The Carer’s Leave Act, 2001 came into operation on July 2001. The main purpose of the Act is to provide for a new entitlement for employees to avail of up to 104 weeks temporary unpaid carer’s leave to enable them to personally provide full-time care for persons who are in need of such care (hereafter referred to as a “relevant person”).
During an absence on Carer’s Leave, an employee shall be regarded as still working in the employment for all purposes relating to his or her employment and none of his or her rights or obligations relating to the employment shall be affected by taking the leave with the following exceptions:
- There is no right to remuneration or superannuation benefits and any obligation to pay superannuation contributions in, or in respect of employment.
- The right to annual leave is restricted to the period comprising the first 13 weeks only of Carers Leave entitlement in respect of any one relevant person.
- The right to public holidays is likewise restricted to the period comprising the first 13 weeks only of Carer’s Leave entitlement in respect of any one relevant person.
Absence from employment while on Carer’s Leave shall not be treated as part of any other leave to which the employee is entitled (e.g. sick leave, annual leave, adoptive leave, maternity leave, parental leave or force majeure leave).
The period of leave to which an employee is entitled is subject to a maximum of 104 weeks in respect of any once care recipient. The minimum statutory entitlement is 13 weeks.
The employee must have been in the continuous employment with their employer for at least 12 months before he/she can commence the leave.
The leave is for the purpose of personally providing full-time care to a person who is objectively assessed by the Department of Social, Community and Family Affairs as being in need of full-time care and attention. This decision will be based on information provided by the relevant person’s general medical practitioner and assessed by the Department’s medical advisor. However, under Regulations made by the Minister an employee may work or attend an educational or training course or take up voluntary or community work for up to 10 hours per week or engage in limited self-employment in his/her own home while on carer’s leave.
Before an employee can commence Carer’s Leave, he/she must provide the employer with a copy of the decision of a deciding officer (or appeals officer) of the Department of Social, Community and Family Affairs, that the relevant person has been medically certified as being in need of full-time care and attention.
The act provides that the leave shall be taken in one of the following ways:
- One continuous period of 104 weeks, or
- One or more periods, the total duration of which amounts to not more than 104 weeks.
The minimum statutory entitlement that may be taken in one period at the discretion of the employee is 13 weeks.
An employer may refuse, on reasonable grounds, given in writing, to permit an employee to take carer’s leave for a period of less than 13 weeks.
An employer and employee may, however, agree arrangements for Carer’s Leave on terms more favourable to the employee.
The leave terminates when the employee ceases to personally provide the full-time care and attention to the relevant person, for example, when another person/institution assumes the care of the relevant person concerned. The employee must notify his/her employer of any change of circumstances, which affects his or her entitlement to carer’s leave.
Only one employee may be on carer’s leave in respect of any one person, at any one time.
The employee must give the employer in writing at least 6 weeks notice of their intention to take carer’s leave, except where in exceptional or emergency circumstances, it is not reasonably practicable, in which case, notice must be given as soon as it reasonably practicable. The statement of notice must contain the following details:-
- the date on which the employee intends to commence the leave
- the duration of the leave
- the manner in which the employee proposes to take the leave
- a statement that an application for a decision in the first instance or on appeal that the person to be cared for is a relevant person for the purposes of Carer’s Leave, has been made to the Department of Social and Family Affairs.
- The employee’s signature and date.
(See sample “Notice of Intention to Take Carer’s Leave” Page: 27)
Once an employee has given notice of his or her intention to take Carer’s Leave:-
- The employee must give the employer a copy of the decision from the deciding officer (or appeals officer) of the Department of Social and Family Affairs that the person in respect of whom the employee proposes to avail of Carer’s Leave is a relevant person.
- The employee and the employer must prepare a confirmation document. This document must be prepared and signed no later than two weeks before the leave is due to begin and must include: date of which the leave period will commence, the duration of the period of leave and the signatures of the employer and employee.
Once a Confirmation Document has been signed by both the employer and the employee, it cannot be altered unless both parties agree.
The leave shall also terminate when a deciding officer or an appeals officer of the Department of Social and Family Affairs, makes a decision, on reference by an employer, that either the employee or the person in respect of whose care the leave is taken, does not satisfy the conditions applicable to him/her.
Carer’s leave shall continue for up to six weeks after the death of the relevant person, subject to the period of carer’s leave in the Confirmation Document not having expired.
The employee on carer’s leave will be treated as if he or she has not been absent so that all his/her employment rights (except the right to remuneration, certain annual leave, certain public holidays, superannuation benefit, etc) will be unaffected during the leave.
Probation period or apprenticeship may be suspended during carer’s leave, if the employer considers that continuance would be consistent with the carer’s leave.
The employee on Carer’s Leave must give the employer written notice of his/her intention to return to work not less than 4 weeks before the date on which the employee is due to return to work.
An employee is entitled to return to work at the end of a period of Carer’s Leave to the employer with whom they were working immediately before the absence, or with his or her successor, in the job held immediately prior to the leave and under the same contract and terms and conditions of employment. If the business has changed ownership during the period of absence they are entitled to work with the new owner under a contract of employment identical to the contract that existed with the original employer.
An employer must make a record of the Carer’s Leave taken by his/her employees, specifying the period of employment of each employee and the dates and times of the leave taken. Such Records must be retained for 8 years.
The Carer’s Leave Act, 2001 prohibits an employer from penalising an employee on grounds that he/she has exercised or proposes to exercise his/her rights to Carer’s Leave.
A claim for redress can be made by an employee to the Workplace Relations Commission in the first instance with a right of appeal to the Labour Court.
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