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Bill 284, COVID-19 Putting Workers First Act, 2021

McNaughton, Hon. Monte Minister of Labour, Training and Skills Development

Royal Assent received. Statutes of Ontario 2021,

chapter 9

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Royal Assent

Bill 284 Royal Assent (PDF)

EXPLANATORY

NOTE

This Explanatory Note was written as a reader’s

aid to Bill 284 and does not form part of the law.

Bill 284 has been enacted as

Chapter 9 of the Statutes of Ontario,

Section

50.1 of the Employment Standards Act, 2000 is

amended to provide employees with an entitlement to three paid days of leave in

certain circumstances related to a designated infectious disease. The

entitlement is in addition to the entitlement to unpaid leave currently

provided for in that section. New

section 50.1.1 provides that an employer is

entitled to be reimbursed for payments made to an employee for paid leave taken

under

section 50.1 and may apply to the Workplace Safety and Insurance Board

for such reimbursement.

Bill 284 2021

Act to amend the Employment Standards Act, 2000

Her

Majesty, by and with the advice and consent of the Legislative Assembly of the

Province of Ontario, enacts as follows:

(1) Subsection 1 (1) of the Employment

Standards Act, 2000 is amended by adding the following definition:

“infectious

disease emergency leave pay” means pay for any paid days of leave taken under

subsection 50.1 (1.2); (“indemnité de congé spécial en raison d’une maladie

infectieuse”)

(2) The

definition of “regular wages” in subsection 1 (1) of the Act is amended by,

(

a) adding

“infectious disease emergency leave pay” after “domestic or sexual violence

leave pay”; and

(

b) adding

“subsection 50.1 (1.2)” after “section 49.7”.

(1) Section 50.1 of the Act is amended by adding the following

subsection:

Interpretation,

treatment

(1.0.1) For

greater certainty, in this section, a reference to treatment related to a

designated infectious disease includes receiving a vaccine for the designated

infectious disease and recovery from associated side effects.

(2) Section

50.1 of the Act is amended by adding the following subsections:

Leave

of absence with pay

(1.2) In

addition to any entitlement under subsection (1.1), an employee is entitled to

a paid leave of absence if the employee will not be performing the duties of the

employee’s position because of one or more of the following reasons related to

a designated infectious disease:

1. The

employee is under individual medical investigation, supervision or treatment

related to the designated infectious disease.

2. The

employee is acting in accordance with an order under

section 22 or 35 of the Health Protection and Promotion Act that relates to the

designated infectious disease.

3. The

employee i s in quarantine or isolation or is subject to

a control measure (which may include, but is not limited to, self-isolation),

and the quarantine, isolation or control measure was implemented as a result of

information or directions related to the designated infectious disease issued

to the public, in whole or in part, or to one or more individuals, by a public

health official, a qualified health practitioner, Telehealth Ontario, the

of health, whether through print, electronic, broadcast or other means.

4. The

employee is under a direction given by his or her employer in response to a

concern of the employer that the employee may expose other individuals in the

workplace to the designated infectious disease.

5. The

employee is providing care or support to an individual referred to in

subsection (8) because,

i. the

individual is under individual medical investigation, supervision or treatment

related to the designated infectious disease, or

ii. the

individual is in quarantine or isolation or is subject to a control measure

(which may include, but is not limited to, self-isolation), and the quarantine,

isolation or control measure was implemented as a result of information or

directions related to the designated infectious disease issued to the public,

in whole or in part, or to one or more individuals, by a public health

official, a qualified health practitioner, Telehealth Ontario, the Government

whether through print, electronic, broadcast or other means.

Limit,

number of days

(1.3) Subject

to subsection (1.4), an employee is entitled to take a total of three paid days

of leave under subsection (1.2).

Paid

leave taken under employment contract

(1.4) If,

on April 19, 2021, an employee is entitled to take paid leave under an

employment contract in any of the circumstances for which the employee would

also be entitled to take a leave under subsection (1.2), the employee’s

entitlement under subsection (1.3) is reduced by the employee’s entitlement

under the contract.

Same

(1.5) Subsection

(1.4) applies only if the employer is required under the employment contract to

pay the employee for the paid leave an amount that is equal to or greater than

what the employee would be entitled to under subsection (1.11).

Leave

deemed to be taken in entire days

(1.6) If

an employee takes any part of a day as paid leave under subsection (1.2), the

employer may deem the employee to have taken one paid day of leave on that day for

the purposes of subsection (1.3).

Paid

days first

(1.7) Subject

to subsections (1.8) and (1.9), an employee is entitled to take the three paid days

of leave before any of the unpaid days of leave.

Same,

election re unpaid days

(1.8) If

an employee is entitled to both paid leave and unpaid leave under this section,

the employee may elect to take one or more days or parts of a day of leave as

unpaid leave only if the employee advises the employer in writing, before the

end of the pay period in which the leave occurs, that the employee has elected to

take that time as unpaid leave.

