You probably know by now that Ontario introduced paid sick leave for employees in relation to the COVID-19 pandemic. This is commonly known as paid Infectious Disease Emergency Leave or IDEL. Eligible employees are entitled to up to three days of paid IDEL for absences from work related to COVID-19. To learn more about the leave, read our blog post here.
But employers seem to have questions about how this works in practice.
- Who pays for this leave? Is it the employer?
- If the employer is obligated to pay, how do they get reimbursed?
- What if an employer already offers paid sick days?
- How does the entitlement to paid IDEL under the Employment Standards Act, 2000 interact with an employee’s existing rights under contract or company policy?
This blog post attempts to answer these common questions, as some of you may be scratching your heads as well.
Who pays for this leave, and if it is employers, how do they get reimbursed?
As an employer, you are obligated by the Act to provide all eligible employees with up to $200 a day for up to three days. Of course, if a contract or policy provides the eligible employees with a greater right or benefit, then that greater right or benefit would be applicable. However, you will only get reimbursement for up to $200 a day per eligible employee.
You can apply to the Workplace Safety and Insurance Board here to be reimbursed for these payments. Eligible employers must make their application for reimbursement within 120 days of the date the employer paid the employee.
To learn more, visit the Ministry of Labour website here.
If an employer already offers paid sick days, how does the statutory entitlement to paid IDEL interact with an employee’s existing rights under the contract or company policy?
Let’s say you already provide two paid sick days to your employees annually. Are you now obligated to provide one additional paid day of leave to meet the statutory requirement of three paid IDEL days?
Or do you have to provide three additional days on top of the two paid sick days?
Generally, in this scenario, you would only be required to provide one additional day of paid leave to meet the statutory three-day requirement, since you already provide two paid days of leave.
However, in order to do so, the following four conditions must be met.
On April 19, 2021:
- The employee had the right to a paid leave under their employment contract for one or more of the same reasons that paid IDEL can now be taken under the Act.
- The employee had not already used up those days of paid leave under their employment contract before April 19, 2021 and those days were still remaining.
- The employee’s employment contract provided pay for the leave that is at least as much pay as the employee would be entitled to receive for paid IDEL under the Act.
- The employee’s employment contract did not contain conditions for taking the leave that are more restrictive than what is set out in the Act for taking paid IDEL.
Where all four of these criteria are met, the employee’s three-day entitlement to paid IDEL under the Act is reduced by the number of days available under their employment contract that meet the four criteria.
In other words, if you already provide two paid sick days and the above four conditions are met, then you only need to provide one additional paid day of leave.
Conclusion
If you are an employer, we can assist you with drafting, reviewing and implementing workplace policies, such as those relating to sick days, so that you can comply with the law, maximize your rights and minimize your liability.
If you are an employee and you are unsure of how this entitlement interacts with your existing rights under a contract or policy, you should seek clarification from your employer directly, preferably in writing. If you are concerned your employer is not complying with the law, we would be happy to assist you to ensure your rights are protected and you get what you are entitled to.
