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Overview

The ESA provides for two infectious disease emergency leaves relating to COVID‑19. One leave is unpaid and continues to be available to employees. Another leave is paid and was available to employees from April 19, 2021 until March 31, 2023.

Paid infectious disease emergency leave

Employees may have been eligible for up to three days of paid infectious disease emergency leave between April 19, 2021 and March 31, 2023.

Learn about:

Unpaid infectious disease emergency leave

There is no specified limit to the number of days an employee can be on unpaid infectious disease emergency leave.

Learn about:

Unpaid infectious disease emergency leave

Employees have the right to take unpaid, job-protected infectious disease emergency leave if they are not performing the duties of their position because of specified reasons related to a designated infectious disease. This leave is available to all employees who are covered by the ESA.

Employers cannot threaten, fire or penalize an employee in any other way because the employee took or plans on taking an infectious disease emergency leave.

The only disease for which unpaid infectious disease emergency leave may be taken at this time is COVID‑19. Although the ESA was amended to include unpaid infectious disease emergency leave on March 19, 2020, the leave entitlements for are retroactive to January 25, 2020 and have no end date. An employee is entitled to take this unpaid leave so long as the conditions set out below are met.

Reasons an employee may take unpaid infectious disease emergency leave

Employees can take unpaid infectious disease emergency leave if they will not be performing the duties of their position because of any of the following reasons:

  1. The employee is under individual medical investigation, supervision or treatment related to a designated infectious disease. The medical investigation, supervision or treatment can be in Ontario or in another province, territory or country.

    Examples include:
    • An employee is not performing the duties of their position because they are under the medical supervision of a doctor:
      • due to having contracted COVID‑19
      • because of mental health reasons relating to COVID‑19
    • An employee is not performing the duties of their position because they left work in order to get a COVID‑19 vaccination or are experiencing a side effect from the COVID‑19 vaccination. In both of these situations, the employee is under individual medical treatment (which includes preventative actions, such as vaccinations and recovery from associated side effects) related to COVID‑19.
  1. The employee is following a COVID‑19 related order issued under section 22 or 35 of the Health Promotion and Protection Act.
  2. The employee is in quarantine, isolation (voluntary or involuntary), or is subject to a control measure, and the quarantine, isolation or control measure was implemented as a result of information or directions related to a designated infectious disease that was issued to the public (in whole or in part) to one or more people, through any means, including print, electronic or broadcast (for example, television or radio):
    • by a public health official. This means a public health official of the Government of Canada or any of the following people within the meaning of the Ontario Health Protection and Promotion Act:
      • the Chief Medical Officer of Health or Associate Chief Medical Officer of Health
      • a medical officer of health or an associate medical officer of health
      • an employee of a board of health
    • by someone who is qualified to practice as a physician or a nurse either in Ontario or in the jurisdiction where the employee is located (for example, another province, territory or another country) and who has provided care or treatment to the employee, whether or not the care or treatment was related to the designated infectious disease (such as an employee who has an immune deficiency was told by his physician to self-isolate and not go to work during the infectious disease outbreak)
    • by Telehealth Ontario
    • by the Government of Ontario or Canada
    • by a municipal council in Ontario
    • by a board of health
  3. The employee is under a direction given by their employer in response to the employer’s concern that the employee might expose other individuals in the workplace to a designated infectious disease.
     

    Examples include where the employer directed an employee to stay at home for a period of time because the employee recently travelled internationally and the employer is concerned they may expose others in the workplace to a designated infectious disease.

  4. The employee is providing care or support to any of these individuals because of a matter related to a designated infectious disease:
    • the employee’s spouse (of the same or opposite sex, whether or not married)
    • a parent, step-parent or foster parent of the employee or the employee’s spouse
    • a child, step-child or foster child of the employee or the employee’s spouse
    • a child who is under legal guardianship of the employee or the employee’s spouse
    • a brother, step-brother, sister or step-sister of the employee
    • a grandparent, step-grandparent, grandchild or step-grandchild of the employee or the employee’s spouse
    • a brother-in-law, step-brother-in-law, sister-in-law or step-sister-in-law of the employee
    • a son-in-law or daughter-in-law of the employee or the employee’s spouse
    • an uncle or aunt of the employee or the employee’s spouse
    • a nephew or niece of the employee or the employee’s spouse
    • the spouse of the employee’s grandchild, uncle, aunt, nephew or niece
    • a person who considers the employee to be like a family member, provided the prescribed conditions, if any, are met (currently there are no prescribed conditions)
    • any individual prescribed as a family member for the purposes of this section (currently, there are no additional prescribed family members)

    Examples include:

    • Providing care for their child whose school or child care was closed because of a designated infectious disease (in this case, COVID‑19) or because the employee did not send their child to school or child care out of fear the child would be exposed to COVID‑19.
    • Providing care to their child who was sick with COVID‑19 or who stayed home because of COVID‑19 protocols at the school or child care (for example, the child was showing signs of illness and the school or child care centre advised the child to isolate and get tested before returning).
      • This also includes where the employee’s child had a symptom that did not automatically require the child to stay away from school or child care, but the employee was concerned the symptom may relate to COVID‑19 and chose to keep their child home as a precautionary measure.
    • Providing care or support to their child who is getting vaccinated against COVID‑19 or is experiencing side effects from the vaccine, even if the child is not under the care of a medical practitioner for those side effects.
    • Providing care to their child because the child’s babysitter is in quarantine, isolation or sick because of COVID‑19.
    • Providing care to a child because the summer camp that the employee’s child was scheduled to attend closed down to help prevent the spread of COVID‑19.
    • Providing care to the employee’s 10-year-old brother, who was visiting the employee from another city without his parents, and who was unable to return home because of travel restrictions imposed to prevent the spread of COVID‑19.
    • Providing care or support to an elderly mother who is in self-isolation due to COVID‑19.

    The employee can be providing the care or support in Ontario or in another province, territory or country.

  5. The employee is directly affected by travel restrictions related to a designated infectious disease and, under the circumstances, cannot be reasonably expected to travel back to Ontario.
     

