Absences are a normal workplace situation that an employer may need to deal with. But what happens when it’s for longer than you’d expect?
In certain circumstances, it may be necessary to allow employees to take longer periods of time away from work to recover from an illness. As an employer, this presents a challenge as you need to create a balance between providing support to your staff and maintaining business output.
In addition, if you neglect sick pay or leave rights, you could face costly discrimination claims. And if you’re found guilty, you could end up with compensation penalties and business reputation damage.
In this guide, we’ll look at what long-term sick leave is, Ireland’s rules on workplace absences, and how to manage employees suffering from a serious illness.
What is long-term sick leave?
Long-term sick leave is when an employee takes time off from work due to illness or serious injuries. There is no definition of what constitutes long-term sickness leave but three main examples of long-term sickness are:
- Sickness absence which lasts eight working days or more.
- Workplace absence which lasts for more than four weeks.
- Serious illness which involves an operation or recovery time. This covers both physical health issues, as well as mental health.
Most employers will define a long-term sickness absence as no less than eight working days. But it’s advisable to deal with situations on an individual or case-by-case basis.
Ireland’s employment law on long-term sick leave
There is no specific employment law which states an employer needs to provide long-term sickness leave. However, there are legal rules which apply to health-related issues.
An employee cannot be discriminated against due to illness. The Employment Equality Acts 1998 -2015 include a wide definition of disability which you need to consider in managing long-term sickness absences. This is regardless of whether it’s a physical or mental disability.
Under the Employment Equality Acts 1998-2015, a disability counts as one of nine protected characteristics which employers must consider when managing employees.
If an employee thinks they have received different treatment based on an illness, they could take their grievance to the Workplace Relations Commission (WRC). A WRC claim could lead to detrimental business penalties if an adjudication officer finds your business has a case to answer.
Statutory Sick Pay
There has been a recent change in the law around employer obligations in relation to sick pay. The Statutory Sick Pay scheme is a reflection of this, being enacted January 1st 2023.
From an employer’s perspective, some key issues around sick pay, medical certificates, and return-to-work interviews remain important considerations.
When an employee is off sick, they’re now entitled to Statutory Sick Pay (SSP) once the new act commences (by Ministerial Order). This form of sick pay provides employees with financial resources during their sick leave.
This paid sick leave scheme states that certain circumstances and conditions apply:
- Employees need to have 13 weeks of continuous service within the same workplace.
- Paid sick leave is initially paid by the employer up to a maximum of three days per year. (The minimum number of days is set to rise to five days in 2024, 7 days in 2025, and 10 days in 2026).
- Statutory sick pay is calculated as 70% of an employee’s wages. This is subject to a maximum of €110 per day.
- Workers are legally allowed to raise grievance claims if denied sick pay entitlements.
They should receive sick pay regardless of whether they’re on sick leave for a mental or physical illness.
You should also remember that employees continue to accrue annual leave entitlements while on certified long-term sick leave.
Is Illness benefit the same as statutory sick pay?
Illness benefit is an existing social welfare payment and is a different benefit to statutory sick pay which is a new cost for employers.
If an employee is too ill to work, they may receive illness benefit from the Department of Employment Affairs and Social Protection (DEASP).
To apply for illness benefit, employees need to:
- Be under 66 years old.
- Be medically certified as unfit to work by a healthcare professional.
- Have the required social insurance contributions (PRSI).
- Apply within the first six weeks of falling ill.
If an employee wants to apply for illness benefit, they are legally not allowed to work during this time. Illness benefit also has connections to a company’s sick leave policy. It’s a social welfare payment provided by the Irish government, rather than individual businesses.
As an employer, you can specify in your sickness absence policy that the employee must notify you of their illness benefit payment. You are also entitled to reduce your sick pay by the amount of illness benefit the employee is receiving from the Department of Social Protection.
Medical certificate
Under Irish employment law, employees are allowed to take sick leave due to ill-health at any time–within reason.
Your sickness absence policy should specify when they’ll need to provide a medical certificate. Many employers seek a medical certificate after two or three days’ consecutive absence through illness. A medical certificate should also include an expected date of when the employee will be ‘fit-for-work´ again.
