Changes under the Family Leave and Miscellaneous Provisions Act 2021
Following on from the signatory into law by the President on the 27th of March, new provisions under the Family Leave and Miscellaneous Provisions Act 2021 were passed and as a result of these changes working parents are now entitled to additional time off under Parent’s Leave and adoptive couples can choose which parent can avail of Adoptive Leave.
What do these changes mean for employees?
Parent’s Leave
Paid parent’s Leave was initially introduced through the enactment of the Parent's Leave and Benefit Act 2019 and provided that 'relevant parents' of a child, born or adopted on or after 1st November 2019, were entitled to two weeks' paid leave, subject to eligibility, at a rate of €245 per week by the Department of Social Protection. A parent of a child born on or after 1st November 2019, a spouse, civil partner or cohabitant of the child’s parent, a parent of a donor-conceived child as provided for under section 5 of the Children and Family Relationships Act 2015, an adopting parent or parents of a child or the spouse, civil partner or cohabitant of the adopting parent of the child. If the parent has already taken their two-week entitlement, then they can take a further three weeks in 2021 (subject to the two year limit).
Prior to this change, the parent availing of the leave had to take their Parent’s Leave entitlement within 52 weeks of their child’s birth or, placement with their adoptive family. Following the enactment of the Family Leave and Miscellaneous Provisions Act 2021, as of April 1st 2021, parents are now entitled to five weeks leave under Parent’s Leave, which is an additional three weeks on the previous entitlement. The Act extends the period in which the leave can be taken, the leave can now be taken within the first two years after the birth or adoptive placement of a child. The purpose of this extension is to allow parents the opportunity to spend more time with their children during the first two years of their child’s life. Employers are not obliged to pay parents availing of Parent’s Leave; however, they can top-up the Parent’s Benefit if they wish.
Adoptive Leave
Under the Adoptive Leave Acts 1995 and 2005, an adopting mother or sole male adoptive parent, in employment, is entitled to 24 weeks of adoptive leave from work which begins on the day of the child’s placement. Under the Act, the adoptive parent can apply for an adoptive benefit payment from the Department of Social Protection. The enactment of the Family Leave and Miscellaneous Provisions Act 2021 amends the Adoptive Leave Acts to enable adoptive couples to choose which parent may avail of adoptive leave therefore removing the assumption that the adopting mother is the primary caregiver.
As part of this entitlement, an additional 16 weeks leave is available to the adoptive parent but is not covered for state benefit. While employers are not obliged to pay employees who are on Adoptive Leave more favourable arrangements can be put in place.
What does this mean for employers?
There are now several options available to parents for leave which include the above, such as maternity leave, paternity leave and parental leave. Employees are fully covered by employment legislation while availing of any of these leave options and are therefore subject to the same protections and cannot be penalised in any way. Employers should review their contracts of employment and the appropriate policies and procedures to ensure that the recent changes have been applied and communicated to all employees at the earliest opportunity.
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The Parent's Leave & Benefit Act 2019: Extension of Leave
The Parent’s Leave and Benefit Act 2019 came into effect on the 1st of November 2019 and provides for 2 weeks Parent’s Leave with protection of employment for a relevant parent in respect of a child born or adopted on or after the 1st of November 2019. The purpose of the Act is to enable the relevant parent to provide, or assist in the provision of, care to the child.
In acknowledgement of the difficulties experienced by parents during the COVID-19 pandemic, the Cabinet has announced that parents of children born or adopted from the 1st of November 2019 can avail of an additional three weeks of Parent's leave from April 2021 and will be paid at the rate of €245 a week. The benefit is now for five week’s paid leave for each parent up to their child's 2nd birthday which can be taken as either five consecutive weeks or in smaller separate block of a minimum of 1 week duration each.