    For example, this would include an employee who is on a cruise ship that is not permitted to dock in any country because of the concern that passengers are infected by a designated infectious disease.

    There may be some situations where an employee is affected by travel restrictions (for example where there are no international commercial airline flights available) but the employee has other options available to travel back to Ontario. This condition will be met if it would not be reasonable to expect the employee to use alternative options.

    What is reasonable will depend on the circumstances. For example, an employee was vacationing in Mexico City when Canada banned all flights from Mexico for two weeks. The employee could rent a car or take a series of buses and trains to return to Ontario but that would not be a reasonable expectation in the circumstances.

    This provision applies only where the employee is directly affected by the travel restrictions. In other words, it applies only where the employee’s travel back to Ontario is affected.

    This provision applies only when the employee is caught by travel restrictions while outside of Ontario.

  6. The employee was subject to an order that related to COVID‑19 under the Reopening Ontario (A Flexible Response to COVID‑19) Act, 2020 (ROA).
     

    In order to meet this condition, the order must have been directed at the employee, either individually, or as part of a group.

    For example, an order that required restaurants to close down applied to owners of restaurants. It did not apply to the employees of restaurants even though they were affected by the closure.

    However, this did apply, for example, to an employee who was subject to a ROA order that prohibited employees who work in a long-term care home from also working for another health service provider.

    For instance, an employee who has two jobs – one at a long-term care home and one at a retirement home – who was not working at one of the homes as a result of this order, was entitled to take unpaid infectious disease emergency leave from the employer that they were temporarily not working for.

    The ROA took effect on July 24, 2020. Certain orders that had previously been emergency orders under the Emergency Management and Civil Protection Act (EMCPA) were continued as orders under the ROA on that date. All orders continued under ROA have now been revoked.

    Note that if an EMCPA order was directed at an employee (either individually or as part of a group) and, as a consequence, the employee was not performing the duties of their position between March 17, 2020 and July 24, 2020, they were entitled to take declared emergency leave or unpaid infectious disease emergency leave.

    During the COVID‑19 period (March 1, 2020 to July 30, 2022), a non-unionized employee whose employer temporarily reduced or eliminated their hours of work for reasons related to COVID‑19 was deemed to be on a job-protected unpaid infectious disease emergency leave. See the “COVID‑19: Temporary changes to ESA rules” chapter for more information.

Length of unpaid infectious disease emergency leave

There is no specified limit to the number of days an employee can be on unpaid infectious disease emergency leave.

Employees have the right to be away from work on unpaid infectious disease emergency leave only for as long as the event that triggered the entitlement to the leave lasts. After the triggering event is over, the employee’s normal obligations to be at work resume.

Unpaid infectious disease emergency leave absences do not have to be taken consecutively. Employees can take the leave in part days, full days or periods of more than one day.

When an employee takes a part day of unpaid infectious disease emergency leave (for example, to deliver urgently needed medication to a brother who is in isolation because of COVID‑19), the employer must allow the employee to return to work for the remainder of the employee’s shift. The employee is entitled to be paid the earnings for the portion of the shift that the employee works.

The ESA was amended on April 29, 2021 to require employers to provide eligible employees with up to three days of paid infectious disease emergency leave for certain reasons related to COVID‑19. Paid infectious disease emergency leave was retroactive to April 19, 2021 and ended on March 31, 2023.

Although paid infectious disease emergency leave was extended into 2023, employees were not entitled to additional days specific to 2023. Employees were entitled to up to three days total during the period in which paid infectious disease emergency leave was available (April 19, 2021 to March 31, 2023).

Eligible employers could have applied to the Workplace Safety and Insurance Board (WSIB) to be reimbursed for these payments, within 120 days of the date the employer paid the employee, or by July 29, 2023, whichever was earlier.

This leave was available to all employees who were covered by the ESA and met the eligibility criteria.

Employers could not threaten, fire or penalize an employee in any other way because the employee took or planned to take a paid infectious disease emergency leave.

Eligibility for paid infectious disease emergency leave

To be eligible for paid infectious disease emergency leave, an employee:

If an employee’s employment contract (including a collective agreement) provided a greater right or benefit than the paid infectious disease emergency leave standard under the ESA, then the terms of the contract applied instead of the standard in the ESA.

Reasons for taking the leave

An employee was eligible for the leave if the employee was not performing the duties of their position because of any of the following reasons:

  1. The employee was under individual medical investigation, supervision or treatment related to a designated infectious disease. The medical investigation, supervision or treatment could have been in Ontario or in another province, territory or country.
     

    Examples included:

