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New Employment Standards During Public Emergencies

Revised for May 2020 Amendments

Employment Standards Division

1-800-667-1783 (toll free)

About This Webinar

• Podcast recordings are available on saskatchewan.ca under:

– Employment Standards Training; and

– Supports for Businesses

• We welcome your comments and suggestions. Please email them to lrwswebinarteam@gov.sk.ca

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Objectives

• To provide information about recent legislative changes.

• To answer commonly asked questions.

• To provide sources of additional information.

Disclaimer

• This presentation is for your information and education.

• It is not legal advice or opinion. Consult a lawyer for your specific situation.

• Consult The Saskatchewan Employment Act (the SEA) forlegal interpretation and application.

• The presentation material is not to be used, reproduced, stored, distributed or transmitted in whole or in part for commercial purposes without written permission from the Saskatchewan Ministry of Labour Relations and Workplace Safety.

• © Copyright LRWS, 2020 4

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Background as of May 2020

• A Public Emergency was declared in response to the COVID-19 pandemic.

• The Chief Medical Health Officer (CMHO) issued orders to protect the public.

• The provincial government issued orders and directions resulting in employees being unable to attend work and employers needing fewer employees at work.

• In March, to support employees and employers, the Government amended the SEA and The Employment Standards Regulations.

• More amendments were made after the initiation of Re-Open Saskatchewan.

DEFINITIONS

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“Public Health Emergency”• Newly defined in the SEA, it is a public health

emergency of international concern, determined by the WHO, in accordance with the International Health Regulations (2005) or any subsequent International Health Regulations.

“Public Emergency Period”

• Also new in the legislation, a “public emergency period” is the period during an order of the chief medical health officer under 2-59.1 (2) of the Act (public health emergency) or an emergency order under The Emergency Planning Act.

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“Layoff” and “Termination”

• Other than during a public emergency period, a “layoff” is a temporary interruption of work by an employer that exceeds six consecutive work days.

• A “termination” is a permanent ending of employment by the employer (e.g., firing) or employee (i.e., quit or abandonment).

• A “group termination” is the termination of the employment of 10 or more employees in a workplace within any four-week period.

“Period of Employment”

• “Period of employment” means any period of employment that is not interrupted by more than 14 consecutive (calendar) days.

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TEMPORARY LAYOFFS DURING NORMAL TIMES

Normal Rules About Layoffs and Terminations

• The SEA sets the minimum amount of notice or pay instead of notice that applies for terminations and layoffs.

• The calculation of the number of weeks of notice required is based on the length of an employee’s period of employment.

• Pay instead of notice is based on the number of weeks of notice owed and the employee’s normal weekly wages.

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Normal Rules About Layoffs and Terminations

• The SEA does not provide employers with the right to temporarily lay off employees, it provides the maximum length of layoff allowed before the employee is terminated and pay instead of notice is due.

• Terms and conditions in your employment contract or Collective Bargaining Agreementcan’t fall below standards in the Act.

TEMPORARY LAYOFF RULES DURING A PUBLIC EMERGENCY

Change 1:

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Changes: Layoffs

• During a public emergency period and for two weeks following the end of the public emergency period, notice of layoff or pay instead of notice is not required.

• The new layoff provisions are in effect during an applicable public emergency period.

• The exemption from notice or pay instead of notice for 12 weeks in a 16-week layoff period, introduced in March, no longer applies.

Changes: Return to Work

• Employers must provide employees with a work schedule by the end of the two weeks after the end of the public emergency period.

• If the employer doesn’t provide an employee with a work schedule by the end of the two weeks after the end of the public emergency period:– the employee’s job is terminated; and

– the employee is owed pay instead of notice.

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Changes: Employee Does Not Return

• If an employee does not return to work as scheduled the employee is deemed to have abandoned their job and resigned.

• Employers should try to find out why employees can’t return and attempt to resolve issues.

• Employers should warn employees that failure to return is a resignation.

• Employees on layoff must be reasonably ready to return to work when recalled by the employer.

• The employer could provide more time for accommodation, safety issues, or extenuating circumstances.

Employee Responsibilities

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Onus is on the Employer

• Employers should document that they attempted to contact the employee and provide a scheduled return within the two-week period following the end of the public emergency period.

If the Employees are Terminated

• If the employees are terminated, the layoff period will be included in their period of employment used to determine the number of weeks of pay instead of notice required.

• The wages earned before the layoff will be used to calculate the normal weekly wage for the pay instead of notice required.

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GROUP TERMINATION

Change 2:

Group Termination

• During a public emergency period, employers must notify the Minister following the termination.

• Employers aren’t required to notify the employees or unions.

• Individual notice requirements still apply and aren’t changed.

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ABSENCES DUE TO ILLNESS

Change 3:

Time Off Work for Illness or Injury

Normally, employees must work for the employer for at least 13 consecutive weeks, and provide a medical note if requested, to ensure they are protected during an absence from work due to an illness or injury.