Same

(1.9) If,

between April 19, 2021 and the day the COVID-19 Putting

Workers First Act, 2021 receives Royal Assent, an employee takes unpaid

leave under subsection (1.1) in circumstances for which the employee would also

be entitled to take a leave under subsection (1.2), the employee may elect to

be paid for that leave only if the employee advises the employer in writing

before the day that is 14 days after the COVID-19 Putting

Workers First Act, 2021 receives Royal Assent, that the employee has

elected to take the leave as paid leave, and the employee is deemed to have

taken the leave under subsection (1.2).

Same

(1.10) Despite

subsection 11 (1), if an employee elects to take paid leave under subsection

(1.9), the employer shall pay the employee the amount to which the employee is

entitled no later than the pay day for the pay period in which the employee made

the election.

Paid

leave

(1.11) Subject

to subsections (1.12) and (1.13), if an employee takes paid leave under subsection

(1.2), the employer shall pay the employee the lesser of $200 per day and,

(

a) either,

(

i) the

wages the employee would have earned had they not taken the leave, or

(ii) if

the employee receives performance-related wages, including commissions or a

piece work rate, the greater of the employee’s hourly rate, if any, and the

minimum wage that would have applied to the employee for the number of hours

the employee would have worked had they not taken the leave; or

(

b) if

some other manner of calculation is prescribed, the amount determined using

that manner of calculation.

Paid

leave where higher rate of wages

(1.12) If

a paid day of leave under subsection (1.2) falls on a day or at a time of day

when overtime pay, a shift premium or both would be payable by the employer,

(

a) the

employee is not entitled to more than the employee’s regular rate for any leave

taken under subsection (1.2); and

(

b) the

employee is not entitled to the shift premium for any leave taken under subsection

(1.2).

Paid

leave on public holiday

(1.13) If

a paid day of leave under subsection (1.2) falls on a public holiday, the

employee is not entitled to premium pay for any leave taken under subsection

(1.2).

(3) Subsection

50.1 (4.1) of the Act is amended by adding “or subsection (1.2)” after “clause

(1.1) (b)”.

(4) Section

50.1 of the Act is amended by adding the following subsections:

Same,

paid leave

(5.2) An

employee’s entitlement to paid leave under subsection (1.2) is deemed to have started

on April 19, 2021 and ends on September 25, 2021 or such later date as may be

prescribed.

Same

(5.3) If

the regulations so provide, an employee is entitled to paid leave under

subsection (1.2) for such additional periods as may be prescribed.

(5) Section

50.1 of the Act is amended by adding the following subsection:

Protecting

a Sustainable Public Sector for Future Generations Act, 2019

(7) This

section applies despite the Protecting a Sustainable

Public Sector for Future Generations Act, 2019 , and payments made in

accordance with subsection (1.11) are not an increase to existing compensation

entitlements or new compensation entitlements for the purposes of that Act.

The Act is amended by adding the following section:

Reimbursement

of certain payments made under s. 50.1

Definition

50.1.1

(1) In this

section,

“Board”

means the Workplace Safety and Insurance Board, continued under subsection 159

(1) of the Workplace Safety and Insurance Act, 1997 ,

despite the definition of “Board” in subsection 1 (1) of this Act.

Reimbursement

for paid leave

(2) An

employer may apply to the Board, in accordance with this section, to be

reimbursed for payments made to an employee for paid leave taken under

subsection 50.1 (1.2).

Same,

maximum

(3) An

employer is entitled to be reimbursed for payments made to an employee for paid

leave taken under subsection 50.1 (1.2) up to a maximum of $200 per day, per

employee.

Same,

exclusion

(4) Despite

subsection 50.1 (1.9), an employer is not entitled to be reimbursed for

payments made to an employee on or after the day the COVID-19

Putting Workers First Act, 2021 receives Royal Assent for a paid leave

of absence under an employment contract in circumstances for which the employee

would also be entitled to take a leave under subsection 50.1 (1.2).

Same,

exclusion re change to employment contract

(5) If,

under an employment contract that was in effect on April 19, 2021, an employee

was entitled to a paid leave of absence in circumstances for which the employee

would also be entitled to take a leave under subsection 50.1 (1.2), but due to

a change to the employment contract on or after April 19, 2021, the employee is

no longer entitled to some or all of the paid leave of absence that the

employee was entitled to before the change, the employer is not entitled to be

reimbursed for payments made to that employee for a paid leave of absence,

whether the leave is taken under subsection 50.1 (1.2) or under the employment

contract, to the extent that the employee was entitled to the leave of absence

under the employment contract before the change.