    • An employee was not performing the duties of their position because they were under the medical supervision of a doctor:
      • due to having contracted COVID‑19 or
      • because of mental health reasons relating to COVID‑19.
    • An employee was not performing the duties of their position because they left work in order to get a COVID‑19 vaccination or were experiencing a side effect from the COVID‑19 vaccination. In both of these situations, the employee was under individual medical treatment (which included preventative actions, such as vaccinations and recovery from associated side effects) related to COVID‑19.
  2. The employee was following a COVID‑19 related order issued under section 22 or 35 of the Health Promotion and Protection Act.
  3. The employee was in quarantine, isolation (voluntary or involuntary), or was subject to a control measure, and the quarantine, isolation or control measure was implemented as a result of information or directions related to a designated infectious disease that was issued to the public (in whole or in part) to one or more people, through any means, including print, electronic or broadcast (for example, television or radio):
    • by a public health official. This meant a public health official of the Government of Canada or any of the following people within the meaning of the Ontario Health Protection and Promotion Act:
      • the Chief Medical Officer of Health or Associate Chief Medical Officer of Health
      • a medical officer of health or an associate medical officer of health
      • an employee of a board of health
    • by someone who:
      • was qualified to practice as a physician or a nurse either in Ontario or in the jurisdiction where the employee was located (for example, another province, territory or another country), and
      • had provided care or treatment to the employee, whether or not the care or treatment was related to the designated infectious disease (such as an employee who had an immune deficiency was told by his physician to self-isolate and not go to work during the infectious disease outbreak)
    • by Telehealth Ontario
    • by the Government of Ontario or Canada
    • by a municipal council in Ontario
    • by a board of health
  4. The employee was under a direction given by their employer in response to the employer’s concern that the employee might have exposed other individuals in the workplace to a designated infectious disease.
  5. The employee was providing care or support to a specified individual (see the list of specified individuals below) because the individual was:
    • under individual medical investigation, supervision or treatment related to the designated infectious disease (this included medical investigation, supervision or treatment of physical or mental health issues related to the designated infectious disease), or
    • was in quarantine, isolation (voluntary or involuntary), or was subject to a control measure, and the quarantine, isolation or control measure was implemented as a result of information or directions related to a designated infectious disease that was issued to the public (in whole or in part) or to one or more people, and through any means, including print, electronic or broadcast (for example, television or radio) by a public health official. This meant a public health official of the Government of Canada or any of the following people within the meaning of the Ontario Health Protection and Promotion Act:
      • the Chief Medical Officer of Health or Associate Chief Medical Officer of Health
      • a medical officer of health or an associate medical officer of health
      • an employee of a board of health
      • by someone who was qualified to practice as a physician or a nurse either in Ontario or in the jurisdiction where the employee was located (for example, another province, territory or another country) and who had provided care or treatment to the employee, whether or not the care or treatment was related to the designated infectious disease (such as an employee who had an immune deficiency was told by his physician to self-isolate and not go to work during the infectious disease outbreak) 
      • by Telehealth Ontario
      • by the Government of Ontario or Canada
      • by a municipal council in Ontario
      • by a board of health

List of specified individuals:

  • the employee’s spouse (of the same or opposite sex, whether or not married)
  • a parent, step-parent or foster parent of the employee or the employee’s spouse
  • a child, step-child or foster child of the employee or the employee’s spouse
  • a child who is under legal guardianship of the employee or the employee’s spouse 
  • a brother, step-brother, sister or step-sister of the employee
  • a grandparent, step-grandparent, grandchild or step-grandchild of the employee or the employee’s spouse
  • a brother-in-law, step-brother-in-law, sister-in-law or step-sister-in-law of the employee
  • a son-in-law or daughter-in-law of the employee or the employee’s spouse
  • an uncle or aunt of the employee or the employee’s spouse
  • a nephew or niece of the employee or the employee’s spouse
  • the spouse of the employee’s grandchild, uncle, aunt, nephew or niece
  • a person who considers the employee to be like a family member, provided the prescribed conditions, if any, are met (currently there are no prescribed conditions)
  • any individual prescribed as a family member for the purposes of this section (currently, there are no additional prescribed family members)

Examples included:

  • Providing care or support to their child who was getting vaccinated against COVID‑19 or was experiencing side effects from the vaccine, even if the child was not under the care of a medical practitioner for those side effects.  (Note that individual medical treatment included receiving a vaccine for COVID‑19 and recovery from side effects).
  • Providing care or support to an elderly father who was sick with COVID‑19.

Employees who had certain rights to paid leave under their employment contract (which includes a collective agreement) may not have been eligible for paid infectious disease emergency leave or may have been entitled to fewer than three days of paid leave under the ESA.

Where, on April 19, 2021, an employee was entitled to a paid leave under their employment contract for one or more of the same reasons that paid infectious disease emergency leave could have been taken under the ESA, the number of paid days under the contract may have reduced the number of days of paid infectious disease emergency leave the employee was eligible to take under the ESA.

This only applied if both:

  • the amount of pay under the employment contract was at least as much as the employee would have been entitled to receive under the ESA’s paid infectious disease emergency leave formula; and
  • the employee’s employment contract did not contain conditions for taking the leave that were more restrictive than what was set out in the ESA for taking paid infectious disease emergency leave

In order for an employee’s three days of ESA paid leave to have been reduced, all four of the following criteria must have been met on April 19, 2021:

1. Some overlap of reasons for taking leave under the employment contract with reasons for taking paid infectious disease emergency leave under the ESA

The employee’s employment contract provided the employee with paid leave for one or more of the same reasons that paid infectious disease emergency leave could have been taken under the ESA.

Examples where a paid leave entitlement under an employment contract overlapped with one or more of the same reasons as paid infectious disease emergency leave under the ESA include:
  • An employee had an entitlement to paid sick days under their employment contract. If, for example, the paid leave under the contract could have been taken for contracting COVID‑19 (one of the reasons for which an employee could take paid infectious disease emergency leave), this would have been a paid leave for one of the same reasons that paid infectious disease emergency leave could be taken under the ESA.
  • An employee had paid “floater days” under their employment contract that could have been taken for any reason. This would have been a paid leave for one of the same reasons for which an employee could take paid infectious disease emergency leave (since the floater days could be taken for any of the same reasons an employee could take paid infectious disease emergency leave).
  • An employee had an entitlement to paid “family days” under their employment contract. If, for example, the “family days” under the contract could have been taken in order to provide care and support to a relative who contracted COVID-19 (one of the reasons for which an employee could take paid infectious disease emergency leave), this would have been a paid leave for one of the same reasons that paid infectious disease emergency leave could be taken under the ESA.
2. Employee had paid leave entitlements under their employment contract remaining on April 19, 2021

On April 19, 2021, the employee had paid leave that met criterion 1 above available to them. In other words, on April 19, 2021, the employee had not already taken all of the paid leave they had available under their contract that was available to be taken by the employee for one or more of the same reasons that paid infectious disease emergency leave could be taken under the ESA.

Example of an employee who had paid leave available to them on April 19, 2021:

  • An employee’s employment contract provided two paid sick days and one “floater day” that met criterion 1 above. The employee took the two paid sick days in January 2021 and had no more paid sick days available on April 19, 2021. The employee had not used the “floater” day by April 19, 2021 and so that day remained available to the employee. In this example, the employee had one day of paid leave that met criterion 1 available to them on April 19, 2021.
3. Paid leave under employment contract was at least as much as pay for paid infectious disease emergency leave under ESA

The employee’s employment contract provided pay for the leave that was at least as much pay as the employee would have been entitled to receive under the paid infectious disease emergency leave formula under the ESA (learn about calculating the infectious disease emergency leave pay).

