At present employees are in a difficult position as regards sick pay. Some are lucky their employment will provide for sick pay. This is usually paid at the normal rate, less any statutory sick pay, which the employee would be entitled to. The difficulty for employees is that the period of sick pay, which will be covered by an employer, will be determined by their contract. For larger employers, it can be quite generous. For smaller employers, it may be non-existent.
The Government announced a new statutory sick pay scheme but that will not be introduced until the start of 2022. Those proposals will be to introduce a sick pay scheme for up to three days paid sick pay in 2022 at 70% of an employee’s normal wages but capped at a maximum of €110 a day. The effect, therefore, is that 70% of a normal day’s salary will only be payable to those earning a figure of €40,857 per annum. For higher-paid employees who do not have a sick pay scheme the actual percentage will be less than 70% of their normal wage.
An issue that has yet to be clarified is what is the position in relation to companies who do provide sick pay. Will the new statutory sick pay scheme be in addition to, or part of, the existing company sick pay scheme with the employee getting, whichever is more beneficial, for the first three days.
For employees who become ill, where their employer does not provide for sick pay, they have to rely on the Department of Social Protection for sick pay. This is often a fraction of the wages which an employee would have earned.
An issue that is coming up is whether Covid 19 is to be classified as sickness or whether it is to be classified as a disease. There is an argument that it would be classified as a disease. In those circumstances, an employee who contracts Covid 19 may, under the provisions of the Third Schedule of the Organisation of Working Time Act 1997, be entitled to claim their normal rate of pay for any public holidays which arise in the first 26 weeks following them going out on sick leave due to Covid.
At present, we have the Government proposing a delay on employees returning to the workplace. At the same time, we have a reduction in the PUP. This is coupled with employers, despite any advice that is going to come from the Government believing, in many cases, that they need to resume business because of the fact that the TWSS Scheme is being wound down. On top of this employers have the issue of warehoused tax which is going to have to be paid. Many businesses are looking at Christmas as a lifeline for survival.
The difficulty with the current rights concerning sick pay is that the public health advice is that an employee with symptoms should self-isolate. The reality is that employees, and particularly those on lower wages, or, in precarious occupations, because of the fact that there may not be any sick pay scheme in their workplace and the issue of Social Welfare being at such a low figure, will feel inclined, and to a certain extent under financial pressure, to turn up to work, even when ill. This raises the potential of Covid 19 being introduced into workplaces because of the economic necessity of lower-paid employees who are not covered by a company sick pay scheme having no financial choice other than to attend work.
The current return-to-work protocol clearly sets out that employers are not entitled to put in place antigen testing. If this was allowed, then if an employee was to test positive, in those circumstances an employer would be entitled to insist that the employee gets a PCR test before coming into the workplace. However, that particular protection for businesses and for other employees working in those businesses is not available.
The return-to-work protocol consistently refers to the issue of “personal responsibility”. Of course, personal responsibility is important. The reality of life however is that if there is rent to be paid and food purchased, employees in lower-paid jobs, and particularly those in precarious occupations, will be under financial pressure, to earn a living. Before Covid-19 those employees, if feeling unwell or even ill, would have often attended work. That reality is still there and will be going forward.
- Richard Grogan is a solicitor at Richard Grogan & Associates Solicitors.