For Further information see : FAQ prepared by Public Services committee of ICTU
ATTN: INMO Members:
Those who are certified sick but not critical, as set out in the Critical Illness Protocol; will have an entitlement to three months on full pay followed by three months on half pay, in any four year rolling period. As is the case currently, the four year rolling period is calculated from the current date of illness looking back over the previous four years. This determines how much paid sick leave has been taken in the four years leading up to the current period of illness. The maximum number of sick days that can be paid are 183 over four years. (Including un-certified/self-certified 7days).
Where an employee, (Nurse or Midwife), commences a period of sick leave her/his sick leave record is examined to determine whether she/he has;
(i) Not more than 183 days sick leave in 4 years
(ii) Not more than 92 days’ paid sick leave on full pay in a year.
The reason for the four year check is to determine whether sick pay may be paid; and the reason for the one year check is to see whether sick pay, is to be paid at full or half pay.
If the total of sick absences is 183 days or more, there is no entitlement to either full or half pay.
If the total of sick absences is less than 183 days there may be an entitlement to either full or half pay.
In this circumstance the employee’s sick leave record over the previous year is checked to see whether or not she/he had more than 92 days full pay in that period.
If she/he has not, full pay may be payable, if she/he had, then half pay will be payable.
It is possible therefore in certain circumstance for employees to receive more than 92 days full pay in a four year rolling period.
Those on sick leave on the date the new scheme is introduced will be treated and given their sick leave entitlement in accordance with the old scheme. In other words they will have an entitlement based on six months full pay, six months half pay in the previous rolling four years. Any period of sick leave taken thereafter will be treated under the new rules.
The Unions involved in the public service’s committee of the Irish Congress of Trade Unions have argued successfully that it would be unfair and unjust to apply the reduced sick leave arrangements to those who have a critical illness. It has now been confirmed following a Labour Court Hearing, that existing arrangements which are six months sick leave at full pay, followed by six months on half pay, will remain in place for those who are considered as having a critical illness.
The Labour Court, when considering this issue, recommended that Trade Unions and management should agree the criteria which would distinguish between critical and non-critical illnesses. This document, which is entitled the Critical Illness Protocol (see link), has been issued following a number of meetings between the public service unions and government departments. Certain aspects that were not directly agreed, were referred for a second time to the Labour Court and the Labour Court issued its second recommendation on 20th December 2013.
The document which you can access here, entitled ‘Critical Illness Protocol’ now sets out the criteria which will distinguish between critical and non-critical illnesses.
The Protocol does not list a series of illnesses that are determined as being critical illnesses. What it does is lists the criteria that will be used to determine if an illness is critical. This criteria is termed the ‘Critical Illness Protocol’.
Point 2 of the protocol sets out the criteria as follows:-
CRITERIA FOR AWARD OF EXTENDED PAID SICK LEAVE
2.1 In determining whether an individual may be granted access to exceptional extended paid sick leave the following criteria apply:
2.1.1 The employee should ordinarily be under the current or recent clinical care of a consultant either as an inpatient or outpatient. This excludes employees attending primarily for report preparation or medico legal purposes.
2.1.2 The case must be referred by the employer to its Occupational Health Service for medical advice.
2.1.3 The responsibility lies with the employee to furnish any treating doctor’s medical reports requested within an appropriate time-frame to avail of the exceptional extended paid sick leave. A treating consultant’s specialism must be appropriate to the critical illness for which the employee is making a claim.
2.1.4 The Occupational Physician, from the employer’s Occupational Health Service, will advise whether, in their opinion, the following criteria are met:
i. The employee is medically unfit to return to his or her current duties or (where practicable) modified duties in the same pay grade
ii. The nature of this medical condition has at least one of the following characteristics:
(a) Acute life threatening physical illness
(b) Chronic progressive illness, with well-established potential to reduce life expectancy
(c) Major physical trauma ordinarily requiring corrective acute operative surgical treatment
(d) In-patient hospital care of two consecutive weeks or greater
2.1.5 The Occupational Physician will consider the information provided by the treating doctor, and may confer with them with consent if they feel this would be helpful. It is not an absolute requirement that a definitive final diagnosis has been made. The Occupational Physician may accept a presumptive diagnosis on a case by case basis.
