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
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MLT AIKINS LLP • M L T A I K I N S . C O M
• 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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MLT AIKINS LLP • M L T A I K I N S . C O M
MEET THE PRESENTERS
5/14/2020
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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MLT AIKINS LLP • M L T A I K I N S . C O M
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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MLT AIKINS LLP • M L T A I K I N S . C O M
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
MLT AIKINS LLP • M L T A I K I N S . C O M
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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MLT AIKINS LLP • M L T A I K I N S . C O M
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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MLT AIKINS LLP • M L T A I K I N S . C O M
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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MLT AIKINS LLP • M L T A I K I N S . C O M
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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MLT AIKINS LLP • M L T A I K I N S . C O M
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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MLT AIKINS LLP • M L T A I K I N S . C O M
SASKATCHEWAN EMPLOYMENT LEGISLATIVE UPDATES
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MLT AIKINS LLP • M L T A I K I N S . C O M
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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MLT AIKINS LLP • M L T A I K I N S . C O M
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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MLT AIKINS LLP • M L T A I K I N S . C O M
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
MLT AIKINS LLP • M L T A I K I N S . C O M
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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MLT AIKINS LLP • M L T A I K I N S . C O M
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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MLT AIKINS LLP • M L T A I K I N S . C O M
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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MLT AIKINS LLP • M L T A I K I N S . C O M
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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MLT AIKINS LLP • M L T A I K I N S . C O M
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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MLT AIKINS LLP • M L T A I K I N S . C O M
COMMON LAW IMPLICATIONS
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MLT AIKINS LLP • M L T A I K I N S . C O M
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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MLT AIKINS LLP • M L T A I K I N S . C O M
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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MLT AIKINS LLP • M L T A I K I N S . C O M
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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MLT AIKINS LLP • M L T A I K I N S . C O M
RE-OPEN SASKATCHEWAN AND RETURNING TO WORK
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MLT AIKINS LLP • M L T A I K I N S . C O M
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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MLT AIKINS LLP • M L T A I K I N S . C O M
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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MLT AIKINS LLP • M L T A I K I N S . C O M
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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MLT AIKINS LLP • M L T A I K I N S . C O M
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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MLT AIKINS LLP • M L T A I K I N S . C O M
REFUSAL TO WORK AND HUMAN RIGHTS CONSIDERATIONS
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MLT AIKINS LLP • M L T A I K I N S . C O M
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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MLT AIKINS LLP • M L T A I K I N S . C O M
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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MLT AIKINS LLP • M L T A I K I N S . C O M
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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MLT AIKINS LLP • M L T A I K I N S . C O M
FINANCIAL ASSISTANCE FOR EMPLOYERS
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MLT AIKINS LLP • M L T A I K I N S . C O M
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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MLT AIKINS LLP • M L T A I K I N S . C O M
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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MLT AIKINS LLP • M L T A I K I N S . C O M
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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MLT AIKINS LLP • M L T A I K I N S . C O M
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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MLT AIKINS LLP • M L T A I K I N S . C O M
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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MLT AIKINS LLP • M L T A I K I N S . C O M
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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MLT AIKINS LLP • M L T A I K I N S . C O M
FEDERAL GOVERNMENT PROGRAMS
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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MLT AIKINS LLP • M L T A I K I N S . C O M
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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FEDERAL GOVERNMENT PROGRAMS
MLT AIKINS LLP • M L T A I K I N S . C O M
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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FEDERAL GOVERNMENT PROGRAMS
MLT AIKINS LLP • M L T A I K I N S . C O M
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
MLT AIKINS LLP • M L T A I K I N S . C O M
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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FEDERAL GOVERNMENT PROGRAMS
MLT AIKINS LLP • M L T A I K I N S . C O M
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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FEDERAL GOVERNMENT PROGRAMS
MLT AIKINS LLP • M L T A I K I N S . C O M
Q&A5/14/2020 46
MLT AIKINS LLP • M L T A I K I N S . C O M
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]