COVID-19 worker income protection benefit

On April 29, 2021 the Ontario government passed the much anticipated COVID-19 Putting Workers First Act, 2021 (the “Act”).  The Act amends the Employment Standards Act, 2000 and provides employees, of provincially regulated employers, with up to three paid infectious disease emergency leave (“IDEL”) days for reasons related to COVID-19.  Currently, the leave is available to eligible employees between April 19, 2021 and September 25, 2021.

The act in a nutshell

Who is eligible?

• Generally, employees who are not performing the duties of their position because of one or more of the following reasons related to COVID-19 are entitled to up to 3 days of paid IDEL:
  • Employee is under individual medical investigation, supervision or treatment (including receiving a vaccine and recovering from associated side effects) related to COVID-19;
  • Employee is acting in accordance with an order made under section 22 or 35 of the Health Protection and Promotion Act that relates to COVID-19;
  • Employee is in quarantine, isolation or subject to control measures (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;
  • Employee is sent home by their employer in response to concern that the employee may expose others in the workplace to COVID-19;
  • Employee is providing care or support to a family member as defined in section 50.1(8) of the ESA, because:
    • The individual is under individual medical investigation, supervision or treatment related to COVID-19, or
    • 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.

Entitlement is reduced for employees who already receive paid days off work related to any of the same reasons for which they would qualify for the IDEL pay

• If, on April 19, 2021, an employee is entitled to paid days off work under an employment contract, for any of the reasons listed above related to COVID-19, then the employee’s entitlement to paid IDEL under this Act is reduced by the employee’s entitlement under the employment contract.  For greater certainty, this means that if, on April 19, 2021, an employee, under their employment contract, is entitled to 3 or more paid days off work for any of the same reasons for which they would qualify for the IDEL pay, they are not entitled to the above paid IDEL.  

Payment

• Employers are required to pay, on the next available payroll, an employee who takes paid IDEL under the Act the lesser of $200.00 per day and,
  • either,
    • the wages the employee would have earned had they not taken the leave, or
    • if the employee receives performance-related wages, including commissions or a 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 the employee would have worked had they not taken the leave; or
  • if some other manner of calculation is prescribed, the amount determined using that manner of calculation.
• For clarity, an employee who is off on a paid IDEL under this Act, is not entitled to overtime, shift premiums or public holiday pay for the days they are off on the paid IDEL. 

Reimbursement

• Employers will be reimbursed for the IDEL pay paid under the Act, up to the $200 per day, per employee maximum. 
• Employers may make an application to the Workplace Safety and Insurance Board for reimbursement, within 120 days of the payment in respect of which the application is made.  The Application must include the following:
  • A completed application in the form approved by the Board.
  • 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 IDEL;
    • 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 Board.
  • Information about claims filed with the Board under the Workplace Safety and Insurance Act, 1997 in respect of the employee.
  • Any other information required by the Board.
• For greater certainty, an employer will not be reimbursed for any payment made to an employee under their employment contract.  In other words, if the employee is entitled to receive 2 paid days off work for any of the same reasons for which they would qualify for the IDEL pay under their employment contract and takes an additional day of paid IDEL under the Act, the employer will only be reimbursed for the amount paid up to $200.00 for the one paid IDEL day not covered by the employment contract.
• If an employee is entitled to paid days off work for any of the same reasons for which they would qualify for IDEL pay under their employment contact in effect on April 19, 2021, and their contract is subsequently changed to remove such entitlement, the employer will be not be entitled to reimbursement for the any paid IDEL taken by the employee either under the employment contract or under the Act.
• An employer is not entitled to reimbursement for payments made under the Act if the employee received WSIB benefits for the days of the paid IDEL.

Other key provisions:

• An employee is entitled to take the 3 paid IDEL days before any of the unpaid IDEL days.
• If the employee took unpaid IDEL between April 19, 2021 and April 29, 2021, the employee may elect to be paid for that leave if they advise their employer in writing within 14 days of April 29, 2021.
• If the employee takes part of a day as paid IDEL under this Act, the employer may deem the employee to have taken one full paid IDEL day.

Jennifer Herpers practices with the Siskinds Labour and Employment department. If you are an employer and have questions regarding COVID-19 and paid Infectious Disease Emergency Leave, please contact any member of Siskinds’ Labour and Employment Group.