But employers could still face requests for unpaid leave, say employment law experts
At the height of the pandemic, Ontario introduced a program that would help employers pay workers to take time off for COVID-related reasons.
But that program ended on March 31 and employers who wish to apply for reimbursement from the government now have a limited time to do so.
“It’s the earlier of two dates: One is July 29, 2023, or [two] within 120 days of the date on which you paid the employee the benefit,” says Laurie Jessome, partner in the employment and labour group at Cassels in Toronto.
IDEL was part of an amendment to the province’s Employment Standards Act and was first implemented on April 29, 2021. It offered to cover up to three days of COVID-related leave, at a maximum of $200 per day.
If an employee took only part of a day as paid infectious disease emergency leave, the employer can – but does not have to – count it as a full day of leave, according to the government. Employers can only apply to be reimbursed for a maximum of three days even if they chose not to count part days as full days of paid leave.
For example, if an employee took a half day of paid leave on a Monday, two full days of paid leave on the Tuesday and Wednesday and an additional half day on the Thursday, the employer can only apply for reimbursement three of these days.
When the paid program was running, it provided advantages to both employers and employees, says Rebecca Liu, labour and employment lawyer at Hicks Morley in Toronto.
“It was an extra entitlement to workers outside of the terms of their employment and the benefit to employers was they could offer that to employees without being on the hook for the cost. At the time, there was a need for that because, of course, people were getting sick or wanted to get vaccinated and needed time off — but now, from where we’ve seen COVID going, the government has decided that need has ended.”
Unpaid IDEL continues
However, employees can still ask for unpaid time off for the same reasons.
“Even though paid IDEL [infectious disease emergency leave] comes to an end, employers should remember that unpaid IDEL will continue so their obligation to grant that leave under the ESA continues until the government stops designating COVID as an infectious disease,” says Liu.
While the paid portion is over, it’s not known when unpaid IDEL will end.
“So far, there’s no indication that the government is going to do that,” she says.
In March, several critics lambasted the government for announcing the termination of the paid program.
Employees who take unpaid infectious disease emergency leave or paid infectious disease emergency leave are generally entitled to the same rights as employees who take pregnancy or parental leave, says the government. For example, employers cannot threaten, fire or penalize in any way a worker who takes or plans on taking these leaves.
How to respond to an IDEL request
For those employees looking to take time off, there are a number of ways it can be successfully done, says Jessome.
“It’s basically seeking any circumstances where they can’t perform work for one or more reasons that are related to COVID-19 and the legislation lists some examples: providing care to a family member; seeking medical treatment for reasons related to COVID; if you’re subject to an order of a medical officer of health, those sorts of things.”
Employers should also be aware that “they’re not allowed to ask for a medical certificate but if, for example, the leave was because the individual employee had been asked to quarantine, they could ask for a copy of the order of the medical officer of health or from a court under the Health Protection and Promotion Act requiring that quarantine,” says Jessome.
“If it’s to provide care — let’s say to an employee’s child who was unable to attend school because of a closure due to COVID — then it doesn’t specify what you would need but, in those circumstances, a copy of the announcement that they had received from the school or the posting on the school’s website about the closure would probably be sufficient.”
