On March 17, 2020 the government of Saskatchewan introduced and passed amendments to The Saskatchewan Employment Act. The primary focus of these amendments is the enactment of a new form of leave called “public health emergency leave” for provincially-regulated employees.
The purpose of this leave is to provide job security to employees who have been directed to self-isolate as a result of the current pandemic. As a precondition, employees can become entitled to public health emergency leave if the Chief Medical Officer of the World Health Organization or the provincial Chief Medical Officer issues 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.
If an order by a Chief Medical Officer is made, an employee can take public health emergency leave in one of two circumstances.
First, leave can be taken if certain authority figures have directed an employee to isolate themselves to prevent the spread of the disease that is the subject of the order by the Chief Medical Health Officer. This direction can come from any of the following authority figures:
- The employer;
- A medical practitioner;
- The government of Saskatchewan; or
- The Chief Medical Officer.
Second, public health emergency leave can be taken if the employee is required to provide care and support to a child or adult family member who is affected by a direction or order of the government of Saskatchewan or of a Chief Medical Officer.
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.
Public health emergency leave lasts for the period that the order of the Chief Medical Health Officer is in effect.
By default, public health emergency leave is unpaid. However, employees are entitled to their regular wages and benefits while on public health emergency leave if the following conditions are satisfied:
- The employee is authorized to work from home during the leave period;
- The employee complies with the measures set out in the order of the Chief Medical Health Officer; and
- Any other additional requirements that may be ordered by the government are satisfied.
In addition to the above, amendments to the Act have increased job protection for employees who suffer injury or illness from a public health emergency and are absent from work as a result. Normally, in order to be protected from perceived discriminatory acts by an employer in relation to absence from work as a result of injury or illness, an employee must (among other things) have worked with an employer for 13 consecutive weeks and provide medical documentation that links their absence to their illness or injury. However, if that illness or injury arises from a public health emergency, length of service and documentation requirements are now no longer required.
The above-described amendments are now lawful in Saskatchewan and are deemed to be in force as of March 6, 2020. The provincial Chief Medical Health Officer has recently issued orders which mandate, among other things, the closure of schools, limitations on the size of public gatherings, and the closure of restaurants, except take-out, delivery and drive-through, the closure of recreational facilities and more. In some circumstances these orders can enable the provision of public health emergency leave by an employer.
The government has subsequently amended the new leave provisions to exempt employees deemed by their employer to be necessary to provide critical public health and safety services. The MLT Aikins labour and employment team will continue to monitor the situation and provide additional updates on legal issues that may impact employers.
By Kevin Wilson and Tom Richards, MLT Aikins