by Anne Lyne May-05-2020 in Employment Law, COVID-19

A version of this article first appeared in the Business Post on 03 May 2020

The issue of holidays and how they accrue during the COVID-19 crisis is a question that is arising in workplaces as the lockdown continues. What entitlements does an employee have to leave during this time and can an employer require an employee to take leave?

In simple terms the law has not changed, where employees are continuing to work, either remotely, or in the workplace, their holiday entitlement is building up. If employees are on certified sick leave, due to COVID-19 or another illness, they are also continuing to accrue annual leave.

However, if an employee has been laid off from work, they do not continue to build up annual leave as that time is not considered “working time”.

The relevant legislation in Ireland, the Organisation of Working Time Act 1997 (the “OWTA”) provides that the minimum statutory annual leave entitlement for a full-time employee is 20 days or four working weeks in addition to the nine public holidays. If employees work on a part-time basis, their annual leave is pro-rated. Employers may provide employees with additional annual leave under their contract of employment and/or as a reward for length of service.

Under the OWTA employers may require employees to take annual leave provided they consult with the employee at least one month prior to the taking of annual leave. It is also open to employees to waive the one-month notice period and take the annual leave on a voluntary or agreed basis, notwithstanding the absence of that notice. An employer may seek an employee’s consent to take their annual leave during this period. Employees should be made aware that that they will be paid at the normal weekly rate for annual leave they take.

Employers may be concerned that employees will look to delay days off or the usual summer 2-week break and take time off later in the year. This may not suit business who will be hoping for a bounce later in the year and where having staff available may be crucial to any recovery. There are several options available to employers to consider in order to deal with these circumstances, should they arise.

  1. One approach is to firstly not allow any existing confirmed annual leave to be cancelled.
  2. It is also open to the employer to request employees to use a certain amount of leave during the “lockdown” period, for which they will be paid, to ensure there is not a build-up of annual leave to be taken later. Many employers are requesting that employees take the bulk of their holidays between now and the end the summer. These options should still leave employees with holidays to take later in the year but in a way that is more manageable for the employer.
  3. There is a technical argument that by “forcing” staff to take annual leave during this crisis period, whether that is already booked or not, when staff will effectively be housebound, may not satisfy the requirements of the OWTA regarding allowing employees time for “rest and recreation” but there is currently no case law on the area.

Employers may also consider allowing employees to carryover annual leave into next year. The OWTA allows limited carryover of holidays to the following leave year. The UK announced a relaxing of the rules on carryover of annual leave on 27 March last, providing that workers may be able to carry over untaken leave into the next 2 years if they cannot take it because their work is affected by coronavirus. No such change has taken place here and it remains to be seen whether it will be introduced as a means to give flexibility to employers at this time.

For further information, please contact Anne Lyne at Hayes solicitors.

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