COVID-19: Bill 124 and Pandemic Premiums Update

On May 1, 2020, Ontario issued O. Reg 195/20, Treatment of Temporary COVID-19 Related Payments to Employees (the “COVID-19 Payment Order”). This emergency order exempts certain temporary COVID-19 related payments from the restrictions that would otherwise apply under the Protecting a Sustainable Public Sector for Future Generations Act, 2019 (“Bill 124”).   We have discussed the normal operation of Bill 124 in a prior article.  Below we discuss the scope and impact of this new temporary order for publicly funded employers in Ontario.

Where does the exemption apply?

The COVID-19 Payment Order covers listed places of work and types of work. If an employee engages in work at one of these places or in one of these types of work, they can benefit from the payments without offending Bill 124. The order does not draw a distinction between managerial and non-managerial staff for these purposes. As a result, both should be able to benefit from the exemption as long as the employee is performing work at a designated place or doing a designated kind of work.

The workplaces that will be able to provide pandemic related payments exempt from Bill 124 include:

  • Services and supports within the meaning of the Services and Supports to Promote the Social Inclusion of Persons with Developmental Disabilities Act, 2008;
  • Intervenor services funded by the Ministry of Children, Community and Social Services for persons who are deafblind;
  • Residential care provided to children and young persons residing in residential settings licensed under the Child, Youth and Family Services Act, 2017;
  • Services and supports provided to children with complex special needs that are funded by the Ministry of Children, Community and Social Services;
  • Community services provided under the Home Care and Community Services Act, 1994;
  • Mental health and addictions services funded, directly or indirectly, by the Ministry of Health;
  •  A long-term care home within the meaning of the Long-Term Care Homes Act, 2007.

  • A retirement home within the meaning of the Retirement Homes Act, 2010.

  • A hospital within the meaning of the Public Hospitals Act.

  • A psychiatric facility within the meaning of the Mental Health Act

  • A place where a secure treatment program within the meaning of Part VII (Extraordinary Measures) of the Child, Youth and Family Services Act, 2017 is provided.

  • A homeless shelter or drop-in centre for persons who are homeless, including a respite centre, temporary homeless shelter or location used for self-isolation or overflow purposes.

  • Certain supportive housing residences.

  • A home for special care licensed under the Homes for Special Care Act.

  • Certain places of custody, temporary detention, and corrections institutions.

  • A children’s aid society designated under the Child, Youth and Family Services Act, 2017.

So long as work is performed in the workplaces identified above, the normal Bill 124 moderation period restrictions will not apply to temporary COVID-19 related payments.

What types of work are exempt?

In addition to work performed in the exempted workplaces above, the following kinds of work are also temporarily exempt from the restrictions on compensation imposed by Bill 124:

1. Providing outreach services to persons who are homeless.

2. Work performed by a person in the course of their duties as a paramedic employed by an operator of an ambulance service within the meaning of the Ambulance Act.

3. Providing community paramedicine services that are funded, directly or indirectly, by the Ministry of Health.

4. Providing attendant services under Ontario Regulation 367/94 (Grants for Persons with Disabilities) made under the Ministry of Community and Social Services Act.

5. Furnishing the services of a homemaker or a nurse under the Homemakers and Nurses Services Act.

When does this exemption apply?

The new order applies retroactively until April 24, 2020, which is the date that the government announced financial support for workers in the sectors identified above – specifically Pandemic Pay amounting to a $4 premium per hour and another $250 per month for employees working 100 hours or more per month.  To read more about government funded Pandemic Pay see our blog on this issue here.

This exemption will remain in effect for 90 days following the issuance date (going until July 29, 2020). However, the Provincial government can renew the order before then.

This order does not apply to premiums and bonuses issued to employees prior to April 24, 2020, which means that employers who issued pandemic related compensation before then could still face potential challenges from the Treasury Board in relation to Bill 124 compliance.

PooranLaw will continue to monitor legal developments related to pandemic pay and Bill 124.  In the meantime, if you require legal assistance, we encourage you to reach out to your regular PooranLaw lawyer, or any member of our team.

Note: This article provides general information only and does not constitute, and should not be relied upon as, legal advice or opinion. PooranLaw Professional Corporation holds the copyright to this article and the article and its contents may not be copied or reproduced in any form, in whole or in part, without the express permission of PooranLaw Professional Corporation.