Same,

exclusion re payments made under the Workplace Safety and

Insurance Act, 1997

(6) An

employer is not entitled to be reimbursed for payments made to an employee for

paid leave taken under subsection 50.1 (1.2) if the employee received benefits

under the Workplace Safety and

Insurance Act, 1997 for the days of leave.

Application

for reimbursement

(7) An

application under this

section shall be made by filing the following with the

Board:

1. A

completed application in the form approved by the Board.

2. An

attestation, to be completed by the employer in the form approved by the Board

that,

i. confirms

that the employer made a payment to the employee for paid leave taken under

subsection 50.1 (1.2),

ii. specifies

the dates on which the leave was taken by the employee,

iii. specifies

the date on which the payment was made and the amount of the payment made, and

iv. confirms

that, on or after April 19, 2021, the employer was not otherwise required under

an employment contract to make the payment to the employee.

3. A

record of the payment made to the employee in the form approved by the Board.

4. Information

about claims filed with the Board under the Workplace

Safety and Insurance Act, 1997 in respect of the employee.

5. Any

other information required by the Board.

Time

limit

(8) An

application under this

section shall be made within 120 days of the payment in

respect of which the application is made.

Same,

final date for application

(9) Despite

subsection (8), no application under this

section shall be made by an employer

or accepted by the Board,

(

a) after

January 25, 2022;

(

b) if

a later date is prescribed for the purposes of subsection 50.1 (5.2), 120 days

after that later date; or

(

c) if

an additional period is prescribed for the purposes of subsection 50.1 (5.3),

120 days after the last day of that period.

determination if application incomplete

(10) The

Board shall not make a determination regarding an employer’s entitlement to

reimbursement under this

section if the employer’s application does not meet

the requirements of subsection (7) or is not filed within the time limits set

out in subsections (8) and (9).

Determination

of entitlement

(11) The

Board shall make a determination regarding an employer’s entitlement to

reimbursement under this

section after receiving the employer’s application and

shall advise the employer of its determination in writing after making its

determination.

Same,

payment

(12) If

the Board determines that an employer is entitled to be reimbursed under this

section, the Board shall pay the employer the amount to which the employer is

entitled.

right of reconsideration or appeal

(13) A

determination made by the Board regarding an employer’s entitlement to

reimbursement under this

section is not a final decision of the Board for the

purposes of the Workplace Safety and Insurance Act, 1997

and an employer has no right of reconsideration by, or appeal to, the Board or

the Workplace Safety and Insurance Appeals Tribunal in respect of a

determination made by the Board under this section.

Hearing

not required

(14) The

Board is not required to hold a hearing when making a determination or

exercising a power under this section.

complaint

(15) Section

96 does not apply to a determination made by the Board under this section.

Overpayments

(16) If

the Board pays an employer an amount in excess of the amount to which the

employer is entitled under this section, the amount of the excess is an

overpayment and is an amount owing under this Act.

Same

(17) If

the Board pays an employer an amount under this

section and the employee in

respect of whom the employer was paid subsequently receives benefits under the Workplace Safety and Insurance Act, 1997 for the days of leave

for which the employer was paid, the amount of the payment to the employer is

an overpayment and is an amount owing under this Act.

Same

(18) An

overpayment made by the Board under this

section may be recovered from the

employer by the Board or the Ministry in accordance with the prescribed process.

Ministry

to make payments to Board

(19) The

Ministry shall make payments to the Board to defray the costs of administering

this section, including the cost of payments made to employers and the

administration costs of the Board.

Same,

appropriation

(20) Money

required to defray the costs of administering this

section shall be paid out of

the money appropriated by the Ministry from the Consolidated Revenue Fund for

that purpose by the Legislature.

Repayment

by Board

(21) On

or before the prescribed date, the Board shall pay the Ministry any amounts

paid to the Board under subsection (19) that are no longer required for the

purpose of administering this section.

Same,

payments not part of insurance fund

(22) Payments

made to the Board under subsection (19) shall not form a part of the insurance

fund that is administered by the Board under the Workplace

Safety and Insurance Act, 1997 and the Board shall not make any payments

from the insurance fund for any purpose under this section.

Contract

for services

(23) The

Board may enter into a contract or agreement with any person for the purpose of

administering this section.

Recordkeeping

(24) The

Board shall maintain such records relating to the administration of this

section as are required by the Ministry, including records that are necessary

to verify applications and payments made under this section, and shall provide

those records to the Ministry.

Collection and use of information

(25) The

Board may collect and use personal information within the meaning of the Freedom of Information and Protection of Privacy Act for

the purpose of administering this section.

Same

(26) The

Board may use information collected under the authority of this

section for the

purpose of administering and enforcing the Workplace

Safety and Insurance Act, 1997 .

Same

(27) The

Board may use information collected under the authority of the Workplace Safety and Insurance Act, 1997 for the purpose

of administering this section.

