Changes to public service certified sick leave arrangements
YOUR QUESTIONS ANSWERED
Last updated Tuesday 21st January 2014
Certified public service sick leave for non-critical illnesses will soon be halved to three months on full pay, followed by three months on half pay in any four-year period. But IMPACT and other unions successfully argued in the Labour Court that existing arrangements – six months paid sick leave, followed by six months on half pay – will remain in cases of critical illness. The Court also said unions and management must agree criteria to distinguish critical from non-critical illnesses. This document addresses IMPACT members’ questions on how the new system will operate, and why the change is happening now.
Critical illness protocol (on how critical illness will be distinguished from non-critical illness)
What’s the difference between certified and self-certified sick leave?
Certified sick leave is certified by a doctor. Self-certified sick leave simply requires the worker to certify that they were sick on the day(s) in question. It was previously referred to as ‘uncertified sick leave.’
When will the changes to certified sick leave come into force?
New certified sick leave arrangements are expected to come into force for most public servants no earlier than 1st March 2014. The new arrangements will apply in schools and colleges from the start of the 2014-2015 school year.
The 2014 implementation date was a compromise determined by the Labour Court in 2012. Management originally sought implementation of the new arrangements from 2012, which could have meant an individual’s paid leave was calculated on the basis of their sick leave record back to 2008. (This is because sick leave arrangements are calculated on the basis of a four-year ‘rolling’ look-back – see below.) Unions argued that the change should not take place until 2016. The Labour Court effectively split the difference.
Why are the changes happening at all?
Management sought changes to both certified and self-certified sick leave under the Croke Park agreement. In the absence of agreement between unions and management, the Labour Court made recommendations on the matter in 2012 and 2013. Revised self-certified sick leave arrangements have been in place since 2012. The current changes will see the implementation of the changes to certified sick leave.
Why are we hearing about these developments now?
The Labour Court confirmed the broad thrust of the changes in its recommendation of July 2012 and IMPACT issued details – on its website and through a special ebulletin – on 19th July 2012. The details of the implementation of the changes to certified sick leave have been under negotiation between unions and management since then. Final outstanding issues were adjudicated by the Labour Court, which issued a binding recommendation on the matter in December 2013.
What are the new arrangements for non-critical illness?
In summary, the total amount of paid leave available for non-critical illnesses will be reduced to three months on full pay, followed by three months on half pay, in any ‘rolling’ four-year period.
Previously, the maximum amount of paid sick leave was 365 days in any four-year rolling period. This is now reduced to 183 days for non-critical illnesses. Normally, you are eligible for full pay for the first half of the 183 days, and half pay for the second half.
An existing arrangement, which also provides for a second 12-month look-back (over the 12 months prior to the date of the current illness) is retained. See below (‘So, how is my eligibility for sick leave calculated?’) for details on how this is calculated.
What are the new arrangements for critical illness?
IMPACT has ensured that existing arrangements – of six months full pay, followed by six months on half pay – remain in cases of critical illness. (The Labour Court rejected management proposals to cut it to six months full pay followed by three months half pay after the union argued that this was unfair).
How is critical illness defined?
A critical illness protocol sets out how critical illness will be distinguished from non-critical illness in individual cases. The protocol emerged from negotiations between unions and management, with the Labour Court making a binding recommendation on issues where agreement could not be reached.
The protocol does not contain a list of ‘critical’ illnesses. Instead, it lists the criteria that will be used to determine whether the illness can be defined as ‘critical.’ They are:
- The worker should ordinarily be under current or recent clinical care of a consultant (or, in some cases, another medical professional).
- The employer must get medical advice on the case from its occupational health service.
- An occupational physician from the employers occupational health service must advise on whether the following criteria are met:
- The worker is medically unfit to return to work, or to modified duties in the same pay grade, and
- The nature of their medical condition has at least one of the following characteristics: acute life threatening physical illness; a chronic progressive illness with well-established potential to reduce life expectancy if there is no medical intervention; a major physical trauma requiring acute operative surgical treatment or; in-patient care of at least two weeks.
There are further safeguards in the case of pregnancy-related illnesses and further clarifications in the case of disability-related conditions (see below for more details).
