After mounting public pressure and a whirlwind legislative session, the Ontario government passed legislation to amend the Employment Standards Act (ESA) to provide paid sick leave for COVID-19 related absences. Bill 284, entitled the COVID-19 Putting Workers First Act, 2021, was introduced, passed through three readings and received Royal Assent, all on Thursday, April 29, 2021. The speedy passing of Bill 284 signals the growing public sentiment that paid sick leave is essential to reducing the spread of the virus.
Bill 284 amends section 50.1 of the ESA to add the new paid leave. As many readers of Focus will recall, section 50.1 of the ESA provides an unpaid leave for certain absences related to emergencies under the Emergency Management and Civil Protection Act or arising from designated infectious diseases. As a result of the Bill 284 amendments, in addition to the previous unpaid leave, employers are now required to provide employees with their regular pay (up to $200 per day) for up to three days for certain absences related to COVID-19. The paid leave is available retroactively to April 19, 2021 until September 25, 2021, the day the federal Canada Recovery Sickness Benefit (CRSB) will expire (more on the CRSB below).
Eligibility for the paid leave is limited to employees covered by the ESA. Independent contractors therefore, who are not covered by the ESA, will not be eligible for the paid leave. Since the new leave is being delivered through a provincial program, employees working in federally-regulated sectors will also not be eligible.
The Bill 284 amendments set out the absences that are eligible for the paid leave as follows:
- The employee is under individual medical investigation, supervision or treatment related to the designated infectious disease.
- The employee is acting in accordance with an order under section 22 or 35 of the Health Protection and Promotion Act that relates to the designated infectious disease.
- The employee is in quarantine or isolation or is subject to a control measure (which may include, but is not limited to, self-isolation), and the quarantine, isolation or control measure was implemented as a result of information or directions related to the designated infectious disease issued to the public, in whole or in part, or to one or more individuals, by a public health official, a qualified health practitioner, Telehealth Ontario, the Government of Ontario, the Government of Canada, a municipal council or a board of health, whether through print, electronic, broadcast or other means.
- The employee is under a direction given by his or her employer in response to a concern of the employer that the employee may expose other individuals in the workplace to the designated infectious disease.
- The employee is providing care or support to an individual because,
i. the individual is under individual medical investigation, supervision or treatment related to the designated infectious disease, or
ii. the individual is in quarantine or isolation or is subject to a control measure (which may include, but is not limited to, self-isolation), and the quarantine, isolation or control measure was implemented as a result of information or directions related to the designated infectious disease issued to the public, in whole or in part, or to one or more individuals, by a public health official, a qualified health practitioner, Telehealth Ontario, the Government of Ontario, the Government of Canada, a municipal council or a board of health, whether through print, electronic, broadcast or other means.
Limits and conditions of the paid leave
As noted above, the paid leave is available for up to three days, to a maximum of $200 per day. Employees may take the leave anytime between April 19, 2021, and September 25, 2021. As can be seen the new leave applies retroactively. The legislation states that if an employee took an unpaid leave between April 19, 2021 and April 29, 2021 (the day Bill 284 came into force), and the leave was for circumstances covered by the new leave, the employee can elect to make the unpaid leave a paid leave under the new provisions. The employee must however advise the employer in writing within 14 days of Bill 284 receiving Royal Assent of this election.
A further limit on the new paid leave is that it is reduced by any entitlement an employee may have under their employment contract for paid leave for the same circumstances, provided that the entitlement under the employment contract is equal to or greater than the paid leave. The amendments also provide that if an employee takes any part of a day as paid leave, the employer may deem the employee to have taken a full day of leave.
Since the new leave is in addition to the unpaid leave related to emergencies and infectious diseases, the legislation stipulates that employees are entitled to take the three paid days of leave before taking any of the unpaid leave days. However, the legislation permits employees to elect to take unpaid leave days by notifying the employer in writing before the end of the pay period in which the leave occurs.
Bill 284 makes it clear that the paid leave only covers regular wages. This means that even if the leave is taken on days where the employee may have been entitled to overtime or a shift premium, only the employee’s regular wages will be paid.
Administered through the WSIB
The Bill 284 amendments provide that the Workplace Safety and Insurance Board (WSIB) will reimburse eligible employers up to $200 per day for each employee that takes the new paid leave. If an employee’s regular pay is less than the daily maximum of $200, eligible employers will be reimbursed for the lesser amount. The amendments include a provision stating that the Ministry will make payment to the WSIB to defray the costs of administering the new leave provisions.
Bill 284 makes it clear that an employer’s entitlement to reimbursement does not extend to any paid leaves under an employment contract. It further states that there is no reimbursement for employers if the applicable employment contract is changed after April 19, 2021 to remove an employee’s entitlement to a paid leave for circumstances covered by the Bill 284 amendments.
Employers will have to apply to the WSIB for reimbursement. The Bill 284 amendments state that the application will be in a form approved by the WSIB and must be accompanied by the following:
- an attestation, to be completed by the employer in the form approved by the Board that,
- confirms that the employer made a payment to the employee for paid leave,
- specifies the dates on which the leave was taken by the employee,
- specifies the date on which the payment was made and the amount of the payment made, and
- 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.
- a record of the payment made to the employee in the form approved by the WSIB;
- information about claims filed with the WSIB in respect of the employee; and
- any other information required by the WSIB.
Employers must apply to the WSIB for reimbursement within 120 days of the leave payment made to the employee.
Provided that the application is complete and on time, the WSIB will make a determination as to whether the employer is eligible for reimbursement. The WSIB’s determination is not subject to a right of reconsideration by the WSIB or a right to appeal to the Workplace Safety and Insurance Appeals Tribunal.
Paid leave linked to CRSB
The government’s announcement which preceded the introduction of Bill 284 linked the new paid leave with its efforts to work with the federal government to double the payments made through the CRSB. Currently the CRSB provides eligible individuals with $500 per week ($450 after taxes withheld) for each one-week period up to a total of four weeks. The Ontario government has stated that it has offered funding to the federal government to double these payments to provide eligible Ontario residents a total of $1000 per week.
As many readers of Focus will know, the CRSB is administered through the Canada Revenue Agency (CRA) and provides income support to employees and self-employed individuals who are absent from work for at least 50% of their scheduled work week for certain reasons related to COVID-19. These reasons include:
- a COVID-19 illness;
- self-isolation due to COVID-19; and
- an underlying health condition that puts them at greater risk of getting COVID-19.
The CRSB is not available to employees that receive paid leave from their employer for the same absences. Similarly, the CRSB is not available if, for the same absence, the employee receives:
- the Canada Recovery Benefit (CRB);
- the Canada Recovery Caregiving Benefit (CRCB);
- short-term disability benefits;
- Employment Insurance benefits; or
- Quebec Parental Insurance Plan benefits (QPIP).
The CRSB is available to eligible individuals for absences occurring between September 27, 2020 and September 25, 2021.
Additional government information and updates about the Ontario COVID-19 paid leave can be found here: Ontario COVID-19 Worker Income Protection Benefit | Ontario.ca. Information on how employers can apply is forthcoming and we will provide any updates as further information becomes available.