Currently the Parent’s Leave and Benefit Act 2019 sets out the entitlements and criteria applicable to Parent’s Leave available to the relevant parent. Eligibility for Parent’s Leave depends on the employee meeting specific criteria including the following,
- The employee’s status as a relevant parent,
- The employee taking the leave within 52 weeks of the birth of the child or in the case of adoption, from the placement date, and,
- The employee providing certain notice requirements.
Entitlement to leave is for a relevant parent which is:
- A parent of the child
- A spouse, civil partner or cohabitant of the parent of the child
- A parent of a donor-conceived child as provided for under section 5 of the Children and Family Relationships Act 2015
- The adopting parent or parents of a child
- The spouse or civil partner of the adopting parent of the child (if the parents have not adopted the child together).
Parent’s Benefit can be applied for at any time to be taken within the first 2 years the child’s life and does not need to be taken directly after maternity leave, paid or unpaid. This leave can be taken within 24 months, up to a child's second birthday or within two years following adoption. This measure will be available from April 2021 as it requires primary legislation to commence the extension of the parent’s leave and the development of the IT system to process the benefit.
Paid parent leave can be taken in addition to existing Maternity Leave, Adoptive Leave, Paternity Leave and Parental Leave rights, as applicable to each "relevant" parent.
To exercise the right to Parent’s Leave, the employee must give their employer at least 6 week’s written notice of their intention to take the leave. To apply for Parent's Leave visit here.
View entitlements under Maternity Benefit and Paternity Benefit.
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Parent’s Leave & Benefit Bill…. Some paid leave is now on the way for all new parents!
The Government is working on a range of changes to help parents spend more quality time with their children. Last week, they published the new Parent's Leave and Benefit Bill 2019. This Bill is expected to be enacted on or before 1st November 2019.
So what is this….?
The new Parent’s Leave & Benefit Bill introduces the concept of paid parent's leave for employees for the first time in Ireland. Originally called the ‘Parental Leave & Benefit Bill’, this has had a name change to the Parent’s Leave & Benefit bill to clearly differentiate parent's leave from parental leave (which is a separate entitlement!).
What’s included in the new Bill?
- Parents will be able to take two weeks paid parents leave for any child born / adopted on or after 1st November 2019. The leave must be used before the child’s first birthday. In the case of multiple births, a parent will only be able to claim parents leave once.
- It is available to both parents and it can be taken as a continuous period of two weeks or in two separate one week blocks.
- An employee needs to give their employer six weeks' notice of when they want to take the leave, stating the expected start date and the duration.
- Employers are allowed postpone the parent's leave in situations where taking the leave would have a substantial adverse effect on the operation of the employer's business. Employers however cannot postpone the leave for more than 12 weeks.
- Parents receive a statutory payment of €245 per week (they need the necessary PRSI contributions to qualify!).
The Bill does not require employers to pay employees while on parent's leave. It will be up to each employer to decide if they want to top-up an employee's parent's benefit and, if so, by how much. The advice would be to be consistent with approaches taken on the other family leave types.
Company policies should be reviewed and updated to reflect the changes being introduced. This will help you prepare for any increase in staff requests. Make sure you keep your paperwork & record keeping in order.
So…. keep a listen for future announcements on this new leave and we will update our Bright Contracts package with this policy once it has all been finalised.
How long should you retain employee data under GDPR?
The General Data Protection Regulation (GDPR) will come into force on 25th May 2018, legislation with new rules and guidelines on how to protect and process personal data. Employee personal data held may include: name, address, phone number, email address, emergency contact details, PPS number, bank account details etc.
The GDPR requires that when retaining and processing personal data there must be lawful reasoning for doing so. In terms of processing employee data employers are likely to rely on a number of lawful reasons, mainly: to fulfill contractual obligations, legal obligations or other legitimate interests. Under data protection legislation employee data should be kept for no longer than is necessary, for the purpose that it was retained. However, when deciding how long to retain personal data employers should be guided by employment legislation.
So how long should I retain employee data?
Written Terms of Employment – 1 year
Employers must retain a copy of this statement throughout the employee’s employment and for one year after termination at a minimum.