What will I have to do during this process?
Employees are responsible for furnishing doctor’s medical reports, if requested, within an “appropriate timeframe.” This must be from a consultant (or, in some cases, another medical professional) whose specialism is appropriate to the critical illness being considered.
The various responsibilities can be summarised like this:
- The worker is responsible for furnishing medical reports, within an appropriate timeframe, from a consultant (or, in some cases, another medical professional) whose specialism is appropriate to the critical illness being considered.
- The employer’s occupational health service must advise the employer as to whether the illness fits the criteria to determine a critical illness. If there are delays in this referral, the worker will not incur any financial loss if the illness is subsequently deemed to be critical.
- Management (in consultation with the worker’s line manager) makes the decision about whether to give extended paid leave in light of the condition and circumstances.
The specific responsibilities of employees will be set out in sectoral circulars.
What about pregnancy-related illnesses?
The same requirements apply, but cases of pregnancy-related illnesses (including assisted pregnancy-related conditions) that require two or more days of in-patient care in a hospital or clinic will qualify for extended sick pay if the worker is unfit for work.
What about disability-related conditions?
The protocol does not define all disability-related conditions as critical. However, it confirms that extended paid leave may be granted in cases of serious disability-related illnesses – even if they don’t meet strict medical criteria set out in the protocol. In disability-related illness cases, management is required to take steps to facilitate a reasonable accommodation that takes account of the particular needs of the individual in considering if such illness might be regarded as ‘critical’ for the purposes of this protocol. Employers must also take reasonable steps to help staff with disability-related illnesses to return to work. Management is also required to take all reasonable steps to make an accommodation to facilitate the employee’s return to work consistent with, for example, specialist occupational health advice and service requirements.
Does a final diagnosis have to be made before paid leave is granted?
It is not an absolute requirement. The employer’s occupational physician can accept a presumptive diagnosis.
Is there any discretion over whether I can get ‘extended’ paid leave?
Yes. Managers have the discretion to award ‘extended’ paid sick leave (beyond the new provision for ‘non-critical’ illnesses) in exceptional circumstances, even in cases where the medical criteria are not met. In doing so, they will have to consider the individual’s previous sick leave record and the potential impact on the workplace of an early return to work.
Can I appeal a management decision?
Yes. If extended leave is refused on medical grounds, you can appeal the decision on medical grounds. Appeals of medical decisions are to a specialist occupational physician or panel of physicians.
You can also appeal if your manager chooses not to use their discretion to allow extended leave in a particular case. Appeals of management decisions will be processed through existing industrial relations procedures.
What’s the four-year ‘rolling’ period in which sick leave is calculated?
The four-year ‘rolling period’ means that sick leave taken over the four years prior to the date of the current illness is taken into account when calculating eligibility for paid leave. (See also next question).
So, how is my eligibility for paid sick leave calculated?
While any sick leave taken in the four years prior to your becoming sick will be taken into account, an existing arrangement, which also provides for a second 12-month look-back (over the 12-months prior to the date of the current illness) is retained. This is advantageous to the worker concerned, and it works like this:
- The first four-year look-back determines your eligibility for access to paid sick leave. There will be a maximum of 183 days paid sick leave, at either full or half pay, in any four-year period.
- However, in a case where you’ve had less than 183 days sick leave in that period, a second look-back over the previous 12 months from the date of illness will determine the rate at which you should be paid (ie, full pay or half pay).
- For example, a worker who had 123 days sick leave prior to 2013, but had taken no sick leave in 2013, would be entitled up to a 60 days sick leave at full pay in 2014 if they required sick leave in that year. This is because the overall limit of 183 days in four years is qualified to provide for up to 92 days at full pay in a 12-month period looking back from the date of illness.
Following the exhaustion of the maximum of 183 days paid sick leave in four years, a worker is eligible to be paid at the rate of pension to which they are entitled at that point (see below). This is now known as ‘temporary rehabilitation pay’ (it used to be called the ‘pension rate’). It will not normally be paid for more than 12 or 18 months, whichever brings you to a total of two years’ sick leave. A decision about whether you can return to work would be made within this 12 or 18-month time period.
