COVID-19 CHALLENGES AND STRATEGIES FOR SASKATCHEWAN … · COVID-19 CHALLENGES AND STRATEGIES FOR SASKATCHEWAN EMPLOYERS Presented by: Kevin Wilson, Q.C. ... employees for a period

MLT AIKINS LLP • M L T A I K I N S . C O M

COVID-19 CHALLENGES AND STRATEGIES FOR SASKATCHEWAN EMPLOYERSPresented by:Kevin Wilson, Q.C.Jana LinnerBrent MatkowskiCalen Nixon

5/14/2020 1


• Updated regularly with insights, tools and webinars• Seven key response areas:

• Protecting and securing systems and data• Workforce and workplace management• Business efficacy – produce and service delivery• Transactions• Dispute & risk management• Governance & disclosure, and• Finance related challenges

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https://www.mltaikins.com/service/covid-19-resource-centre/


MEET THE PRESENTERS

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Jana LinnerT: (306) 347-8427 [email protected]

Brent MatkowskiT: (306) 975-7129 [email protected]

Kevin Wilson, Q.C.T: (306) 975-7103 [email protected]

Calen NixonT: (306) 347-8634 [email protected]

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AGENDA• Two months out: the current COVID-19 landscape• Legislative updates

• Temporary layoffs• Group termination• New Public Health Emergency Leave

• Common law implications• Re-open Saskatchewan and returning to work• Employee refusals to work and human rights considerations• Financial assistance for employers

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TWO MONTHS OUT: THE CURRENT COVID-19 LANDSCAPE • 5.5 million Canadians impacted by job loss or reduced

hours in April• Unprecedented, fast-changing situation for Canadian

and Saskatchewan employers • Unemployment rate in Saskatchewan rose 4% to 11.3%

in April, nationally unemployment rose 5.2% to 13%• Current statistics as of May 14 at 8:00 AM:

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Saskatchewan• Cases = 577• Deaths = 6

Canada• Cases = 72,278• Deaths = 5,304


TIMELINE• March 11, 2020 – WHO announced COVID-19 a

pandemic

• March 20, 2020 – Saskatchewan travellersreturning from international destinations must quarantine or isolate for 14 days

• March 18, 2020 – Saskatchewan declared a provincial state of emergency

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TIMELINE• April 28, 2020 – the Saskatchewan Health Authority provided

updated modelling indicating improved outlook for management of the virus

• Beginning on May 4, 2020, Saskatchewan commenced its Re-open Saskatchewan economic plan, which is being rolled out in phases

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CANADA – UNITED STATES BORDER CLOSURE• The Canada – United States border closed for all

non-essential travel on March 21, 2020• On April 18, 2020, Canada and the United States

agreed to extend the closure until May 21, 2020, subject to certain exceptions

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PROVINCIAL BORDERS• On March 18, 2020 Saskatchewan directed avoidance of all non-essential travel

outside the province, excepting work commuting and people living in border communities

• Similar guidelines in British Columbia and Alberta

• Many provinces directing avoidance of non-essential travel outside the province and requiring self-isolation for 14 days for anyone entering (subject to certain exceptions), including Nova Scotia, New Brunswick, PEI, Manitoba, Yukon

• Visitors prohibited from entering NWT or Nunavut unless essential

• Ontario currently has no specific inter-provincial guidelines• Non-essential travel to a number of provincial regions is controlled by police

checkstops in Quebec

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FURTHER SASKATCHEWAN TRAVEL RESTRICTIONS• On April 30 and updated on May 6, 2020, Saskatchewan

announced further travel restrictions in the Northern Saskatchewan Administrative District (“NSAD”)

• General rules = travel to or out of the NSAD is prohibited (whether from Saskatchewan or another jurisdiction) and no person within the NSAD may travel outside of the community in which their primary residence is located

• Certain exceptions exist

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SASKATCHEWAN EMPLOYMENT LEGISLATIVE UPDATES

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SASKATCHEWAN EMPLOYMENT LEGISLATIVE UPDATESThere are a number of provisions and changes to consider in light of COVID-19:• Temporary layoffs • Notice of group termination• New Public Health Emergency Leave

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CHANGES TO TEMPORARY LAYOFFS• Saskatchewan employers are entitled to temporarily lay off

employees for a period of 12 weeks or less in a 16-week period during a public health emergency

• Unionized employers should consult their collective agreement to review obligations in the event of a layoff

• No changes under the Canada Labour Code – federally-regulated employers are able to lay off employees for up to three months or less; up to six or twelve months in certain circumstances

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CHANGES TO TEMPORARY LAYOFFS• An employer is not required to provide notice or pay in lieu of

notice when laying off employees for a period of 12 weeks or less in a 16-week period

• If layoff persists for more than 12 weeks in a 16-week period, the employee is deemed terminated.