Example of when an employee’s entitlement to paid leave under their employment contract was at least as much pay as paid infectious disease emergency leave under the ESA.

If the employee had paid sick days under the employment contract that paid the employee’s full wages while the employee was on the leave, this criterion was met. However, if, for example, the employee’s sick days under the contract of employment were paid at 75% of the employee’s wages, depending on the length of the employee’s leave and the employee’s wage rate, this criterion may ultimately not have been met.

4. No extra conditions for taking paid leave under the employment contract

The employee’s employment contract incorporated all of the ESAs general provisions concerning leaves (such as the right to continue to participate in benefit plans during the leave and the anti-reprisal protection), and did not contain conditions for taking the leave that were more restrictive than what was set out in the ESA for taking paid infectious disease emergency leave.

Examples of when there were extra conditions for taking paid leave under the employment contract include:
  • Under the ESA, an employer could not require an employee to provide a note from a doctor as evidence of the employee’s entitlement to paid infectious disease emergency leave. If the contract required the employee to provide their employer with a doctor’s note in order for the employee to take the paid leave under the contract of employment, this criterion was not met.
  • Under the ESA, a qualified employee could take paid infectious disease emergency leave at any time, including part-way through a day. If getting paid leave under the contract was conditional on the employee providing advance notice to and/or approval from the employer, this criterion was not met.
Where all four criteria were met

If all four of the above criteria were met, the employee’s three-day entitlement to paid infectious disease emergency leave under the ESA was reduced by the amount of leave available to the employee under their employment contract.

Below are some examples of how this reduction worked:
Example 1: An employee was entitled to paid sick leave under their employment contract, but the employee used up all of the leave prior to April 19, 2021

Denise was entitled to ten fully paid sick days each calendar year under her employment contract. This was the only paid leave available to her under her employment contract. There were no conditions under her employment contract that were more restrictive than those in the ESA. Denise had a back injury in February and used all ten of her paid sick days.

Denise had no paid leave available to her under her employment contract on April 19, 2021. She was therefore entitled to three days of paid infectious disease emergency leave.

Examples 2, 3 and 4: An employee was entitled to paid leave under their employment contract and had not taken all of that leave prior to April 19, 2021

Example 2: Anthony was entitled to five fully paid sick days of leave each calendar year under his employment contract. This was the only paid leave available under his employment contract. There were no conditions under his employment contract that were more restrictive than those in the ESA. He took three of the five paid sick days in January 2021. On April 19, 2021, Anthony had two paid leave days remaining under his contract. Anthony was therefore entitled to one (3 – 2 = 1) paid infectious disease emergency leave day under the ESA. This is because on April 19, 2021, Anthony had two paid leave days available under his contract that could have been taken for one or more of the reasons for which paid infectious disease emergency leave could be taken, which met the minimum pay requirements of paid infectious disease emergency leave.

Example 3: Quim was entitled to five fully paid days of sick leave under his employment contract each calendar year. This was the only paid leave available under his employment contract. There were no conditions under his employment contract that were more restrictive than those in the ESA. Quim took two of the five days in January 2021. On April 19, 2021, Quim had three paid days remaining under the contract.

Quim was therefore entitled to zero (3 – 3 = 0) paid infectious disease emergency leave days under the ESA. This is because on April 19, 2021, Quim had three employer-paid days of leave available under his contract that could have been taken for one or more of the reasons for which paid infectious disease emergency leave could be taken and which met the minimum pay requirements of paid infectious disease emergency leave.

Example 4: Alexander was entitled to four hours of paid leave, under his employment contract, to receive a COVID‑19 vaccine. This was the only paid leave available under his employment contract. There were no conditions under his employment contract that were more restrictive than those in the ESA. Alexander did not use the leave before April 19, 2021. On April 19, 2021, Alexander had four hours of leave remaining under the contract.

Alexander was entitled to three days minus four hours of paid infectious disease emergency leave under the ESA. This is because on April 19, 2021, he had four hours of paid leave available under his contract that met the minimum pay requirements for paid infectious disease emergency leave and could have been taken for one or more of the reasons paid infectious disease emergency leave could be taken under the ESA.

Example 5: An employee was hired after April 19, 2021

Kristy was hired on May 1, 2021 and had five fully paid family responsibility days under her employment contract. This was the only paid leave available under her employment contract. There were no conditions under her employment contract that were more restrictive than those in the ESA. Given that she did not have any paid leave under her employment contract on April 19, 2021 (since she was not employed by the employer at that time), she was entitled to three days of paid infectious disease emergency leave under the ESA.

Example 6: An employee’s entitlement to paid leave under their employment contract “refreshed” after April 19, 2021

Nicholos was entitled to five fully paid sick leave days each year under his employment contract. This was the only paid leave available under his employment contract. There were no conditions under his employment contract that were more restrictive than those in the ESA. These paid sick days were renewed every year on Nicholos’s employment anniversary date, which was May 1. On April 19, 2021 Nicholos had used up all his paid sick days under his employment contract. As a result, he was entitled to three paid infectious disease emergency leave under the ESA. This was the case even though his paid sick leave days under his employment contract would have been renewed on May 1, 2021.

Differences from how contractual entitlements are treated under other leaves

Note that this scheme was different from the statutory scheme that applies in the sick leave, family responsibility leave, and bereavement leave contexts in the ESA. In the context of those leaves, the question of whether a leave under the employment contract also counts as leave under the ESA is answered at the time the employee takes the leave, and happens only if both the ESA and employment contract provide a right to leave for the reason the employee was absent.

The approach was very different in the context of paid infectious disease emergency leave. Rather than providing all employees with three paid infectious disease emergency leave days against which contractual paid days may have later been counted, in the paid infectious disease emergency leave context, the employee’s leave entitlements under the employment contract on April 19, 2021 may have reduced the amount of paid infectious disease emergency leave available to the employee. The analysis involved a comparison of the reasons for the leave entitlements that were available to the employee under the contract with the reasons for paid infectious disease emergency leave available under the ESA.

