Covid-19 Employment Law Update

Following Candice Grant’s March 13, 2020, article, “COVID-19: Information for Employers”, published on our firm website, the Government of Saskatchewan introduced new legislation to address public health emergency leave and temporary layoffs due to COVID-19. This article is intended to provide an update on this new legislation and how it will impact employers and employees.  This information, which is current as of the date of publication (April 13, 2020), is not legal advice and we recommend consulting with your legal advisors for advice specific to your circumstances.

Public Health Emergency Leave

This leave was enacted through Bill No. 207, an Act to amend The Saskatchewan Employment Act, to provide protection to employees who have been directed to isolate themselves and certain other employees impacted by COVID-19.  The changes have retroactive effect to March 6, 2020.

Public health emergency leave is only available during periods in which the Chief Medical Health Officer has declared a public health emergency.  It is available to employees who have been ordered to isolate by one of the following:

  • their employer;
  • the government;
  • their doctor; or
  • the Chief Medical Health Officer for Saskatchewan.

In these situations, the employee would not be allowed to attend work.  The rationalization is presumably that people should not be risking their own health and the health of others in order to work, which is why the introduction of a protected category of leave was necessary.  The length of the leave depends on the length of time the employee has been ordered to isolate.

As indicated above, this leave provides employers an opportunity to order an employee to stay home if they are showing symptoms consistent with COVID-19.  However, if an employer’s direction to self-isolate conflicts with the opinion of a qualified medical practitioner, the opinion of the medical practitioner will prevail.

If an employee is eligible for public health emergency leave, there is no requirement that the employee have worked for any minimum period of time prior to taking leave.

Employees who must care for their children or an adult family member affected by the public health emergency are also eligible for this leave.  For example, in the case of children, this leave applies to parents who must remain home in order to care for their children, which is a common situation as a result of the closure of elementary and secondary schools.  In the case of adult family members, it could be that an employee’s spouse is infected with COVID-19 and the employee must take time off of work to care for their spouse.

It is possible for an employer to designate certain employees as necessary to provide critical public health and safety services, in which case the employee’s ability to access this leave may be limited.

It is important to note that the leave is unpaid.  The employee is only entitled to be paid and receive their benefits if their employer has authorized them to work from home during their period of isolation.  This, of course, depends on the nature of the business.  If working from home is not an option, or the employer does not authorize it, then the employee is not entitled to be paid, although the employee may have access to other provincial and federal financial benefits.  In addition, employees who have entitlement to sick leave under a workplace policy, collective agreement, or other employment contract may be able to invoke that leave rather than take the unpaid public health emergency leave.

We recommend that employers seek out legal advice before making any decisions to order an employee to isolate or any other long term decisions respecting their employees.

Temporary Layoff Provisions

Amendments were also made to The Employment Standards Regulations to provide for temporary layoffs by employers during public health emergencies.  These layoff provisions are only in effect during periods of public emergency.

Normally, under The Saskatchewan Employment Act, employers have to provide notice to employees before laying them off, or pay in lieu of notice.  Under the emergency layoff provisions, employers do not need to provide notice to employees before laying them off, or pay in lieu of notice, for all layoffs that will have a duration of a maximum of 12 weeks in a 16-week period.

Employees who are laid off pursuant to this provision are still considered employees for the purposes of notice or pay in lieu of notice if they are not recalled in time; more on this below.  The upside for employees is that they are able to immediately access supports provided through provincial and federal programs specifically aimed at helping employees laid off during the COVID-19 pandemic.

If the layoff exceeds 12 weeks within a 16-week period and the employee has not been reinstated, the employee’s employment has been considered terminated and they are owed pay instead of notice.  The amount which would have to be paid pursuant to The Saskatchewan Employment Act is based on the employee’s wage and length of service and ranges from one to eight weeks of wages, as follows:

 

Length of Time Employee has been Employed Number of Weeks of Wages Employee must be Paid
More than 13 consecutive weeks to one year of employment One week of wages
Greater than one year of employment but equal to or lesser than three years Two weeks of wages
Greater than three years of employment but equal to or lesser than five years Four weeks of wages
Greater than five years of employment but equal to or less than 10 years Six weeks of wages
Greater than 10 years of employment Eight weeks of wages

Employers and employees should bear in mind that these are minimum standards which could be superseded by employment contracts or collective agreements.  In many cases, an employee will also have additional entitlements at common law which significantly exceed the statutory amounts set out above.  However, any agreement must provide, at minimum, the protection to the employee offered under these new provisions.