• If a deemed termination, the employee is entitled to statutory pay instead of notice

• Risk that employees may seek contractual or common law notice5/14/2020 14


NOTICE OF GROUP TERMINATION• Written notice of group termination to employees is not

required during COVID-19 when the following circumstances apply:

• Where the employees are laid off for a period not exceeding 26 weeks; or

• Where the employees are unable to work because of an unpredictable event or circumstance

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PUBLIC HEALTH EMERGENCY LEAVE• On March 17, 2020, the government of Saskatchewan

retroactively amended The Saskatchewan Employment Act to create a new Public Health Emergency Leave.

• To qualify for the leave:

• The employer, a medical practitioner, the government, or the Chief Medical Health Officer must direct the employee to isolate themselves; or

• The employee must be required to provide care and support to the employee’s child family member who is affected by a direction or order of the government or order of the Chief Medical Officer.

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PUBLIC HEALTH EMERGENCY LEAVE

• Employees are entitled to paid leave if they are authorized to work from home

• Employees are entitled to the leave for as long as the conditions are satisfied

• Employees required to provide critical public health and safety services are not entitled to this statutory leave of absence

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OTHER CHANGES AS A RESULT OF COVID-19• Medical note is not required for COVID-19 medical issues

• Waiver of the 13 consecutive week employment eligibility requirement for COVID-19 medical issues

• Additional contractual entitlement to sick days may also be found in applicable employment agreements, collective agreements or workplace policies

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OTHER CHANGES AS A RESULT OF COVID-19• Other statutory leave rules remain in place for circumstances

outside of COVID-19

• SEA section 2-40(2)(b)(i): 12 days in a calendar year, in the case of illness or injury that is not serious

• SEA section 2-40(2)(b)(ii): 12 weeks in a period of 52 weeks, in the case of serious illness or injury

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COMMON LAW IMPLICATIONS

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CONSTRUCTIVE DISMISSAL• Constructive dismissal can arise during a layoff period, even

where a layoff is permitted under provincial legislation• Courts have held that a temporary layoff constitutes

constructive dismissal if the employment contract does not provide for the right to temporarily lay off employees

• Given the number of layoffs in Saskatchewan and the fact that many layoffs are due to government-mandated business closures, it will be interesting to see how (un)successful this argument is in Court

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CONSTRUCTIVE DISMISSAL• Many businesses have implemented salary reductions or

hour reductions• Unilateral changes resulting in substantial alteration to terms of

employment agreement part of test for constructive dismissal claims• Constructive dismissal claims may also arise due to

unaddressed safety concerns

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COMMON LAW REASONABLE NOTICE• Financial difficulty and down markets are usually little help

to employers:• Existing case law says that economic circumstances of an employer

do not impact the calculation of reasonable notice• On the other hand, market conditions such as unemployment rates

are a factor in assessing reasonable notice periods• Mitigation may be more difficult

• It will be interesting to see if and how the common law adjusts as a result of COVID-19

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RE-OPEN SASKATCHEWAN AND RETURNING TO WORK

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RE-OPEN SASKATCHEWAN PLAN• Phased approach to slowly lift restrictions on activities

• Phase one: May 4• Previously restricted medical services including dentists, optometrists,

physical therapy, etc.

• Fishing and boat launches

• Community gardens

• Golf courses: May 15

• Phase two: May 19• Retail business, including shopping malls

• Select personal services including hairdressers, barbers, registered massage therapists, etc.

