Written By Archana Ravichandradeva, Talia K. Bregman and Carl Cunningham

On April 29, 2021, the Ontario Legislature passed the COVID-19 Putting Workers First Act, amending section 50.1 of Ontario's Employment Standards Act, 2000 (ESA). As a result, provincially regulated employers must now provide their Ontario employees with three days of paid leave, up to maximum of $200 per day, if their employees miss work because of the COVID-19 pandemic.

This paid leave is retroactive to April 19, 2021, and currently set to end on September 25, 2021.

Reasons the Paid Leave May be Taken

These three days of paid leave are available to Ontario employees (but not independent contractors) of provincially regulated workplaces who are off work for COVID-19-related reasons, including employees who are:

• going for a COVID-19 test;
• staying home awaiting the results of a COVID-19 test;
• sick with COVID-19;
• going to get vaccinated;
• experiencing a side effect from a COVID-19 vaccination;
• self-isolating due to COVID-19 at the direction of their employer, medical practitioner or other authority; or
• taking care of a dependent who is:
• sick with COVID-19 or has symptoms of COVID-19; or
• self-isolating due to COVID-19.

Employees do not need to take the three days consecutively and do not need to submit a medical note. The paid leave is deemed to be taken in full days, even if an employee only takes a portion of the day off work. Employees are also entitled to take the paid leave before any unpaid leave they may be entitled to, but can elect the reverse in writing to their employer.

Employees who already have an equal or greater amount of paid leave from their employer that would cover the COVID-19-related reasons above are not eligible for this new leave as well.

Calculating the Paid Leave

An employer must pay an employee who takes this paid leave with the lesser of $200 per day and either:

• the wages the employee would have earned had they not taken the leave; or
• if the employee receives performance-related wages (such as 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.

Compensation for lost overtime, shift premiums or premium public holiday pay are not included in the calculation.

Recuperating the Costs of the Paid Leave

Employers can recuperate costs of this paid leave through Ontario's Workplace Safety and Insurance Board. In order to do so, employers must apply to the Board for reimbursement within 120 days after payment to an employee has been made, and must include:

1. a completed application in the form approved by the Board;
2. an attestation, to be completed by the employer in the form approved by the Board that
   1. confirms that the employer made a payment to the employee for paid leave taken under subsection 50.1 (1.2) of the ESA,
   2. specifies the dates on which the leave was taken by the employee,
   3. specifies the date on which the payment was made and the amount; and
   4. 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 Board;
4. information about claims filed with the Board under Ontario's Workplace Safety and Insurance Act, 1997 in respect of the employee; and
5. any other information required by the Board.

Practical Takeaways

In light of this new measure implemented by the Government of Ontario to combat COVID-19, provincially regulated employers in Ontario should take steps to:

• train managers, supervisors and HR personnel about this new leave and how it works; and
• develop a procedure to track the number of days of leave taken by each employee for COVID-19-related reasons to ensure at least three days are paid. This procedure may then serve as evidence of compliance with this new statutory requirement, if such compliance is ever called into question.

Employers and employees can call a dedicated COVID-19 Sick Days Information Centre hotline at 1-888-999-2248 or visit the Government of Ontario website to receive general information about this paid leave. Of course, you may also contact any member of the Bennett Jones Employment Services group for advice specific to your organization.