It is important to note that the reasons for leave under the contract and the reasons for leave under the ESA did not have to match perfectly in order for the contract to have reduced the employee’s three-day ESA entitlement. If a reason for leave under the contract was also one of the reasons the paid leave was available under the ESA, the three-day entitlement under the ESA was reduced (assuming the paid leave under the employment contract met all the other relevant criteria).

This meant that there could have been situations where an employee did not have the right to paid leave under either the contract or the ESA when the employee was, after April 19, 2021, away for a reason that the ESA sets out as a qualifying reason for a paid infectious disease leave entitlement. In this situation, the employee would have had a right to unpaid infectious disease emergency leave under the ESA.

For example, the only entitlement to paid leave under Akhseh’s employment contract was three fully paid family days. These days could have been used to care for a specified individual who contracted COVID‑19. These were therefore contractual days that could have been used for one or more of the reasons for which paid infectious disease emergency leave could be taken under the ESA.

As a result, if Akhseh had three of these days available under his contract on April 19, 2021 and there were no conditions under his employment contract that were more restrictive than those in the ESA, then he would not have been entitled to any days of paid infectious disease emergency leave under the ESA. If Akhseh wanted paid time off to get tested for COVID‑19 or to get vaccinated against COVID‑19, he would not have had a right to paid leave under his contract or under the ESA but would have had an entitlement to take that time as unpaid infectious disease emergency leave.

It was the employee’s decision as to whether to claim paid infectious disease emergency leave

A question may arise in the situation where an employee had entitlements to both contractual leave and paid infectious disease emergency leave and the employee was absent for a reason that entitled the employee to the leave under both the contract and the ESA. The question is which entitlement (the contractual leave entitlement or the statutory leave entitlement) must be taken first. (This may have been relevant for several reasons, including for purposes of tracking the employee’s remaining contractual and statutory entitlements and because employers are eligible to be reimbursed only for payments made for statutory paid infectious disease emergency leave).

The ESA does not set out which entitlement must be taken first in this situation. It is the policy of the Employment Standards program that it was the employee's decision whether or not to claim a statutory paid infectious disease emergency leave when the employee was absent for a reason that qualified for that leave.

Calculating infectious disease emergency leave pay for eligible employees

An employee who qualified for paid infectious disease emergency leave was generally entitled to be paid what they would have earned had they worked and not taken the leave, up to a maximum of $200 per day. If the employee was paid fully or partly by a performance-related method (like commission only, commission plus salary, commission plus hourly rate, or piece work) then they were entitled to their hourly rate or the applicable minimum wage, whichever was more, for the work time they missed because they were on paid infectious disease emergency leave.

If the employee missed part of a day to take the leave, the employee was entitled to be paid any wages they actually earned during the time they were at work (in addition to the infectious disease emergency leave pay for the part of the day they took as leave).

Infectious disease emergency leave pay is considered wages under the ESA. This means employers must generally have paid employees’ infectious disease emergency leave pay no later than the pay day for the pay period in which the paid infectious disease emergency leave was taken. Vacation pay is payable on infectious disease emergency leave pay. (Note the only exception to the requirement for the employer to pay the infectious disease emergency leave pay to the employee by the pay day for the pay period in which the leave was taken is where the employee elected, in writing, by May 12, 2021 to retroactively take the paid leave for one or more days between April 19, 2021 and April 28, 2021. In that situation, the employer must have paid the employee by the pay day for the pay period in which the employee provided the written election.)

Determining the amount of time taken for the leave

The amount of paid infectious disease emergency leave taken on a single day is calculated by deducting the number of hours actually worked, if any, from the total number of hours in the work day.

Example

Dena was entitled to paid infectious disease emergency leave. Dena usually worked eight hours a day. If she took two hours off work as infectious disease emergency leave to be vaccinated against COVID‑19, she was entitled to two hours’ paid infectious disease emergency leave, and six hours of regular earnings for the time she spent at work.

An employee may have been required to report to work at a particular time, but did not have a shift or work period of a specified length. In that case, the employer was required to make a reasonable estimate of how long the employee would have worked on that day. For example, it could have been reasonable for an employer to take an average of the number of hours worked by all the employees in the same position as the employee who took leave. If another employee was called in to replace the employee on the day, it could have been reasonable to refer to the length of that employee's shift.

Formula for infectious disease emergency leave pay

There are different ways to calculate an employee’s pay for infectious disease emergency leave depending on how the employee was paid, and whether the employee took a full day or part of a day of leave.

Employees who are paid by an hourly rate

The employee’s pay entitlement was the hourly rate x the number of hours the employee did not work because they took the leave.

Example 1:

Nicolas was entitled to paid infectious disease emergency leave. Nicolas was paid $19 per hour and missed a full day of work due to COVID‑19 testing and isolation. He was scheduled to work nine hours. His infectious disease emergency leave pay was $19 x 9 = $171. If this calculation resulted in an amount greater than $200, Nicolas would have only been entitled to receive $200 and not the calculated amount.

Example 2:

Joshua was entitled to paid infectious disease emergency leave. Joshua was paid $17.50 per hour and missed the first 2.5 hours of his shift to be vaccinated against COVID‑19. He normally worked 8 hours in a day.

His infectious disease emergency leave pay was $17.50 x 2.5 = $43.75. (In addition to his infectious disease emergency leave pay, he was also entitled to his regular earnings for the hours he worked during the rest of the day). If Joshua’s infectious disease emergency leave pay had resulted in an amount greater than $200, Joshua would have only been entitled to receive $200 and not the calculated amount. This $200 maximum applied only to the infectious disease emergency leave pay, not to his total wages for the day.

Employees who were paid a salary

For an employee paid by salary, infectious disease emergency leave pay was generally equal to salary continuance, subject to the $200 daily maximum.

