On April 29, 2021, the Employment Standards Act, 2000 (the “ESA”) was amended to entitle employees to a maximum of three days of paid leave where they are unable to attend work for certain reasons related to COVID-19. This entitlement is retroactive to April 19, 2021 and is set to end, along with the Canada Recovery Sickness Benefit, on September 25, 2021.

Eligibility

This new form of paid leave is available for employees who are not already entitled to three or more days of equivalent or greater compensated leave for similar reasons under their existing terms of employment. For example, if an employee is currently entitled to only two days of equivalent or greater compensated leave under their existing terms of employment, they are now entitled to a third day under the ESA.  The employee’s compensation for that third day will be determined based on the calculation set out under the ESA and subject to a maximum daily threshold (set out further below).

An eligible employee is entitled to up to three days of paid leave, whether taken consecutively or not, where they are unable to perform their work duties due to one or more of the following reasons related to COVID-19:

• getting tested and awaiting the results;
• getting vaccinated;
• experiencing side effects from vaccination;
• being under medical investigation, supervision or treatment;
• being under a direction from an employer, medical practitioner or other authority to self-isolate; and
• providing care or support to a dependent who is sick, exhibiting symptoms, or self-isolating.

Employees are not required to provide a medical note from a doctor or nurse as evidence in order to qualify for the paid leave.

Calculation

Eligible employees are entitled to be paid their regular rate of pay (i.e. regular wages or, for employees who receive commissions or tips, the greater of their hourly rate, if any, and the applicable minimum wage), up to a maximum of $200 per day. Employees are only entitled to their regular rate of pay even if they would otherwise be entitled to overtime pay, a shift premium and/or holiday premium pay were they to be working.

Reimbursement

Employers can apply to the Workplace Safety and Insurance Board (the “WSIB”) for reimbursement of this new “infectious disease emergency leave pay” made to employees. An employer is not eligible for reimbursement, however, where similar paid leave is provided to an employee under their employment contract or where the employee is already receiving benefits under the Workplace Safety and Insurance Act, 1997.  Employers who reduce or eliminate similar contractual paid leave benefits in order to take advantage of these new reimbursable leaves will not be eligible for reimbursement.

In order to apply for reimbursement, employers must file the following documents with the WSIB:

• a prescribed application form;
• an attestation (in the prescribed form):
  • confirming payment for the leave;
  • specifying the date(s) on which leave was taken; and
  • confirming that the employee was not already entitled to similar pay under an employment contract on or after April 19, 2021;
• a record of the payment made to the employee (in the prescribed form);
• information about any benefits claim(s) filed with the WSIB regarding the employee; and
• any other information that may be required by the WSIB.

Employers must apply for reimbursement within 120 days of making the subject payment. Employers have no right of consideration or appeal regarding the WSIB’s determination regarding their entitlement to reimbursement.

Takeaways

Employers should review their existing policies and practices regarding compensated leaves that overlap with the grounds for receiving “infectious disease emergency leave pay”, identify how their paid leaves will interact with this new pay, and determine whether their employees are eligible for these paid days. Employers should also ensure that they are prepared to meet the requirements for submitting reimbursement applications to the WSIB noted above.

Please do not hesitate to reach out to us with any questions on this matter.

Keep safe.

The Labour & Employment Team at Cunningham Swan.