Does the ‘look back’ take all my sick leave into account?
Yes. The maximum 183 days includes all sickness absence whether it is medically-certified or self-certified, and whether it is paid at full pay or half pay.
What happens if my paid sick leave is exhausted but I’m still unfit for work?
Following the exhaustion of the maximum of 183 days paid sick leave in four years, a worker is eligible to be paid at the rate of pension to which they are entitled at that point. This is now known as ‘temporary rehabilitation pay’ (it used to be called the ‘pension rate’). It will not normally be paid for more than 12 or 18 months, whichever brings you to a total of two years’ sick leave. However, if a reasonable prospect of a return to work is confirmed by the employers’ occupational health specialist, the payment of temporary rehabilitation pay may be continued for a further period not exceeding two years, subject to six-monthly reviews.
Temporary rehabilitation pay can be paid to staff who do not retire on health grounds after their paid sick leave is exhausted. It is based on accrued pension benefits and the pension rules that would have applied had they actually retired on ill health grounds apply. If you are eligible for ill health added years when you retire, this is taken into account in calculating temporary rehabilitation pay. However, any added years arising from purchase of service arrangements are not taken into account as no retirement has actually taken place.
For example, a worker on a pre-1995 civil service salary scale who earns €40,000 a year, has 20 years service, and receives the maximum ill health added years of 6.66 years would receive an annual ‘pension rate’ of €13,330. Periods spent on temporary rehabilitation pay are not reckonable for pension accrual.
IMPACT and other unions successfully argued that the social protection rate for illness benefit should be used as a floor in calculating temporary rehabilitation pay. This means no worker will receive less than the personal social welfare rate.
Under the new arrangements, temporary rehabilitation pay can ordinarily be paid for a maximum of 12 months after paid leave in critical illness cases is exhausted (ie, after six months on full pay and six months on half pay) or for a maximum of 18 months after paid leave in non-critical illness cases is exhausted (ie, after three months on full pay and three months on half pay). It will only be paid where there is a “realistic prospect” that you will be able to return to work following your illness.
Before terminating the payment of temporary rehabilitation pay in the case of a critical illness, local management must get expert specialist occupational health advice on whether there is any reasonable prospect of the employee returning to work within a foreseeable timeframe. If there is, payment of temporary rehabilitation pay will be continued for a further period, not exceeding two years, subject to review at six-monthly intervals.
Could a pre-95 public servant be treated less favourably than staff eligible for full social protection benefits?
In their 2012 submission to the Labour Court, IMPACT and other unions proposed having the social protection rate used as a floor in calculating pension/rehabilitation pay and
In their 2012 submission to the Labour Court, IMPACT and other unions proposed having the social protection rate used as a floor in calculating pension/rehabilitation pay for any pre-1995 public servants. The Labour Court said the union proposal was “reasonable” and it has been accepted by management.
How will the changes affect part-time workers and work sharers?
The new arrangements will be applied to part-time staff and work sharers in the same way as the existing scheme.
What if my illness or injury is work-related?
Where staff have access to them, existing schemes for occupational illnesses or injuries – illnesses caused by work and injuries contracted at work – remain unchanged. This includes any workplace assault schemes.
How are weekends counted when calculating sick leave?
The treatment of weekends under the sick leave regulations continues to be a source of confusion. However, the existing scheme effectively defines six months as 26 weeks or 183 days. In either case, weekends are counted for as long as the person is absent over the relevant period. If weekends were not counted for the ordinary Monday to Friday employee, six months would likely be treated as 131 weekdays with the 52 Saturdays and Sundays being discounted. The employee would have the same amount of sick leave in either case.
What if I’m on sick leave when the new arrangements come into force?
If you are on sick leave when the new arrangements come into force, you will continue to avail of the existing (pre-change) arrangements for that illness.
What if there is an employer-caused delay in my return to work?
If you have fully engaged with the process and your own consultant has confirmed fitness to return to work, you will incur no financial loss if your employer causes a delay in your return to work.
Ask a question
If you have other questions about the new arrangements, you can contact us HERE.