If the employee took leave for a full day, the amount of infectious disease emergency leave pay was the lesser of $200 and salary ÷ number of days in pay period.

Example 1:

Maeve was entitled to paid infectious disease emergency leave. Maeve was paid $3,000 per bi-weekly pay period and worked a five day week. Her infectious disease emergency leave pay for one day was the lesser of $200 and her daily pay of $300 ($3,000 ÷ 10 = $300). Maeve was therefore entitled to $200 in infectious disease emergency leave pay.

If the employee took leave for part of the day, the calculation was: hourly rate (salary ÷ number of hours the employee normally worked in a pay period) x number of hours taken as paid infectious disease emergency leave. If this calculation resulted in an amount greater than $200, the employee would have only been entitled to receive $200 and not the calculated amount.

Example 2:

Katie was entitled to paid infectious disease emergency leave. Katie was paid $1,500 per bi-weekly pay period and worked a 40-hour week. She took four hours of leave. Her hourly rate was $1,500 ÷ 80 = $18.75 per hour. Her infectious disease emergency leave pay was $18.75 × 4 = $75. (In addition to her infectious disease emergency leave pay, she was also entitled to her regular earnings for the part of the day that she worked).

If Katie’s infectious disease emergency leave pay had resulted in an amount greater than $200, she would have been entitled to receive $200 and not the calculated amount. This $200 maximum applied only to the infectious disease emergency leave pay, not to her total wages for the day.

Performance-related wages

The infectious disease emergency leave pay an employee was entitled to where the employee was paid fully or partly based on their performance was the greater of the employee’s hourly rate, if any, and minimum wage for the time the employee took for paid infectious disease emergency leave, to a maximum of $200 per day. Performance-related wages include commission, commission plus an hourly wage, piece work or a flat-rate.

Example 1: Employee earned an hourly rate plus commission

Raquel was entitled to paid infectious disease emergency leave. She earned $19.00 per hour plus 2% commission on sales.

Raquel was scheduled to work eight hours. She worked 1.5 hours and took 6.5 hours of paid infectious disease emergency leave.

Raquel’s infectious disease emergency leave pay: $19 x 6.5 = $123.50.

(In addition to infectious disease emergency leave pay, she was also entitled to her hourly wage for the 1.5 hours worked and commission she earned while she worked, if any).

If Raquel’s infectious disease emergency leave pay calculation resulted in an amount greater than $200, Raquel would have only been entitled to receive $200. This $200 maximum applied only to the infectious disease emergency leave pay, not to the employee’s total wages for the day.

Example 2: Employee paid entirely by commission

Francesca was entitled to paid infectious disease emergency leave. She earned 10% commission on all sales, plus expenses and a car allowance.

Francesca was scheduled to work eight hours. She worked a portion of the day and made sales of $5,000. She took three hours of paid infectious disease emergency leave.

Francesca’s infectious disease emergency leave pay: applicable minimum wage rate × 3.

(In addition to infectious disease emergency leave pay, Francesca was also entitled to receive the $500 in commission she earned while she worked.) If the infectious disease emergency leave pay calculation resulted in an amount greater than $200, Francesca would have only been entitled to receive $200 and not the calculated amount. This $200 maximum applied only to the infectious disease emergency leave pay, not to her total wages for the day.

Example 3: Employee was a homeworker paid by piece work

Paula was entitled to paid infectious disease emergency leave. She earned $3.50 per phone call answered.

Paula was scheduled to work 8.5 hours, but worked only two hours, answered nine phone calls, and took 6.5 hours of paid infectious disease emergency leave.

Paula’s infectious disease emergency leave pay: applicable minimum wage × 6.5

(In addition to infectious disease emergency leave pay, Paula was also entitled to receive her regular earnings for the day — $3.50 × 9.)

If Paula’s infectious disease emergency leave pay calculation resulted in an amount greater than $200, Paula would have only been entitled to receive $200. This $200 maximum applied only to the infectious disease emergency leave pay, not to her total wages for the day.

Employees who were scheduled to work overtime hours

If an employee was scheduled to work a shift which included overtime hours, and they missed all or part of the shift to take paid infectious disease emergency leave, the employee was entitled to the regular hourly rate only, not the overtime rate.

Example:

Pat was entitled to paid infectious disease emergency leave. Pat was paid $17 per hour and was scheduled to work a Saturday shift of eight hours. She already worked 44 hours in the same week. She missed her entire shift to take paid infectious disease emergency leave.

Infectious disease emergency leave pay: $17 × 8 = $136. If Pat’s infectious disease emergency leave pay calculation resulted in an amount greater than $200, Pat would have only been entitled to receive $200.

Employees who were scheduled to work hours when a shift premium would have been paid

If an employee was scheduled to work a shift which would normally be paid at a higher rate due to a shift premium, and the employee missed all or part of the shift to take paid infectious disease emergency leave, the employee was entitled to the regular hourly rate only, not the regular hourly rate plus the shift premium.

Example:

Minh was paid $19 per hour and was paid an additional $2.50 per hour for working weekend shifts. She was scheduled to work a Saturday shift of nine hours and left after working two hours to take paid infectious disease emergency leave.

Infectious disease emergency leave pay: $19 x 7 = $133

(In addition to infectious disease emergency leave pay, Minh was also entitled to receive her regular earnings for the hours she worked ($19 + $2.50) X 2).

If Minh’s infectious disease emergency leave pay calculation resulted in an amount greater than $200, she would have only been entitled to receive $200. This $200 maximum applied only to the infectious disease emergency leave pay, not to her total wages for the day.

If paid infectious disease emergency leave was taken when an employee was scheduled to work on a public holiday

If an employee qualified to take paid infectious disease emergency leave, this would have also generally been considered reasonable cause for the purposes of public holiday entitlements. See the public holiday chapter for more information.

If an employee agreed to work (or was required to work) on a public holiday and missed some or all of the shift to take paid infectious disease emergency leave, infectious disease emergency leave pay did not include “premium pay” if the employee would have earned it had they worked instead of taking the leave on the holiday.

