Earlier this month, the provincial government extended the Work Income Protection Benefit program until December 31, 2021. The program, which was originally set to end on September 25, 2021, requires Ontario employers to provide their staff with up to three days of paid infectious disease emergency leave (“Paid IDEL”) for certain reasons related to COVID-19. These include:
- Going for a COVID-19 test;
- Staying home while awaiting the results of a COVID-19 test;
- Going to get vaccinated; and
- Experiencing side effects from a COVID-19 vaccination.
Employers are required to pay employees the wages they would have earned had they not taken the leave (up to $200 a day) for up to three days. Eligible employers are entitled to seek reimbursement for these payments from the provincial government. To be considered eligible for reimbursement, the individuals for whom the reimbursement is sought must qualify as “employees” under the Employment Standards Act, 2000 (“ESA”), and meet further eligibility criteria set out in detail online by the Ministry of Labour.
Employers will be excluded from seeking reimbursement where:
- the employee in question received WSIB benefits for the same days of leave; or
- the employer cancelled an employee’s contractual entitlement to paid leave, on or after April 19, 2021, so as to take advantage of Paid IDEL and accrue a cost saving.
To receive reimbursement, employers are to submit claims to the WSIB within 120 days of the date that the employer paid the employee. The online application form may be accessed here. In completing the reimbursement process, employers must provide an attestation, specifying the amounts paid and the dates on which the employee took leave.
As of September 3, 2021, 121,356 claims for reimbursement had been submitted (having a total value of $37.2 million). The average claim was for 2 days of paid leave per employee.
Process to recover Paid IDEL overpayments
On September 3, 2021, the provincial government filed a new regulation under the ESA (O. Reg 637/21) setting out the process for recovering Paid IDEL overpayments. O. Reg 637/21 grants Employment Standards Officers (“ESO”) the authority to investigate whether the WSIB made an overpayment to an employer.
In circumstances where an overpayment is found, the ESO may order that the employer repay the impugned funds along with an administrative fee equal to the greater of 10% of the overpayment amount or $100.00. In addition, O. Reg 637/21 permits an ESO to issue repayment orders for up to 4 years after the date on which the overpayment was made by the WSIB to the employer.
It is unsurprising that the government has put in place a process to deal with overpayments. With any honour-based payment system there is a potential for abuse. That said, while there may be a small minority that seek reimbursement for funds they have not incurred, the vast majority of employers act in good faith.
Given both the 4-year limitation period and restricted circumstances within which Paid IDEL may be claimed, however, it is important for all employers to consider taking the following steps to avoid inadvertent liability:
- ensure the employee requires leave for one of the limited scenarios in which Paid IDEL applies;
- create clear records for each instance of leave, setting out the reason for the leave and the payment being made to the employee;
- retain in a safe place, for at least four years from receipt of reimbursement, a file for each employee who has taken IDEL. This file should include all relevant documents (such as explanatory emails and pay stubs to corroborate the timing and amount of payment). This way, if investigated by an ESO, the employer will be in a good position to demonstrate the legitimacy of the claim and avoid an overpayment finding.
Finally, employers that find themselves subject to an order to repay, should be aware that there is a 30-day window (from the date the order is issued) within which they may apply to the Ontario Labour Relations Board for a review of this decision.
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