Provincial Pandemic Pay and Voluntary Pandemic Related Compensation

In April of 2020, the Provincial Government announced a Temporary Pandemic Pay Program (the “TPP Program”) for frontline workers. The TPP Program provided increased compensation to eligible professions and workplaces. The goals were to support these workers, incentivize continuing to work despite the pandemic, and to help maintain safe staffing levels in critical frontline services.

On August 13th, 2020, the TPP Program came to an end. This article reviews the program in retrospect.

When Did the Program Run?

The TPP Program ran from April 24, 2020 (retroactive) until August 13, 2020.

What Benefits Did the TPP Program Offer?

The TPP Program offered two benefits to eligible employees:

    • A $4.00 top up of existing hourly wages, regardless of prior income level; and
    • $250.00 every set four-week period for employees who worked 100 hours or more.

The eligibility periods for the $250.00 benefit were:

    • April 24, 2020 to May 21, 2020
    • May 22, 2020 to June 18, 2020
    • June 19, 2020 to July 16, 2020
    • July 17, 2020 to August 13, 2020

The $250.00 additional benefit was based on all hours worked in the relevant period, including overtime and any cumulative time working for two or more employers.

Which Workers Were Eligible for TPP Program Benefits?

TPP Program benefits were meant to support full-time, part-time, and casual employees providing eligible publicly funded services in eligible workplaces.

TPP Program benefits did not apply to management, even those who would otherwise meet eligibility requirements. That includes managerial staff who were redeployed to work in eligible front-line positions. It was up to the employer to determine which of their employees were managerial (within reasonable limits and with some guidance issued by various ministries.

With respect to eligibility of third-party agency staff assigned to an eligible role in an eligible workplace, the Provincial Government previously informed employers that they were eligible for TPP benefits.

To be eligible for pandemic pay, an employee must have physically attended their workplace between April 24, 2020 and August 13, 2020. Employees were not entitled to pandemic pay for any time that they were not in the workplace for any reason, including vacation hours, any authorized paid absence (including sick leave) and any time and benefits awarded under the Workplace Safety & Insurance Board.

Additionally, employees must have worked in both an eligible position/role and in an eligible workplace. A lengthy list of both eligible roles and workplaces is provided for on the Government’s TPP Program website. However, the relevant information for the developmental services sector is as follows:

Eligible workplaces

    • Homes supporting people with developmental disabilities
    • Intervenor residential sites
    • Indigenous healing and wellness facilities and shelters
    • Shelters for survivors of gender-based violence and human trafficking
    • Youth justice residential facilities
    • Licensed children’s residential sites
    • Directly operated residential facility – Child and Parent Resource Institute
    • Emergency shelters
    • Supportive housing facilities
    • Respite and drop-in centres
    • Temporary shelter facilities, such as re-purposed community centres or arenas
    • Hotels and motels used for self-isolation and/or shelter overflow

Eligible workers

    • Direct support workers (such as developmental service workers, staff in licensed children’s residential sites, intake and outreach workers)
    • Clinical staff
    • Housekeeping staff
    • Security staff
    • Administration personnel
    • Maintenance staff
    • Food service workers
    • Nursing staff

How Was the TPP Program Paid Out?

The hourly wage top-up benefit was provided to employees directly by employers, using funding provided by the Provincial Government. There was no need for employers to apply for such funding – the Provincial Government contacted all eligible employers in May to inform them of the funding, and proceeded to provide the funding to different employers throughout the summer.

The TPP Program’s $250.00 additional benefit was also paid out by the employer to the employee, with funds provided by the Provincial Government.

If an employee worked for multiple eligible employers, the employer who the employee worked for the most in the eligibility period was responsible for paying the $250.00 benefit. The employee’s task in those circumstance was to collect signed attestations from all of their eligible employer’s whom they worked for. These attestations would set out the number of hours and dates/times worked. These were then provided to their primary employer, who determined if the employee had sufficient hours.

Note, employers must have kept records required to support TPP Program benefits.

How Did Pandemic Pay Affect Other Employment Benefits?

TPP Program benefits were not considered to have been part of an employee’s base salary. They were also considered to be non-pensionable earnings, except for CPP contributions.

Despite that, TPP Program benefits were factored into a number of statutory employment benefits. The Ministry of Children, Community and Social Services (“MCCSS”) confirmed to several of our clients that funding would be provided for any of these additional statutorily imposed costs.

