There is no doubt that the COVID-19 pandemic has been a game-changer for businesses. Lockdown restrictions have seen many people now remote working, but for those at home but unable to work questions persist. Among them, how are employee leave entitlements impacted? And can employers request employee leave be taken?
A myriad of other queries exists and, as the coronavirus crisis unfolds, it is likely that more will arise. For HR Departments, there is some guidance provided by governments, which for the most part helps to clarify matters. Critical questions for them, however, relate to employee leave entitlements and what employers and employees can expect as a result of the enforced work restrictions.
So, we have taken a look at 8 areas of uncertainty to help de-cloud the situation and provide at least a little solid ground to build on.
- Can employers require employees to take annual leave?
This issue came to fore in late March when workers at Dublin Bus in Ireland were notified that they were being ‘allocated one day’s annual leave per week’ for the duration of the COVID-19 crisis without any consultation or agreement being reached.
The short answer is, yes. But the Organisation of Working Time Act 1997 ensures three key factors are seen to first:
- the employer consults employees (or trade unions) at least one month in advance
- the employee’s family responsibilities are considered
- the employee’s opportunities for rest and recreation are protected
Employers should seek agreement from employees to take annual leave voluntarily. It may be relatively easy to agree to waive the one-month notice but forcing leave on employees could result in legal action on the other grounds.
- Are employees temporarily laid-off or on short-term work entitled to the same Annual Leave and Public Holidays?
The COVID-19 crisis has created a temporary ‘special’ scenario, so employees are still considered employed despite being laid off or having short-time working status. This means employees are entitled:
- to full benefits for any public holidays during the first 13 weeks of lay off
- to take annual leave accrued in the period before being laid off
However, because an employee is not actually working, it also means they do not accrue annual leave during the lay-off.
- What about employees signed up to the COVID-19 Wage Subsidy Scheme?
It’s a similar story for them. As a temporary arrangement, the COVID19 Wage Subsidy Scheme enables employees to receive support directly from their employer while also allowing employers to keep their staff ‘on the books’. But because it covers employees who have no work for the period of the crisis as well as those with reduced hours, it’s a de-facto lay-off. Therefore, annual leave cannot be accrued.
- What if an employee had been granted leave prior to the crisis, and the employee now wants to cancel it?
It’s to be expected those whose planned holidays have had to be cancelled (hotels, flights etc) may seek to have their leave deferred too. Employers are within their rights to refuse to make any changes, but it may be worthwhile coming to an agreement with employees first. Being flexible is generally a good idea anyway.
- Can employees claim statutory redundancy when on a lay-off or short-time period?
The Redundancy Payments Act 2014 states that if an employee has been laid off or put on short-time for a set period of time, then they can seek a statutory redundancy payment. But the Emergency Measures in the Public Interest (Covid-19) Act 2020 effectively suspends the terms of the Act for the duration of COVID-19 crisis, though only where the employee has been placed on lay-off or short-time work due to crisis.
- What about employees who have to care for their children due to schools, crèches closing?
With education institutes and childcare facilities also forced to close, an employee’s ability to work may be affected. There is no statutory entitlement to pay employees in this circumstance but withholding pay would fly in the face of government calls to “assist and support the national health objectives”. Instead, employers should consider alternatives.
- Is Parental Leave a good option?
It’s the most logical option, but because parental leave is unpaid it is not an ideal one – unless compromises can be made given the current situation, like a once-off paid parental leave arrangement.
- Is Force Majeure Leave an acceptable option?
Technically, Force Majeure Leave is granted to employees ‘for urgent family reasons, owing to an injury or the illness’ of that employee’s immediate family member. So, this type of leave only becomes an option if an immediate family member falls ill with COVID-19.
For further reading on how employers and employees are affected by the COVOD-19 crisis, click on the links below.
- Citizen Information (Ireland)
- Advisory, Conciliation and Arbitration Service (ACAS) (UK)
- Legal Considerations (Ireland)
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