Ontario Government Creates Process for Workplace Safety and Insurance Board to Collect Overpayments for Infectious Disease Emergency Leave

As discussed in a previous Focus Alert, employees needing to take leave for specified reasons relating to COVID-19 may be entitled to Infectious Disease Emergency Leave (IDEL), which provides for up to three paid calendar days of leave, with a maximum payment of $200 per day.   The COVID-19 Worker Income Protection Benefit, administered by the Workplace Safety and Insurance Board (WSIB), reimburses employers for amounts paid to employees for IDEL.

On September 3, 2021, the Ontario government filed Regulation 637/21 – Section 50.1.1 Overpayment Recovery (the “Regulation”), which creates a process for the WSIB to recover overpayments made to employers on account of IDEL.

The Regulation provides that an Employment Standards Officer (ESO) can use certain investigation and inspection powers under the Employment Standards Act, 2000 (the “ESA”) to determine if an overpayment was made by the WSIB to an employer.

If an ESO finds that an overpayment was made, the ESO can order the Employer to pay the amount of the overpayment to the Minister of Finance.  Additionally, the employer will be required to pay to the Director in trust an amount for administrative costs equal to the greater of $100 and 10% of the overpayment amount.

There is a limitation period of four years after the date on which the overpayment was made by WSIB to the employer, after which time an ESO cannot issue an order to repay an overpayment.

Employers have the ability to request a review of the order, so long as the employer provides payment to the Director in trust or provide the Director with an irrevocable letter of credit for the amount owing, and applies to the Ontario Labour Relations Board (the “Board”) in writing for a review.  The employer is required to take these steps within 30 days, though the Board can extend this timeline if it believes that it is appropriate in the circumstances to do so.  If an employer does not apply for a review, then the order to pay is final and binding.

The Board is required to hold a hearing to review the order.  Certain provisions of the ESA regarding the Board’s powers in a review of orders under the ESA will apply to reviewing orders for repayment.

Certain collection provisions under the ESA will also apply to amounts owing under repayment orders.

In Our View

The Regulation creates an administrative process with which employers will need to become familiar.  Employers can be investigated to see if an overpayment is owing, and those in receipt of an order to repay an overpayment will be subject to administrative costs.  Additionally, employers who wish to have an order reviewed will be required to go through a hearing process.

For more information, please contact Neil Dzuba at 613-940-2757, or Patrick Twagirayezu at 613-563-7660 ext. 314.