Doug Ford campaigned against The Liberal government’s Bill 148 including paid sick leave. And after being elected he revoked most of Bill 148’s changes including paid sick leave.
Premier Ford recently capitulated to various medical groups and the federal Liberal government’s demands for paid sick leave for provincially regulated employers. Kind of. Sort of.
An April 29, 2021 amendment to the ESA provides for three paid sick days for absences related to a designated infectious disease (like COVID). This amendment will end on September 25, 2021, unless extended by regulation. An employer is generally required to pay the employee the lesser of $200 and the employee’s regular rate of pay for the hours the employee would have worked had they not taken the sick leave. There is a different calculation for employees who earn performance-related wages. An employer can apply for reimbursement from the Workplace Safety Insurance Board. If an employer amends an employment contract on or after April 19, 2021, to remove an employee’s entitlement to a paid leave that would have covered the same circumstances as the ESA sick leave, the employer will not be entitled to reimbursement from the Workplace Safety Insurance Board.
In my view, this new law will likely not benefit too many workers for a number of reasons. Most unionized workers are already entitled to at least 3 days paid sick leave. Similarly, most large non-union employers also have at least 3 days paid sick leave. Generally, employers who have paid sick leave that covers the absences that are covered by the ESA amendment will not be required to pay for the three ESA sick days and the employer’s existing paid sick days
I advise many small and medium size businesses and I strongly recommend that every employer offer at least three paid sick days each year for business reasons. COVID is a good case in point. You don’t want a person who has a symptom of COVID to come to work and infect the entire workforce. It makes more sense to have the person take the day off to get tested or stay at home and see if the symptoms persist for another day or two.
This ESA amendment will no doubt benefit some people who are paid by the hour in low paying jobs. The Employment Standards Act sets out the minimum terms of an employee’s employment. I think it is time to designate three paid sick days as a minimum term of employment for Ontario workers but not just for absences related to a designated infectious disease like COVID. I am not moved by the argument that employees will abuse this new benefit. If the employer suspects an employee was not sick then it can require proof of illness. In my experience, however, most employers will give an employee the benefit of the doubt and not require medical notes unless there are suspicious circumstances. I am not moved by the argument that this change will make Ontario unattractive to foreign investors. The three sick days represent about 1% of an employee’s pay if the person takes all 3 sick days. In any event, since I suspect most of the people who will actually benefit from the ESA amendment work in service jobs I think the foreign investment argument is a red herring.
Doug MacLeod, MacLeod Law Firm
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