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Ontario provides three days of paid leave for absences due to COVID-19

May 28, 2021

On April 29, 2021, Ontario passed Bill 284, the COVID-19 Putting Workers First Act, 2021, which amends the Ontario Employment Standards Act, 2000 to create a new form of paid leave for Ontario employees who are unable to work for reasons having to do with a designated infectious disease, such as COVID-19.

Ontario employers are required to provide eligible employees with up to three days of paid leave. Participating employers will be able to apply for a reimbursement for payments they make in respect of such leave.

Amount of pay                                  

Under the provisions of Bill 284, eligible employees are eligible to receive up to $200 a day for up to three days if they need to miss work for a reason related to designated infectious disease, such as COVID-19.

The precise amount of leave pay will be calculated based on the employee’s regular rate of pay. Employers are required to pay eligible employees the lesser of:

  • $200 per day, and
  • The wages the employee would have earned had they not taken the leave or, if the employee receives performance-related wages (such as 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 not be entitled to leave pay that exceeds their normal rate of pay if, for example, the period of leave falls at a time when overtime pay or a shift premium would have been payable. Nor are eligible employees entitled to premium pay if the leave period falls on a public holiday.

Eligibility for leave

Employees will be entitled to the paid leave if they have to miss work under any of the following circumstances:

  • The employee is under medical investigation, supervision or treatment related to the designated infectious disease; such treatment may include obtaining a vaccination or recovery from associated side-effects of such a vaccination;
  • The employee is required to miss work in accordance with an order under the Health Protection and Promotion Act for a reason relating to the designated infectious disease;
  • The employee is in quarantine or isolation, or is subject to a “control measure” (which has yet to be defined) as a result of information or directions related to the designated infectious disease issued by a relevant medical authority;
  • The employee is under the employer’s direction in response to a concern that the employee may expose others in the workplace to the designated infectious disease;
  • The employee is providing care or support to a dependent who,
    • Is under individual medical investigation, supervision or treatment related to the designated infectious disease; or
    • Is in quarantine or isolation, or is subject to a “control measure,” as a result of information or directions related to the designated infectious disease issued by a relevant medical authority.

Employer reimbursement

Participating employers may apply to the Workplace Safety and Insurance Board (WSIB) to be reimbursed for leave payments. Eligible employers may claim up to $200 per employee per day.

Employers will not be able to claim a reimbursement for leave pay that they are required to pay under an existing employment contract that was in effect on April 19, 2021, nor can they claim a reimbursement if the employee receives WSIB workers compensation benefits during the period of leave.

Employers will have 120 days from the time the leave payment is made to apply for the reimbursement.

Employers whose applications for reimbursement are denied will not have the opportunity to appeal the decisions pertaining to paid leave to the Workplace Safety and Insurance Appeals Tribunal.

Pension accrual

Ontario employment standards legislation requires that employees continue to accrue pensionable service during required job-protected leave periods (including both paid and unpaid portions of infectious disease leave) unless the employee elects in writing not to do so.

Commencement

The paid infectious disease leave program is available from April 19, 2021, until September 25, 2021.

Comment

The paid infectious disease leave program follows the introduction of several new unpaid job-protected leaves that were introduced in Ontario in light of the COVID-19 pandemic (as discussed in the May 2020 News & Views). Under measures introduced previously, Ontario employers are already generally required to provide unpaid leave to employees who are unable to work for reasons having to do with an infectious disease, such as COVID-19. Therefore, in most cases, the effect of Bill 284 will not be to introduce a new leave but, rather, to require that the first three days of such leave be paid, in respect of eligible employees.

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