COVID-19, the challenges to the economy, and the associated travel restrictions have brought into focus the intersection between employment and immigration laws. The following is intended to demystify some of the choke points that can appear when there is a disruption to economic activity or travel. This information is relevant to both employers and foreign workers and based on common issues we see arise, particularly as we work through COVID-19.
What is Implied Status?
Implied status allows foreign workers to continue working in Canada while waiting for a decision on their application for a new permit (whether it be a work permit, study permit, or visitor record).
Specifically, the Immigration and Refugee Protection Act (“IRPA”) (the most important statute guiding Canadian immigration law), states that if a temporary foreign worker applies to extend their work permit (or other permit) before their current work permit ends or expires, then that temporary foreign worker’s status is extended by law until a decision is made with respect to the new work permit application.
The temporary foreign worker is therefore considered to have “implied status” during that period and is legally permitted to continue working pursuant to the terms of their expired permit.
It is important to note that under implied status you are allowed to continue to benefit from the status under your expired permit, not the new permit that you are applying for. This can be relevant where individuals are applying to either change their status or to switch employers. Having said this, there are some exceptions to this rule that can be reviewed with a qualified employment lawyer with expertise in immigration law.
Employer and Employee Obligations
Employers are required to exercise “due diligence” in determining whether their employees are authorized to work in Canada pursuant to IRPA. This may involve requesting employee-specific proof of status, such as a valid work permit.
In cases where a temporary foreign worker’s work permit has expired or is close to expiring, it is generally acceptable to request proof of implied status, including any available proof that the foreign worker has applied for a new work permit prior to the expiry of their existing work permit.
Employees should accordingly be proactive with respect to both monitoring their status with Immigration, Refugees and Citizenship Canada and ensuring that their employer is regularly updated with respect to that status. This includes informing their employer (with supporting documentation, where appropriate) once their implied status comes into effect and as soon as they receive any update with respect to their status (including a decision on their application).
Social Insurance Numbers and Termination of Employment
A Social Insurance Number (“SIN”) is a nine-digit number that is needed to work in Canada and to have access to government programs and benefits.
SIN’s that begin with a “9” are issued to temporary foreign workers and are valid only until the expiry date indicated on the immigration document authorizing them to work in Canada (i.e., their work permit).
Temporary foreign workers must update their SIN record to ensure that the expiry date always corresponds with the expiry date on their work permit. Once their SIN record has been updated, the temporary foreign worker will receive a SIN with the new expiry date.
While a temporary foreign worker is on implied status and waiting for their new work permit to be issued, their SIN number, which is tied to their expired work permit, will be expired. This does not mean that the employee can no longer legally work in Canada.
Employers can legally continue to employ a temporary foreign worker whose SIN number has expired as long as the temporary foreign worker remains on implied status. Employers should not take action to terminate the employment of temporary foreign workers who are on implied status simply because the temporary foreign worker’s updated SIN number has not yet been issued. This may lead to a wrongful dismissal claim and significant liability such as extended severance pay and bad faith damages (particularly for foreign workers who are deemed as particularly vulnerable given their temporary status in Canada).
Employees should also be diligent in updating their SIN numbers and providing the new SIN information to their employers as soon as possible.
If you are a temporary foreign worker and need assistance with explaining the legal merits of implied status to your employer, or alternatively if you are an employer who wants to understand if your employee is legally authorized to work in Canada, we invite you to contact Toronto employment lawyers Sultan Lawyers at 416-214-5111 or here.
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