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Change

During a Public Health Emergency, employees don’t have to:

• work for more than 13 consecutive weeks for that employer; and

• provide a medical certificate to support the absence.

Protection FromDiscriminatory Action if Sick

• Employees are still protected from discriminatory action if the employee is off work because:

– of illness; or

– the employee must care for a dependent family member who is ill.

• Protection is for absences of up to 12 days in a calendar year or 12 weeks in a period of 52 weeks.

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PUBLIC HEALTH EMERGENCY LEAVE

Change 4:

Public Health Emergency Leave

• A new employment leave was created for employees:

– ordered to self-isolate at home; or

– who have to care for their child or adult family member who is affected by the direction or order of the Government or the CMHO.

• The leave is unpaid, unless the employer lets the employee work from home.

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When Available?

When a public health emergency is determined by the WHO and the CMHO orders that:• it applies to Saskatchewan, and• individuals must take measures to prevent or reduce

the spread of the disease including isolating; or• individuals must take measures to prevent or reduce

the spread of a disease in Saskatchewan.

Isolation Order

• Employees are entitled to leave when they are directed to isolate themselves to prevent or reduce the spread of the disease specified in the order.

• Direction could be from:

– a doctor;

– an employer;

– the Government of Saskatchewan; and/or

– the CMHO.

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If Direction About Orders Conflicts

The Government’s, the doctor’s, or the CMHO’s opinion prevails over the employer’s opinion.

Exempted Employees

• Employees who are told by their employer that they are necessary to provide critical public health and safety services are not entitled to take public health emergency leave.

• However, these employees are eligible for leave if ordered to self-isolate by a medical or government order.

• Check www.saskatchewan.ca for a listing of critical public services.

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Other Points aboutPublic Health Emergency Leaves

• A leave can be for the length of the order.

• Employees are not required to give notice before taking leave or before returning to work, as with other leaves, although good communication is encouraged,

• A medical note isn’t required and the leave is available immediately, regardless of the employee’s length of service.

• As the employee is still employed during the leave, they may continue to participate in employee benefit plans and provisions of their collective agreements.

Where to Find Public Orders

Visit saskatchewan.ca – banner at the top that reads ‘COVID-19’

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FREQUENTLY ASKED QUESTIONS

What is the difference between a leave and a layoff?

Employment leave

• An “employment leave” under the SEA is an employee entitlement to not be at work.

• An employer may provide additional leaves.

Layoff

• Notice and layoff provisions are minimum requirements for employers who temporarily reduce the work of employees.

• Public emergency layoff provisions are for employers who reduce staff due to work slowdowns or shutdowns as a result of public health orders or emergency orders.

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Can I get government financial support during a layoff or leave?

• Yes, depending on the rules of the program.

• If employment ends while the employee is on government support, the employer must still provide the applicable amount of pay instead of notice.

My business is ordered closed during the order – now what?

• Employers may access the temporary layoff provisions.

• If the employer closes their business permanently, then regular notice or pay instead of notice is owed.

• Employees may access public health emergency leave if they have been ordered to self-isolate.

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During a public health emergency, can an employer require an employee to

take PHE leave?

• Employees must comply with isolation orders.

• The employer could direct the employee to comply with the isolation order, which may involve being away from the workplace and possibly working from home.

What happens if I have been ordered to isolate and the employer lays me off?

• The layoff would start after the Public Health Emergency Leave is done.

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During a layoff, is an employee entitled to their benefit coverage?

• Because layoffs are temporary interruptions of work and not terminations, an employee’s benefits could continue during the layoff depending on benefit plan rules.

• Often, employee benefits are cost-shared between the employer and employee; that wouldn’t change.

• However, depending on the plan’s rules, employees may be required to pay the full cost of benefits.

An employee is laid off but is called back temporarily. How do the layoff

provisions apply?

• No notice is required during and for up to two weeks following the public emergency period, regardless of the number of times that the employee is recalled.

• Again, if the employee is not recalled after two weeks following the end of the public emergency period, pay instead of notice is required and calculated from the original date of layoff.

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What do we do with vacation pay during a layoff?

• Since the employment relationship continues during a layoff, the employer is not required to pay out vacation pay.

• However, an employer and employee may agree to use vacation before a layoff or for payout.

• The employer could require vacation to be taken and paid.

• If the layoff ended in a termination, the employer has 14 days from the termination to pay out any accrued wages and vacation pay.

What happens with overtime banks during a layoff?

• If there is an overtime bank (i.e., a formal agreement under the Act) then the employee could give the employer written notice that they want overtime paid and/or that they want to terminate the overtime bank.

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Overtime banks during a layoff

• Payout would occur in the pay period following the pay period the notice was given.

• Or, the employer must schedule when the employee must take the banked time off.

Do these provisions apply to freelance workers, “gig” workers or other independent contractors?

• No, these provisions apply to “employees” as defined under the SEA and Common Law.

• Independent contractors are in a business to business relationship with the owner.

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What if I am sick?

