In response to escalated health risks, in April 2021, Ontario’s provincial government amended the Employment Standards Act 2000 to offer more support for employees that have to take time off work as a result of a coronavirus infection. The amendment reflects measures taken by a number of Canadian provinces to support workers during the ongoing health crisis.
Under the new rules, employees in Ontario are entitled to 3 days of paid sick leave in addition to the existing entitlement of 3 days unpaid leave for illness, injury, or medical emergency. The bill includes provisions for employers to apply for reimbursements from the provincial government (for the paid leave they offer) via application to the Workplace Safety and Insurance Board (WSIB).
With the new sick leave rules in effect, it’s important that employers understand their obligations:
When did the new sick leave rules come into effect?
The amendment to the ESA is applied retroactively to April 19, 2021. The new rules will remain in effect until September 25, 2021, but may be extended if necessary.
How much paid leave will employers be required to pay?
Employers must pay employees their regular wage up to a limit of $200 per day for up to 3 days of leave. Employers are not required to pay employees more than that limit if they earn over $200 per day.
Employers do not have to pay their employees special rates, such as overtime, for the Covid-19 leave that they take.
When do employees need to take their sick leave entitlement?
The Covid-19 sick days do not need to be taken consecutively. Employees may take their leave entitlement until the 25 September cutoff. Employers should note that this deadline may be extended.
Sick leave must be taken in full days. If an employee takes only half a day of leave, for example, employers may record their absence as a full day.
Who may take Covid-19 sick leave?
Employees can take their Covid-19 sick leave for the following reasons:
- Sickness as a result of Covid-19 infection
- Travelling to receive a Covid-19 test
- Waiting for the results of a Covid-19 test
- Self-isolating after exposure to a Covid-19 infection in accordance with the advice of a doctor or medical practitioner
- Travelling to receive a Covid-19 vaccination
- Experiencing the side-effects of a Covid-19 vaccination
- Caring for dependents who are sick with Covid-19 or self-isolating after exposure to a Covid-19 infection
All employees covered by the ESA are eligible for the Covid-19 sick leave entitlement. Employees not covered by the ESA include independent contractors, federally-regulated employees and volunteers. Employees that do not receive paid sick leave from their employers are eligible for the Covid-19 sick leave entitlement. Part time and temporary employees are eligible for the Covid-19 entitlement as long as they are working for provincially-regulated employers.
If an employee’s employment contract already entitles them to paid sick leave, their Covid-19 entitlement is reduced accordingly. If an employer amends an employment contract in order to access the Covid-19 entitlement, and that contract already covered employees up to or beyond April 19, they will not be eligible for the reimbursement program.
Employers do not need to be registered with the WSIB in order to access the sick leave reimbursement scheme.
What kind of evidence do employees need to provide for their sick leave?
Employers may ask for reasonable proof of their employees' reasons for taking sick leave. That evidence may include medical notes, travel receipts, public health notices, or notes from child care providers.
How can employers claim their sick leave reimbursement?
Employers must pay their employees’ sick leave via their payroll and then apply to the WSIB within 120 days of that payment. Claims made after 120 days will not be reimbursed.
The reimbursement application must include the following documents and information:
- A completed WSIB application form
- An employer declaration that:
- Confirms payment of wages to the employee
- Specifies the dates of the sick leave and the amount of sick leave paid
- Confirms that the employer was not obligated to pay sick leave to the employee under the terms of an employment contract on or after April 19
- A record of payment (in a WSIB-approved format)
- Relevant information about claims made to the WSIB concerning the employee, under the Workplace Safety and Insurance Act 1997
- Any other relevant information or supporting documents
Further information about the WSIB reimbursement application can be found on the Ontario government’s Covid-19 resource page.
Is the Covid-19 entitlement available to employees that access CRSB?
The Canadian Recovery Sickness Benefit (CRSB) is not available to employees for sick days that were paid under their Covid-19 entitlement. The CRSB is no longer available to employees that did not suffer a 50% loss of income in the week they received paid sickness leave.
Can employees opt out of their Covid-19 sick leave entitlement?
Employees may choose to opt out of their Covid-19 leave entitlement, which may allow them to continue to access other sickness benefits. Employers must get written confirmation of their employees’ decision to opt out of their entitlement.
For more information about Covid-19 sickness benefits and support for employers, visit activpayroll’s latest news page.
If you are interested in doing business in Canada, find out everything you need to know about payroll, tax, social security, employee benefits, work permits, employment law and more in the activpayroll Guide to Doing Business in Canada. This is available as a free PDF to download.