LeClair COVID Blast May 3, 2021

Bill 284: Putting Workers First Act

• Bill 284 amended the Employment Standards Act (ESA) by temporarily providing eligible employees with three days of paid, job protected leave and up to $200 per day.
• In addition to previous leave without pay entitlements under ESA section 50.1 (1.1), eligible employees are now entitled to up to three (3) days paid leave, taken in entire days, if the employee will not be performing duties because of certain reasons related to a designated infectious disease such as COVID 19.
• Reasons for taking this new paid sick leave include:
  1. The employee is under medical investigation, supervision, or treatment related to COVID 19 – which includes taking a vaccine as well as recovering from any associated side effects;
  2. The employee is subject to quarantine, isolation or another control measure implemented as a result of information or directions emanating from public health, a qualified medical health practitioner, or other relevant public authority;
  3. The employee is under direction from their employer in response to a concern of the employer regarding future exposure and spread of COVID 19; and
  4. The employee is providing care or support to an individual referred to in subsection 50.1 (8), such as the employee’s spouse, family member, or individual who the employee considers to be a family member.

Who is eligible?

• Paid leave under Bill 284 is not uniformly available to all employees in Ontario. If an employee is already entitled to paid sick days, the additional paid leave under Bill 284 will only take effect if the employee’s previous entitlements are less than those provided for in Bill 284.
• Effectively, if an employment agreement (or practice) provides a greater right or benefit with regard to paid leave than Bill 284, then the employment agreement (or practice) will prevail. If the employee is entitled to lesser paid leave than is provided for under Bill 284, the new leave will top up the entitlement between what the employer provides, and three days.

Key Considerations

• If an employee is entitled to both paid leave and unpaid leave, the employee may elect to take one or more days or parts of a day as unpaid leave, provided the employee advises the employer in writing, before the pay period in which the leave occurs. Furthermore, where an employee takes a part of a day as paid leave, the employer may deem the employee to have taken the entire day as paid leave.
• Time is of the essence - Eligible employers will need to make their applications for reimbursement within 120 days of the paid leave being made by the employer.
• Retroactivity - If an employee took an unpaid leave which would have qualified under Bill 284 between April 19, 2021 and April 29th, they may elect to be paid for that leave by advising the employer in writing before May 13, 2021.

Employee Entitlements

• Employees on paid leave are entitled to the lesser of $200 per day, and either (a) the regular wages the employee would have earned had they not taken the leave (without any shift premium or overtime allocation), or (b) for purposes of performance related or commission-based earners, 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.
• Public Holidays: Furthermore, if paid leave is taken on a public holiday, the employee is not entitled to premium pay for the paid leave taken.

Evidentiary Burdens

• Doctor’s note please? Employers cannot require medical documentation but can inquire to ensure paid leaves are being taken under the legitimate pretenses prescribed by Bill 284.

Administration of reimbursement:

• Employers are required to apply to the Workplace Safety and Insurance Board (“WSIB”) to seek reimbursement of paid leave and by submitting an attestation form that will soon be released.
• Employers are entitled to reimbursement up to a maximum of $200 per day, per qualifying employee.
• Denied Claims: WSIB decisions are final and any refused applicable cannot be escalated for reconsideration or appeal to Workplace Safety and Insurance Appeals Tribunal (“WSIAT”).
• Will claim affect an employer’s WSIB premiums? Fortunately, Section 22 makes it clear that payments made under Bill 284 will not form part of the insurance fund, nor will any payment come from the fund, meaning no adverse effect on any employer premiums.

We will continue to share updates and insights in the coming weeks. For specific questions, please feel free to reach out to us directly at – [email protected] (519) 859 6015