Winter is here – and so are the coughs, colds and caring emergencies that mean days off work. If your child has a tummy bug, you have the flu, your mum’s had a fall or your housemate needs a hospital pick-up, what type of leave applies?
Force majeure, medical leave, compassionate leave... it can feel like an alphabet soup of entitlements. Or maybe you could just lean on flexible working and muddle through? Some leave is paid and some isn’t, so it matters to know what’s what.
There can be confusion among employees and HR professionals alike about the most appropriate leave to take, says Aoife Gallagher-Watson, director of employment law at EY Law Ireland, who advises companies on the ins and outs of leave entitlements.
One thing’s for certain: if your child has a raging temperature and can’t attend childcare or school, something has to give.
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Working from home while keeping an eye on your child can be an option for both the employer and the employee. And you’ll get paid as normal. But if a loved one needs assistance, continuing to work while caring for them should not be the expectation – and the law provides for this.
A right to claim up to five days of “medical leave” in 12 consecutive months to help with medical care for family members came into effect in July 2023. The right even extends to housemates. The entitlement is one of the first provisions of the Work Life Balance Act to come into effect.
You can claim the time off to give “personal care or support” to a child, spouse, partner, cohabitant, parent, grandparent, sibling or anyone you live with. The leave, however, is unpaid.
The person you are caring for must need “significant care or support for a serious medical reason”, according to the Act. What this means in practice is somewhat open to interpretation.
“In practice, where it comes up most often is when [you are] looking after a child or a parent,” says Gallagher-Watson.
“What constitutes ‘significant care’ or ‘serious medical illness’? It’s still all relatively new,” she says. “But if you have someone who needs to be brought to the doctor with a sky-high temperature, I think that’s a good example of where medical care leave would kick in.”
If your mother had a hip replacement, your child is getting grommets or your housemate needs help post-surgery, someone has to step up. In the past you might have used annual leave days, but caring isn’t a holiday and you shouldn’t have to use vacation time to do it.
To avail of medical leave, you have to give notice of your intention to take the time off “as soon as reasonably practicable”, the rules say. Your boss can ask for information about your relationship to the person, the nature of the personal care or the support you’ll be providing and “relevant evidence”, like a medical certificate, relating to the person’s need for the significant care or support, according to the Act.
Things such as supporting someone in hospital or at home after serious surgery, support for a serious or chronic illness that requires significant care and monitoring over a short period of time would probably fit the bill too.
This type of leave is welcome, the Irish Congress of Trade Unions says, although the union is critical of the failure to make such medical leave paid. The EU directive that gave rise to the leave didn’t make that mandatory, although it was recommended. For workers in Spain, for example, the leave is paid.
Take five days’ medical leave in Ireland and it will amount to a quarter of a monthly pay packet, so using medical leave for caring will cost you.
If you need a half-day to pick your housemate up from a colonoscopy and settle them in at home, there’s no provision for a half-day of medical leave. Apply for medical leave and take only a half day and you will still be down a full day’s pay.
Force majeure
With the introduction of medical leave, there can be confusion about what force majeure leave is for, but they are for different things. A big difference is that one is paid and one is not.
“I’ve had clients tell me that employees try to invoke force majeure leave because that gives an entitlement to a paid day off, but there is a much stricter threshold to get over for this leave,” says Gallagher-Watson.
Force majeure, taken from the French “superior force”, covers an unforeseeable, unavoidable event beyond anyone’s control that prevents you from fulfilling your contractual obligations.
“It’s very much focused on the urgent nature of what has happened, like getting a phone call to say there has been an accident and you need to take someone to hospital,” says Gallagher-Watson.
If a whack of a hurley means your child needs to go to A&E, or your brother drops a block on his foot, then someone needs to down tools to help, and fast. This is what force majeure leave is for.
“It’s where your presence is indispensable and it’s all about the urgency of it,” says Gallagher-Watson. “There is emphasis on the urgent nature of it, so it’s definitely different to medical leave,” she says.
You can take up to three days’ force majeure leave in 12 consecutive months, or five days in 36 months.
The unexpected injury or illness must be to a “close family member”. This includes a sibling, grandparent, partner, or someone who lives with you and relies on you for care if they are sick or injured.
