On Friday June 26, 2020, the Ontario Ministry of Health and Long Term Care (“MOHLTC”) issued a troubling Question & Answer (the “Q&A”) document respecting Ontario’s Temporary Pandemic Pay Program (the “TPPP”). If this Q&A reflects the policy of the Ontario government, employers may be prohibited from using any government funding for the purpose of providing pandemic related compensation to workers except as specifically prescribed by the government. This is a significant departure from the policy previously communicated by government representatives and is not consistent with the limits prescribed in the emergency orders released to date. We unpack the specifics of this Q&A, its questionable foundation and the implications below.
What is the TPPP?
The TPPP is a joint provincial-federal initiative administered by the Province to provide financial support to front-line workers in designated healthcare and congregate care settings during the COVID-19 pandemic. The purpose is to encourage staff to continue working, to attract prospective staff, and to maintain safe staffing levels. The program runs from April 24, 2020 until August 13, 2020. Two benefits are available: a $4.00 per hour wage top-up to eligible employees, and a monthly payment of $250.00 for employees who work more than 100 hours in a month. These benefits do not apply to managerial staff.
Can Employers Provide Pandemic Related Compensation Outside the TPPP?
Until June 26, the Province had not prohibited employers from using their own resources or general funding to provide additional benefits or wage top-ups to employees who are not eligible for the TPPP. In fact, in multiple communications to transfer payment agencies, the Province had directed that existing funding envelopes could be used flexibly to respond to the Covid-19 crisis.
However, in the Question and Answer document released on Friday, the MOHLTC took the position that employers are not permitted to provide pandemic pay of any type beyond the TPPP. In particular, the MOHLTC took the position that no provincial funding of any kind could be used to make COVID-19 related payments to employees who are otherwise ineligible for the TPPP. The MOHLTC relied on an emergency order issued on May 29, 2020 as authority for this position.
This is a disturbing position, as the Province has sat silently during this time while Developmental Service agencies and other health and congregate care providers have used their funds flexibly (and in accordance with emergency powers given to them) to ensure their continued operation. For many agencies this has included providing new temporary compensation to workers who, while not eligible for the TPPP, have nonetheless gone above and beyond to ensure continued supports and services for vulnerable people.
What is MOHLTC’s position based on?
We question the MOHLTC’s interpretation of the emergency order it relies. This order, on its face, does not actually prohibit COVID-19 related payments beyond the TPPP. The emergency order states:
“No employer, tribunal, arbitrator, arbitration board, officer or court may expand eligibility for temporary pandemic pay or require the payment of temporary pandemic pay to employees who are not eligible employees.”
The emergency order “temporary pandemic pay” is defined narrowly as”
“the hourly wages and lump sum payments that eligible employees are entitled to receive in accordance with the document entitled “Eligible workplaces and workers for pandemic pay” dated May 29, 2020 and available at https://www.ontario.ca/page/eligible-workplaces-and-workers-pandemic-pay.”
This definition thereby limits the restriction on employer discretion to TPPP payments. The effect of this is that employers are prohibited from expanding the TPPP program itself to non-eligible employees, but are not prohibited generally from providing COVID-19 related payments. If this was intended, broader language would be required expanding the scope of the restriction to any pandemic prelated payments and not just those prescribed by the government.
Further, the MOHLTC’s position is later contradicted within its own Question & Answer document. Specifically, the MOHLTC states that while managers are not eligible for the TPPP and no additional funding will be provided to cover increased wages to them, funding arrangements may applied flexibility to ensure continued program delivery. This can only be in reference to increased payments being made to non-eligible employees in response to COVID-19 operational needs. This contradicts their earlier statement that government funds of any kind cannot be used for any COVID-19 related payments other than the TPPP.
What’s Next?
Overall, there are serious concerns about the impact of the MOHLTC’s position, whether it is an accurate reflection of the law, and whether it is internally consistent. At present, there has been no equivalent position taken by the Ministry of Children, Community and Social Services. Our hope then is that the position by the MOHLTC will not become general Government Policy. However, PooranLaw will continue to monitor the situation and provide updates as developments occur.
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.