Payroll details and Payslips – 6 years
Records, calculations and documents relating to the value of benefits for employees must be kept for 6 years in the event of an audit by Revenue. The WRC may also inspect these in an audit and seek evidence that employees are supplied with payslips.
Hours of Work – 3 years
Details of days and hours worked each week, annual leave and public holidays taken and payment received for same. Rest break records and/or records of notification of employees being fully informed about rest break entitlement and procedures if rest break is unable to be taken.
Maternity and Adoptive Leave Records – none
While there is no set period of the retention of data on maternity leave or adoptive leave records, claims can be made within 6 months of employers being informed of an issue giving rise to a dispute or extended to 12 months in exceptional circumstances.
Parental Leave – 8 years
Records of Parental Leave, including the period of employment of each employee and the dates and times of the leave taken, must be retained for 8 years.
A more detailed list of Employee Record Keeping Requirements can be viewed here.
Where legislation gives no guidance on record keeping requirements, employers should carefully predetermine, and include in any employee privacy notice, how long and the grounds they will use for retaining that data. For example; an employer may decide to retain all performance review records for the entire duration of an employee’s employment to monitor employee performance.
Whatever the reasoning behind retaining employee data – whether it be legal or other business reasons, employers need to ensure they have a clear policy outlining their reasoning, that this is easily accessible to employees and that the policy is consistently applied.
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Paternity Leave – Uptake lower than expected
In September 2016, fathers of children born in Ireland became eligible for the first time to take up to two weeks’ paternity leave and to receive Paternity Benefit from the Department of Social Protection. Statistics collated from the first few months of the scheme show, however, that just one in four fathers eligible for the scheme chose to avail of it. This is in stark contrast to the expectation that 60% of eligible fathers would avail of the scheme when it was first announced.
Just over 5,000 paternity benefit applications were awarded during the first three months of the scheme going live, with County Longford, Kerry, Roscommon, and Clare having the fewest applicants. A larger uptake, however, was seen in County Dublin, Cork and Kilkenny.
A further 7,500 paternity benefit claims were subsequently awarded in the first four months of 2017. Under the new scheme, eligible fathers are entitled to two weeks of paternity leave. The two-week leave can be taken at any point within 28 weeks of the birth or adoption of a child, but the two weeks must be taken together.
A social welfare benefit of €235 per week is paid for the two weeks. It is at an employer’s discretion if they wish to top up this payment to the full weekly wage normally earned by the employee. Despite the low uptake so far, it is hoped that the number of applicants will increase as the scheme enters its second year in September.
Current statistics also don’t reflect fathers who may be delaying their paternity leave, for example, fathers whose child was born on February 28 this year can take it at any time up to September 1, 2017.
Guidance on how employers should treat Paternity Benefit and when it should be entered in Thesaurus Payroll Manager can be found here: https://www.thesaurus.ie/docs/2017/paternity-benefit/taxation-of-paternity-benefit/
Related article: Equality for working Dads with new Paternity Leave
Parental Leave – A Recap
The Parental Leave Acts of 1998 to 2006 provides an entitlement to parents with young children up to 14 weeks unpaid leave if it is required to take care of their child. Since 8th March 2013 this has changed with the number of weeks now being increased from 14 to 18 weeks. The leave must be taken before the child reached 8 years of age.
Other changes in this legislation are:
- If both parents work for the same employer, then with agreement of the employer, 14 weeks from one employee can be transferred to their spouse/partner.
- The classification of disability has been changed to include “long-term illness”.
- The age limit for children with long-term illnesses was increased to 16 years.
- If an employee returning from parental leave requests a temporary change in their working hours or pattern of work, an employer should consider this request but is not required to allow it. If the request is agreed to by the employer then an agreement setting out the new temporary change of hours and/or pattern must be signed by both parties.
- A record of all parental leave must be kept by employers for a period no less than 8 years. If an employer fails to do so then they could be liable for a fine of up to €2000.
- An employee must not be penalized for making such a request.
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