• The SEA protects employees from discriminatory action resulting from absences due to illness for up to 12 days in a calendar year or 12 weeks in a period of 52 weeks, depending on the severity of the illness.

• Severity may depend on the impact of the illness on the employee.

• During public health emergencies, 13 weeks of employment or a doctor’s note are not required to access this protection or public health emergency leave.

What if the employer decides to permanently close as a result of the public emergency?

• If the employer decides to permanently close their business, the usual notice or pay instead of notice rules in the SEA would apply.

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I have a health issue that places me at risk of further illness. Do I have to go

back to work?• If you feel you are at risk, you must notify your

employer about a possible medical accommodation.

• You may need to provide medical evidence.

• Possible accommodations include a leave, a reassignment, or modification of duties.

As the employer, can I reduce hours or pay rather than lay off employees?

• Small changes in pay or hours may not create a layoff.

• An employer’s major unilateral changes could be a constructive dismissal (i.e., permanent termination) of the employee.

• Employee agreement or proper notice is required. • Employees may accept the change temporarily,

but would likely expect to be returned to normal.• Communicate details in writing.• Consult a lawyer.

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I recalled my employee, but they refused to return to work. Now what?

• Employees are expected to return to work.

• Employers should warn employees that not returning may be job abandonment, which means they have quit.

• Employers should give specific and reasonable direction on the timing of return.

What do I do if staff don’t feel comfortable coming to work because of COVID-19?

• Employers must provide a safe workplace, including hearing employee concerns and complying with public and occupational health and safety measures.

• Employees have a right to refuse unusually dangerous work and a responsibility to ask their employer to investigate their concerns.

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What do I need to think of when employees refuse to return to work?

• Give special consideration to employees:

– Who are entitled to public health emergency leave.

– Who require a medical accommodation.

– Who have a workplace health and safety concern.

• After all is considered and reasonable warnings are provided, the employees may be deemed to have resigned.

RESOURCES

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Employment Standards Division

For more information about these Amendments and the SEA:

• 1-800-667-1783

• employmentstandards@gov.sk.ca

• www.publications.gov.sk.ca

• saskatchewan.ca/business/employment-standards – includes regular webinars on various employment standards 55

Other Resources: Government of Saskatchewan

• The Self-Isolation Support Program is targeted at Saskatchewan workers forced to self- isolate in order to curb the spread of COVID-19, and who are not covered by recent federally announced employment insurance programs and other supports.

• Regularly updated information about COVID-19 is available on saskatchewan.ca/covid-19-workers.

• Frequently asked questions about Public Health Emergency Leave and provisions for temporary layoffs can be found under Information for Businesses and Workers– Managing Staffing and Leave.

• For non-health public safety questions: 1-855-559-5502 (for Regina residents: 306-787-8539)

• For general workplace safety questions: LRWS Occupational Health and Safety: 1 (800) 567-7233

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Business Resources

• Visit Public Health Measures – Resources for Workplaces for information about the various measures the Saskatchewan Government has taken to support employers and employees, including the use of personal protective equipment (PPE).

• Saskatchewan Small Business Emergency Payment Program: Saskatchewan Small Business Emergency Payment Plan.

Other Resources: Government of Saskatchewan

• The Employer Services Branch within the Ministry of Immigration and Career Training (ICT) provides a concierge service for employers to help them navigate provincial and federal supports.– Email: supportforbusiness@gov.sk.ca– Visit: saskatchewan.ca/covid19-business– Phone: 306-787-7428– Toll Free: 1-844-800-8688 (Business Response Team)

• Saskatchewan businesses, innovators, or suppliers who have solutions that can help fight COVID-19 may direct proposals to procurement@gov.sk.ca.

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Other Resources:Government of Canada

• www.Canada.ca – click on Covid-19 banner• Canada Emergency Response Program:

www.canada.ca/en/services/benefits/ei/cerb-application.html• Canada Emergency Wage Subsidy: www.canada.ca/en/revenue-

agency/services/subsidy/emergency-wage-subsidy.html• Employment Insurance (EI) Benefits:

– Employer Contact Centre:• www.canada.ca/en/employment-social-development/corporate/contact/employment-

insurance-employers.html• Toll-free: 1-800-367-5693• TTY: 1-855-881-9874

– Regular EI Program:• www.canada.ca/en/services/benefits/ei/ei-regular-benefit.html

– Sick Benefits: sick and/or quarantined with COVID-19:• www.canada.ca/en/services/benefits/ei/ei-sickness/apply.html• 1-833-381-2725 (toll-free)

Work Share Program - An alternative?

This Federal Government program, through Employment Insurance, is designed to help employers and employees avoid layoffs when there is a temporary reduction in the employer’s normal business operation that is beyond the control of the employer.

• The Program is a work sharing three-party agreement involving employers, employees and Service Canada.

• Program provides income support to employees who are eligible for Employment

Insurance Benefits.

• Employees must agree to a reduced schedule of work and share work for a specified period of time.

• More information about the Work-Sharing Program can be found at: www.canada.ca/en/employment-social-development/services/work-sharing.html.

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