May 19, 2021

Paid Sick Leave – Ontario’s Great Compromise

The battle to bring paid sick leave to Ontario has been a long one. In 2017, Ontario’s Liberal government under then-Premeir Kathleen Wynne introduced Bill 148, also known as the Fair Workplaces, Better Jobs Act, which was the first major overhaul to Ontario’s Employment Standards Act (the “ESA”) in over a decade. The bill introduced major changes to the ESA, including the introduction of personal emergency leave. That leave was designed to allow employees to take up to 10 days off in the case of a personal injury or illness for themselves or a family member, and most-notably the first 2 days out of the 10 were to be paid by the employer. 

However the paid personal emergency leave was short-lived. When the Conservative party came into office following the 2018 election, Premier Ford’s government quickly reversed Bill 148 with Bill 47, which unwound several of the notable changes from the previous year. Instead of the previous leave, the new Personal Emergency Leave consisted of 3 days for personal emergency, 2 days for bereavement leave, and 3 days for ‘family responsibility’ entitlements – all of which were unpaid. 

Yet when COVID-19 hit, and more and more workers were required to take time off work to care for either themselves or a family member as a result of the pandemic, the calls for a re-introduction of paid sick leave grew increasingly louder. In April, 2021, shortly after the Premier himself began quarantining under public health orders due to contact with the virus, his government passed Bill 284, the COVID-19 Putting Workers First Act.

The New (New) Paid Sick Leave

Under Bill 284, which passed on April 29, Ontarians will be entitled to three days of paid sick leave from April 21 until September 25, 2021. The reasons for the leave mirror the existing Infectious Disease Emergency Leave (“IDEL”), so it protects employees who are ill with the virus, who are required by order to quarantine, who are caring for a child or close family member who is in quarantine, etc. Even if the employee has not been ordered to quarantine by health authorities, the leave covers employees who are ordered not to attend work by their employer out of concern that they may expose others in the workplace to the virus. Employees who are taking time off to get vaccinated, or those who are ill with side effects from the vaccine, are also covered.

The leave entitles employees to the lesser of either $200 per day, or the wages they would have earned that day had they not taken the leave/an amount calculated based on an employee’s hourly rate for commissioned employees. While employers are responsible for issuing the payments, employers can apply to the WSIB for reimbursement if the employee did not already have paid leave included in their employment contract. The employer must file an application with the WSIB to receive payment, along with an attestation that payments were made to employees with regard to such leave, and any other documentation requested by WSIB. This must be done within 120 days of making a payment, and all decisions of the WSIB are final. 

Lastly, it is important to note that this leave is specifically intended for employees who did not have a contractual right to paid sick days. If a workplace has already offered more than three paid sick days, this leave does not apply, and those employees will not be eligible for any additional leave under the new law.

The Upshot

The news is certainly a welcome relief to employees across Ontario. The elimination of paid sick days in 2018 put lower-income employees in a difficult spot. For employees who struggle to make ends meet, they could ill-afford the time off to recover their health and often came to work sick as a result. With COVID-19 however, that pressure to keep working led to workplace outbreaks across the country, and likely may have cost lives.

For employers, the new law provides some clarity, but also requires employers to be vigilant. Employers who were not already providing paid sick days must now keep careful records of when this new paid leave is taken, and must be sure to submit all requisite documents to WSIB in a timely fashion in order to obtain any reimbursement. 

We regularly work with our employer clients to ensure that their sick leave policies are in order. We would be pleased to conduct a review of your policy, and make sure that whatever your sick leave protocols are that they are in line with the latest legal requirements. Contact our office today for more information.