Example:

Arvinder worked as a manager in a restaurant and was required to work on Victoria Day. She was paid the general minimum wage. She was scheduled to work 10 hours on the public holiday, and the employer decided to give her premium pay for all hours worked on that day, plus public holiday pay (but no substitute day off in the future).

Arvinder worked 6 hours of the shift and took 4 hours off as paid infectious disease emergency leave.  Arvinder was entitled to:

  1. Entitlements from the Public Holidays part of the ESA:
    • Public holiday pay calculated in accordance with the public holiday rules of the ESA
    • Premium pay for the hours worked on the public holiday in accordance with the public holiday rules of the ESA (general minimum wage x 1.5 x 6 hours)
  2. Entitlements from the Paid Infectious Disease Emergency Leave part of the ESA:
    • No additional amount as infectious disease emergency leave pay

    Note that Arvinder was not entitled to premium pay for the four hours taken as paid infectious disease emergency leave.

Explanation:

Arvinder met the requirements to take paid infectious disease emergency leave. Infectious disease emergency leave pay generally ensured that employees did not lose wages for the time they were not working when on paid infectious disease emergency leave, up to a maximum of $200 per day. In the case of Arvinder who took paid infectious disease emergency leave on a public holiday where she was scheduled to work and earn premium pay plus public holiday pay, her entitlements under the public holiday rules in the ESA already provide that she earned the amount she would have earned (minus premium pay) had she not taken the leave. As such, in this situation, Arvinder was not entitled to receive any amount in infectious disease emergency leave pay over and above her public holiday entitlements. Note that even though she was not entitled to any infectious disease emergency leave pay, one day of her statutory paid infectious disease emergency leave allotment was used (unless she provided notice in writing to her employer within the specified time frame electing to take the time as unpaid infectious disease emergency leave instead – see heading below). The public holiday pay and premium pay that Arvinder was entitled to under the ESAs public holiday rules was not infectious disease emergency leave pay. This is important because it means that the amount Arvinder was entitled to receive for the public holiday was not subject to the $200 daily infectious disease emergency leave pay maximum. Similarly, an employer could not be reimbursed for this amount through the employer reimbursement program (as the amount paid was what the employer owed Arvinder under the ESAs public holiday rules, regardless of the leave of absence).

Employee opt-out of paid leave

Where an employee was entitled to both unpaid and paid infectious disease emergency leave, it was the default that the days of paid infectious disease emergency leave were taken first, unless the employee opted out of the paid leave.

Receiving infectious disease emergency leave pay may have negatively affected an employee's eligibility for, or the amount of, benefits they were entitled to under other programs. To avoid this issue, employees may have chosen not to take paid infectious disease emergency leave under the ESA by opting out of the paid leave and taking the time as unpaid infectious disease emergency leave instead.

To opt out of paid infectious disease emergency leave, employees must have advisd their employer in writing of their decision to take the time as unpaid infectious disease emergency leave. This written notice must have been made before the end of the pay period in which the leave occurred. If the employee did not advise the employer in writing by this deadline the employee would have been entitled to paid infectious disease emergency leave.

An employee did not lose a day of paid infectious disease emergency leave if they opted out of the paid leave and instead chose to treat the absence as unpaid infectious disease emergency leave. In this situation, the paid infectious disease emergency leave could have been taken for the next eligible absence.

Length of paid infectious disease emergency leave

Employees may have been entitled to up to three full days of paid infectious disease emergency leave whether they were employed on a full or part-time basis.  See the heading “Eligibility - right to paid leave under the employee’s contract of employment” for information about how an employee’s contract of employment may have affected the number of days the employee was entitled to receive as paid infectious disease emergency leave. Where an employee was entitled to both unpaid and paid infectious disease emergency leave, it was the default that the days of paid infectious disease emergency leave were taken first, unless the employee opted out from the payment.

Employees had the right to be away from work on paid infectious disease emergency leave only for as long as the event that triggered the entitlement to the leave lasted. After the triggering event was over, the employee’s normal obligations to be at work resumed.  Employees could take paid infectious disease emergency leave in part days, full days or in periods of more than one day. When an employee took a part day of paid infectious disease emergency leave (for example, to get a vaccination against COVID‑19), the employer must have allowed the employee to return to work for the remainder of the employee’s shift. If an employee only took part of a day as paid infectious disease emergency leave, the employer could count it as a full day of leave. 

Example: Part-day paid infectious disease emergency leave

Sujata was entitled to three days of paid infectious disease emergency leave. Sujata came to work as usual but developed a cough halfway through her shift. Based on direction provided by public health officials in respect of COVID‑19, she left work to self-isolate and to make arrangements to get a COVID‑19 test.

Sujata had the right to be on paid infectious disease emergency leave and to receive infectious disease emergency leave pay for the half-day she took to self-isolate and get a COVID‑19 test. Her employer could (but did not have to) count the absence as a full day of paid infectious disease emergency leave.

The employer was only allowed to count the half-day absence as a full day of leave when determining if Sujata’s three-day entitlement has been used up. The employer must have, for example, still paid Sujata for the half day that she worked, and had to include the hours worked to determine whether she worked overtime, or reached her daily or weekly limit on hours of work.

Employers could have only applied to be reimbursed for a maximum of three calendar days even if they chose not to count part days as full days of paid leave.

Employer reimbursement for paid leave

Eligible employers were entitled to be reimbursed the amount of infectious disease emergency leave pay that they paid to their employees, up to $200 per employee per day taken.

Eligible employers must have made their application for reimbursement to the Workplace Safety and Insurance Board (WSIB) within 120 days of the date the employer paid the employee, or by July 29, 2023, whichever was earlier.

This was a program of the Ministry of Labour, Immigration, Training and Skills Development. The Ministry provided funding to the WSIB to administer this program. This program was not a WSIB program and was not funded by the WSIB's insurance fund. Eligible employers did not need to be registered with the WSIB in order to have received this reimbursement.

If an employee took only part of a day as paid infectious disease emergency leave, the employer could have counted – but did not have to count – it as a full day of leave.