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RE-OPEN SASKATCHEWAN PLAN• Phase three: TBD

• Re-open remaining personal services

• Restaurants (50% capacity), licensed establishments

• Gyms and fitness facilities

• Childcare

• Allowable gatherings increased to 15 persons (10 currently)

• Phase four: TBD• Open indoor and outdoor recreation and entertainment facilities

• Allowable gatherings increased to 30 persons

• Phase five: TBD• Consider lifting long-term restrictions

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RECALLING EMPLOYEES• There are several important questions employers should ask themselves

when recalling employees, including:• How many employees can be recalled?

• What is the order of recall?

• What is the expected timeline for recalls?

• How will recall be communicated to employees?

• Will job hours, job duties or compensation change?

• Will employees be asked to sign a recall agreement?

• What to do if an employee refuses to return to work?

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RECALLING EMPLOYEES• Written notice/work schedules provided at least one week in advance

• Employers need to be attuned to: • Legislative safety obligations and industry-specific safety guidelines

• Physical distancing in the workplace

• Adequate supply of PPE and sanitation supplies

• Human rights issues or safety concerns voiced by employees

• Collective agreements may impact the order in which employees are recalled as well as restrict changes in work hours or duties

• Unionized employers should consider entering into a specific Letter of Understanding with the union to achieve their re-opening plan

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REFUSAL TO WORK AND HUMAN RIGHTS CONSIDERATIONS

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REFUSAL TO WORKThe Saskatchewan Employment Act, section 3-31 • Workers have a right to refuse to perform any particular act or series of acts at a

place of employment if the worker has reasonable grounds to believe that the act or series of acts is unusually dangerous to the worker’s health or safety or the health or safety of any other person at the place of employment until:• Sufficient steps have been taken to satisfy the worker otherwise; or

• The occupational health committee has investigated the matter and advised the worker otherwise

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REFUSAL TO WORKRefusals to work relating to COVID-19 often stem from:• An employee who believes that the employer has not done

enough to protect employees in the workplace;• An employee having a medical condition which puts them

at a greater risk of serious illness if they contract COVID; or• ex. asthma, other immune deficiencies

• An employee being a family member of an immunocompromised person

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HUMAN RIGHTS CONSIDERATIONS

• Refusals to work because of personal health concerns or the health of a family member potentially trigger protection under The Saskatchewan Human Rights Code, 2018

• An employer may be required to accommodate an employee by providing an unpaid leave of absence• Accommodation must be linked to a protected ground such as disability or family

status• Transient stress is generally not a disability for the purpose of the Code• The presence of an immunocompromised individual at home who does not

require the employee’s care may not trigger the duty to accommodate

• Employers may be able to ask for a medical note where request for leave is not a COVID-19 medical issue

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FINANCIAL ASSISTANCE FOR EMPLOYERS

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FINANCIAL ASSISTANCE FOR EMPLOYERSCredit Line and Loan Deferrals• Some banks offering skip-payment plans to defer monthly

payments on lines of credit and loan paymentsProperty Tax• Regina and Saskatoon have implemented bill deferral

program allowing zero interest bill deferral for up to six months

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FINANCIAL ASSISTANCE FOR EMPLOYERSWCB Relief Measures• Waiving penalties and interest charges for late premium payments

from April 1 until June 30, 2020• Forgiving interest and penalties for late payments in March• Suspending payroll audits except refund circumstancesUtilities• Crown utilities offering six-month interest waiver program effective

March 18, 2020• Outstanding balances can be paid back in installments over 12 months

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FINANCIAL ASSISTANCE FOR EMPLOYERSExtension to remit Provincial Sales TaxExtended to July 31, 2020 for the following reporting periods, if payment arrangements are in place by July 31, 2020:• For monthly filers, amounts due for February, March and April 2020;• For quarterly filers, amounts due for January 1, 2020 to March 31, 2020.

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FINANCIAL ASSISTANCE FOR EMPLOYERSSaskatchewan Small Business Emergency Payment (SSBEP)To be eligible for the SSBEP, a business must:• have been fully operational (or eligible to operate for seasonal businesses)

on February 29, 2020;• have experienced a loss in revenue as a result of a COVID-19 public

health order;• have less than 500 employees; and• commit to reopen business operations following the cancellation of the

COVID-19 public health order.

