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Accrual of annual leave during sick leave

AUTHOR(S): Bryan Dunne
PRACTICE AREA GROUP: Employment, Pensions and Benefits
DATE: 16.10.2015

Employers need to be aware that Section 86 of the Workplace Relations Act 2015 (the “2015 Act”) which commenced on 1 August 2015, has amended the provisions of the Organisation of Working Time Act 1997 in relation to the accrual of annual leave during sick leave.

The following are the key changes that employers should be aware of following the commencement of the 2015 Act:

1. When an employee is absent from work on certified sick leave this will constitute working time for the purposes of calculating their annual leave entitlement.

2. Where an employee on certified sick leave is unable to take all or part of their annual leave during a leave year, the employee can take that annual leave for up to 15 months after the leave year has ended.  This accrual is limited to the 20 statutory annual leave days and does not entitle an employee to accrue additional contractual annual leave days.  If the employee does not take such leave within 15 months after the end of that leave year, the employee will lose their entitlement to that leave.

3. If an employee’s employment is terminated during the 15 month period mentioned above, the employee will be entitled to payment in lieu of any such outstanding annual leave.

These changes came into effect on 1 August 2015.  Employees currently on certified sick leave can now claim an entitlement to accrue statutory leave in respect of their employer’s current leave year.  However, the 2015 Act will not apply to any dispute referred to a Rights Commissioner before the commencement of the 2015 Act. 

In light of these changes, employers should ensure their employment contracts and employee handbooks are updated to reflect the new requirements.  Employers should also ensure any long-term absence is strictly monitored and that the required medical certificates are furnished.


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