What employment law clients are saying about the new three-day COVID-related paid sick leave

Some clients say it unfairly rewards companies that don’t offer paid sick leave, over those that do

What employment law clients are saying about the new three-day COVID-related paid sick leave
Christine Ashton, Andrew Shaw

Employment lawyers are helping clients understand their new obligations under the Ontario Government’s recently implemented COVID-related paid leave requirements, and some employers complain the measure rewards employers who do not offer paid sick leave, while doing nothing for those that already do.

On April 29, Ontario enacted Bill 284, COVID-19 Putting Workers First Act, 2021. Under the amendments to s. 50.1 of the Employment Standards Act, provincially regulated employers must provide employees with up to three days of paid leave for COVID-related reasons, including being sick with COVID, testing, isolating while waiting for test results, vaccination appointments, vaccination side-effects and caring for a dependent with the virus. The Workplace Safety and Insurance Board will reimburse employers up to $200 per-day for an employee missing work for one of these reasons.

The province has not implemented “paid sick leave,” in general. The amendments changed the first three days of the available Infectious Disease Related Emergency Leave (IDEL) from unpaid to paid time off, says Andrew Shaw, partner in Baker McKenzie’s employment a compensation law group. The IDEL is job-protected leave, which ensures employees that their employment status cannot be changed after they take time off for COVID-related purposes, he says. This paid leave is not available for non-COVID-related sickness.

“The main impact for employers is that they need to look at their contractual entitlements for paid sick leave, now,” says Shaw.

For those not offering any sick leave, it is easy, he says. It gets complicated for those who already do. Employers need to look at those policies and determine whether they account for the COVID reasons under the province’s requirement and track how many available sick days each employee had as of April 19, says Shaw.

“As with what happened last time the government attempted to legislate sick pay, there's a lot of questions and pushback from employers. And it normally comes down to three main issues,” says Christine Ashton, a partner at Wilson Vukelich LLP, who practises labour and employment law and tax litigation.

First, employers are uncertain of how the three days will be dealt, she says. Clients are asking whether the three days are available forever or for a limited time and whether employees get three days per COVID-related leave or three, total, even if they are required to take more than one COVID-related leave. They also want to know whether an employee will get three, total, or three per employer, if they happen to have switched jobs, Ashton says.

The second issue concerns employers who currently have paid sick days, she says. Clients had the same questions in 2018, under the old paid-sick-day policy. Do these three days tack-on to existing available sick days and do employers who already offered paid sick days get reimbursed from WSIB for COVID-related leave?

If a person, as of April 19, had three or more sick days, which would apply to one of the COVID-related reasons, that person would not get additional days, says Shaw.

And employers who already offer paid sick leave, will not be reimbursed by WSIB for an employee taking COVID-related leave.

“So that's unfortunate, because, understandably, many employers feel that they're essentially being punished for stepping up to the plate before they were required to do so,” says Ashton.

Employees who have already used their paid sick days up, prior to April 19, will get three more, says Shaw. Whereas an employee who had not used any, would not get the additional three, he says.

“People might think that's fair or unfair. But what it is for sure is that it creates an administrative burden on the employer to have to figure out who's actually owed this and who's not,” says Shaw.

“What it is supposed to be is a clear benefit to employees that work at companies that do not have paid sick leave,” he says. “So that part of it, I think everybody can kind of support.”

Ontario previously required employers provide two paid sick days, but the Progressive Conservative Government repealed the measure in 2018. During the pandemic, Premier Doug Ford faced public pressure, including from medical professionals to re-institute the policy. Initially, the province responded that employees were already entitled to various federal benefits, including the Canadian Recovery Sickness Benefit and the Canadian Recovery Caregiver Benefit, says Ashton.

“Of course, we heard in response though, that those plans weren't working,” she says. “In part, I guess, because employees didn't feel that their job would be protected. Or that the benefits might not come as quickly as they need them to, like a regular pay-cheque would.”

Employers also have questions concerning documentation, says Ashton.

“Employers are not allowed to ask for a doctor's note,” she says. “They can only ask for reasonable documentation, which creates uncertainty in terms of what exactly does that mean? And we always joke; Are employers going to be asking for photographs of a thermometer?”

The documentation rules also create issues for employers related to their obligations to accommodate under the Ontario Human Rights Code, says Ashton.

“In comparison with other provinces, such as Alberta and British Columbia, Ontario has gone well beyond what they've provided, as those other provinces are only providing three hours of paid time off in order to get a vaccine,” she says.

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