On April 29, 2021, the Ontario government passed Bill 284, COVID-19 Putting Workers First Act, 2021 amending the Employment Standards Act, 2000 (the “ESA”) to require employers to provide employees with up to three days of paid leave if they miss work for reasons related to COVID-19. The entitlement is retroactive to April 19, 2021 and will end on September 25, 2021, with the possibility that it might be extended.
Eligibility for Paid Leave for Reasons Related to COVID-19
Bill 284, COVID-19 Putting Workers First Act, 2021 adds three paid days of leave for reasons related to COVID-19 to the ESA. Employees are entitled to three days of paid leave if they are:
- Under medical investigation, supervision or treatment related to COVID-19;
- Going to get vaccinated;
- Experiencing a side effect from a COVID-19 vaccination;
- Under a direction from their employer, medical practitioner or other authority to self-isolate;
- Providing care or support to a dependent who is:
- Sick with COVID-19 or has symptoms of COVID-19; or
- Self-isolating due to COVID-19
Employees are not required to provide a medical note in order to qualify for this leave.
Calculation of Paid Leave Benefit
The leave under Bill 284 will be calculated and paid out by using the employee’s regular rate of pay. The legislation provides that employers will be required to pay the employee the lesser of $200 per day and either: i) the wages the employee would have earned had they not taken the leave, or ii) if the employee receives commissions or tips, 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 the employee would have worked had they not taken the leave. Eligible employees will be paid up to a maximum of $200 per day.
If an employee is currently provided with three or more days of paid sick leave, the employee is not entitled to an additional three days of paid leave under Bill 284. However, if the employee is currently provided with less than three days of paid sick leave, this new leave under Bill 284 will make up the difference.
If the paid leave falls on a day or time of day when overtime pay, a shift premium or both may be made by the employer, the employee will not be entitled to more than their regular rate. Employees are also not entitled to premium pay if the paid day of leave falls on a public holiday. Employees are entitled to take the three paid days of leave before any unpaid days of leave.
Employers Can Apply for Reimbursement
Employers can apply to the Workplace Safety and Insurance Board (“WSIB”) in order to be reimbursed for payments, up to a maximum of $200 per day, per employee. Employers will not be reimbursed for this paid leave if the employee received benefits under the Workplace Safety and Insurance Act, 1997 (“WSIA”) for the days of the leave.
In order to apply for reimbursement, employers must file the following documents with the WSIB:
- A completed application in the form approved by the WSIB;
- An attestation that is completed by the employer in a form approved by the WSIB that:
- confirms the employer made a payment to the employee for paid leave for reasons related to COVID-19;
- 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 under the WSIA with respect to the employee; and
- Any other information required by the WSIB.
Employers must apply for reimbursement within 120 days of making the payment. The WSIB’s decision regarding an employer’s entitlement to reimbursement is not a final decision of the Board for the purposes of the WSIA and an employer will have no right of consideration by, or appeal to, the Board or the Workplace Safety and Insurance Appeals Tribunal for the purposes of this paid leave.
All employers should review the amendments to the ESA and review existing policies and practices to address the availability of this paid leave. Employers should also review the requirements and necessary information to submit an application to the WSIB for reimbursement. Although the government announced that the paid sick leave will end on September 25, 2021, the date the Canada Recovery Sickness Benefit ends, the legislation does allow for the date to be extended.
Quebec and Prince Edward Island already offer paid sick leave, and the Yukon provides a paid sick leave rebate to support workers and self-employed people affected by COVID-19. British Columbia has indicated that the province is considering its own sick-leave program. Governments across Canada are rapidly responding to the impact that COVID-19 continues to have on economic and employment life. The provinces and territories are regularly amending COVID-19 related economic measures and extending minimum protections.
Many thanks to Dorna Zaboli for her assistance in preparing this update.