Disclosure

of information

(28) Except

as otherwise provided for in this section, the Board shall not disclose any

information collected under the authority of this

section unless authorized or

required by law to do so.

False

or misleading information

(29) No

person shall provide false or misleading information under this section.

Same,

disclosure to Director

(30) If

the Board is of the opinion that false or misleading information has been

provided by an employer in an application under this section, the Board shall

disclose that information to the Director.

Investigation

(31) An

employment standards officer or other prescribed person may investigate a

possible contravention of this section.

Immunity

(32) No

action or other proceeding for damages may be commenced against a member of the

board of directors, or an officer or employee of the Board, for

an act or

omission done or omitted by the person in good faith in the execution or

intended execution of any power or duty under this section.

Section 140 of the Act is amended by adding the following subsection:

Same

(2.1) In

a prosecution or other proceeding under this Act, a copy of a record or other

document or an extract from a record or other document that appears to be

certified as a true copy or accurate extract by the Workplace Safety and

Insurance Board is evidence of the record or document or the extracted part of

the record or document and of the facts appearing in the record, document or

extract without proof of the signature or office of the person appearing to

have certified the copy or extract or any other proof.

(1) Section 141 of the Act is amended by adding the following

subsection:

Transitional

regulations

(2.0.3.4) The

Lieutenant Governor in Council may make regulations providing for any

transitional matter that the Lieutenant Governor in Council considers necessary

or advisable in connection with the implementation of the amendments made by

the COVID-19 Putting Workers First Act, 2021 .

(2) Subsection

141 (2.0.4) of the Act is amended by striking out “or (2.0.3.3)” wherever it

appears and substituting in each case “(2.0.3.3) or (2.0.3.4)”.

(3) Subsection

141 (2.1) of the Act is amended by adding the following clauses:

(b.1) prescribing,

for the purposes of subsection 50.1 (5.2), a later date on which the

entitlement to paid leave under subsection 50.1 (1.2) ends;

(b.2) prescribing,

for the purposes of subsection 50.1 (5.3), additional periods during which

employees are entitled to paid leave under subsection 50.1 (1.2);

. . . .

(d.1) exempting

the Crown, a Crown agency, or an authority, board, commission or corporation,

all of whose members are appointed by the Crown, from the application of

section

50.1 or any provision of it;

(4) Subsection

141 (2.2) of the Act is amended by striking out “or (2.1)” in the portion

before clause (

a) and substituting “(2.0.3.4) or (2.1)”.

(5) Section

141 of the Act is amended by adding the following subsection:

Regulations

re s. 50.1.1

(2.5) The

Lieutenant Governor in Council may make regulations,

(

a) prescribing

the process for overpayment recovery under subsection 50.1.1 (18);

(

b) prescribing

the date by which the Board is required to repay the Ministry under subsection

50.1.1 (21);

(

c) prescribing,

for the purposes of subsection 50.1.1 (31), persons who may investigate

possible contraventions of

section 50.1.1;

(

d) prescribing

the powers under this Act that a person prescribed under clause (

c) may

exercise;

(

e) specifying

the parts of this Act that apply, with necessary modifications, if a person prescribed

under clause (

c) investigates a possible contravention of

section 50.1.1;

(

f) exempting

the Crown, a Crown agency, or an authority, board, commission or corporation,

all of whose members are appointed by the Crown, from the application of

section 50.1.1 or any provision of it.

Section 143 of the Act is amended by adding the following subsection:

Same

(2.1) For

greater certainty, subsection 50.1 (7) of this Act prevails over the provisions

incorporated into this Act under subsection (1).

Commencement

This Act comes into force on the day it receives Royal Assent.

Short

title

The

short title of this Act is the COVID-19

Putting Workers First Act, 2021 .

Date Bill stage Event Outcome Committee

April 29, 2021

Royal Assent

Royal Assent received

April 29, 2021

Third Reading

Vote

Carried

April 29, 2021

Third Reading

Question put

April 29, 2021

Second Reading

Ordered for Third Reading pursuant to the Order of the House

April 29, 2021

Second Reading

Vote

Carried

April 29, 2021

Second Reading

Question put

April 29, 2021

First Reading

Motion to arrange proceedings

April 29, 2021

First Reading

Vote

Carried

Debates and Progress

First Reading

April 29, 2021

Motion to Arrange Proceedings

April 29, 2021

Declared carried.

Committee

Second Reading

April 29, 2021

Declared carried. Ordered for third reading pursuant to the order of the House.

Committee

Third Reading

April 29, 2021

Declared carried.

Royal Assent

Thursday, April 29, 2021

Acts affected - Bill 284

Most Ontario public acts are available electronically; to view copies of the Acts to be amended by this bill visit e-laws

Employment Standards Act, 2000

Legislative Assembly of Ontario

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