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:

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.