SK Re-opening: Layoff and Severance Considerations for Employers

On May 4, 2021, Saskatchewan introduced a three-step Re-Opening Roadmap. For more information on the Saskatchewan Re-Opening Roadmap, see our previous blog post.

Saskatchewan has thus far been successful in hitting the vaccination threshold targets to progress within the Re-Opening Roadmap plan. Step three of the plan will likely commence around mid-July, with most remaining public health restrictions lifted.

It is currently unclear if the Saskatchewan Government will lift the public emergency period order along with the public health order restrictions. However, employers should be aware that a lifting of the declaration of public emergency may seriously affect their workplaces.

In response to the COVID-19 pandemic, the Government of Saskatchewan previously enacted a number of amendments to The Employment Standards Regulations (the “Regulations”). For an overview of the amendments, see our previous blog post. These amendments aim to create a balance between employer and employee interests when employers decide to lay off employees during a “public emergency period.”

The Regulations define a public emergency period as occurring in one of two situations: first, if an emergency declaration is made under The Emergency Planning Act; and second, if the Chief Medical Health Officer makes an order that a disease poses a serious public health risk in Saskatchewan and that individuals must take measures to isolate themselves to prevent spread of that disease.

On May 22, 2020, the Government of Saskatchewan published the most recent layoff amendments to the Regulations which stated that, during the entirety of a public emergency period, employers and employees are exempt from the provisions of – and employees are not entitled to rely on – the layoff provisions of the Act.

Saskatchewan employers and employees are also exempt from the layoff provisions of the Act for an additional two weeks from the date that the public emergency period ceases to be in force.

However, by the end of that two-week period, employers must schedule any laid-off employees back to work. If employers have not scheduled certain employees back to work at the end of the two-week period, those employees are deemed to have been terminated and are entitled to pay in lieu of notice to be calculated from the original date the employer laid them off.

If the employer schedules any employees back to work but they do not return to work, those employees are deemed to have resigned.

It is not yet clear what effect the above-described amendments will have on common law or contractual or collective bargaining entitlements in relation to layoffs.

Many employers may not be able to return all employees to work within two weeks from when the public emergency period is no longer in force and may be subject to significant severance costs when they can least afford them. Those employers should proactively seek legal advice.

Options are available in both union and non-union workplaces to avoid or delay the deemed termination provisions in the Regulations and the related severance costs. Employers need to assess each situation on its own facts.

The MLT Aikins labour and employment team will continue to monitor the situation and provide additional updates on legal issues that may affect employers. In the meantime, please do not hesitate to reach out to our labour and employment team for help getting your organization prepared for addressing the operational impacts of COVID-19.

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.