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

COVID-19: Information for Employers

Candice Grant has supplied a handout for employers giving them useful tips on how to manage the workplace during the Covid-19 pandemic.

Introduction

As an employer, you may have concerns about how to manage your business and protect the health and safety of your employees during the COVID-19 pandemic. Below, we have addressed some of the common questions we have heard from employers. This information, which is current as of the date of publication (March 13, 2020), is not legal advice and we recommend consulting with your legal advisors for advice which is specific to your business.

Occupational Health and Safety

The Saskatchewan Employment Act imposes upon every employer an obligation to ensure, insofar as is reasonably practicable, the health, safety and welfare at work of all of the employer’s workers. This obligation includes a requirement to take reasonable preventative steps to ensure that the health, safety and welfare of employees is not harmed by an infectious disease such as COVID-19 in the course of their employment.

What constitutes “reasonable” steps will depend on the nature of the workplace (for instance, whether the employees interact with members of the public, whether tools or electronics are shared with other workers, whether employees have an ability to work remotely). An employer should carefully consider the potential sources of risk to employees in the course of their work, and what reasonable steps might be taken to alleviate those risks.

Employers may find it helpful to have a robust and comprehensive policy which outlines the responses that the organization will take in response to a pandemic.

Refusal to Work

Workers in Saskatchewan have the right to refuse to perform unsafe work if the employee has reasonable grounds to believe that the work is unusually dangerous to their health or safety (or the health or safety of any other person at the place of employment).

Any claim by an employee that it is unsafe to work is a serious matter which must be investigated by the employer. As indicated above, the employer must take all reasonable measures to protect the health and safety of its employees. It is not yet clear whether employees in Saskatchewan may be justified in refusing work because of potential for exposure to COVID-19. In the meantime, employers are encouraged to work with their employees to find solutions which address the employees’ concerns, while allowing the employer to continue to carry on business.

Absences from Work

Generally speaking, and as with any other illness, if an employee discloses that they are not feeling well or are showing symptoms which are consistent with COVID-19, it is reasonable for the employer to request that the employee refrain from reporting to work until they are well. In addition, the employer should have regard for the latest provincial and federal directions regarding the self-isolation of employees who have travelled or been in contact with others who may have been exposed. In some cases, it may be possible to allow the employee to work from home during a period of minor illness or self-isolation.

An absence due to COVID-19 should be handled the same as any other absence due to illness. Under The Saskatchewan Employment Act, an employee is generally not entitled to be paid while absent from work; however, some employees have entitlement to paid sick leave under a workplace policy, collective agreement or other employment contract.

The Saskatchewan Employment Act protects the jobs of employees who are absent from work due to illness or serious illness for up to 12 weeks. In addition, The Saskatchewan Human Rights Code, 2018 protects employees from discrimination on the basis of a prohibited ground, including disability. We strongly recommend that employers seek out legal advice specific to their situation before making any long term decisions with respect to their employees.

For further information, please contact:

Candice D. Grant

Direct: 306.933.1304

Email: c.grant@rslaw.com

Candice Grant Contributes to our Community

Saskatoon City Council recently appointed five new members to the board of directors of the Remai Modern art gallery. This is a crucial time for the two-year old Remai Modern as they are about to fill various key leadership positions in the near future.

Among those taking on this responsibility is Robertson Stromberg’s Candice Grant. Candice continues to give back to the community while managing her busy practice and family life.  Candice served as Saskatoon Public Library board chair until her term expired earlier this year.

Candice Grant’s Volunteer Work featured in the Green and White

The University of Saskatchewan’s alumni newsletter The Green and White has a regular feature called “Volunteer Highlight”.  The current issue spotlights the work of Candice Grant and the many and varied volunteer organizations she has been involved with since her early days as a student at the University of Saskatchewan.

Although busy with her practice and family, Candice has committed time to work with Saskatoon organizations like Big Brothers and Big Sisters, the community gardens and collective kitchen programs, and Dundonald School community council.  She has chaired the board of trustees for the Saskatoon Public Library and the board of directors for CHEP Good Food Inc. Candice was also appointed by the Government of Saskatchewan to serve a term on the Meewasin Valley appeal board.

Lawyers Candice D Grant