Ontario Implements Paid Sick Leave for Reasons Related to COVID-19

Bill 284, the COVID-19 Putting Workers First Act, 2021 (“Bill 284”), received Royal Assent on April 29, 2021 and is now in force. Bill 284 implements Ontario’s Worker Income Protection Benefit, amending the Employment Standards Act, 2000 to require employers to provide employees with up to three days of paid leave for reasons related to COVID-19. Eligible employees are entitled to paid leave for eligible absences dating back to April 19, 2021. The entitlement will end on September 25, 2021 (or such later date as may be prescribed).

Employers Required to Provide Paid Leave

In addition to the entitlement to unpaid infectious disease emergency leave, employees are now entitled to a total of three days of paid leave if they are unable to work for the following reasons:

• The employee is under medical investigation, supervision or treatment related to COVID-19 (which includes receiving a vaccine and recovering from its effects).
• The employee is acting in accordance with an order under the Health Protection and Promotion Act.
• The employee is in isolation or quarantine or is subject to a control measure implemented as a result of public health information or directions.
• The employer directs the employee not to attend work for COVID-19 related reasons.
• The employee needs to provide care to an individual who is under medical investigation, supervision or treatment related to COVID-19, or who is in isolation or quarantine or subject to a control measure implemented as a result of public health information or directions.

The COVID-19 related reasons for which employees may take paid leave are very similar to the reasons for which employees may take unpaid infectious disease emergency leave. However, unlike unpaid infectious disease emergency leave, Bill 284 does not expressly state that employees are entitled to paid leave if they are unable to work for reasons related to school or day care closures. In addition, Bill 284 does not permit employees to access paid leave where they are unable to work due to travel restrictions related to COVID-19. 

An employee is entitled to take their three paid days of leave before accessing unpaid infectious disease emergency leave. 

An employer may require an employee who takes paid leave to provide evidence reasonable in the circumstances that the employee is entitled to the leave, but cannot require an employee to provide a certificate from a qualified health practitioner as evidence. 

The new paid leave days must be taken in full days. If an employee takes any part of a day as paid leave, the employer may deem the employee to have taken one paid day of leave on that day.

If an employee took unpaid infectious disease emergency leave days between April 19 and April 29, 2021 for reasons that would now entitle the employee to paid days under Bill 284, the employee may elect to utilize the new paid leave entitlement for the days taken. In order to make such an election, an employee must advise their employer of their desire to do so in writing by May 12, 2021.  

If an employer already provides employees with paid sick days in the circumstances listed above, it will be considered to have already complied with the new requirement with respect to any employees who had at least three unused sick days remaining as of April 19, 2021. If an employer provides employees with less than three paid sick days, or an employee had less than three unused sick days remaining as of April 19, 2021, the entitlement to the new paid leave days will be reduced by the number of remaining paid sick days available to the employee. 

Dollar Amount of Paid Leave 

For each of the three paid leave days to which an employee is entitled, an employer is required to pay the employee the lesser of $200 per day and the wages the employee would have earned had they not taken the leave. 

If the employee receives performance-related wages, including commissions or a piece work rate, the employer is required to pay the employee the lesser of $200 per day and the employee’s hourly rate (or the minimum wage that would have applied to the employee for the number of hours the employee would have worked had they not taken the leave, whichever is greater). 

If a paid day of leave falls on a day or at a time of day when overtime pay and/or a shift premium would be payable by the employer, the employee is only entitled to their regular rate. They are not entitled to pay for overtime or shift premiums. Similarly, if the day of leave falls on a public holiday, the employee is not entitled to premium pay.

Reimbursement

Employers may apply to the Workplace Safety and Insurance Board (the “WSIB”) to be reimbursed for payments made to an employee under the new paid leave entitlements for up to a maximum of $200 per day, per employee. 

Employers will not be reimbursed if the employee received WSIB benefits during the leave. 

Employers are not entitled to reimbursement for sick days that they were already required under an employment contract or collective agreement to provide to an employee as of April 19, 2021.  

An application to the WSIB for reimbursement must include the following, in a form approved by the WSIB:

1. A completed application.
2. An attestation completed by the employer that: (a) confirms that the employer made a payment to the employee under the new paid leave entitlements; (b) specifies the dates on which the leave was taken by the employee; (c) specifies the date on which the payment was made and the amount of the payment made; and (d) confirms that, on or after April 19, 2021, the employer was not otherwise required under an employment contract to make the payment to the employee.
3. A record of the payment made to the employee.
4. Information about WSIB claims filed in respect of the employee.

Applications must be made within 120 days of the payment made to an employee under the new paid leave entitlements. Applications cannot be made after January 25, 2022 (or such later date as may be prescribed).

Note: New Paid Leave Entitlements Not Increases Under Bill 124

Bill 284 expressly provides that payments made to employees under the new paid leave entitlements do not constitute an increase to existing compensation entitlements or new compensation entitlements for the purposes of Bill 124, the Protecting a Sustainable Public Sector for Future Generations Act, 2019 (which limits compensation increases for employees in the public sector to 1% per year over the course of a three-year moderation period). 

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We will continue to monitor any amendments made to Bill 284. For more information about Bill 284 and how it will impact your workplace, please contact the firm.