Employers in Canada may need to consider temporary layoffs as a result of the impact of COVID-19. This blog discusses some of the frequently asked layoff questions from employers in Saskatchewan.
Are there any new leaves for employees as an alternative to layoffs?
Employers should keep up- to-date on the latest government directives and legislative changes. As the situation develops there may be additional leaves or alternatives to layoffs.
On March 17, 2020, the Saskatchewan government retroactively amended The Saskatchewan Employment Act (the “Act”) to create a new Public Health Emergency Leave. Employees are entitled to a protected leave where a public health emergency has been declared in accordance with the legislation and:
- The employer, a medical practitioner, the government, or the Chief Medical Health Officer has directed the employee to isolate themselves; or
- The employee is required to provide care and support to an adult or child family member who is affected by a direction or order of the government or order of the Chief Medical Officer.
Employees who have been informed in writing by an employer that they are necessary to provide critical public health and safety services are exempted from entitlement to public health emergency leave.
The leave is unpaid unless the employee can safely work from home and is authorized by the employer to work from home. There is no medical certificate required.
Employment Standards Branch has advised that an employer cannot unilaterally send employees home on public health emergency leave. Rather, public health emergency leave must be granted by an employer in response to an order from the Chief Medical Health Officer, and that order must have a connection to an employer’s operations.
What statutory notice needs to be provided for temporary individual layoffs?
Normally, under the Act, employees are entitled to notice if there is an interruption in work for greater than six consecutive work days. This notice applies to termination of employment and to temporary layoffs. The notice can be provided as pay in lieu of notice or working notice and varies with length of service:
- More than 13 weeks but less than one year = one week
- More than one year but less than three years = two weeks
- More than three years but less than five years = four weeks
- More than five years but less than 10 years = six weeks
- More than 10 years = eight weeks
Employees may have rights to notice of layoff or termination or pay in lieu that exceed the statutory minimums pursuant to contract, employer policy or a collective bargaining agreement.
However, recent legislative changes have altered the normal statutory layoff scheme in the context of COVID-19. On March 19, 2020 the Saskatchewan government enacted The Employment Standards (Public Emergencies) Amendment Regulations, 2020. Among other things, these new regulations provide that in the event of a public health emergency, an employer is not required to provide statutory notice when they layoff employees for a period or periods of 12 weeks or less in a 16-week period.
If an employer lays off employees for a total of more than 12 weeks in a 16-week period, the employees are deemed to be terminated and are entitled to pay instead of notice as outlined in The Saskatchewan Employment Act. The notice calculation is made from the date on which the employee was laid off.
It is not yet clear what effect these new regulations will have on common law, contractual or collective bargaining entitlements in relation to layoffs.
Does layoff notice change if a group of employees are laid off?
There are additional group notice requirements if more than 10 employees are being laid off within a rolling four-week period. There are potential exceptions if the layoff is for 26 weeks or less or if the layoff results from unforeseeable circumstances preventing the performance of the contract. Each case will be assessed on its own facts, but Employment Standards has indicated that COVID-19 likely constitutes an exception to the requirement to provide group notice.
Are layoffs different for unionized workplaces?
Employers in all jurisdictions should consult their collective agreement to review obligations in the event of a layoff.
Employers may also have additional legislative obligations if it moves work between its locations. There may be successorship or organizational change provisions to address.
Employers may also have notification obligations to the union if a decision has been made to temporarily lay off employees in the future, especially if collective bargaining is ongoing.
Could employees claim their employment is terminated?
Employers should be aware the employees who are laid off may try to claim that the layoff is really a termination. These employees may seek to recover contractual or common law notice entitlements.
Each potential claim will have to be dealt with on a case- by-case basis and within the applicable legislative framework. In general, employees may have a difficult time claiming termination where they have been informed of a temporary layoff due to circumstances arising out of a public emergency.
Are there any special considerations for foreign national workers?
An employer is able to temporarily layoff or terminate foreign national workers as operations demand. When considering taking these steps, foreign national workers are to receive the same treatment under federal or provincial labour legislation as their Canadian and permanent resident of Canada counterparts. What will statutorily apply to a Canadian or Canadian permanent resident employee, will also apply to a foreign national worker. Employers should not specifically target foreign national workers for terminations, layoffs, or hours reductions ahead of Canadian employees. Equal consideration and treatment is key.
Although foreign national workers are to be treated in an equal manner, there are additional points employers must consider in relation to immigration compliance obligations. When an employer has a foreign national worker on a Labour Market Impact Assessment or Online Offer of Employment based work permit, there are obligations that are expected to be met for compliance. Employers are generally obligated to provide the same occupation and substantially the same, but not less favorable, wages and working conditions to those types of foreign workers. If a foreign national worker will be impacted by a termination, layoff, or reduction in work hours, employers must check and make sure that is done in a compliant manner or within a statutory justification.
For some foreign workers, employers may have obligations towards return transportation costs and housing. Employers must also review those obligation should there be a layoff or termination to see if there is any impact. Further, some foreign workers may be proceeding with a permanent residency application that is dependent on their current employment. A termination may cause that permanent residency application to collapse.
The MLT Aikins labour and employment team will continue to monitor the situation and provide additional updates on legal issues that may impact employers. In the meantime, please do not hesitate to reach out to our team if you require assistance in 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.