As the New Year approaches, employers will need to be mindful of two Ontario COVID-19 measures that will be sticking around for a while longer: the Worker Income Protection Benefit (WIPB) program (i.e., Ontario’s paid sick day program) and the deemed infectious disease emergency leave (IDEL). The Government of Ontario announced the extension of both the WIPB program and the deemed IDEL on December 7, 2021.
Paid sick days extended to July 31, 2022
On April 29, 2021, the Employment Standards Act, 2000 (ESA) was amended to introduce the WIPB program, an entitlement of up to three paid days of IDEL. This paid benefit was in addition to the unpaid IDEL entitlements under the ESA. These benefits are intended for employees who require time off work for certain reasons related to COVID-19, including to get a COVID-19 test, recover from COVID-19, and get and recover from a COVID-19 vaccination. The WIPB program was originally set to expire on September 25, 2021. On August 31, 2021 the Ontario government extended the program until December 31, 2021.
The Government of Ontario is once again extending the program, this time to July 31, 2022. The stated intention behind this extension is to provide workers with time off to get their booster shots and to give parents time off to take their children to get vaccinated.
The WIPB program provides employees with up to CA$200 per day (or the employee’s regular pay if their pay is less than CA$200 per day) for up to three days of leave. Employers may also be entitled to reimbursement for the three days for up to CA$200 per employee per day taken, depending on whether they meet the eligibility criteria prescribed in the ESA. Employers that are eligible for reimbursement have 120 days after their employees are provided with paid time off to submit their reimbursement application to the WIPB program.
The extension of the WIPB program means that employers will need to provide eligible employees that have not exhausted their entitlements with three paid days of IDEL if they meet the prescribed reasons related to COVID-19. Employers that are eligible for reimbursement should ensure they keep track of when the benefits are paid out and submit their reimbursement applications by the time limits imposed.
Deemed IDEL extended to July 30, 2022
The Government of Ontario’s announcement on December 7, 2021 marks the fifth extension of the deemed IDEL, which was first introduced in May 2020 to create a job-protected leave for non-unionized employees whose hours of work are temporarily reduced or eliminated by their employer as a result of the COVID-19 pandemic during the “COVID-19 period.” The deemed IDEL, which is outlined in Ontario Regulation 228/20, offers employers flexibility to manage their workforce in response to the COVID-19 pandemic, as during the COVID-19 period. employees are not considered to be on temporary layoff under the ESA and are not considered to be constructively dismissed. More importantly, during the COVID-19 period, the “clock” for temporary layoff periods does not run. For employers who have had to temporarily lay off employees for reasons related to COVID-19, this means that the regular ESA rules regarding temporary layoffs and constructive dismissal will not resume until July 31, 2022.
Notably, the deemed IDEL is a leave of absence under the ESA. This means that employer obligations relating to leaves of absence apply to any employees who are on the deemed IDEL. In particular, employers have an obligation under the ESA to reinstate an employee to their most recently held job when the deemed IDEL ends.
The extension of the COVID-19 period provides flexibility to employers that have employees off work for reasons related to COVID-19. Such employers have additional time to determine what their business operations and staffing needs will be once the COVID-19 pandemic ends, considering which employees can be returned to work and which employees may need to be dismissed when the deemed IDEL ends. Significantly, these decisions can be made between now and July 30, 2022 without risk of automatic termination or the reinstatement obligation being triggered. Employers with employees on the deemed IDEL are encouraged to provide a letter advising of the extension of the deemed IDEL and the employees’ corresponding status.
We continue to monitor these and other developments related to the COVID-19 pandemic. For more information on the WIPB program and the deemed IDEL, and the implications for your workforce, please contact any member of our Dentons Employment and Labour group.