Further Information About Ontario’s New Paid Sick Leave Program
On April 29, 2021, Ontario unanimously passed COVID-19 Putting Workers First Act, 2021(the “Act”) into law. The Act amends provisions of the Employment Standards Act (“ESA”) to provide eligible employees with the Worker Income Protection Benefit – an entitlement to three paid days of Infectious Disease Emergency Leave (“IDEL”) for circumstances related to COVID-19.
We have reviewed the Act and take this opportunity to answer key questions that employers may be asking considering these developments:
EMPLOYEE ELIGIBILITY
Who is eligible for paid leave?
An employee is eligible for a maximum of three paid days of sick leave if they will not be performing duties of their position because of one or more of the following reasons related to COVID-19, including:
· Going for a COVID-19 test
· Staying home while awaiting the results of a COVID-19 test
· Being sick with COVID-19
· Going to get vaccinated for COVID-19
· 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 (i.e. Telehealth, the Provincial or Federal Governments, municipal council or board of health) whether by print, electronic broadcast, or other means
· Taking care of a dependent who is:
Sick with COVID-19 or has symptoms of COVID-19
Self-isolating due to COVID-19 on the advice of an employer, medical practitioner, or other authority (i.e. Telehealth, the Provincial or Federal Governments, municipal council or board of health) whether by print, electronic broadcast, or other means
When can an employee take the paid sick leave?
An employee may take the paid sick leave between April 19, 2021 and September 25, 2021.
If an employee took an unpaid IDEL between April 19, 2021 and April 29, 2021, and would be entitled to the paid leave, they may elect to take the unpaid leave as paid leave if they advise the employer of their election in writing before May 13, 2021. This amount must be paid out on the pay day for the pay period in which the election was made.
Can an employee take a partial day of paid leave?
Yes; however, the employer may deem the employee to have taken one full paid day of leave on the date in question.
What if an employee exhausts their paid sick leave?
If an employee exhausts their paid sick leave, they may take unpaid IDEL for the same reasons set out above.
Where an employee is entitled to paid leave and unpaid leave, they may elect to take one or more days or parts of a day as unpaid leave if they advise the employer of their election in writing before the end of the pay period in which the leave occurs.
Can I ask my employee to prove their entitlement to take paid or unpaid leave?
An employer may request evidence “reasonable in the circumstances” to verify the employee’s entitlement to take a paid or unpaid leave. However, an employer cannot require the employee to produce a certificate from a medical practitioner. Employers are within their rights to request documentation from employees, including public health documentation to confirm a COVID-19 test result, direction to isolate, or proof of COVID-19 vaccination.
CALCULATING PAID LEAVE
How is the paid leave calculated?
If an employee takes paid leave, the employer shall pay to the employee the lesser of $200.00 per day and either:
· The wages that the employee would have earned, had they not taken the paid leave; or
· Where the employee receives performance related wages (ex. Commission or piece work rate), 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 that they would have worked had they not taken the paid leave.
If the paid leave falls on a day or a time when overtime pay, shift premium, or both would be payable to the employee, the employee is not entitled to more than their regular rate for any leave taken or to shift premium.
What if the paid leave falls on a holiday?
If the paid leave falls on a holiday, the employee is not entitled to premium pay.
EXISTING EMPLOYMENT CONTRACTS
What if employees are already entitled to paid sick leave under their employment contracts?
If an employee is entitled to take paid leave under an existing employment contract for circumstances related to COVID-19 and under the contract, the employer is required to pay the employee an amount equal or greater to $200.00, the employee’s entitlement to the paid IDEL is reduced by the entitlement under their employment contract. For example, here are some scenarios:
· If an employee is entitled to one day of paid leave under an existing employment agreement, then they are entitled to access two days of the paid IDEL.
· If any employee is entitled to six days of paid leave under an existing employment contract but has exhausted those days by April 19, 2021, they are entitled access up to three days of paid IDEL.
· If the amount of pay under an existing employment contract is less than the paid IDEL entitlement (i.e. less than $200.00 per day), then the three days of paid IDEL are not reduced by the contractual leave days.
EMPLOYER REIMBURSEMENT
For what amount are employers entitled to be reimbursed for?
Employers may apply to the Workplace Safety and Insurance Board (“WSIB”) for payments made for paid leave up to $200.00 per day per eligible employee.
An employer is not entitled to be reimbursed for payments made to an employee on or after April 19, 2021 who takes a paid leave of absence under an existing employment contract for circumstances related to COVID-19.
Employers cannot amend existing employment contracts to eliminate any paid leave entitlement to become eligible for reimbursement.
What if an employee receives benefits from the Workplace Safety and Insurance Act?
If an employee receives benefits under the Workplace Safety and Insurance Act, 1997 for days of leave, the employer is not entitled to reimbursement for payments made to the employee for those days of leave.
What is the process for reimbursement?
An application shall be made by filing the following with the WSIB:
· A completed application in the form approved by the WSIB;
· An attestation that:
Confirms that the employer made a payment to the Employee for paid leave
Specifies the dates on which the employee took the paid leave
Specifies the date on which the payment was made to the employee and the amount of the payment
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 under the Workplace Safety and Insurance Act, 1997, in respect of the employee
· Any other information required by the WSIB
If an application is incomplete, then WSIB will not decide as to entitlement.
Does the reimbursement process differ if an employer does not have WSIB coverage?
No - the Act does not create separate reimbursement processes for employers who have WSIB coverage and those who do not.
When does an employer need to make an application to the WSIB?
An application must be made within 120 days of payment by the employer to the employee. No application will be made by the employer or accepted by the WSIB:
· After January 25, 2022;
· If the paid IDEL is extended beyond September 25, 2021, 120 days after that date; or
· If an additional extension is made, then 120 days after the last day of that period
What if an employer disagrees with the WSIB’s determination of entitlement? Can the employer appeal?
There is no right of reconsideration or appeal for employer who disagree with the WSIB’s determination.