Employers could 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 could only apply for reimbursement for three of these days.

Rights during leave

Employees who take unpaid infectious disease emergency leave and/or paid infectious disease emergency leave are generally entitled to the same rights as employees who take pregnancy or parental leave. For example, employers cannot threaten, fire or penalize in any way an employee who takes or plans on taking either of these leaves.

Learn more about rights for employees taking pregnancy and parental leaves.

Interactions with other ESA rules

Interaction with other leaves

In addition to unpaid infectious disease emergency leave and paid infectious disease emergency leave, there are different types of leaves under the ESA including:

An employee may be entitled to more than one leave for the same event. Each leave is separate and the right to each leave is independent of any right an employee may have to the other leave(s).

The purposes of the leaves, their length and eligibility criteria are different. Learn more about the different types of leave in their respective chapters in the ESA.

Interaction with vacation rules

Employees earn vacation time under the ESA, by completing a vacation entitlement year (or stub period). Because there is no break in the employment relationship while an employee is on infectious disease emergency leave, the time on leave counts toward the completion of a vacation entitlement year or stub period. 

For example, an employee on infectious disease emergency leave for all or only part of a vacation entitlement year would have earned a full two or three (depending on the employee’s length of employment) weeks of vacation time at the end of the vacation entitlement year. The vacation pay earned during that vacation entitlement year would be a minimum of 4% or 6% (depending on the employee's length of employment) of any wages — which includes infectious disease emergency leave pay — actually earned during the year.

Where an employee's contract provides that "paid vacation" is earned through active service (for example, 1.5 paid vacation days for each month of service or three weeks paid vacation for each year of service) an employee on leave may not earn either vacation time and/or pay while on leave. However, at the end of the vacation entitlement year or stub period, the employer must ensure the employee receives the greater of what was in fact earned under the contract and the minimum vacation time and vacation pay they would have earned under the ESA,.

Get more information on vacation rules, including examples of how this works.

Interaction with public holiday rules

Under the ESA, employees are not entitled to public holiday entitlements if they fail without reasonable cause to work all of their last regularly scheduled day of work before the public holiday or all of their first regularly scheduled day of work after the public holiday. This is referred to as the “last and first rule”.

An employee who is on infectious disease emergency leave when a public holiday occurs will meet the “first and last rule” if they worked their “first and last rule” if they worked their last scheduled day of work before the leave and their first scheduled day of work after the leave.  If the employee failed to work either or both of those days, they will still meet the first and last rule if they had reasonable cause for failing to work on those day(s). 

For example, Bonnie is on infectious disease emergency leave when the Labour Day holiday occurs. If Bonnie worked her last regularly scheduled day of work before her leave started, and her first regularly scheduled day of work after her leave ended (or had reasonable cause for failing to work either or both of those days), she will be entitled to the paid public holiday.

Get more information about the ESAs public holiday rules.

Notice of leave

An employee must generally advise the employer that the employee will be taking an infectious disease emergency leave before starting the leave.

If advance notice cannot be provided, the employee must inform the employer as soon as possible after starting the leave.

Notice can be given in writing or orally.

While an employee is required to tell the employer in advance before starting a leave (or, if this is not feasible, as soon as possible after starting the leave), the employee will not lose the right to take the leave if the employee fails to do so.

Where an employee was entitled to both unpaid and paid infectious disease emergency leave, it was the default that the days of paid infectious disease emergency leave were taken first, unless the employee opted out by notifying their employer in writing before the end of the pay period in which the leave occurred that they choose to take unpaid infectious disease emergency leave.

Proof of entitlement

An employer may require an employee to provide evidence reasonable in the circumstances at a time that is reasonable in the circumstances that the employee is eligible for infectious disease emergency leave. However, employers cannot require an employee to provide a certificate from a physician or nurse as evidence. Employers are not prohibited under the ESA from requiring medical notes in the context of issues such as return-to-work situations or for accommodation purposes.

What is considered reasonable in the circumstances will depend on all the facts of the situation, such as:

  • the duration of the leave
  • whether there is a pattern of absences
  • whether any evidence is available and the cost of the evidence

If it is reasonable in the circumstances, evidence may take many forms, such as:

  • a copy of the information issued to the public by a public health official advising of quarantine or isolation (for example, a print out, screen shot or recording of the information)
  • a copy of an order to isolate that was issued to the employee under section 22 or section 35 of the Health Protection and Promotion Act
  • an email from a pharmacy or from a public health department indicating the employee’s appointment date and time to receive a COVID‑19 vaccination

Employers can only require the evidence at a time that is reasonable in the circumstances. What is considered reasonable in the circumstances will depend on all of the facts of the situation.

Examples of “reasonable in the circumstances”

If an employee is in isolation or quarantine

If an employee is in isolation or in quarantine, it will not be reasonable to require an employee to provide the evidence during the quarantine or isolation period if the employee would have to leave home to obtain the evidence.

However, if the employee has electronic evidence that can be sent from home, it may be reasonable to require the employee to send it during the isolation or quarantine period.

Whether an employer can require a positive COVID-19 test

The question may arise as to whether an employer can require an employee who takes infectious disease emergency leave because they believe they have contracted COVID-19 to provide a positive COVID-19 test result as proof of entitlement to the leave.

Whether it is reasonable for the employer to require the employee to provide a positive COVID-19 test result will depend on all of the circumstances.

For example, if the employee had taken a test before starting the leave or during the leave, and had evidence from the test indicating a positive result, it would be reasonable for the employer to require the employee to provide that evidence.

As another example, if an employee is too sick to leave home for a polymerase chain reaction (PCR) test or is not permitted to access a PCR test through the provincial testing system, it would not be reasonable in the circumstances to require the employee to provide the results from a PCR test from a provincial testing location as proof of entitlement to the leave.

Whether it would be reasonable for an employer to require an employee to provide evidence of the results from a private PCR test or from a rapid antigen test as proof of entitlement to the leave would depend on the circumstances, including factors such as the employee’s ability to access the test and its cost.