We recommend that employers seek out legal advice before making any decisions to lay off employees pursuant to this new provision.

For more information, please contact:

Candice D. Grant

Direct: 306.933.1304

Email: c.grant@rslaw.com

Curtis P. Clavelle

Direct: 306.933.1341

Email: c.clavelle@rslaw.com

Virtual court operations in Saskatchewan

Despite the availability of virtual technology, it remains impossible in many Canadian courts to file court documents online, or hold video hearings. This article argues that Canadian court systems face two options during the COVID-19 pandemic:

  1. First, resign themselves to pause the vast majority of civil matters indefinitely, risking the loss of public confidence, and lack of justice, which could result;
  2. Alternatively, use this time to make swift investments in e-filing systems, and video technology, to allow virtual operations to continue as normal.

The rule of law is not something that society can suspend indefinitely. In an era in which many people conduct their lives online, the legal profession should embrace virtual court processes to maintain public access to court services.

For more information, please contact:

 

James D. Steele

306.933.1365

Email: j.steele@rslaw.com

Insurance Coverage Considerations on Covid-19

As of March 30, 2020 the Saskatchewan government signed an order pursuant to the provincial State of Emergency directing that all orders of the government and Chief Medical Health Officer must be followed and that law enforcement agencies in Saskatchewan have the full authority to enforce those orders. As a result, gatherings of more than 10 people in one room are prohibited; and nightclubs, bars, lounges and similar facilities are closed.  As other businesses respond to COVID-19 their bottom lines are facing significant impact.

In this uncertain climate, businesses are attempting to manage this crisis and limit their continuing financial losses. One potential avenue for relief is insurance. All businesses should be seeking guidance as to whether their existing insurance coverage can respond to COVID-19 related financial losses.

This article outlines some key insurance coverage considerations to determine whether initiating an insurance claim may be a viable relief option for your business.

COMMERCIAL PROPERTY POLICIES

 

Most businesses’ first party property insurance policies include coverage not only for property damage but also for lost profits resulting from that damage.  The coverage for lost income often covers loss resulting from:

  1. Damage to the policyholder’s own property (business interruption);
  2. Damage to the property of a customer or supplier or a supplier’s supplier (contingent business interruption); or
  3. Government action (order of civil authority)

The event that triggers any of these coverages is property damage — without which there will be no coverage for lost profits under a first party property policy.

When purchasing your property policy for your business, it may have been referred to as “All Risk.” All risk doesn’t necessarily mean that you are entitled to coverage for all risks. These policies can sometimes exclude coverage for virus, contagious disease or bacteria. In that case, any COVID-19-related claims will likely be denied.

Business Interruption

With respect to your commercial property policy, the definition of physical damage found within the policy becomes crucial to determining whether coverage applies.

Contingent Business Interruption

Contingent business interruption is a coverage that allows a claim for lost income resulting from a covered loss to an insured’s customer or supplier (Indirect Loss). This type if coverage is typically triggered as a result of a physical damage to the customer or supplier listed as a reliant party, critical to the insured’s operations.

Government action/civil authority

Some property policies will responds to Interruption by Civil Authority, which is often defined as “actual loss as insured hereunder during the period of time, not exceeding two to four weeks, while access to the “premises” is prohibited by order of civil authority”

Given that the definition of this coverage may vary by policy, there is a possibility that if operations of a business are restricted due to an Order prohibiting access, then coverage may apply. The opposite would be true if the policy wording specifies the requirement for Physical Damage. Once again, the applicability of this coverage and length would be case specific.

NEXT STEPS

 

A determination of whether your business is entitled to coverage is wholly depends on your policy wording. Businesses should be evaluating their policies including any extensions and exclusions, with their insurance brokers and legal counsel to better understand terms and conditions. To get started request a complete copy of your insurance policy and review to determine whether coverage might apply to your business.

