by Karen Killalea, Partner and Head of Employment team. Maples Group.
Coming into work with cold symptoms is now a no-no, and a new law in train will ensure statutory sick pay for the first time in this country
Attitudes to absence due to illness and to how employees manage the issue have shifted significantly, post-pandemic.
Pre-pandemic, in certain workplaces including high performance environments where pay is heavily skewed towards variable compensation and bonuses and in low pay environments with hourly paid roles, a day out of work meant a day that needed to be recovered at some point in the future in order to keep net pay stable. In short, no one wanted to miss a day of pay unless it was really necessary.
In some workplaces, it was a badge of honour to show that you could struggle on through when not feeling well. But it is no longer a sign of resilience to present in a workplace with something even as pedestrian as symptoms of a common cold. It is now regarded as culturally unacceptable.
The widespread shift towards hybrid working has propelled this sea change in attitudes, at least for office based workers. If you really want to push on and work through a period of illness, then you should do that from home if possible.
Employers and employees get it. You are expected to do the right thing and stay home if you have any perceptible symptoms of a cough, cold or something more serious. In my experience and based on the clients we support in Ireland, the majority of employers want to do the right thing.
They have considerable empathy and support for those who are chronically or temporarily ill. The population wide risk from Covid-19 over the past two years has taught managers and colleagues to be patient and empathetic for the most part.
Ireland was an outlier in Europe until recently in relation to statutory sick pay because employers had no obligation to contribute to any sick pay for employees who were absent due to illness.
The Sick Leave Act 2022 was signed into law on July 20, introducing an employee’s right to statutory sick pay for the first time in this country. Employees are entitled to three days of paid sick leave in this year and eventually will be entitled to a maximum of ten days by 2026. There are some conditions attached. Employees must have 13 continuous weeks’ service with their employer and sick pay is paid at a rate of 70 per cent of normal salary up to a daily maximum rate of €110.
Employees must also provide their employer with a medical certificate covering their absence and employers must keep records of all statutory sick leave taken. At the date of writing, this law needs to be formally commenced and that is expected to happen in the coming weeks.
But many employers with whom we work have gone ahead and amended their policies to accommodate the sick pay entitlements in anticipation of the law coming into force. This has generated plenty of goodwill among workforces for what is in effect an employer subsidy of sick pay.
Employees are generally protected by law in Ireland from being penalised for not working where they are ill and that illness can be classified as a disability. Even where an illness cannot be formally classified as a disability, such as a short illness like a common cold, an employer is obliged to act reasonably and fairly, and it would be a challenge to prove that dismissal on the grounds of absence due to a genuine illness is reasonable or fair.
Before an employer can terminate employment for incapacity, they are required to ensure that they have up-to-date medical advice, and that they consider or in fact make reasonable accommodation for employees with disabilities. Reasonable accommodation, in summary, means making modifications to the role and/or the workplace that allow the employee to remain in or take up employment.
In order to be competitive in a tight labour market, employers need to be offering supports that are of practical and meaningful benefit to employees. This includes everything from a culture of tolerance for necessary leave, even when it does not suit, to offering top-up pay for statutory family leave such as maternity, paternity and parents’ leave.
Many employers are keen to support employees who are parents and carers to take care of ill family members. Offering wellbeing benefits such as access to subsidised fitness classes or yoga or sports clubs together with a vibrant sports and social committee in the workplace yields dividends. We see employers regularly providing access to wellness apps and employee assistance programmes. This has, in fact, become the floor and not the ceiling.
Article first appeared on Business Ppst
About the author
Karen Killalea is head of Maples and Calder’s Employment team in the Maples Group’s Dublin office. She has over 20 years’ experience advising clients on all aspects of employment law including contractual matters, sensitive investigations, employee privacy issues, GDPR, gender pay gap preparation, TUPE, HR aspects of corporate re-structuring and asset disposals, industrial relations, working time, equality issues, executive compensation, removal of directors and senior executives and the protection of confidential information. Karen’s recent cases include securing court orders to prevent the theft of confidential information, restraining a team move and defending a High Court challenge to the suspension and investigation of a senior employee. She regularly represents clients before the WRC and the courts and has extensive experience of successful mediation and dispute resolution.