What employers need to know about Ontario’s new paid sick leave obligations

The Government of Ontario has introduced new paid sick leave benefits for employees. COVID-19 Putting Workers First Act, 2021 makes changes to obligations of employers under the Employment Standards Act (the Act). It provides the right for employees to take up to three days of sick leave, paid for by their employer and reimbursed through the Workplace Safety Insurance Board (WSIB), subject to particular conditions under the Act. Although these amendments came in force on April 29th, 2021, the provisions apply retroactively to any leave taken on or after April 19th, 2021. It is important for employers to be aware of their obligations under the newly amended Act to ensure that they are both adequately compensating employees for COVID-19-related leave and obtaining reimbursement whenever possible. We have outlined the answers to the most relevant questions employers may have in understanding what their legal obligations are to their employees.

What reasons entitle employees to paid sick leave?

Employees may receive sick leave pay from their employers for reasons that extend beyond illness. S. 50.1(1.2) outlines that employees are entitled to receive paid leave of absence if they cannot perform the duties of their position for reasons including: medical investigation, supervision, or treatment; quarantine or isolation, including self-isolation; or if they are directed by an employer to refrain from returning to work because of a concern they may expose other employees to COVID-19. Employees may also take leave if they are under an order through the Health Protection and Promotion Act that requires them to remain absent from work, or if they are providing COVID-related care or support to a family member (such as a spouse, parent, child, sibling, grandparent, etc) in quarantine, isolation, or under medical investigation, supervision or treatment.

How much compensation must be paid to employees that take sick leave under the Act?

According to s.50.1(1.11), employees can receive compensation for up to three days of leave. Employers must provide compensation amounting to either $200 per day or the normal wages of the employee had they not taken leave, whichever is less. Employers are only obligated to pay regular wages, meaning that if the employee would be earning any kind of premium pay, holiday pay, or overtime pay on the days they are absent, they would only receive their normal wages as compensation. If the employee earns performance-related wages (i.e. commissions), the normal wages would be the greater of either the minimum wage paid to the employee or the employee’s hourly rate.

How does the Act affect employees already entitled to paid leave of absence under an employment contract?

The Employment Standards Act outlines the minimum requirements for the provision of paid sick leave and the amount of daily compensation. If the employment contract specifies that employees are entitled to less than three days of paid sick leave, then the employee would be entitled to receive payment for the remaining days under the Act. The same concept applies for compensation, which must be equal to or greater than that which is provided by the Act.

How can employers be reimbursed for payments made to employees taking sick days under the Act?

Employers that provide compensation for the leaves of absence under the Act may apply to the WSIB to be reimbursed for the amount paid to the employee, up to the maximum $200 per day for each employee. These reimbursements are not available, however, to payments made pursuant to an employment contract. If on or after April 19th, 2021, changes are made to an employment contract that would have otherwise provided paid sick leave, employers are likewise not entitled to receive reimbursement for sick leave taken pursuant to the Act.

What is required in the application to the Workplace Safety and Insurance Board?

To receive compensation, employers must submit the following to the WSIB: (1) a completed application; (2) an attestation that confirmed that the employer made a payment to the employee for paid leave for one of the specified reasons under the Act, including the dates of leave, dates of payment, amount, and confirmation that the employee was not otherwise entitled to payment under an employment contract; (3) record of the payment made in the form approved by the Board; (4) information about claims filed with the WSIB under the Workplace Safety and Insurance Act. Applications for reimbursement must be filed within 120 days of the date the payment was made.

How does the provincial law work in conjunction with the Federal Government’s sick leave benefit?

The Federal Government likewise offers support to employees not working due to COVID-19 and related reasons. The Canada Recovery Sickness Benefit (CRSB) offers eligible employees $500 for a one-week period, for a total of four weeks, if the employee is unable to work at least 50% of their scheduled work week. These benefits exclude those who are receiving Employment Insurance or other listed federal supports.  However, according to the Government of Ontario website, “[a]n employee may be entitled to a leave under the [Employment Standards Act] whether or not they have applied for or qualified for federal benefits or supports.”

A special thank you to Julia Nowicki for her help and contributions to this article!

The content of this article is written for general information purposes only and does not constitute specific legal advice. This article should not be used as a substitute for competent legal advice from a licensed lawyer. Please contact us at 416-238-5527 if you’d like to speak to an Emerge LLP lawyer.