For more information, please contact:

 

Jennifer D. Pereira, QC

306.933.1320

Email: j.pereira@rslaw.com

Importance of the Press

On March 26, 2020, the Government of Saskatchewan further limited the businesses that can continue to operate in the province as a result of COVID-19.  Among the “critical services” that are to be maintained are local and national media.

Journalists across our province are continuing to provide up-to-date and important information to citizens. They continue to attend press conferences, ask our leaders important questions, try to digest and disseminate important health-related information and disabuse individuals of potentially dangerous misinformation.

Having reliable and professional information broadcast to a wide audience (through newspapers, television and social media) is incredibly important for our public officials to provide updates on this crisis. Dr. Theresa Tam, Canada’s Chief Public Health Officer, and Dr. Saqib Shahab, Saskatchewan’s Chief Medical Health Officer, have, through the media, imparted daily updates on the medical risks and transmission of the virus. Our political leaders have warned residents through daily press briefings on the importance of social distancing to attempt to flatten the curve.

In addition to providing important health information, the media has provided messages of hope and resilience. Media organizations have covered:

  1. The outpouring of support for marginalized youth in Saskatoon: https://thestarphoenix.com/news/local-news/the-helpers-in-saskatoon-an-outpouring-of-support-for-youth/
  2. Families working out together at home while practicing social distancing: https://saskatoon.ctvnews.ca/more-saskatoon-families-working-out-together-at-home-during-isolation-physical-distancing-1.4870362 and
  3. Veterinarians assisting pets from outside of their clinics: https://www.cbc.ca/news/canada/saskatchewan/sask-curbside-veterinary-medicine-animal-health-covid-19-1.5511951.

In recent years, the media has been vilified in some corners.  However, it is at times like these, that the importance of the press is highlighted.  We see journalists, every day, digesting quickly changing information, trying to weed out “fake news” and doing so at potential personal peril as they attend briefings and track down stories.  The media has proven itself to be a “critical service” to the public.

For more information, please contact:

 

Sean M. Sinclair

306.933.1367

Email: s.sinclair

Corporate Governance during the COVID-19 Pandemic

Local authorities continue to encourage people to refrain from gathering in large groups and to practice social distancing. In this landscape, corporations should consider alternative means of holding director and annual shareholder meetings in the coming months.

This article addresses the legislation applicable to corporations incorporated under The Business Corporations Act (Saskatchewan) (the “Act”). While corporations incorporated under federal or other provincial statutes are subject to similar rules, the specific incorporating statute should be carefully reviewed in each case. In addition, directors should bear in mind that there is no one-size-fits-all approach, and it is recommended that directors consult with legal counsel to determine the best approach for their corporation to ensure the safety of all parties. 

Shareholder/Member meetings

Typically, annual general meetings of the shareholders (“AGM”) often involve a number of shareholders meeting in a physical location within Saskatchewan. Given that meetings over a certain number of attendees is now prohibited in Saskatchewan and leaving one’s home is generally discouraged, holding an AGM in person is no longer feasible in many circumstances. It is also important to remember that unless the required number of shareholders are present at a meeting, there will be no quorum reached and decisions cannot be made.

Given the current environment, what options are available to corporations?

1. Postpone the AGM

Under the Act, the directors of Saskatchewan corporations are required to call an AGM not later than 18 months after the corporation comes into existence and subsequently not later than 15 months after holding the last preceding AGM. Depending on the timing of incorporation and/or the last AGM, it may be possible to postpone the AGM to a later date. While it is uncertain how long the prohibitions on public gatherings may last, postponing the AGM by a few months may be worth considering.

2. Virtual AGM

A virtual AGM would take place over a virtual platform which would allow people to attend via telephone or videoconference. The Act allows shareholders of a corporation to attend a meeting of shareholders by means of telephone or other communication facilities as long as all participants are able to communicate adequately together. Directors contemplating holding a virtual AGM should consider the following:

 

  1. 1a. Corporate articles, by-laws, and unanimous shareholders’ agreements (“USA”): directors will need to review the corporate articles, by-laws, and USAs to determine whether these documents prohibit a virtual meeting. Directors should also consider any procedural matters contemplated within the by-laws or USA, including notice requirements, taking votes, and quorum requirements.

