Ontario Announces Subsidized IDEL Pay in Limited Circumstances
Update: The Ontario government announced that it would be extending the period during which employees may take Paid IDEL Days until July 31, 2022 (previously set to expire on December 31, 2021). Subject to the terms of any employment agreement or policy, the Ontario government has made it clear that this announcement does not increase the total number of Paid IDEL days to which an employee is entitled. It only extends the timeline during which employees may access such days. There is no “renewal” of the 3 days in the new year.
Further Update: The requirement to provide paid IDEL (3 paid infectious disease emergency leave days, subject to certain conditions and eligibility requirements) has just been extended to March 31, 2023.
The Ontario government recently passed a bill that temporarily provides eligible employees in provincially regulated workplaces with three days of paid Infectious Disease Emergency Leave (“Paid IDEL”).
The Paid IDEL is in addition to the previously announced unpaid Infectious Disease Emergency Leave, and together they form the province’s response to COVID-19 related absences.
Quick Facts
Employees are eligible for Paid IDEL if any of the following circumstances apply (“Paid IDEL Circumstances”):
They are under individual medical investigation, supervision or treatment related to the designated infectious disease (i.e. COVID-19);
They are acting in accordance with an order under section 22 or 35 of the Health Protection and Promotion Act that relates to the designated infectious disease;
They need to self-isolate or quarantine in accordance with medical advice or public health requirements;
They have been directed to not come to work by their employer out of concern that the employee may expose other individuals in the workplace to the designated infectious disease; or
They are providing care or support to a designated close relation or family member because that person has a designated infectious disease or is required to quarantine or self-isolate.
Note that unlike for unpaid Infectious Disease Emergency Leave, Paid IDEL cannot be used if the employee is directly affected by travel restrictions related to COVID-19 and, under the circumstances, cannot reasonably be expected to travel back to Ontario.
The Paid IDEL is to be paid at a rate of the lesser of (a) $200.00 per day or (b) the income the employee would have otherwise earned on that day.
Employers will be eligible to apply for a reimbursement from the Workplace Safety and Insurance Board (WSIB) for the Paid IDEL.
Common Questions
We’ve put together a list of the most common employer questions that have come up since the announcement of Paid IDEL.
What can Paid IDEL be used for?
Using the Paid IDEL Circumstances above, the Ontario government has released examples of reasons that are included in these circumstances:
Going for a COVID-19 test
Waiting for COVID-19 test results
Being sick with COVID-19
Isolating because of COVID-19
Going to get a COVID-19 vaccination
Experiencing side effects from a COVID-19 vaccination.
What is the timeframe for the Paid IDEL?
The Paid IDEL is temporary and is available retroactively from April 19, 2021 until July 31, 2022.
Any sick time or leave employees took before April 19, 2021 is not eligible for a reimbursement through WSIB.
What if the employer already has paid leave (or sick days) in its employment contracts or policies?
Generally, employees will be required to use their contractual paid leave/sick days.
Employers cannot apply for reimbursement for their contractual paid leave/sick days.
However, employers should consider:
Whether their contractual paid leave/sick days are equal to or exceed Paid IDEL
If as of April 19, 2021, employees are able to take at least three paid days of leave/sick days through their employment contract and those days:
a) Can be taken for at least one of the Paid IDEL Circumstances (above) and
b) Are paid on at least the same basis as the Paid IDEL (below),
Then employees must take their contractual paid leave/sick days, and employers are not eligible to apply for reimbursement through WSIB for these days.
In these circumstances, contractual paid leave/sick days are inclusive of Paid IDEL. Employees are not entitled Paid IDEL days in addition to their 3 contractual paid leave/sick days.
2. Whether their contractual paid leave/sick days are not equal to or do not exceed Paid IDEL
If as of April 19, 2021 employees have access to less than three paid days of leave/sick days or if 1(a) or 1(b) above do not apply, then employers will have to provide Paid IDEL Days to make up any difference.
For example, an employee with only two contractual days of paid leave will have access to one day of Paid IDEL to bring their total up to three days.
Employers can apply for reimbursement for only the days taken as Paid IDEL and not for contractual paid leave/sick days.
What happens when employees take all their contractual sick days or Paid IDEL after April 19, 2021?
If after April 19, 2021 employees exhaust their contractual paid leave/sick days or their entitlement to Paid IDEL, they will be entitled to take unpaid Infectious Disease Emergency Leave for any remaining COVID-19 related absences.
What if employees used all their contractual paid leave/sick days before April 19, 2021?
Bill 284 is not clear on this point.
Based on our reading of the new provisions, if an employee has exhausted the paid leave/sick days under the employment contract before April 19, 2021, the employee would be eligible for the Paid IDEL.
