The wide breadth of these amendments mean that most Saskatchewan workplaces will be affected—at least in some capacity—and so it will be important for employers to ensure that their policies and procedures are up-to-date to remain compliant with these amendments. To help, we have summarized some of the key changes that Saskatchewan employers will need to know to be prepared for when these amendments come into force:
- Medical note requests: Employers will be limited on when they can request medical certificates from employees who are absent due to illness or injury (either their own or that of an immediate family member). An employer will not be permitted to request a medical certificate for such absences unless the employee has either:
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- (a) been absent for more than five consecutive working days, or
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- (b) had non-consecutive absences of two or more working dates due to sickness or injury in the preceding 12 months.
- Expanded sick leave: Employees will have access to extended long-term sick leave, increasing from 12 to 27 weeks. This change aligns job protection under provincial law with the federal Employment Insurance (EI) sickness benefits.
- More flexibility for bereavement leave: Previously, the SEA set out that employees were entitled to five days of unpaid leave in the case of a death of an immediate family member, which must be taken within one week before or after the funeral. These amendments clarify that bereavement leave can be used when there is a loss of a pregnancy and also expand the time period during which bereavement leave can be used to within six months after the death or loss of pregnancy.
- Maternity leave: The availability of maternity leave has been expanded to include employees who experience a loss of a pregnancy on a date not more than 20 weeks before the estimate date of birth.
- Interpersonal violence leave: Employees experiencing interpersonal or sexual violence will be entitled to a new unpaid leave of up to 16 weeks, to be taken in one continuous period within a 52-week span. This is in addition to the existing 10-day leave, which includes five paid and five unpaid days that may be taken either consecutively or intermittently. The leave can be used for a range of needs, including accessing medical care, counseling, victim services, relocating or seeking legal or law enforcement assistance.
- Rules around tips: Employers will be prohibited from withholding, deducting or reclaiming employee tips (or, as referred to in the amendments, “gratuities”), unless explicitly permitted by law. The amendments also include the regulatory-making authority to define “gratuities” and establish the conditions that an employer must meet in order to have a permissible tip pooling arrangement. As of the date of this blog post, the regulations have not been published, so the specific details of these rules are still to be determined.
- Overtime “day” definition: Employers will have greater flexibility in managing shifts and aligning work schedules with their operational needs, as they will now have the option to either define a “day” as an individual calendar day or to continue using the 24-hour period for the purposes of scheduling and overtime. It is still required that employees receive at least eight hours of rest within any 24-hour period, regardless of how the “day” is defined. Employers will also be required to clearly communicate their definition of a day to employees when issuing work schedules.
Other Changes
There are a number of other notable changes that are being made to the SEA, including:
- Clarification that employers are allowed to pay wages in cash.
- Clarification that employers do not have to provide vacation pay on the period for which statutory pay-in-lieu of termination is being provided.
- Part-time employees will be eligible for modified work arrangements, with overtime calculated based on scheduled hours instead of the default eight-hour day.
- Non-unionized employers will be able to apply to the director of Employment Standards for variances to meal breaks requirements and scheduling notice rules, as long as they have written employee consent. Similarly, Unions will be allowed to negotiate these types of variances directly with employers. This will allow for more tailored arrangements to suit the needs of different workplaces.
- The requirement for two consecutive days off for retail workers has been adjusted to one day off per week, to align it with most other industries.
- With proper employee consent, employers will be able deduct amounts for salary advances, voluntary training and housing allowances from wages.
- If an employer takes discriminatory action against an employee, the director of employment standards will have the authority to order employers to stop discriminatory action, reinstate employees, pay lost wages and remove reprimands from employment records. This mirrors the authority provided to the director of occupational health and safety in other portions of SEA. These decisions will be appealable but will remain in effect during the appeal process unless an adjudicator or the director decides otherwise. Failing to comply with a decision of the director will be an offence under SEA.
- Employers will be required to provide notice to employees, the Minister and any relevant union when terminating 25 or more employees within a four-week period. Previously notification was required for 10 employees.
Matters to be Determined by Regulation
While the amendments provide a framework, some details are left to be defined in subsequent regulations. It is important to stay informed about these forthcoming regulations, as they will provide the detailed rules and procedures for implementing these legislative changes. In addition to the ones mentioned above, this will include:
- The government will have the authority, through regulations, to prescribe additional individuals, beyond immediate family members, for whom an employee may access bereavement leave. While this change provides the option to expand the eligibility criteria, it does not mean the government will make any changes.
- The amendments will allow the Government to expand the definition of “employee” by regulation. The intent of this amendment is to provide the Government with flexibility to make adjustments to the definition of an employee without the need to pass a new amendment, allowing it to respond more efficiently to evolving circumstances.
- The Government will also have the authority to expand the categories of persons that may be affected by decisions of the Director of Employment Standards, opening the doorway for more than just employees, employers and corporate directors to be bound by such decisions.
Our Labour and Employment Group will continue to monitor the developments in relation to The Saskatchewan Employment Act and associated regulations and will provide an update once additional information becomes available. It is strongly recommended that Saskatchewan workplaces review their existing policies and procedures to ensure that they will be compliance with this changing legislation and reach out to legal counsel as necessary to understand what that may mean in terms of practical next steps to ensure compliance with the legislation.
Note: This article 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 should consult a legal professional for specific advice in any particular situation.
This article was prepared with the assistance of summer law student Molly Waldman.
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