Covid-19 – Treatment of Covid-19 Sick Pay

This note is part of a series that the lawyers of Reddy Charlton will issue on the major legal, personal and business issues that will confront us all during the Covid-19 crisis.

QUESTION:- Should absence for Covid -19 be treated differently to other absence in relation to contractual sick pay?

For example, if a company only pays salary for 5 sick days, is there any basis for paying employees with Covid 19 beyond the 5 days e.g. goodwill, exceptional circumstances, or is it recommended to stay in line with the existing sick pay policy?

There is no statutory entitlement to sick pay under Irish law. However, an employer may be contractually obliged to pay sick pay if:-

• it is expressly included in an employee’s contract of employment; or
• it is implied by reason of custom and practice

In the above example, the employer is contractually bound to pay sick pay of 5 days per annum. Illness Benefit is not normally payable for the first 6 days of illness, so there is no question of the employee having to remit any Illness Benefit to the employer in respect of the paid sick leave.

While an employer may increase a contractual entitlement, it should be careful not to erode the current sick pay policy and inadvertently replace it by an enhanced sick pay policy which applies to all illnesses.

Prior to paying enhanced sick pay for Covid-19 absence, an employer should clarify that the enhanced payment is being made in relation to Covid-19 and that normal sick pay policy continues to apply in relation to any illness other than Covid-19.

Ideally, the employer should prepare a specific illness policy in relation to Covid – 19 which sets out the basis on which sick pay will be paid for the duration of Covid-19 illness or how it will deal with employees who are required to self-isolate (e.g. require them to work from home) or those who may be asymptomatic.

Given that there is an also an enhanced Covid -19 Illness Benefit of €350 per week (without any waiting period), the policy should be clear on whether the employer tops up the payment to the employee’s normal salary, or pays the employee’s normal salary and requires the employee to remit the €350 per week to the employer.

The Department of Employment Affairs and Social Protection has “now urged all employers to support national public health objective by continuing, as a minimum, to pay employees who cannot attend work due to Covid-19 illness or self-isolation the difference between the enhanced Illness Benefit rate and their normal wages.”

Employers should review their sick pay policies and if financially feasible prepare a separate policy which sets out the enhanced entitlements for employees who are ill as a result of Covid-19 and how it will deal with employees who are directed to self-isolate or those who may be asymptomatic and not “sick” in the traditional sense.

If no separate policy is put in place and the employer pays an employee enhanced sick pay, it should be made explicitly clear (in writing) to the employee that the enhanced payment is in relation to Covid-19 illness only, does not apply to any other illness and does not create a precedent of enhanced illness entitlements.

How can Reddy Charlton help?

During this Covid-19 crisis, Reddy Charlton Solicitors are eager to support, encourage and guide your business. If you have any queries or seek further information on this topic please contact Laura Graham at lgraham@reddycharlton.ie