These certificates are provided by the employee’s GP. The medical certificate will outline the state of the employee’s health, as well as whether they can attend work.
Your sick leave scheme should specify separate rules for short-term and longer-term absences. In practice, many employers seek weekly medical certificates from employees who are on long-term sick leave.
The certification requirements for staff who are absent for only a few days will usually only require a single medical certificate.
Return-to-work interview
After a period of statutory sick leave or other illness-related absence, an employee will hopefully feel well enough to return to work.
As an employer, you should hold a return-to-work interview to confirm the employee’s health and fitness to return to work. In this meeting, you should discuss if they’re medically able to fulfil their duties under their contract of employment.
Alternatively, an employee might need to take further sick leave or not return at all. This might be because the employee’s condition has taken a turn for the worse. An employee’s doctors may declare rest as a means of recovery and ask them to stop working.
Whichever path they need to take, make sure you provide sufficient support. If they are returning to work, help ease them back into the workplace and ensure they clearly know how to attain further help.
How to manage employees on long-term sick leave
You cannot fully eliminate sickness absences within your business–and this includes both short and long-term.
However, you can aim to reduce potential impacts which might affect your business. By planning ahead, you can protect both your company's welfare, as well as your employees. Here are ways to manage employees on long-term sick leave:
Create a sick leave policy
The main way to efficiently manage workplace absences is by setting out your rules. Every employer can achieve this by creating a policy that includes rules on long-term sickness leave.
Your own policy should consider the following:
- Definition: What counts as long-term sick leave? And how many days constitute it?
- Management: Who is expected to pick up tasks during an absence?
- Entitlements: Will employees receive sick pay? And how do they qualify for it? Have you included the statutory sick pay entitlements that were introduced in 2022?
- Communication: Is a sick employee expected to keep in touch? And who should be contacted?
- Legal rights: What are employee rights during the entire leave period? Will changes need to be made to their contract of employment?
- Returning: What type of reasonable accommodation will be provided if such support is necessary?
Reasonable accommodations or special considerations can be made for employees with mental health issues, disabilities, or terminal illnesses.
Remember, employees have no legal obligation to inform their workplace about a disability. But make sure they’re aware of appropriate support for employees that may be suffering from physical or mental health issues.
An Employee Assistance Programme is a good way to make staff aware of the supports your business provides.
Hold a sickness absence meeting
Generally, when an employee is off sick, you might have an informal discussion when they return. This is to check in with them, just to ensure they’re able to work again.
But when an employee is off on long-term sickness, the situation requires a different process. You should hold a sickness absence meeting with them. This can be for those who are on long-term leave or for those who cannot predict their return to work.
This meeting should ideally be within a formal setting. However, it doesn’t need to be held in the workplace. You can conduct it virtually, via video calling.
The aim of the meeting is to:
- Understand the state and condition of the employee’s health.
- Determine whether they can or cannot return to work.
- Provide support during their recovery time. This can include things like, making reasonable accommodations, providing sick pay (if appropriate under statute or your own policies), and offering medical referrals.
To assist in making this process effective, your policy should reserve your right to refer the employee to your own doctor or occupational health specialist to determine their fitness for work.
Keep updated records
Make sure you keep notes of all health-related information shared within the meeting. And if the employee has provided you with medical records, keep these in a secure place.
It’s important to reflect any changes in the employee’s situation in their records. This will help you as an employer to keep up to date with any changes the employee may be experiencing. This also allows you to keep providing the right help and support in the best way possible.
Whatever you document, remember to provide a set of identical records and notes to the employee. It helps you prove you’re following a fair and reasonable process.
And under the Sick Leave Act 2022, you must keep records of sick leave taken by your staff for four years after any absence under the scheme. You could face a maximum fine of €2,500 if you fail to keep such records.
Calculate business impacts
The main impact you might face when an employee is off for a long period, is probably a financial one. However, there’s more to think about than money.
Calculate business impacts which might occur due to the employee’s long absence. Think about what they do on a day-to-day basis, as well as how their absence will affect the company on a whole.
You must remember not to unilaterally make any changes to their employment contract conditions. Any decisions about whether the employee will return to alternative roles after their illness must only be made with the employee’s agreement.
