Employment Spotlight: The Work Life Balance and Miscellaneous Provisions Act, 2023, Part 1

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Introduction

On the 4 April 2023, the President signed the Work Life Balance and Miscellaneous Provisions Act 2023 (the ‘2023 Act’) into Law, which in turn is subject to a commencement date that will be revealed later in the year. This legislation aims to give effect to Directive (EU) 2019/1158, which focuses on work-life balance for parents and carers. The 2023 Act not only aligns Ireland’s laws with European standards, but also introduces significant amendments to several existing employment-related acts. The 2023 Act also addresses various aspects of work-life balance, including parental leave, medical care leave, domestic violence leave, flexible working arrangements, and remote working.

This article aims to provide an overview of the key provisions within the Act, and their implications for employers and employees.

The 2023 Act provides various amends to a number of enactments, the primary of which is the Parental Leave Act, 1998 (as amended) (“1998 Act”).

Medical Care Leave

Pursuant to Section 6 of the 2023 Act, employees will have the right to take unpaid leave for medical care purposes or to provide personal care or support to certain individuals, known as ‘relevant person’. This entitlement allows for a maximum of 5 days of leave within a 12-month period.  The following individuals are included in the term ‘relevant person’:

  1. A person of whom the employee is the relevant parent
  2. Spouse or civil partner
  3. Cohabitant
  4. Parent or grandparent
  5. Brother or sister
  6. Person residing in the same household as the employee

To be eligible for this leave, the person in need must require “significant care or support for a serious medical reason.”  When an employee takes medical care leave, it must be for at least one full day. Even if the employee returns to work later on the same day, it will be considered as a full day of leave.

If an employee plans to take or has taken medical care leave, they are required to provide notice to their employer. This notice should be given as soon as reasonably practicable and should include the following information:
  1. Commencement date of the leave
  2. Duration of the leave
  3. A statement explaining the reason for taking the leave
  4. The employee’s signature

The employer must keep a copy of this notice and provide a written acknowledgment to the employee upon receipt of such notice.

Provided it is reasonable to do so, the employer may ask the employee for additional information, which can include:
  1. The employee’s relationship with the person who requires care or support;
  2. The nature of the care or support to be given;
  3. Supporting evidence stating the needs of the person in need of care or support

As for the type of evidence that can be requested, the 2023 Act states that a medical certificate is required to confirm that the person in need requires “significant care or support“.   The certificate does not need to specify the details of the illness or disability, but it must be signed by a registered medical practitioner as defined by the Medical Practitioners Act 2007 (as amended).  If an employee cannot provide a medical certificate, the employer may ask for other reasonable evidence, based on the circumstances.

These provisions aim to support employees in attending to the medical care needs of their family members or other individuals who require significant care or support.

Employer Spotlight

Employers will need to begin updating their internal policies to allow for introduction of medical care leave. It is important for employers to spell out to employees who is entitled to avail of this leave and the conditions required in order for it to arise in the first instance. Furthermore, it is important that medical care leave is distinguished from that of force majeure leave, given the similarities between the two. Equally, employers should highlight the type of information that may be requested from an employee when applying for medical care leave as well the justification as to why that data point may be sought from them.

Domestic Violence Leave

Section 7 of the 2023 Act introduces a very welcomed and significant right of leave for employees, who have experiences with domestic violence.  This section of the 2023 Act amends Section 13 to the Parental Leave Act, which deals with force majeure leave, by adding Section 13AA.

This leave is available to all employees, regardless of their length of service.  The purpose of this leave is to enable the employee, who either themselves have or are experiencing domestic violence or a ‘relevant person’, who they know has or is currently, experiencing domestic violence, to take necessary actions, such as:

  1. Seek medical attention
  2. Obtain services from a victim services organization
  3. Receive psychological or professional counselling
  4. Temporarily or permanently relocate
  5. Obtain an order under the Domestic Violence Act 2018
  6. Seek advice or assistance from a legal practitioner
  7. Seek assistance from the Garda Síochána (Irish police)
  8. Access any other relevant service

A relevant person includes individuals closely connected to the employee, such as:

  1. The spouse or civil partner of the employee (as defined in the Domestic Violence Act 2018)
  2. The cohabitant of the employee
  3. A person with whom the employee is in an intimate relationship
  4. A dependent child of the employee
  5. A person who depends on the employee for support
Domestic violence must be committed against the employee or relevant person by someone who:
  1. Is the spouse or civil partner of the employee or relevant person
  2. Is the cohabitant of the employee or relevant person
  3. Has or had an intimate relationship with the employee or relevant person
  4. Is an adult child of the employee or relevant person who is not dependent on them

Employees who wish to take DVL are not required to provide prior notice to their employer. However, after taking the leave, the employee will need to confirm the relevant details using a prescribed form provided by the employer. This form should state that the employee has utilised DVL and specify the purpose associated with taking the leave.

Employees are entitled to up to 5 days of DVL within a 12-month period.  Similarly, to other types of leave, if an employee returns to work later on the same day, it is considered as having taken one full day of leave.

Regarding the paid entitlement, the specific rate of pay will be determined by separate regulations published by the minister. It is expected that the rate and calculation method for sick pay will be used as a basis for determining the payment rate for DVL.

These provisions aim to provide support and protection to employees who have experienced or are experiencing domestic violence, ensuring they have the necessary time and resources to address the situation and access appropriate assistance.

Employer Spotlight

It is important for employers to note that under the 2023 Act, there is no mechanism requiring employees who are seeking to avail of domestic leave, to adduce proof that they are subject to or have been to subject to domestic violence. Whilst domestic violence leave is a welcomed new entitlement for employees in Ireland, it seems employers will be unable to create a verification process to contest the legitimacy of the application as to do so would impose a limitation not currently envisaged under the 2023 Act.

This article was co-written by Don McGann (Partner), Siobhan McGowan (Partner) and Robin Hyde (Associate).

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