms of that particular scheme.

Our sick pay scheme (60 days full pay per calendar year) kicks in when probation is passed at 6 months. Will be need to pay the 3 days after 13 weeks or can we rely on our defence our policy is much better?

Yes you will need to amend your policy. The 3 SSP days will still need to be paid and should only be subject to eligibility requirements as set out in the Act (13 weeks service and medical certificate from day 1 of their absence). Completion of an employee's probation will only be applicable for days in addition to the SSP.

If our current policy is 1st 3 days unpaid then afterwards you are then paid - can we kick in our current policy after the 3 SSP days with the next 3 unpaid then paid again?

Yes. Once the 3 SSP days are met in 2023, the company can invoke its own policy and requirements thereafter as it wishes.

Policy considerations ⚓︎

In terms of reflecting these additional sick days that may be increased, should these be reflected in the sick leave policy now or should it be left at 3 days with reference that it may increase at later dates?

We suggest keeping the policy vague to allow for the incremental increase over the coming years (e.g. "Employees are entitled to statutory sick pay as provided for under the Sick Leave Act 2022 which is subject to annual variation").

Is a legal requirement to have a sick pay policy outlining the SSP or is following the legislation sufficient?

No, SSP does not necessarily have to be called out in a sick pay policy, however, employers must notify employees of their entitlements under the Act.

Does this apply to those on "If and When Contracts"?

Yes. The rights afforded under the Act apply to all employees.

Will this be carried out over an employee year period i.e. if someone begins employment with you in May and take sick in Sept, then gets sick again in Jan the following year that is six days in their one year of work?

No. SSP entitlement is per calendar year only (January to December). There is no right to carry over unused SSP days into the following leave year.

Pay Issues ⚓︎

Are part-time employees entitled to the 3 days SSL or is it pro-rated to their hours worked?

Part-time employees are entitled to the 3 SSP days. It is not pro-rated.

How does an employer treat a partial day?  For example - an employee goes home sick during the day and submits a cert to apply for SSP for this day.

The entire day is treated as a sick day.

During the 13-week waiting period, are employees still entitled to claim illness benefit in the normal way?  Or is the stat sick pay replacing the existing illness benefit practices altogether?

Illness benefit and SSP remain separate. The employee's entitlement to claim illness benefit remains subject to the terms of that scheme (e.g. they must have a certain amount of PRSI contributions)

Is 70%/€110 inclusive of any additional allowances e.g shift or is it based on base pay?

Currently as drafted, SSP is to be based on an employee's "normal" pay i.e. what they are contractually entitled to or what they would otherwise have earned that day had they not gone out sick.

With regarding to recording the time the SSP has been taken for, would a record of an employee's working day/shift was to be?

The question is not clear. A record under the Act should include:

• The period of employment of each employee who has availed of SSL;
• The dates and times of SSL in respect of each employee who has availed of SSL;
• The rate of SSP in relation to each employee who has availed of SSL.

Records must be kept for a period of 4 years. Employers who fail to keep adequate records in this regard shall be guilty of an offence and be subject to a fine of up to €2,500.

Long-term Sickness ⚓︎

If any employee is currently out on Long Term sick leave and does not envisage returning to work for another 2 months. Should the company pay the statutory sick leave of 3 days in Jan in 2023?

Yes.

What if employee consistently takes sick leave to the extent that they have exceeded sick pay limits and are off pay for subsequent sick leave, what is open to public sector employers for continued sick leave (that is not a long term illness)?

If an employee has exhausted or "used up" their SSP entitlements under the Act, they are not entitled to be paid for any further sick leave unless the company otherwise agrees to pay them (under a company sick pay scheme).

If LTA employees have been absent for a long period of time with no set date of return, do we need to pay them 3 days as of Jan 2023?

Yes, provided they submit a medical certificate to cover day 1 of their absence .

In response to last answer around a long term absence which started in 2022  if employee has transferred onto a permanent health insurance scheme would this cover the SSP requirement?

No. SSP must also be paid.

Penalisation/Absence Management ⚓︎

Regards penalisation which can include 'administering a discipline' does this mean an employer can't take into account this absence that is coded to Statutory Sick Pay if there is an issue with absence?

An employee is required to obtain a medical certificate in order to avail of SSL and SSP. If there is a pattern of absence with a particular employee, the company should have the employee medically assessed by its occupation health practitioner.  Employers should review their sick leave / absence policies to ensure that this is provided for.

Alternatively, if an employee fails to comply with the rules of the policy, it may be possible to consider disciplinary action. However, this would need to be considered on a case by case basis. An employee certainly cannot be disciplined for highlighting their rights under the legislation or indeed asking that the employer apply those entitlements in line with the legislation.

Certification ⚓︎

Is it acceptable to receive a medical cert from a doctor directly by email and not the employee? Can the employee submit a medical cert from outside Ireland while they are sick?

The medical cert can come from the doctor, however, ideally it should come directly from the employee.

The medical cert should be from an Irish GP unless the company has permitted the employee to work remotely from abroad.

7 or 10 days absence might be considered high absenteeism in a short period of time which may prompt performance management.  Can we still address this as an absenteeism issue?

No. The Act prohibits penalisation against an employee for having exercised their rights under the Act. However, performance management may be justified where there has been a pattern of absenteeism. In this case, the employer should have the employee medically assessed by its occupational health practitioner to gauge whether the employee is fit to return to work.

Can an employer specify a timeframe for an employee to produce a medical cert?

The medical cert should cover day 1 of the employee's absence. Given the practicalities of being sick and being able to attend a doctor, employers should allow employees a reasonable amount of time to obtain a medical certificate. Our suggestion is that a medical certificate is provided to the company within 5 days of the employee's first day of absence. However, depending on when the sick leave is taken, it may mean that the employee will not be paid for the sick leave until the following payroll run if the medical certificate is not received in time.