[Read an Important update on this post]

By Jeremy Schwartz

The Ontario Government has passed amendments to the Ontario, Employment Standards Act, 2000 (the “ESA”) which require Ontario employers to provide employees with up to three paid sick days if they miss work due to COVID-19 (“Paid ESA COVID Leave”), including for quarantine, self-isolation, providing care or support to children and certain other individuals in relation to COVID-19, or if directed to do so by a public health authority or their employer due to COVID-19 related concerns. 

Paid ESA COVID Leave is capped at $200 per day (excluding shift and overtime premiums that would normally have been payable on those days).  If an employer already has a sick leave policy which pays employees at least as much per day as established in the new provisions, the company sick-leave days are deducted from the employee’s Paid ESA COVID Leave allotment.  Consequently, employees do not obtain an increased number of paid sick days if they already had a paid sick day allotment by contract or policy (it seems regardless of whether that contractual allotment was previously used up for 2021). 

Eligibility is retroactive to April 19, 2021 and comes to an end on September 25, 2021, unless the end-date is extended.  Employees who took unpaid leave due to COVID-19 from April 19, 2021 to April 29 (the date the Bill received Royal Assent) may elect in writing by May 13 to have one or more days of that leave treated as Paid ESA COVID Leave. The ESA does not expressly require employers to put an employee to the election; however, to avoid disputes it may be prudent to advise employees of their right to elect and the deadline.

Employers may seek reimbursement by application to the Workplace Safety and Insurance Board (the “WSIB”) before January 25, 2022 (unless a later date is prescribed), and only for Paid ESA COVID Leave paid to employees that was not already required to be provided pursuant to a sick leave policy or employment term.  As such, likely only those employers who previously had no paid sick leave policy will be eligible for reimbursement.  Employees receiving WSIB benefits for the days on leave are ineligible for sick leave pay for those days under the new provisions.

The Government previously indicated that the anticipated legislation would “partner” with the Workplace Safety and Insurance Board (the “WSIB”) to deliver the program and reimburse employers. However, the new provisions do not define any role for the WSIB other than essentially to administer applications from employers for reimbursement.  As such, employers must first determine whether employees are eligible for Paid ESA COVID Leave, pay them if eligible, and then seek reimbursement by application to the WSIB.  There does not appear to be a statutory mechanism for employers to recoup Paid ESA COVID Leave given to an employee if the WSIB later denies the employer’s reimbursement application.

The application page for reimbursement is not yet up.  But information on the program and, eventually one assumes the link to the form, will be found here: https://www.ontario.ca/page/covid-19-worker-income-protection-benefit

The WSIB may direct employers to repay reimbursements if it were later determined the employer was ineligible, or if false or misleading information was provided (which would likely also be an offence).

For more information, please contact:

Jeremy D. Schwartz at jschwartz@stringerllp.com or 416-862-7011

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