Ontario Extends Paid Sick Days Program as Temporary Layoff Protections Expire
On July 21, 2022, Ontario announced the extension of its paid sick days program for missed work as a result of COVID-19 until March 31, 2023. In contrast, the deemed infectious disease emergency leave (“IDEL”), which offered certain protections for employers with temporarily laid off employees, expired on July 30, 2022.
Difference Between Paid, Deemed, and Unpaid IDEL
Paid Sick Days Program (Paid IDEL)
On April 29, 2021, the Ontario government introduced the COVID-19 Putting Workers First Act, which mandates paid sick days related to COVID-19. This program, which was previously scheduled to end on July 31, 2022, has been extended to March 31, 2023. The Act requires Ontario employers to provide employees with up to three paid sick days if they cannot work for reasons related to COVID-19. Workers are entitled to up to $200 per day, without the need for a medical note. Examples of circumstances that may attract entitlement to paid sick days include where the employee is:
- going for a COVID-19 test;
- staying home and awaiting the results of a COVID-19 test;
- sick with COVID-19;
- getting individual medical treatment related to COVID-19;
- going to get vaccinated against COVID-19;
- experiencing a side effect from a COVID-19 vaccine;
- self-isolating due to COVID-19, as instructed by an employer, medical practitioner, or other specified authority; or
- providing care or support to prescribed relatives for COVID-19-related reasons.
Deemed IDEL ends
Subject to certain exceptions, the Ontario government instituted temporary relief from the Employment Standards Act, 2000 (“ESA”) provisions pertaining to termination and severance for the “COVID-19 period” (March 1, 2022 to July 30, 2022). During this period, non-unionized employees whose hours were reduced or eliminated, or whose wages were reduced by their employer – for reasons related to COVID-19 during the COVID-19 period – were deemed to be on an unpaid IDEL and not on a temporary layoff.
Notably, if an employee is laid off for longer than the ESA allows, their employment is deemed to have been terminated and they are entitled to receive their termination entitlements. Absent these temporary measures, employees would have been considered to be on a temporary layoff for the purposes of the ESA during the COVID-19 period referenced above. These temporary measures have now expired as of July 30, 2022.
Unpaid IDEL Remains Available to Employees
The changes to the “deemed IDEL” do not end the availability of unpaid infectious disease emergency leave for employees, which will continue to be available as an ESA leave for as long as COVID-19 is designated an “infectious disease” by legislation. The unpaid IDEL can be used by an employee once their paid sick days have been exhausted. This is available to all workers covered by the ESA. The reasons an employee may take this leave are as follows:
- The employee is under individual medical investigation, supervision or treatment related to a designated infectious disease.
- The employee is subject to an order of a medical officer of health or a court under the Health Protection and Promotion Act.
- The employee is in quarantine or isolation or subject to a control measure, including self-isolation, that is undertaken because of information or directions issued by a public health official, qualified health practitioner, Telehealth Ontario, the government of Ontario or Canada, a municipal council or a board of health.
- The employee is under a direction given by their employer in response to the employer’s concern that the employee might expose other individuals in the workplace to a designated infectious disease.
- The employee is providing care or support to prescribed individuals because of a matter related to a designated infectious disease. This list includes the employee’s spouse, parent, child, among others.
- The employee is directly affected by travel restrictions related to a designated infectious disease and, under the circumstances, cannot be reasonably expected to travel back to Ontario.
There is no specified limit to the number of days an employee can be on unpaid infectious disease emergency leave. That said, employees have the right to be away from work only for as long as the event that triggered the entitlement to the unpaid leave lasts.
The Bottom Line
Employers should consider how the expiration of the deemed IDEL may impact employees currently on it. These employees will convert to a traditional layoff under the ESA. Under the ESA, temporary layoffs are normally allowed up to 13 weeks in any period of 20 weeks or an extended period of 35 weeks in any period of 52 weeks, subject to certain requirements. At the end of the layoff period, if the employee is not recalled, the ESA normally deems employment to have been terminated. Employers will want to review the status of these employees and consider the best course of action under the circumstances.
If you have any questions related to the extension of the paid sick days program, the expiry of “Deemed IDEL” and its impact upon your organization, or an employee’s request for unpaid IDEL, please do not hesitate to contact us.