Statutory sick pay: what employers need to know

On 20 July 2022, the Sick Leave Act became law.

The entitlement to sick pay started on 1 January 2023 and will be rolled out over four years.

What Does the Statutory Sick Pay Scheme Look Like?

The new legislation gives employees the right to a minimum period of paid leave if they become sick or sustain an injury that makes them unfit for work.

Both full and part-time employees can avail of paid leave.

Employees with at least 13 weeks’ service will be entitled to 3 days of paid sick leave in year one.

The service must be continuous.

­­­Sick days may be taken either consecutively or non-consecutively during the year.

Employees must provide the employer with a medical certificate from a certified registered medical practitioner and the certificate must state that the employee is unfit for work due to their illness or injury.

The leave must be in relation to a day or days when an employee would ordinarily work but is incapable of working due to illness or injury.

Employees who avail of sick leave will be protected from penalisation and should be treated as if they were not absent from work, such as while on annual or maternity leave.

How Much Money Do Employers Need To Pay?

Employees are entitled to 70% of gross normal wages, subject to a maximum of €110 per day and applies from the first day of illness.

For those not paid a fixed salary whose income varies in relation to work done, 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.

While the Act provides for three days paid leave in 2023, the number of days will increase incrementally as follows:

2024       5 days

2025       7 days

2026      10 days

The eventual 10 days, or two working weeks, of sick pay per year will be in addition to other leave entitlements including annual leave, parental and maternity leave as well as public holidays.

Statutory sick pay will be subject to tax in the same manner as normal pay.

How does it affect employers?

If your business doesn’t already have a sick leave scheme in place, the new legislation will impose costs on your business.

Employers cannot offer less favourable terms than those in the legislation.

Employers will be able to offer the same or more favourable sick leave benefits to employees.

Employers experiencing “severe financial difficulties” may apply to the Labour Court for an exemption from the payment of SSP for a period of between 3 to 12 months.

Records

Employers must retain a specific record of employees who avail of SSP for a period of 4 years.

A failure to do so will be an offence, subject to criminal prosecution and a fine of up to €2,500.

What happens when statutory sick pay runs out?

The scheme will cover the first three days of illness that are usually ‘waiting days’ before a worker is eligible for the State Illness Benefit payment.

The scheme is being set up to run alongside the existing Illness Benefit scheme.

Should the employee be unfit for work for an extended period and they have used up all of their annual entitlement to paid sick leave, they will likely be eligible for Illness Benefit, depending on their PRSI credits.

What employee protections are included?

Employees cannot be penalised for exercising their entitlement to SSP.

Penalisation is defined and includes suspension, lay-off, demotion, transfer of duties, reduction in wages/hours etc as well as dismissal.

In the event of dismissal, an employee will be permitted to seek relief under the Unfair Dismissals legislation, with the usual remedies available.

If an employee believes that their employer has failed to comply with the legislation, they may make a complaint to the Workplace Relations Commission.

The maximum compensation available is 4 weeks’ remuneration.

There is also a right of appeal to the Labour Court.

What employers need to do now

For most employers, sick leave will be referenced in the contract of employment and the absence policy.

If you already provide for paid sick leave, you’ll need to review both in light of the upcoming legislation.

If your existing provision for paid sick leave is as favourable or more favourable than the new statutory provision, then your obligation under the legislation is met.

If not, then you need to amend your contracts and policies accordingly.

Many employers will require a medical certificate on the third day of continuous absence.

Thought will now be required around the requirement for employees to produce a medical certificate on the first day’s absence before they will qualify for statutory sick pay.

It is important for employers to review and consider their contracts and policies to ensure that they align fully, at a minimum, with the new legislation.

For existing employees it is not necessary for you to amend their individual contracts of employment directly…

You can simply provide them with an addendum letter advising them of the change.

You can find our template addendum letter here