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FEDERAL GOVERNMENT PROGRAMS • Canada Emergency Response Benefit (CERB)

• Taxable benefit for eligible workers who lost their job (employees and self-employed individuals)

• $2,000/month for up to four months if the worker has received no (or nominal) income for 14 consecutive days

• Canada Emergency Business Account• Provides up to $40,000 in interest free loans to small businesses and non-

profits • To be eligible, the business must show they paid between $20,000 and $1.5

million in payroll in 2019

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FEDERAL GOVERNMENT PROGRAMS

• 10% Temporary Wage Subsidy • Smaller employers do not have to remit full amount of withheld income tax

• Business Credit Availability Program and Large Employer Emergency Financing Facility

• BCAP is a program through Business Development Bank of Canada and Export Development Canada including loan guarantees, co-lending with banks and credit unions, bridge financing aimed at small and medium-sized businesses

• Financing program expanded this week to include medium-sized businesses whose credit needs exceed BCAP limitations and other programs

• LEEFF, through Canada Development Investment Corporation, provides bridge financing in amounts greater than $60 million to large employers ($300 million + in revenues)

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Canada Emergency Wage Subsidy• Covers up to 75% of an employee’s wage (up to $847/week) • Available for wages, salaries, commissions and some taxable benefits• Retroactively applies to amounts paid since March 15, 2020• Paid directly by the CRA to qualifying employers

• Employers will continue to pay their employees• Employers can generally expect payment within 10 business days of

applying

• Employers must have had a payroll account on March 15, 2020

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Canada Emergency Wage SubsidyEligible entities:

• Corporations (other than corporations exempt from tax or “public institutions”)• Individuals (including trusts)• Registered charities (other than “public institutions”) • Non-profit organizations • A defined list of tax-exempt entities (other than “public institutions”)• Partnerships, if all partners would otherwise be eligible

Excluded entities:• Governments, municipalities, First Nations bands, Crown and municipal

corporations• Schools, school boards, hospitals, health authorities, public universities and colleges

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Canada Emergency Wage Subsidy• Non-profits and registered charities can elect to

exclude government funding• Special rules may apply to corporate groups• Can choose between accrual and cash accounting

methods• 25% penalty and repayment of subsidy if steps taken

to reduce revenues to qualify for the subsidy

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CALCULATING REVENUE DECREASES

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Eligibility period for wages paid

Required Revenue Reduction

Periods for Comparing Revenue

Reduction*

Qualifying Period 1 March 15 – April 11 15% March 2020 vs. • March 2019; or• average of Jan/Feb 2020

Qualifying Period 2 April 12 – May 9 30%(or qualified in Period 1)

April 2020 vs. • April 2019; or• average of Jan/Feb 2020

Qualifying Period 3 May 10 – June 6 30%(or qualified in Period 2)

May 2020 vs. • May 2019; or• average of Jan/Feb 2020

*Must use same method (e.g. 2019 vs. 2020 or average of January/February 2020) for all periods


Canada Emergency Wage Subsidy• Broadly available to management, professionals, salaried and

hourly staff• For arm’s length employees, includes those hired after March 15,

2020• For non-arm’s length employees, must have been on payroll prior

to March 15, 2020• Not applicable to employees who were not paid for 14 consecutive

days during the qualifying period• These employees apply for $2,000 CERB benefit instead

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Canada Emergency Wage Subsidy• Subsidy amounts are included in the employer’s taxable income• Content of application form is important • The names of employers who apply can be published• Employers must apply before October 2020• Option to retroactively put employees on payroll

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Q&A5/14/2020 46


THANK YOU

5/14/2020

Jana LinnerT: (306) 347-8427F: (306) [email protected]

“MLT Aikins” the MLT Aikins Designs and “Western Canada’s Law Firm” are trademarks of MLT Aikins LLP. Copyright © 2020 MLT Aikins LLP. All rights reserved.

Note: This presentation is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers/viewers should consult a legal professional for specific advice in any particular situation.

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Brent MatkowskiT: (306) 975-7129F: (306) [email protected]

Kevin Wilson, Q.C.T: (306) 975-7103F: (306) [email protected]

Calen NixonT: (306) 347.8634F: (306) [email protected]

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COVID-19 CHALLENGES AND STRATEGIES FOR SASKATCHEWAN … · COVID-19 CHALLENGES AND STRATEGIES FOR SASKATCHEWAN EMPLOYERS Presented by: Kevin Wilson, Q.C. ... employees for a period