The death of a close family member does not entitle you to force majeure leave. You may be able to take “compassionate” leave – which is offered by some employers on a case-by-case basis – if at all, says Gallagher-Watson. But compassionate leave is not a State entitlement.
Flexible working
If someone you care for is feeling peaky, a bit of flexibility can go a long way.
“Anecdotally, I would definitely say there has been a change post-Covid in terms of flexibility,” says Gallagher-Watson. “I think a lot of employers are quite practical and would rather someone works remotely from home and is doing a bit of work than taking the full day off,” she says.
Flexible and hybrid working can paper over a lot of cracks when it comes to caring, and childcare in particular. It’s no wonder workers value it so highly. Its availability or otherwise says something about culture and expectations around work-life balance in a company, too.
Despite high-profile return to office drives from some companies here, employees remain resistant to losing this flexibility, according to research by recruiter Stelfox published last month.
Some 43 per cent of professional and tech jobs in Ireland offer hybrid or remote-working options, according to the research. Nine in 10 workers here say they would leave their current role for one offering greater flexibility.
“Flexibility has become a deal-breaker,” said Jennifer Dillon, managing director of Stelfox of the research.
“Companies that insist on rigid structures are finding it harder to attract and retain talent. There’s no one-size-fits-all, but flexibility has to be part of the package,” she said.
Pay is still the main driver of career change, at 50 per cent, but work-life balance comes second at 31 per cent, the research finds.
When you’ve been up all night tending to someone with a tummy bug, work-life balance is thrown into sharp relief. It can mean having the option to keep an eye on a loved one while getting some work done, and you don’t have to fill out HR forms or lose a day’s pay to do it.
If you are a parent, or provide personal care or support to someone in your household and you don’t have flexible working, you have a legal right to request it. This includes the right to request remote working.
The right to request flexible working doesn’t grant any automatic right to it, however. Your employer must respond to your request in four weeks, but they can refuse your request based on their business needs.
[ Could Ireland’s remote working rules become more favourable to workers?Opens in new window ]
Workers who have had requests to work remotely declined are critical of the code. Of more than 50 cases taken by employees, only about a dozen have come before the Workplace Relations Commission, which only has the power to rule on process issues.
A public consultation on the right to request flexible working legislation is under way. About 1,600 workers and 400 employers have already made submissions. If flexible working would help you manage the inevitable caring responsibilities that come from winter bugs and life in general, then contribute to the consultation before the December 9th deadline.
Feeling peaky?
If you’re the one feeling peaky, flexible working can be a double-edged sword, however. If you’re coughing and spluttering and your company doesn’t offer remote working, you should rightly ring in sick. Some people who can work from home, however, are not taking a sick day, but rather working through illnesses, research shows.
“A significant number of employees in Ireland are still working while unwell,” according to research by HR and payroll company SD Worx, published this year.
In businesses with fewer than 250 employees, four in 10 workers say they feel pressured to continue working even when sick. That pressure is even more intense in organisations of 500–999 employees, where 46 per cent report the same.
If you get the flu this winter, or get injured, you have a statutory entitlement to five days’ sick pay a year. A planned increase to seven days was stalled by the Government this year amid objections from some business sectors over rising labour costs.
Statutory sick pay is paid at 70 per cent of your normal pay, up to a maximum of €110 a day – the legal minimum your boss must pay. Some employers will have more generous schemes, paying you full pay, but employers can’t give you less than the statutory amount.
“Employers do regularly go above and beyond this, so it’s worth familiarising yourself with your own workplace policy,” says Gallagher-Watson. “Your employer’s policy will also tell you the eligibility criteria, and if there is a notification or reporting requirement.”
Employers can use these things to call out a person if they are disingenuously using a leave type, or abusing a leave type, and to specify what the repercussions would be, she says.
You must be in your job for at least 13 weeks and be able to provide a sick cert to avail of statutory sick pay.
If you’re sick for more than five days, an employer might continue to support you, but they are under no legal obligation to do so beyond the five days’ statutory sick pay, or in accordance with their own policy.
If you are off work sick for more than five days, you should apply for State illness benefit, whether your employer pays you or not, says the Department of Social Protection.
Illness benefit is a weekly payment of up to €244, depending on your earnings, PRSI record and on any adult or child dependants you may have.