Employers can accordingly apply for reimbursement for the Paid IDEL taken.
How do employers apply for reimbursement?
Employers will be able to apply for reimbursement to the WSIB.
Employers will be required to submit an application form, an attestation form, and a record of payment to the WSIB.
The government has not released the application yet, but details will be published here.
Is there a time limit for reimbursement applications?
Employers must submit the application for reimbursement to the WSIB within 120 days of the date on which the paid day was taken.
What if employers are not registered under the WSIB?
Employers that are not registered with the WSIB will still be able to apply for and receive the reimbursement.
Eligible employers can apply for reimbursement using this link: here.
What if the employee makes more than $200/day? Or earns commission/tips?
Paid IDEL does not represent all of an employee’s earnings.
Instead, Paid IDEL is to be paid at a rate of the lesser of
a. $200.00 per day or
b. the income the employee would have otherwise earned on that day.
This means that employees who earn more than $200.00 per day will be paid only $200.00 and not their regular pay for each day of Paid IDEL.
This only related to Paid IDEL and not paid leave/sick days provided for under an employment contract.
What evidence can employers ask employees to provide?
Employers cannot request a doctor’s note.
Depending on the circumstances, an employer could require evidence reasonable in the circumstances.
Do the Paid IDEL days have to be taken consecutively and in full days?
Employees do not need to take Paid IDEL consecutively or in relation to the same event/issue.
If an employee takes part of a day as paid leave, the employer may deem the employee to have taken one full paid day of leave.
What does Paid IDEL mean for other benefit programs?
Utilizing Paid IDEL may impact an employee’s eligibility for other COVID-19 related benefits. For example, the Canada Recovery Sickness Benefit. The CRSB entitles employees to a benefit of $500.00 per week for up to four weeks.
Employees with paid leave under their employment contracts are eligible to apply for the CRSB.
However, employees are ineligible to apply for the CRSB during the same period of time where they are receiving paid leave from their employer, which would include Paid IDEL.
Constructive Dismissal and the Infectious Disease Emergency Leave
The Ontario Superior Court of Justice recently released a decision, Coutinho v Ocular Health Centre Ltd. where constructive dismissal during the COVID-19 pandemic was considered.
You will probably recall that in an effort to mitigate the risk of constructive dismissal claims during the pandemic, the Ontario government introduced a regulation (the “Regulation”) which outlined the Infectious Disease Emergency Leave (IDEL). This Regulation also explained that a constructive dismissal does not occur under the Employment Standards Act, 2000 (“ESA”) when an employee’s wages or hours of work are temporarily reduced or eliminated for reasons related to COVID-19 from March 1, 2020 to July 3, 2021. The employee is instead deemed to be on IDEL.
In Coutinho, an employee (Coutinho) was laid off indefinitely from her job in May of 2020 without her consent. In response, Coutinho immediately sued her employer (Ocular) for constructive dismissal.
Ocular argued that due to the newly introduced Regulation, Coutinho’s layoff did not constitute a constructive dismissal, and that she was instead deemed to be on the IDEL. Coutinho took the position that the provisions of the Regulation limited her ability to claim constructive dismissal under the ESA, but that the Regulation did not impact her ability under the common law to sue Ocular for constructive dismissal.
The Court found in favour Coutinho and ruled that although employees cannot claim that they were constructively dismissed under the ESA by virtue of the Regulation, the Regulation did not impact the right to sue for constructive dismissal at common law.
It’s important to note that in order to be successful, a claim for constructive dismissal at common law requires an employee to have objected (and not consented) to the changes made by the employer to their employment. In this case, Coutinho did just that. She did not consent, and instead she immediately sued her employer and objected to the change to her employment. At the start of the COVID-19 pandemic, many employers explicitly asked their employees for a signed document consenting to be placed on layoff. Similarly, many employees continued to work without objection and essentially acquiesced to the change in their employment.
Although Coutinho has opened the door for constructive dismissal cases at common law as a result of COVID-19, for example Ristanovic v Corma 2021 ONSC 3351 was also released recently, these decisions do not change the challenge that employees will no doubt face with demonstrating constructive dismissal if they consented or acquiesced.
What’s New at the Ministry of Labour
The Ministry of Labour publishes an online newspaper which can be found here.
From the latest issues, the following may be of interest:
Ontario’s minimum wage rate will increase by 10 cents on October 1, 2021, making the new minimum wage $14.35 cents.
The Ministry of Labour posts their information session schedules on COVID-19 here.
The Workplace Safety & Prevention Service has published a resource for managing a workplace outbreak, tips for promoting compliance for COVID-19 inspections and COVID-19 related resources including a primer on COVID-19 safety plan requirements.
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By Brooke Auld and Patrizia Piccolo