On April 29, 2021, the Government of Ontario introduced a paid sick leave plan through Bill 284, COVID-19 Putting Workers First Act. The Bill, which received royal assent on the same day, amends the Employment Standards Act, 2000 (“ESA”) to require that employers provide employees with up to three (3) days of paid infectious disease emergency leave, also known as the Ontario COVID-19 Worker Income Protection Benefit. This entitlement is in addition to the previously announced unpaid infectious disease emergency leave.
How to qualify
Under the amended ESA, an employee is entitled to a paid leave of absence if the employee will not be performing their work duties because of any of the following reasons related to COVID-19:
- The employee is under individual medical investigation, supervision, or treatment due to COVID-19. This includes receiving a vaccine for COVID-19 and recovering from associated side effects;
- The employee is following a public health order in response to COVID-19;
- The employee is in quarantine, isolation, or subject to another “control measure” issued by public authorities or a medical practitioner in response to COVID-19;
- The employee is directed by their employer not to work due to concerns that the employee may expose others to COVID-19; or
- The employee is taking care of a dependent who has symptoms of COVID-19 or is isolating due to COVID-19.
Qualifying employees are only entitled to use the three (3) days of paid infectious disease emergency leave between April 19, 2021 to September 25, 2021.
Employers cannot require an employee to provide a certificate from a doctor or nurse as evidence.
Employees may “opt-out” of this paid leave so as not to affect their receipt of federal benefits.
Amount to be paid under the leave
Employers are only required to pay an employee the lesser amount of $200 per day of leave and the wages that the employee would have earned for the day had they not taken the leave. Employees are only entitled to their regular rate of pay, meaning that overtime and shift premiums do not apply.
Furthermore, if an employee takes any part of a day as paid infectious disease emergency leave, then the employee can be deemed to have used a full day of their three (3) days paid leave entitlement.
Interaction with contractual paid leave
Where an employee is already entitled to paid leave under their contract and where these paid days can be used in the same circumstances as paid infectious disease emergency leave, then the contractual leave will be inclusive of the statutory three (3) days of paid leave. However, if the employee is receiving less than three (3) contractual paid days of leave, then the statutory infectious disease leave would make up the difference so that the employee has at least three (3) paid days of leave.
Financial reimbursement to employers
Employers may apply for reimbursement through the Workplace Safety and Insurance Board (“WSIB”) for the amounts paid to employees pursuant to the paid infectious disease emergency leave. Employers must apply for reimbursement within 120 days of payment being made to the employee and cannot do so after January 25, 2022.
It should be noted that reimbursement is only available for payments made in response to paid infectious disease emergency leave under the ESA. Employers are not entitled to be reimbursed for contractual paid sick leave. Furthermore, employers are not entitled to be reimbursed for any WSIB benefits received by an employee while on the paid infectious disease emergency leave.
The foregoing is for informational purposes only and should in no way be relied upon as legal advice. For legal advice tailored to your circumstances and business, please contact any of SOM LLP’s lawyers by email or telephone.