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Ontario Paid COVID Sick Leave – Update

We recently issued an update on the new paid COVID sick leave provisions introduced by the Ontario Government.  The legislative amendments provide that employees who are “entitled” on April 19 to take sick leave paid under a contract with their employer, which leave payments are at least equal to the value of the new sick leave entitlement under the Ontario, Employment Standards Act, 2000 (the “ESA”), have those contract sick days deducted from the new ESA Paid COVID sick leave day entitlements, and that employers cannot seek reimbursement for those sick days paid under policy/contract.

Unfortunately, the new legislative provisions are arguably ambiguous as to whether an employee who is “entitled” to take sick leave under contract/policy for the same reasons as would make them “entitled” under the ESA, but who has already exhausted their contractual paid sick leave bank for the year prior to April 19, 2021, gets an additional three ESA paid COVID sick leave days from April 19 onward.

If those employees do get extra days under the new legislative provisions, then employers must provide access to those new ESA paid sick leave days and they would then be able to claim reimbursement from the WSIB.  If, however, employees who have exhausted their contractual sick pay bank before April 19 don’t get additional paid sick leave days pursuant to the new ESA provisions, employers that pay employees extra paid sick leave believing (in error) that the ESA requires them to do so may not be reimbursed by WSIB.  Moreover, employers that declare eligibility for the reimbursement falsely, are guilty of an offence.  Thus, it is critical that it be absolutely clear whether employees who exhausted a contractual sick leave bank get a fresh three ESA days.

We contacted the Ontario Ministry of Labour’s Employment Standards Branch seeking clarification.  We were advised that the Branch did not presently have an answer and that the Ministry has yet to publish an internal or external policy interpretation update on this important issue. We were advised to keep checking the Ministry’s page on the new provisions.  Such policy statements do not have the force of law; however, they are often very helpful on such interpretive questions – especially when the legislation itself does not directly address an issue.

We will stay on top of this critical interpretation issue.

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