 In circumstances where there is no medical intervention.
 In the case of pregnancy-related or assisted pregnancy-related illness, the requirement for hospitalisation of two consecutive weeks will be reduced to two or more consecutive days of in-patient hospital / clinic care.
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 employee is unfit for work. Obviously it would be necessary that the illness is described as a pregnancy related illness.
A disability related condition can also be considered critical, however each case would be determined on its own merit. 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 the illness in question might be regarded as critical for the purpose of this protocol.
Employers must also take reasonable steps to help staff with disability related illnesses, return to work.
Some disability related conditions will be determined as critical and others may not. Appeals as set out in point 11, can be invoked if Critical Illness Benefit is denied.
The decision on whether to award extended paid sick leave in line with the Critical Illness Protocol, will be a management decision having consulted with the relevant line managers. The Protocol states that while management must primarily consider the occupational medical advice, management should consider all of the circumstances of the case. This is welcome, as although an employee may not meet the medical criteria outlined in the Protocol, management will have the discretion to make a decision to award in exceptional circumstances.
When exercising this discretion, management must demonstrate the reasons why they are awarding the extended period of paid sick leave, as the individual does not meet the criteria as set out in the Protocol. The Protocol instructs management to take the following into account:
- the individual’s sick leave record;
- the potential impact of an early return on the work place efficiency and effectiveness; and
- Whether or not it has been possible to make an accommodation to facilitate the return to work of person with a disability related illness or condition.
· An appeal is allowed under the Protocol of the medical decision to a panel of specialist occupational Health Physicians.
· An appeal is also allowed of the management decision. These appeals will be processed through the existing appeals process in the Health Service.
Where employees are absent on sick leave but have exhausted their entitlement to paid sick leave, temporary rehabilitation pay, formerly called pension rate of pay, can be paid. The eligibility criteria for temporary rehabilitation pay will be as per pension rate of pay currently and will be paid for a period, provided there is a reasonable prospect of a return to work, which would be confirmed by the employer’s occupational health specialist.
The initial payment following paid sick leave, can be paid for a period totalling two years inclusive of any period of paid sick leave. For example, if three months full pay and three months half pay, totalling six months’ pay has been paid to an employee, they would have a further 18 months of rehabilitation pay.
If six months full pay, six months half pay, under the Critical Illness Protocol has been paid, a further 12 months would be available.
At the end of the two years, a review would take place and, if a reasonable prospect of a return to work is again confirmed by the employer’s 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.
As per the current Rules, the pension rate of pay is calculated on the actual accrued pension benefits at that time.
· Where an employee has fully engaged with the process around the management of sick leave and their own consultant has certified fitness to return to work but they have been unable to do so as a result of a delay in the employer referring the employee to Occupational Health Services, pay will be restored appropriately;
· Where an employee has fully engaged with the process around the management of sick leave and their own consultant has certified fitness to return to work but they have been unable to do so as a result of a delay in getting an appointment or being seen by the Occupational Health Service, pay will be restored appropriately; and
· Likewise, should there be a delay in the employer referring an employee to the Occupational Health Service of the Organisation, or a delay in being seen by the Occupational Health Service, there would be no financial loss to the employee if they are later awarded the exceptional extended paid sick leave, as set out in the Critical Illness Protocol.
The INMO and other health sector unions will now meet with the HSE to agree how this Protocol will be applied in the Health Services and an explanatory document on the new Sick Leave Scheme/Arrangements will then be circulated to Managers in the Health Service,
In addition, the INMO will conduct information briefings throughout the country during the month of February. The locations for the Regional Meetings are listed and if further meetings are required in locations, you are requested to contact your local INMO Representative who, in turn, will arrange with the Industrial Relations Officers for the area, to schedule times and venues to have further information briefings.
Please make every effort to attend these Regional Briefing Meetings and if clarification is required, please contact the INMO Official in your area.
For Further information see : FAQ prepared by Public Services committee of ICTU
PHIL Ni SHEAGHDHA,
Director of Industrial Relations.