With the coming into force of the Saskatchewan Employment Amendment Act, 2021 ("Amendment Act"), which amends the Saskatchewan Employment Act ("Employment Act"), Saskatchewan is the first province to introduce statutory protection to employers in respect of implementing COVID-19 restrictions and policies in the workplace.
The amendments to the Employment Act prevent employees from bringing any claim against an employer for implementing COVID-19 measures. In particular, sections 9-10.01 of the Employment Act state that no action or proceeding can be brought against a public or private employer with respect to any act or omission of the employer if the employer acted in good faith in accordance with COVID-19 emergency regulations. Good faith effort means "an honest effort, whether or not that effort is reasonable."
The topic of mandatory vaccination policies and COVID-19 measures in the workplace have been addressed in the labour and employment realm by labour arbitrators and human rights commissions and tribunals across the country. In the recent decision of Parmar v Tribe Management Inc., 2022 BCSC 1675 ("Parmar"), the British Columbia Supreme Court ruled on an employer's response to an employee's non-compliance with a mandatory vaccination policy. The Court in Parmar held that placing an employee on an indefinite unpaid leave of absence did not amount to constructive dismissal and that due to the unprecedented and uncertain effects of COVID-19, the employer's mandatory vaccination policy was reasonable and justified.
The new Saskatchewan legislation codifies the BC Supreme Court's common law ruling. In addition to preventing new claims from employees against employers, the changes to the Employment Act also apply to any actions or proceedings, which arose prior to the Amendment Act coming into force. Actions or proceedings, which were commenced prior to the amendment coming into force, are deemed to have been dismissed without costs.
This legislative amendment reassures Saskatchewan employers that they are shielded from litigation arising from implementation of workplace measures during the pandemic where such measures were made in good faith.
It remains to be seen whether other provinces will follow suit in introducing statutory protections for employers for liability in respect of COVID-19 workplace measures.
If you would like to discuss this article further or have any questions, please contact the author or a member of the Gowling WLG Employment, Labour & Equalities Group.