Ontario: The New Paid Infectious Disease Emergency Leave

June 4, 2021 | © SpringLaw

The Ontario government made updates to unpaid Infectious Disease Emergency Leave (IDEL) on April 29 and amended the Employment Standards Act, 2000 (ESA), introducing the Ontario COVID-19 Worker Income Protection Benefit. In addition to the unpaid IDEL, employers are now required to provide eligible employees with the new paid IDEL—more specifically, up to $200 (approximately USD 166) a day for up to three days—for reasons related to COVID-19. The three days need not be taken consecutively.

In addition, a recent decision determined that COVID-19 was irrelevant for determining the notice period of an employee who was discharged before the pandemic but looked for work during it.

What are the eligible reasons for taking the paid IDEL?

Paid IDEL is available for certain reasons related to COVID-19, including:

Going to get vaccinated.
Going to get a COVID-19 test.
Staying home awaiting the results of a COVID-19 test.
Being sick with COVID-19.
Experiencing a side effect from a COVID-19 vaccination.
Having been advised to self-isolate due to COVID-19 by an employer, medical practitioner or other specified authority.
Providing care or support to certain relatives for COVID-19-related reasons.

As is the case with the unpaid voluntary IDEL, employers cannot require employees to provide evidence, such as a doctor's certificate, to prove that they are eligible for the paid IDEL.

Who is an eligible employee?

Only those employees who are covered under the ESA are eligible for the paid IDEL. So, federally regulated employees or independent contractors are not entitled to the three days of paid leave. That is not to say that these non-qualifying employees would not be eligible for other income support benefits; they may, for instance, qualify for the Canada Recovery Sickness Benefit (CRSB), which is currently available until Sept. 25.

Can employers be reimbursed for the paid IDEL?

Eligible employers can be reimbursed up to $200 (approximately USD 166) per employee for each day taken. Applications must be made to the Workplace Safety and Insurance Board within 120 days of the date the employer pays the employee. The provincial government has indicated that it will soon provide more information on how to apply.

What if an existing contract already entitles the employee to take a paid leave for reasons related to COVID-19, as listed above?

If this was the case on April 19, the employee's right to three paid days under the ESA will be reduced by the contract, so long as the amount of pay stipulated in the contract is equal to or greater than the employee's ESA entitlements.

Can employees opt out of the paid IDEL if they feel it adversely affects their benefits under other programs?

Yes, employees may choose to opt out of the paid IDEL, in which case employees must advise their employers in writing that they are choosing to take the time as unpaid IDEL. This written decision by the employee must be made before the end of the pay period in which the leave occurs.

Is the paid IDEL retroactive?

This leave is retroactive from April 19. In other words, if the employee took an unpaid IDEL from April 19 to April 28, for a reason that would qualify them to take a paid IDEL, the employee can choose to take those days as paid leave, as long as the employee advised the employer of this decision in writing by May 12.

Entitlement to Notice of Termination

In the case of Nahum v. Honeycomb Hospitality Inc., the employer, Honeycomb Hospitality, terminated their director of people and culture when she was five months pregnant.

The notice period is intended to bridge a terminated employee to their new position. Courts consider the employee's age, length of service and the character of the employment when determining what notice period is appropriate.

The director of people and culture had been with Honeycomb for just four and a half months. She was 28 years old and made $80,000 per year (approximately USD 66,310). She was terminated without cause, did not have a valid contract governing her termination entitlements and therefore was entitled to notice in accordance with the common law.

Honeycomb argued that an appropriate notice period for the former director of people and culture was two months.

Job Searching While Pregnant

The former director of people and culture was left to look for a new job while visibly pregnant. Prior to the birth of her baby, she applied for 36 jobs and got one interview. She was not offered the job for which she interviewed and suspects that it was because she was eight months pregnant at the time.

She took two months off from her job search after the birth of her baby at the end of February 2020. At the time of the summary judgment motion, she had applied for another 75 jobs without success. At that point, she was looking for a job during the pandemic.

COVID-19 Job-Search Difficulties Did Not Lengthen the Notice Period

The court confirmed that the notice analysis looks at the time an employee is expected to take to find a new job at the time they are terminated. The former director of people and culture was terminated in October 2019, prior to the pandemic, and therefore her notice period was not lengthened due to the difficulties in her job search created by the pandemic. They did not exist at the time of her termination, which is the relevant time for the determination of the notice period. The court here used the same analysis as the court in Yee v. Hudson's Bay Company.

Impact of Pregnancy on Notice

In considering the impact of the former director of people and culture's pregnancy on her notice entitlement, the court noted past cases which ruled that "fairly or not," being pregnant did not enhance an individual's immediate employability.

Honeycomb argued that it would be problematic for the court to find that pregnancy is a barrier to employment, as it implies that prospective employers will violate human rights laws in making hiring decisions. The court found that there are reasonable, bona fide reasons why a company may not hire a pregnant person, namely: "An employer seeking to fill a position is likely to have an immediate need for someone in the role. The prospect of a new employee who will shortly require a lengthy leave will be unappealing to many employers and may not meet bona fide needs of their organization."

The court awarded the former director of people and culture five months of notice.

Takeaways for Employers

The best way for employers to protect themselves from notice disputes is to ensure that their new hires sign valid employment contracts before they start work. A properly drafted employment contract will bring certainty to an employee's termination entitlements—even if they are pregnant.

While not discussed in this case, there is also always the risk of a human rights violation when terminating a pregnant employee. An employer should never terminate an employee because they are pregnant—to do so will usually be a violation of that employee's human rights, exposing the employer to a human rights claim.