On April 29, 2021, the Ontario Government passed Bill 284, COVID-19 Putting Workers First Act, 2021. Bill 284 amends the infectious disease emergency leave (“IDEL”) provisions of the Employment Standards Act, 2000 (“ESA”) to provide employees with three days of paid, job-protected leave.
Who is eligible for this paid IDEL?
An employee who is absent between April 19, 2021, and September 25, 2021 (subject to potential extension) is eligible for this paid IDEL when they will not be performing the duties of their employment for one or more of the following reasons, as a result of COVID-19:
- The employee is under medical investigation, supervision or treatment. This includes receiving a vaccine and recovery from any side effects of the vaccine.
- The employee is following a health protection order.
- The employee is in quarantine, self-isolation or other “control measure” as a result of information/directions issued by public health authorities or a medical practitioner.
- The employee is under direction from his/her employer “in response to a concern of the employer that the employee may expose other individuals in the workplace…”
- The employee is providing care or support to a certain family member who is either: (i) under medical investigation, supervision or treatment; or (ii) is in quarantine, self-isolation or other “control measure” as a result of information/directions issued by public health authorities or a medical practitioner.
As with unpaid IDEL, this new paid IDEL prohibits employers from requiring an employee to provide a certificate from a qualified health practitioner as evidence they are eligible for paid IDEL. An employer may request that employees provide evidence reasonable in the circumstances that they are entitled to paid IDEL.
How Much is an Employee Entitled To?
An employee eligible for paid IDEL is entitled to be paid by their employer the lesser of:
- $200 per day; or
- The wages the employee would have earned that day; 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
An employee is not entitled to earn overtime or shift premium pay while on paid IDEL. An employee is entitled to take paid IDEL before unpaid IDEL unless they elect in writing to their employer otherwise.
How does Bill 284 interact with existing contractual sick leave?
An employee who is already entitled to paid sick leave under a collective agreement or sick leave policy cannot also take paid IDEL. Only in situations where an employee is entitled to less than three days of paid leave, or less than $200/day will an employee be able to use the paid IDEL to ‘top up’ their paid leave.
Reimbursement to Employers
Employers may apply to the Workplace Safety and Insurance Board (WSIB) to be reimbursed for payments, up to a maximum of $200 a day, per employee. Employers will be ineligible to be reimbursed if the employee received benefits under the Workplace Safety and Insurance Act, 1997 for the days of leave, the employer already has paid sick leave that would cover the employee’s absence, or the employer amends a sick leave policy after April 19, 2021, to try and exclude COVID-19 related absences. Employers have 120 days since the paid sick day to apply for the reimbursement.