Whatever decisions you’ve made, make sure you document any decisions you make to ensure there is a paper trail setting out the objective justification for any measures you have taken to manage the absence.
Hold a medical capability hearing
At this point, if the employee is still on continuous absence and there is no clear return-to-work date, it’s time to hold a medical capability hearing.
Here, you must establish the factual position on the employee’s capability to work.
Your employment contract should include a right to access the employee’s medical records. Once you have notified the employee of your intention to seek access to their medical records and the reason for doing so, you should obtain their written consent.
If the employee does not provide consent, your policy should include a right to refer the employee to an occupational health specialist of your choice.
Highlight to the employee that you have considered all other options. And that there is no other option other than to hold a medical capability hearing.
Remember, throughout the whole process, the employee is legally entitled to statutory sick pay only for a limited amount of time which will reach a maximum of ten working days in 2026.
What if an employee is on long-term sickness leave due to mental health?
When you think of long-term sickness leave, you might instantly think of physical injuries and accidents. However, people with mental health conditions also suffer long-term impacts.
Many employees have suffered from mental health problems, like depression, anxiety, and stress.
If an employee decides to take long-term leave because of a mental illness, you need to manage it in much the same way as a physical illness. Take care not to make light of the severity of the condition and be considerate of their situation.
Discuss how you can support them through their sick leave in a comfortable setting. And ensure they clearly understand what benefits (like sick pay or an EAP) will be provided during this time.
Can an employee return to work after long-term sickness leave?
In most cases, the longer an employee is off sick, the harder they might find returning to work.
But sometimes, an employee might seek to start working again once they are recovered. If so, there are a few things every employer should consider beforehand.
The first step is proving they are healthy enough to work. They will need to provide all the material facts from a healthcare provider which outline the capacity and likely duration of any ongoing symptoms. This information is normally available through a fit note and is provided by the employee’s GP or an occupational health specialist nominated by you.
Next, you should hold a return-to-work meeting. This will help establish how the employee feels about returning and whether they have any prior concerns. It’s advisable to schedule catch up with them after one week, just to see how they’re settling in.
Another option is to provide a phased return to work. Remember if this involves changing terms and conditions in the employment contract or fundamental duties or practical terms, these will first need to be agreed upon with the employee.
Any changes to their work hours, conditions, or tasks will first need to be agreed upon with the employee.
If the employee is agreeable, ensure their acceptance is documented in writing and then you can work on the practicalities like finding a good pace which is suitable for them. This is to see whether they can comfortably start and continue working.
Remember, the main aim here is to see if the employee is comfortable working again. And whether they are fully capable of performing efficiently and safely.
Can you dismiss an employee on long-term sickness leave?
Yes, an employer can dismiss an employee on long-term sickness leave. But only if you follow a reasonable process for doing so.
Failing to comply with fair procedures exposes you to a costly claim for unfair dismissal under the Unfair Dismissals Acts 1977-2021.
For instance, have you given the employee sufficient and fair notice that their capability to carry out their duties is in doubt and may lead to dismissal?
Have you provided the option of reasonable accommodations that would allow the employee to return to work and be fully capable of completing their duties?
If the employee’s condition is considered a disability, you could also find yourself having to defend a claim for discriminatory dismissal.
Before actioning your dismissal procedure, make sure you follow the right steps. That way, the employer’s decision will end the work relationship in a professional, respectful, and legally compliant manner. (And most importantly, avoid the negative impact of an unfair dismissal claim).
Get expert employer support with long-term sick leave from Peninsula
Every employer has a moral and legal obligation to any employee suffering from health conditions. If you take a proactive stance to promote employee welfare, you can also protect your business’s welfare at the same time.
If your business, as an employer fails to protect these vulnerable employees, you could face reputational damage and expensive fines.
Peninsula offers professional advice on long-term sick leave. Our HR services can help you understand employee rights, sick pay entitlements, and medical certificates–helping you grow a happier and safer workspace.
We also offer 24/7 HR advice that’s available 365 days a year. Get in contact with fully trained counsellors who are ready to help.
Want to find out more? Book a free consultation with one of our HR consultants. Contact 1800 719 216.
