Over the last number of months, most employers will have experienced employees phoning in sick to their workplaces with the common “flu bug”. It is timely therefore to look at legal issues that arise for employers in managing illness in the workplace.

MANAGING THE ABSENCE

The first legal issue that can arise for employers is the absentee who has persistent bouts of short term absences from the workplace. These can, in fact, be more difficult to manage from an employer’s perspective than long term sick leave issues. Employers should ensure that they have very clear procedures in place for sick leave, such as obliging employers to phone in before 10.00 am on the first day of illness and having to keep their employer informed on a daily basis, by telephone, as to their progress. Employers should also provide for medical certificates to be provided for after a certain length of illness (usually 3 days). Return to work interviews, even when an employee has been absent from work on short term sick leave, can also be a very effective way of sending the message that an employee’s absence is noted. It may also help reveal a deeper issue with the employee’s absence about which the employer needs to be aware.

SENDING THE EMPLOYEE HOME

Another question that arises is whether an employer can lawfully send an employee home if they are ill. The Health and Safety Act, 2005, provides that an employer should ensure, in so far as reasonably practicable, the Safety, Health and Welfare at Work of all his/her employees. Permitting an employee who is ill and contagious to attend at work means an employer is not meeting his/her obligations under the Act. Therefore, it would seem reasonable in the circumstances to send the employee home taking into account the health and safety obligations are owed to all employees.

If the employer is forcing the employee to go home, then the question of whether the employer should pay that individual arises. If the employer does not usually pay employees while they are out on sick leave, then arguably they are not obliged to pay the employee. However, in circumstances where it is the employer that is forcing the employee to go home and where the employee themselves feels they are fit for work, principles of fairness would dictate that the employer should pay the employee for the duration of time that the employee remains at home at the employer’s direction.

SICK PAY

As employers will be aware, there is no legal obligation in Ireland to pay employees while they are out on sick leave. However, it is wise for employers to have formal provisions in place for dealing with sick leave and it is important that those provisions are applied consistently to all employees in the organisation. Otherwise, the employer runs the risk of the Courts implying reasonable sick pay provisions into the contract of employment. The benefits offered in sick pay schemes vary, with employers paying for certified sick leave for periods of one week up to one year.

Employers are left to exercise common sense in looking for symptoms in an employee that might be contagious to other employees in the organisation. For example, if an employee is vomiting in the workplace, then there is a risk they are suffering from a condition such as gastro-enteritis and it would therefore be reasonable on the part of the employer to send them home.

As with most aspects of employment law, it is better for an employer to be proactive rather than reactive when dealing with ill employees, particularly in circumstances where employers in Ireland may ultimately have to deal with an avian flu pandemic in Ireland.