On April 29, 2021, the Ontario Government enacted Bill 284, COVID-19 Putting Workers First Act, 2021 (the “Act”), which provides for Infectious Disease Emergency Leave Pay (“Paid Leave”). The Act amends the Employment Standards Act, 2000, and provides certain employees up to three days of Paid Leave for COVID-19 related reasons. The Act also sets out a mechanism whereby employers will be eligible for reimbursement through the Workplace Safety and Insurance Board (“WSIB”). Not surprisingly, the participation of the WSIB has raised several questions for employers. In the Q&A below, we will explain the WSIB’s role and the process by which employers may seek reimbursement for the Paid Leave.

1. Who is Paying the Employees for Paid Leave?

The Paid Leave will be administered by the Employer (for a detailed explanation of employee eligibility, see our recent In A Flash article Ontario Enacts Legislation Providing Three Paid Sick Days for COVID-19 Related Reasons). During the period of April 19, 2021 through September 25, 2021, Employers will be required to pay eligible workers Paid Leave of up to $200.00 per day (the lesser of $200 and the wages the employee would have earned had they not taken the leave), for up to three days.

The Employer may then apply to the WSIB to be reimbursed, up to a maximum of $200 per day, per employee.

2. Does the Employer have to be Registered with the WSIB to Qualify for Reimbursement?

Many employers in certain industries are not registered with the WSIB and do not have workers’ compensation coverage under the Workplace Safety and Insurance Act, 1997. However, there is nothing in this new legislation that requires an Employer to be registered with the WSIB in order to be eligible for reimbursement for Paid Leave.  

3.  Does this Paid Sick Leave Apply to All Employers Already Registered with the WSIB?

No. There are exclusions – such as Federally Regulated employees, independent contractors, and most volunteers, as well as college program interns.

4. How Does the Employer Apply for Reimbursement?

The WSIB will be making available an application process, the specifics of which have not yet been released. However, pursuant to the Act, we know that an Employer will need to provide the following:

• A completed application form confirming all the details of the Employer’s payment and the employee to whom payment was made.
• An attestation confirming: the Employer provided Paid Leave to an employee; the specific dates the leave was taken; the date payment was made; the amount of the payment; and confirmation that the Employer was not otherwise required to pay the employee under the terms of an employment contract.
• A record of the payment made to the employee.
• Information about claims filed with the Board under the Workplace Safety and Insurance Act, 1997 in respect of the employee (the purpose of this is to confirm that the employee is not already receiving WSIB benefits for the days of leave).

Employers will be permitted to apply for reimbursement within 120 days of the payment made to the employee. This may provide Employers with some flexibility to apply for reimbursement for multiple leaves taken over a period of time. However, no applications will be accepted after January 22, 2022, unless the Paid Leave provisions are extended.

5. What Happens Once the Employer has Applied for Reimbursement?

The WSIB will make a determination based on the information provided whether the Employer is entitled to reimbursement. If an Employer has not included all of the required information, the WSIB will not consider the application.

Determinations will be communicated in writing to the Employer. However, these determinations are not within the WSIB’s normal decision-making process: determinations are not decisions under the Workplace Safety and Insurance Act, 1997, and an Employer has no right of reconsideration or appeal to the WSIB, or the Workplace Safety and Insurance Appeals Tribunal.   

6. Does Reimbursement for Paid Leave Affect Employers’ WSIB Accounts?

The funds provided from the Ontario Government to the WSIB for Paid Leave reimbursement are not part of the insurance fund under the Workplace Safety and Insurance Act, 1997. Further the Act only amends the Employment Standards Act, 2000. Having regard to this, as well as the lack of appeal or reconsideration on determinations, the Paid Leave will be treated separately from an Employer’s WSIB accounts, and we do not anticipate any impact WSIB-related costs. The Act does provide that an Employer will have to repay any Paid Leave reimbursements in the event that an employee subsequently receives WSIB benefits for the same days of leave; however, this is an overpayment owing under the new Act, not the Workplace Safety and Insurance Act, 1997.  

It is not clear at time of writing who at the WSIB will be administering this program, how applications will be submitted, or when the program will be operational.  Similarly, the prescribed application and attestation forms are not yet available.  Further details will follow as the information becomes available. Updates to the Paid Leave reimbursement process will also be posted at Ontario COVID-19 Worker Income Protection Benefit.

If you have any questions about this matter, other COVID-19 related issues, or would like any other workplace law assistance, please contact a Mathews Dinsdale lawyer, or refer to the Firm’s COVID-19 website resources.