The General Scheme of a Work Life Balance and Miscellaneous Provisions Bill, 2022 (the “Bill”) was brought before the cabinet by Minister Roderic O’Gorman on the 20th April 2022. The Bill proposes a number of legislative changes which are designed to allow for a better work life balance for parents and carers, to encourage more equal sharing of parental leave between men and women and to improve the representation of women in the labour market.
Right to request flexible working
The Bill proposes to introduce the right for employees with children up to the age of 12 (or 16 if the child has a disability or long-term illness), and employees with caring responsibilities to their spouse or civil partner, a person to whom they are in locos parentis, cohabitant, parent or grandparent, brother or sister, and a person who lives in the same household as them to request flexible working arrangements for caring purposes from their employer for a set period of time. The Bill goes further than the proposal set out in the European Union’s Work-Life Balance Directive 2019/1158 (the “Directive”) which provides this right for parents with children up to eight years old.
The Bill proposes that the employee requesting flexible working arrangements will need to have six months’ service with the employer before they can make such a request. The employee must make the request at least six weeks before the flexible working arrangement is intended to start.
Employers will be obliged to consider the employee’s request for flexible working and will have four weeks to respond. The employer can grant, postpone, or refuse the flexible working arrangement. In circumstances where the employee’s request is refused or postponed, the employer will be required to provide the employee with the employer’s reasoning behind the refusal or postponement.
In circumstances where an employer experiences difficulty in assessing the viability of the request, the time period to respond can be extended by a further eight weeks with the agreement of the employee.
Employers can postpone an employee’s request for flexible working arrangements for a period of six months where it is satisfied that the commencement of the flexible working arrangement would have a substantial adverse effect on the operation of the business because of:
- seasonal variations in the volume of work;
- the unavailability of someone to carry out the employee’s duties;
- the nature of their duties;
- the number of other employees availing of flexible working arrangements; or
- any other relevant matter.
If the employer agrees to provide the employee with flexible working arrangements, those arrangements will need to be set out in an agreement executed by the employer and the employee.
When the flexible working arrangements conclude, the employee is entitled to return to their original working arrangements, hours or patterns. Furthermore, employees are also entitled to request an early return to their original working arrangements.
Leave for medical care purposes
The Bill provides for a period of five days’ unpaid leave, per year, per employee, where, for serious medical reasons, the employee is required to provide personal care or support to family members or loved ones such as a child, spouse, cohabitant, parent and sibling. This leave cannot be taken in periods of less than one day and the employer may request evidence of the employee’s relationship with the person who requires the medical care, the nature of the medical care required and medical certification of the serious medical issue.
This proposed right is in addition to existing carer’s leave entitlements under the Carer’s Leave Act, 2001 and force majeure leave.
Extension of the period during which time can be taken out from work to breastfeed
The Bill proposes an extension of the period of time which can be taken from work to breastfeed from the current period of 26 weeks to 104 weeks. This time can be taken following the birth of a child during which employees have an entitlement to paid time off from work or a reduction of working hours for breastfeeding purposes.
Extension of maternity leave entitlements to transgender men
The Bill also proposes to provide for the right of a transgender male who has, in accordance with the Gender Recognition Act, 2015, obtained a gender recognition certificate and subsequently becomes pregnant, to fall within the scope of the Maternity Protection Act, 1994.
The Directive requires that national legislation implementing it takes place by August 2022. The Bill is currently with the Office of the Attorney General for formal drafting and will then proceed through the legislative stages of the Houses of the Oireachtas.
Once the Bill has been implemented employers are advised to review and amend policies in respect of family and carer’s leave to ensure they are compliant with the new legislation. There has been a lot of push back by practitioners and companies alike on the rigidness of the Bill, so it is likely that there will be a numbers of changes made before the Bill is finalised.
Please contact Bláthnaid Evans and/or Amy McNicholas of our Employment & Corporate Immigration team on 01 639 3000 should you require any employment law advice.