On April 29, 2021, Bill 284, COVID-19 Putting Workers First Act, 2021 received Royal Assent. Section 50.1 of the Employment Standards Act, 2000 (“ESA”) has been amended to provide employees with an entitlement to three paid days of leave in certain circumstances related to a designated infectious disease.

Employers are now required to provide eligible employees with up to $200 of pay for up to three days if they are missing work due to the following prescribed reasons relating to COVID-19:

1. The employee is under individual medical investigation, supervision or treatment related to COVID-19.

a) the Ontario Government has released a News Release indicating this paid leave will cover employees who are going to get vaccinated and/or employees who are experiencing a side effect from a COVID-19 vaccination.

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.

a) the Ontario Government has released a News Release indicating this paid leave will cover employees who are: going for a COVID-19 test; staying home awaiting the results of a COVID-19 test; sick with COVID-19; advised to self-isolate due to COVID-19 by an employer, medical practitioner or other authority.

3. The employee is in quarantine or isolation or is subject to a control measure (which may include, but is not limited to, 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, in whole or in part, or to one or more individuals, by a public health official, a qualified health practitioner, Telehealth Ontario, the Government of Ontario, the Government of Canada, a municipal council or a board of health, whether through print, electronic, broadcast or other means.

4. The employee is under a direction given by his or her employer in response to a concern of the employer that the employee may expose other individuals in the workplace to COVID-19.

5. The employee is providing care or support to an individual because:

a) the individual is under individual medical investigation, supervision or treatment related to COVID-19; or

b) the individual is in quarantine or isolation or is subject to a control measure (which may include, but is not limited to, self-isolation) and it is implemented as a result of the information or directions outlined above at point 3.

Eligible employees include:

• those covered by the ESA (independent contractors or federally regulated employees are excluded); and
• employees who do not already receive paid sick time through their employer.

If an employee is entitled to take paid leave under an employment contract for any of the circumstances covered by the COVID-19 paid leave (listed above), the employee’s entitlement to three paid days under the ESA is reduced by the employee’s entitlement under the employment contract.

The Government of Ontario will partner with the Workplace Safety and Insurance Board (the “WSIB”) to deliver the program.

The three days of paid leave are not required to be taken consecutively by the employee. If an employee takes any part of a day as paid leave, the employer may deem the employee to have taken one paid day of leave on that day.

If an employee is entitled to both paid and unpaid leave due to COVID-19, the employee can elect to take one or more days or parts of a day of leave as unpaid leave, only if the employee advises the employer of the same in writing before the end of the pay period in which the leave occurs.

An employee must be paid the amount they are entitled to under the COVID-19 paid leave no later than the pay day for the relevant pay period in which the employee elected to take the leave.

Retroactive Pay

If between April 19, 2021 and April 29, 2021 an employee has taken unpaid leave and would be entitled to the three paid days of COVID-19 leave, the employee may elect to be paid for that leave, only if the employee advises the employer in writing of their election before May 13, 2021.

Medical Documentation

Employers cannot require an employee to produce a medical note as evidence.

Ontario Government Reimbursement

Eligible employers can apply for a reimbursement of up to $200 per employee day taken, from the Ontario government. If the employee’s regular rate of pay is less than $200 day, the employer will only be eligible for a reimbursement of the employee’s regular rate of pay.

Eligible employers are required to make their application for reimbursement within 120 days of the paid leave. Employers can submit a completed application to the WSIB for reimbursement. The application package will include:

1. A completed application in the form approved by the WSIB.

2. An attestation in the form approved by the WSIB that:

a) confirms that the employer made a payment to the employee for the COVID-19 paid leave;

b) specifies the date on which the employee took the paid leave;

c) specifies the date on which the payment was made and the amount of the payment made; and

d) 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 WSIB;

4. Information about claims filed with the WSIB under the Workplace Safety and Insurance Act, 1997 (“WSIA”) in respect of the employee (an employer is not entitled to be reimbursed for payments made to an employee for paid COVID-19 leave if the employee received benefits under the WSIA for the days of leave); and

5. Any other information required by the WSIB.

This program will be retroactive to April 19, 2021, and effective until September 25, 2021, the date the Canadian Recovery Sickness Benefit is set to expire.

This update is part of our continuing efforts to keep you informed about COVID-19. If you are an employer and need assistance, please reach out to any member of our Labour & Employment Team or leaders of our Hub for Business Leaders.