On April 29, 2021, the Ontario government enacted Bill 284, COVID-19 Putting Workers First Act, 2021 (Act). The legislation amends the Employment Standards Act (ESA) to require employers to provide employees covered by the ESA with up to three paid days of sick leave for certain reasons relating to COVID-19. In this update, we review the scope of the new pay entitlement and corresponding obligations for employers.
- What if employees were already entitled to paid leave under their employment contracts?
Employees who were already entitled to at least three paid leave days for certain reasons relating to COVID-19 under their employment contracts are not entitled to additional paid leave under the Act. If, however, employees were already entitled to paid leave for reasons relating to COVID-19, but for less than three days, employees will be entitled to the balance of three days minus the entitlement in their contract.
- Under what circumstances is an employee entitled to paid leave?
The Act amends the reasons allowing employees to take infectious disease emergency leave to include receiving a vaccine and recovering from a vaccine. Under the Act, employees are now entitled to receive paid leave if they are unable to perform the duties of their position for the following reasons:
- going for a COVID-19 test
- staying home awaiting the results of a COVID-19 test
- being sick with COVID-19
- going to get vaccinated
- experiencing a side effect from a COVID-19 vaccination
- having been advised to self-isolate due to COVID-19 by an employer, medical practitioner or other authority
- taking care of a dependent who is:
- sick with COVID-19 or has symptoms of COVID-19
- self-isolating due to COVID-19
- If an employee is entitled to paid leave, how much time can they take?
An employee is entitled to take a maximum of three paid sick days. However, where employees only take part of a day for reasons specified above, the employer may deem that the employees took a full day.
- How much does an employer have to pay employees on leave?
Employers must pay eligible employees their regular rate of pay per day or $200 per day, whichever is less. Where the employee receives performance-related wages, including commissions or a piece work rate, the employer must pay the greater of the employee’s hourly rate, if any, and the minimum wage that would have applied to the employee for the number of hours they would have worked.
For overtime and shift premium pay, if a paid leave day falls on a day during which overtime, shift premium pay, or both would be payable by the employer, the employee will only receive their regular rate of pay and will not receive any shift premium to which they would otherwise be entitled.
Similarly, if the employee’s paid sick day falls on a public holiday on which they would have been required to work, the employee is not also entitled to the public holiday premium pay.
- When did an employer’s obligation to pay leave begin?
While the Act came into force on April 29, the paid leave entitlement is retroactive to April 19 and will remain in force until at least September 25, 2021. If an employee took unpaid leave between April 19 and April 29, where the eligibility for paid leave under the Act would have been satisfied, then the employee may elect to be paid for that leave by advising the employer in writing within 14 days after April 29 that the employee has elected to take the leave as paid leave.
- How can employers be reimbursed for providing paid sick leave?
Employers can apply for reimbursement of amounts paid for COVID-19 sick leave with Ontario’s Workplace Safety and Insurance Board (WSIB). Employers may be entitled to be reimbursed a maximum of $200 per day, per employee. However, employers are not entitled to be reimbursed for payments made to an employee on or after April 29 for a paid leave under an employment contract where the employee would be entitled to paid leave under the Act. Employers are also not entitled to reimbursement where employees received benefits under the Workplace Safety and Insurance Act.
- How to claim reimbursement payments?
The Act specifies how employers must claim reimbursement from the Workplace Safety and Insurance Board and, notably, certain time limits are imposed. Applications for reimbursement must be made within 120 days of the payment and employers must carefully follow the procedural steps for filing applications.
Notably, the Board reserves the right to reject applications where they are incomplete or filed outside of the specified limitation periods. The Act specifies that employers have no right of reconsideration or appeal.