A temporary measure implemented by the Ontario government during the COVID-19 pandemic (which provided employees in provincially regulated workplaces with up to three days of paid leave when they could not work for COVID-related reasons) has expired. In particular, the paid Infectious Disease Emergency Leave ("IDEL") that was previously available under the Ontario Employment Standards Act, 2000 (the "ESA") ceased to be available on April 1, 2023. However, the unpaid version of this job-protected leave is still available.
Accordingly, both employers and employees should be aware that workers are no longer entitled to up to three days of paid leave where they cannot work for COVID-related reasons, but they are still entitled to unpaid time off. Beyond the obvious implications for employees, the implications of this change for employers are discussed below.
Background
The unpaid IDEL, which was first enacted on March 19, 2020, provides employees with an indefinite amount of job-protected leave where they are unable to work for various reasons related to COVID-19. These reasons include but are not limited to the employee being under medical investigation, supervision, or treatment for COVID-19, the employee being in isolation or quarantine due to COVID-19, and the employee providing care or support to certain individuals for COVID-related reasons.
Subsequently, on April 29, 2021, the Ontario government enacted the paid IDEL, which was available in the same circumstances as the unpaid version. While the paid IDEL was available, employees were eligible to receive up to $200 a day for a maximum of three days, unless their employer already provided them with three or more paid sick days that could be used for the same circumstances pursuant to an employment agreement. Moreover, where an employee has taken a paid IDEL, their employer is eligible to be reimbursed for it by applying to the WSIB within 120 days of the date the employee was paid, or by July 29, 2023, whichever is earlier.
The Paid IDEL Is No Longer Available
After being extended multiple times, most recently from July 30, 2022 to March 31, 2023, the paid IDEL has now expired. Although it was uncertain whether the Ontario government would extend the availability of the paid IDEL once again, the government recently confirmed that it would not.
On the other hand, employees are still currently entitled to an indefinite amount of unpaid IDEL where they are unable to work for COVID-related reasons. This unpaid IDEL will remain available for as long as COVID-19 continues to be a "designated infectious disease" under the regulations of the ESA. It is currently unclear how long the unpaid IDEL will ultimately remain available, however, it will likely remain in place for quite some time given that COVID-19 still exists.
Takeaways
The end of the paid IDEL is obviously bad news for Ontario employees in provincially regulated workplaces who are not otherwise entitled to paid sick days, because such employees will lose wages if they are unable to work for COVID-related reasons. However, this change also has significant implications for employers.
First, employers should ensure that their employees are aware that the paid IDEL is no longer available, in order to set expectations and prevent employees from taking IDEL while mistakenly believing that they will still be paid for it. By doing so, employers can proactively avoid any disputes or acrimony related to employees finding out after the fact that they will not be paid for time off related to COVID-19. (This of course, is only the case in situations where the employees are not otherwise entitled to paid sick leave pursuant to an employment contract).
Additionally, employers with employees who have taken a paid IDEL within the last several months should ensure that they apply to the WSIB for reimbursement if they have not done so already. This is important because employers who do not apply for reimbursement within 120 days, or by July 29, 2023 (whichever is earlier), will not be reimbursed.
Finally, given that the unpaid IDEL is still available, it is important for employers to bear in mind that the ESA prohibits requiring an employee to provide a doctor's note to prove that they are entitled to unpaid IDEL (unlike regular sick leave for other illnesses and injuries). Rather, the ESA only permits employers to require employees to provide "evidence that is reasonable in the circumstances" to prove they are entitled to unpaid IDEL. As a result, employers should ensure that they remain cognizant of this, so that they do not unintentionally breach the ESA by requiring an employee to provide a doctor's note where the employee cannot work for COVID-related reasons.
If you have any questions regarding how IDEL may impact your business or organization, please do not hesitate to contact us for expert legal advice and guidance.
