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NEW COVID-19 LEGISLATION: A BREAKDOWN OF ONTARIO’S NEW PAID INFECTIOUS DISEASE EMERGENCY LEAVE

As a follow-up to our recent blog that we released earlier this week, Ontario’s new legislation, Bill 284, COVID-19 Putting Workers First Act, 2021, has now received Royal Assent. In a nutshell, this Bill temporarily entitles employees to three (3) days of paid infectious disease emergency leave and employers with a corresponding reimbursement for any payments made. Please find a more detailed summary of the legislation below.

How much is the Entitlement?

Employers shall provide the employee with the lesser of:

• $200.00 per day;
• the wages the employee would have earned had they not taken the leave; or
• in the event the employee is commissioned-based – the greater of the employee’s hourly rate, if any, and minimum wage for the number of hours the employee would have worked.

What is the Entitlement Period?

An employee’s entitlement to paid infectious disease emergency leave is retroactive to April 19, 2021 and ends on September 25, 2021, or such later date as may be prescribed.

Who Qualifies for the Entitlement?

An employee will be entitled to a paid leave of absence, if they are unable to perform the duties of their position because of one or more of the following reasons related to a designated infectious disease:

1. The employee is under individual medical investigation, supervision or treatment related to the designated infectious disease;
2. The employee is acting in accordance with an order under section 22 or 35 of the Health Protection and Promotion Act that relates to the designated infectious disease;
3. The employee is in quarantine or isolation or is subject to a control measure (e.g. 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;
4. The employee is under a direction given by their employer in response to a concern of the employer that the employee may expose other individuals in the workplace to the designated infectious disease; or
5. The employee is providing care or support to select family members as outlined in subsection 50.1 (8) of the Ontario Employment Standards Act, 2000 (“ESA”), because this individual is subject to the same limitations related to the designated infectious disease as described in #1 and #3 above.

How does this new Paid Leave Interact with Existing Entitlements?

The entitlement is in addition to the entitlement to the unpaid leave currently provided to employees under the existing Infectious Disease Emergency Leave. Further, employees are entitled to take the three paid days of leave before any of the unpaid days of leave.

However, if an employee is already entitled to take paid leave under an employment contract for any circumstances as described in #1 to #5 above, the employee’s entitlement to paid infectious disease emergency leave is reduced by the employee’s entitlement under the contract.

How Much Will Employers Be Reimbursed?

Employers will be entitled to reimbursement for payments made to an employee for paid infectious disease emergency leave up to a maximum of $200 per day, per employee.

What is the Process to Receive Reimbursement?

In order to receive reimbursement, employers must file the following with the Workplace Safety and Insurance Board (the "Board"):

1. A completed application in the form approved by the Board.
2. An attestation, to be completed by the employer in the form approved by the Board that:
   1. confirms that the employer made a payment to the employee for paid leave as described above;
   2. specifies the dates on which the leave was taken by the employee;
   3. specifies the date on which the payment was made and the amount of the payment made; and
   4. 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.
3. A record of the payment made to the employee in the form approved by the Board.
4. Information about claims filed with the Board under the Workplace Safety and Insurance Act, 1997 (“WSIB” in respect of the employee.
5. Provide any other information required by the Board.

What is the Deadline for this Application?

Applications must be submitted to the Board within 120 days of the payment the application relates to.

Reimbursement Exclusions

Employers will not be reimbursed for leave days paid pursuant to an employment contract. If an employer takes steps on or after April 19, 2021 to change an employment contract to take away existing paid leave days they will also not be reimbursed.  Finally, employers will also not be reimbursed if an employee is receiving WSIB benefits on the day they receive paid leave.

What is not clear from the new legislation is whether employers who are not required to be covered under the WSIA and do not make premiums into the system will still be entitled to reimbursement.  CCP will continue to watch for any clarification on this issue.

With news and developments relating to the COVID-19 Pandemic occurring at a rapid pace – be sure to stay tuned to our Employers’ Edge Blog and Lawyers for Employers Podcast series. The team at CCPartners will continue to update our readers and listeners on all other pertinent developments regarding benefits and legislative changes related to COVID-19.