The TPP Program’s benefits are likely subject to statutory withholdings and remittances, employment insurance and Workplace Safety & Insurance Board premiums, the provincial Employer Health Tax, and income tax deductions.

Certain Employment Standards Act, 2000 (“ESA”) benefits factor in TPP Program benefits as well. Statutory vacation pay is owed on TPP payments (either 4% or 6%). For the purpose of calculating public holiday pay under the ESA, the TPP Program hourly and lump sum benefits both are considered regular wages. That means that TPP Program benefits are factored into public holiday pay. Finally, the TPP Program benefits are factored into ESA overtime pay calculations.

How Does the TPP Program Interact with Bill 124?

As many employers in our sector have known for a long time, the current Provincial Government enacted the Protecting a Sustainable Public Sector for Future Generations Act, 2019, known commonly as “Bill 124”. Bill 124 limits compensation and salary growth during a three-year moderation period to 1% maximum increases per year.

Not all employers have started their moderation period at this point. Those who have not started their moderation period would not be subject to its limits on COVID-19 related temporary payments unless it was a façade to make up for later cuts due to the moderation period. However, those employers who have started their moderation period may be worried about whether the Government’s TPP Program (or any unofficial pandemic pay program) is permitted by Bill 124.

Fortunately, early in the pandemic the Provincial Government passed emergency order O Reg 121/20, which creates a temporary exemption from Bill 124 for temporary COVID-19 related payments (including under the TPP Program) which were or are made to employees of certain designated employers or who work in certain types of designated work. The designated employers included:

    • Any place where a “service or support” within the meaning of the Services and Supports to Promote the Social Inclusion of Persons with Developmental Disabilities Act, 2008 is provided;
    • Any place where intervenor services funded by the MCCSS for persons who are deaf-blind are provided; and
    • Any place where services and supports provided to children with complex special needs that are funded by the MCCSS are provided.

The designated types of work include:

    • Providing attendant services under Ontario Regulation 367/94 (Grants for Persons with Disabilities) made under the Ministry of Community and Social Services Act; and
    • Furnishing the services of a homemaker or a nurse under the Homemakers and Nurses Services Act.

This continues in effect under the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, S.O. 2020, c. 17 as of the time of this newsletter (even though the TPP Program has ended), continuing to allow employers to provide pandemic-related pay to employees without violating Bill 124.

What About Other Forms of Pandemic Related Compensation and Restrictions?

Throughout the pandemic, Developmental Services employers have explored ways to maintain safe staffing levels despite the risks of COVID-19. One response early on that some employers took was to provide voluntary payments in the form of stipends or hourly premiums. They relied on O Reg 195/20 (discussed above) as well as O Reg 121/20, which provides emergency staffing and deployment powers to developmental service agencies.

O Reg 121/20 permits listed developmental services employers to do anything reasonably necessary in respect of staffing and deployment to prevent, alleviate, or respond to an outbreak. This could be read as permitting the provision of pandemic pay as a corollary of staffing and deployment if it is reasonably necessary to prevent an outbreak or maintain safe staffing during one.

However, on June 26, 2020, the Ministry of Health and Long-Term Care (“MOHLTC”) took the position that no public funding of any kind could be used to fund any temporary COVID-19 related payments other than the TPP Program based on their interpretation of emergency order O Reg 241/20. This emergency order states that no employer can expand the TPP Program to non-eligible employees. As we stated in our online response to this development, we disagree with the MOHLTC’s interpretation of the O Reg 241/10. However, the MOHLTC has been making their position more forcefully over time to their service providers, creating a risk to continuing to provide such pay.

MCCSS has remained silent so far on whether its service agencies are subject to the same restriction on use of funding. However, it is possible that they will eventually take MOHLTC’s position.

Moving Forward

Despite the end of the Province’s TPP Program, COVID-19 continues to present a risk to workers in developmental services settings, and will likely continue to do so until the pandemic comes to an end. Enhanced pandemic pay is likely to continue to serve an important role going forward to incentivize employees to stay at work, to support recruitment of new staff, to compensate employees who continue to be subject to single employer rules and can only work for one agency, and to respond to the pressure from employees and unions. While pandemic pay will ultimately be contingent on funding availability, organizations should continue to consider whether they are legally permitted to make these payments and whether such payments would improve their ability to provide services to people supported.

As always, PooranLaw will continue to monitor developments related to pandemic pay and provide updates on our website. 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.