On December 7, 2021, the Ontario government announced that it was extending the Worker Income Protection Program (“Program”) until July 31, 2022. The program provides employees with up to three (3) paid days leave if they cannot work due to COVID-19 related reasons. As a refresher, Employees will qualify for paid leave if they are:

1. Unable to work because they are under investigation, supervision, or treatment for COVID-19, which includes receiving a vaccine and recovering from related side effects;
2. Exhibiting symptoms of COVID-19 and have been directed to stay home;
3. Self-isolating due to COVID-19; or
4. Caring for a COVID-19 patient.

Employers are required to pay eligible employees up to $200.00 a day for up to three (3) days. Ontario will reimburse employers through the Workplace Safety and Insurance Board.

The Ontario government also announced it would extend the temporary layoff exemption until July 30, 2022. In May 2020 Ontario introduced the Infectious Disease Emergency Leave regulation (“IDEL”) under the Employment Standards Act, 2000 (“ESA”). It protects employers who have to temporarily layoff employees due to COVID-19 by exempting those layoffs from being considered a termination of employment. In those circumstances, the employee is deemed to be on IDEL, rather than terminated, and ESA notice of termination and severance pay obligations are not triggered.

However, IDEL has created some confusion. It is possible that IDEL does not protect employers from common law constructive dismissal claims if an employee has been placed on IDEL. Several lower court cases have considered this issue and come to opposite results. One of these cases, Taylor v Hanley Hospitality Inc., 2021 ONSC 3135, was appealed and is scheduled to be heard by the Ontario Court of Appeal (“ONCA”) on April 1, 2022. Interestingly, the Ontario government initially sought to intervene in the appeal only to later withdraw that request on 2 points::

1. The IDEL provides that a temporary reduction or elimination of hours of work or temporary reduction in wages of a non-unionized employee by an employer during the COVID-19 period for reasons related to COVID-19 does not constitute a constructive dismissal under the ESA; and
2. The IDEL does not displace an employee’s right to seek a civil remedy against their employer for constructive dismissal at common law.

It appeared that the Ontario government supported the position that the IDEL does not protect employers from a common law constructive dismissal claim if they place employees on temporary layoff due to COVID-19. This suggests employers should be careful about relying on IDEL until the ONCA provides clear guidance.

The Hum Law Firm continues to monitor legal developments related to COVID-19. We encourage you to contact us immediately for legal assistance.

 

Call us at (416)214-2329 or email info@thehumlawfirm.ca.

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After months of pressure, the Government of Ontario has implemented temporary paid leave for employees. On April 29, 2021, Ontario enacted Bill 284, COVID-19 Putting Workers First Act (“the Act”) that will temporarily provide employees with up to three paid sick days. The Act amends the Employment Standards Act to provide employees with an entitlement to three paid days of leave for COVID-19 related reasons.

Employers will administer the paid leave and it will apply retroactively, starting from April 19, 2021, and will expire on September 25, 2021. Ontario will reimburse employers through the Workplace Safety and Insurance Board. Therefore, the administrative burden is on the business to manage. The Act does not prescribe a penalty for employers who threaten or discipline employees for taking paid leave. However, any employer that does so could be found guilty of an offence under the Employment Standards Act.

Employees will qualify for paid leave if they are:

1. Unable to work because they are under investigation, supervision, or treatment for COVID-19, which includes receiving a vaccine and recovering from related side effects;
2. Exhibiting symptoms of COVID-19 and have been directed to stay home;
3. Self-isolating due to COVID-19; or
4. Caring for a COVID-19 patient.

Employers are required to pay eligible employees up to $200.00 a day for up to three days. The Act calculates paid leave based on the employee’s regular rate of pay. Employers must pay the employee the lesser of $200 per day or the wages the employee would have earned if they did not take leave. The employee is not eligible for missed overtime pay, shift premium, or premium pay for statutory holidays.

Employees should advise their employer that they are taking paid leave. If the employee is unable to do so prior to taking leave, the employee should advise their employer as soon as possible after commencing leave. An employer cannot require an employee to provide a certificate from a doctor or a nurse as evidence. However, an employer can require that an employee provide evidence reasonable in the circumstances. Employees should consult an employment lawyer to clarify what constitutes reasonable evidence.

If an employer already provides three or more paid sick leave days that cover the conditions above, the Act does not provide employees with three additional days of paid leave entitlements.

The Hum Law Firm will continue to monitor legal developments related to COVID-19. We encourage you contact us immediately for legal assistance.

Call us at (416)214-2329 or Complete our Free Assessment Form Here