As we noted earlier this week, based on our discussions with Ministry of Labour representatives we learned that the Ministry would soon be introducing modifications to their guidance on the circumstances in which employees would have their entitlement to paid Infectious Disease Emergency Leave reduced in reflection of their contractual entitlements.
Late yesterday (May 20, 2021), the Ministry updated their website to reflect this change in guidance. The new guidance is as follows:
Paid leave under existing contract
Employees who have rights to paid leave under their employment contract (which includes a collective agreement) may not be eligible for paid infectious disease emergency leave or may be entitled to fewer than three days of paid infectious disease emergency leave under the Employment Standards Act, 2000 (ESA).
In order for an employee’s three-days of ESA paid leave to be reduced, all four of the following criteria must be met.
On April 19, 2021:
- The employee had the right to a paid leave under their employment contract for one or more of the same reasons that paid infectious disease emergency leave can now be taken under the ESA.
- The employee had not already used up those days of paid leave under their employment contract before April 19, 2021 and those days were still remaining.
- The employee’s employment contract provided pay for the leave that is at least as much pay as the employee would be entitled to receive for paid infectious disease emergency leave under the ESA.
- The employee’s employment contract did not contain conditions for taking the leave that are more restrictive than what is set out in the ESA for taking paid infectious disease emergency leave.
Where all four of these criteria are met, the employee’s three-day entitlement to paid infectious disease emergency leave under the ESA is reduced by the number of days available under their employment contract that meet the four criteria.
Proof of entitlement to leave
Employers may require evidence reasonable in the circumstances at a time that is reasonable in the circumstances that the employee is entitled to the leave. What is considered reasonable in the circumstances will depend on all of the facts of the situation. However, employers cannot require an employee to provide a certificate from a doctor or nurse as evidence.
If it is reasonable in the circumstances, evidence may take many forms, such as:
- a copy of the information issued to the public by a public health official advising of quarantine or isolation
- a copy of an order to isolate that was issued to the employee under s. 22 or s. 35 of the Health Protection and Promotion Act
- an email from a pharmacy or from a public health department indicating the employee’s appointment date and time to receive a covid 19 vaccination.
This new guidance is a significant departure from what most employer’s believed to be the case when initially advised of the new law. Despite this new guidance, and to some extent because of it, many questions remain. For instance:
- What if an employer’s sick leave program “requires” a doctors note for sick leave?
- What if the requirement applies only after a certain number of days of consecutive absence?
- If a sick note is required after 3 days, but not after 2 days, does that mean the entitlement to paid COVID-19 leave is reduced by 2 days?
- What if the employer “may” require a doctor’s note, but the contract doesn’t mandate it?
- What if the doctor’s note isn’t tied to granting paid sick leave, but rather being a requirement of return to work at the end of the leave?
As we’ve noted previously, this lingering uncertainty raises numerous questions for employers that must be answered before they can begin issues payment for Paid IDEL over and above contractual entitlements with any degree of certainty that they will be reimbursed.
PooranLaw will continue to monitor legal developments related to COVID-19 paid leave. In the meantime, if you require legal assistance in determining how these new rules apply to you or your organization, 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.