     

  2. 2b. Method of holding meeting: the directors will need to find some kind of technology or service that will allow for adequate communication between all shareholders and other attendees of the AGM. If the parties are not able to communicate to each other, the validity of the meeting could be challenged.

     

  3. 3c. Business of the meeting: if the agenda contains contentious matters, it is often preferable to deal with such matters in-person rather than in a virtual AGM. If a virtual AGM is to be convened, directors should consider the agenda and entertain the possibility of deferring any contentious business to a later date.

     

  4. 4d. Voting: generally, voting at a meeting of shareholders is done by a show of hands. In the event that some attendees are not visible in a virtual AGM (making the counting of hands impossible) directors will have to determine how votes will be tallied in a fair and reliable manner.

     

  5. 5e. Notice: in addition to providing the information required by the Act, by-laws, and/or any USA, a notice to the shareholders should contain detailed instructions on how to attend the virtual meeting.

Director Meetings

Similar to AGMs, meetings of the board of directors of a corporation are traditionally held in-person at a location in Saskatchewan. However, the Act also allows directors to attend a meeting of directors by means of telephone or other communication facilities that allow all attendees to hear each other.

While the considerations discussed above are relevant in determining whether a director meeting should be postponed or held in a virtual forum, the directors must be sure to review the corporate articles, by-laws, and any USAs. These documents may dictate when and where meetings of directors must be held, and other related procedural aspects.

Considerations for Non-Profit Corporations and Condominium Corporations

In May, 2020, the Saskatchewan Government introduced regulations which permitted non-profit corporations (incorporated under The Non-profit Corporations Act, 1995) and condominium corporations (constituted under The Condominium Property Act, 1993) to allow such corporations to hold annual general meetings of the members/owners through telephonic, electronic or other communication facility as long as all participants to the meeting are able to adequately communicate with each other. Likewise, meetings of directors of these corporations are generally permitted to hold virtual meetings as long as all directors consent. Accordingly, the considerations discussed above are relevant to these kinds of corporations. As always, it is important to remember that these rules are subject to the bylaws of the non-profit corporation or the condo corporation.  

For more information, please contact:

 

Jon M. Ponath

306.933.1365

Email: j.ponath@rslaw.com

Witnessing of Legal Documents

If you have ever been involved with a legal matter such as a transaction involving real property, the granting of a power of attorney, or execution of a Will, you may be aware that certain legal documents require the personal attendance of a lawyer to witness its execution. The COVID-19 pandemic presents obvious challenges for lawyers and clients to comply with the legal requirement to have a lawyer physically meet with his/her client to witness the signing of a document.

On March 26, 2020, the Government of Saskatchewan enacted emergency regulations to enable lawyers to execute and witness certain documents by video conferencing (through applications such as Skype, Facetime, or Zoom, for example) to allow lawyers to assist clients while maintaining social distancing so as not to put clients, staff or lawyers at risk. These emergency regulations apply to real estate transaction documents that must be filed with the Land Titles Registry, Powers of Attorney, and affidavits and other sworn documents. While certain strict procedural steps must be followed,  our lawyers are committed and remain available to help you in getting important documents signed and witnessed to ensure they will be legally valid in accordance with the emergency provisions that have been put in force by the government.

These emergency regulations do not apply to the signing of Wills and Health Care Directives. The Government of Saskatchewan enacted additional regulations on April 16, 2020 that address the virtual witnessing of Wills. However, these regulations impose additional procedural steps that must be carefully followed. Please contact us for further information and advice respecting getting properly executed estate planning documents in place. Our office is committed to finding practical solutions to ensuring Wills and other estate planning documents can be witnessed in a safe manner. To this end, Robertson Stromberg has commenced several initiatives relating to workplace hygiene, monitoring lawyers’ and employees’ health, and following all Health Canada, CDC, and SaskHealth recommendations to maintain the safety of its clients who are required to meet with our lawyers.

For more information, please contact:

 

Jon M. Ponath

306.933.1365

Email: j.ponath@rslaw.com

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