New COVID-19 Management Obligations for Employers of Foreign Workers

While the Government of Canada recognizes the importance of temporary foreign workers to the Canadian labour market, they also recognize that managing COVID-19 (a virus that knows no borders), requires strict control over workers who are more likely to travel internationally.

While this, of course, includes Canadians and permanent residents, foreign workers are an important focus since they must initially travel to Canada from another location to enter the Canadian labour market.

To address this, Immigration, Refugees, and Citizenship Canada (IRCC) has introduced new regulations to the Immigration and Refugee Protection Regulations (IRPR) in an effort to protect the health and safety of these workers and, by extension, the Canadian public at large. As employment lawyers with expertise in various areas of law including employment and employment-related immigration matters, we understand the importance of this issue for both foreign workers and their employers.

What are the requirements under the new regulations?

The new regulations relate to the employer compliance inspection process and impose new responsibilities on employers of temporary foreign workers aimed at preventing the introduction and spread of the COVID-19 virus.

Under the IRPR, Service Canada has the authority to conduct an inspection, with or without notice, including within the first fourteen (14) days of the temporary foreign worker’s arrival, to verify the employer’s compliance with the temporary foreign worker program and any related self-isolation requirements.

Employers are expected to be mindful that, in addition to the new regulations that came into effect on April 20, 2020, they are expected to continue to remain in compliance with the conditions attached to their Labour Market Impact Assessment (“LMIA”) and under the IRPR.

Given this, the following summarizes the new responsibilities Canadian employers must now commit to in relation to temporary foreign workers:

Responsibilities Upon Arrival of the Temporary Foreign Worker

• Employers are now expected to immediately inform Service Canada by email when the foreign worker arrives at the specified work location

Responsibilities During the Initial 14-Day Quarantine Period

• Employers must not prevent the foreign worker from complying with orders or regulations under the Quarantine Act or the Emergencies Act;
• Employers must pay foreign workers their wages during the isolation period starting on the day the foreign worker arrives and in accordance with the hourly wage indicated on their LMIA or Offer of Employment; and
• If the employer is providing the foreign worker with accommodations during the quarantine period, the employer must ensure that:
  • The foreign worker is isolated separately from other workers who are not isolating or under quarantine;
  • If the foreign worker is quarantining with others, the accommodation allows the foreign worker to remain at least two (2) metres away from other (foreign) workers;
  • The foreign worker is regularly provided with cleaning products for the purpose of cleaning and disinfecting the accommodation; and
  • The foreign worker is able to comply with provincial/territorial orders under the Quarantine Act or Emergencies Act.

Responsibilities During the Employment of the Temporary Foreign Worker

• The employer must provide a foreign worker who develops any signs of COVID-19 with private accommodations, including their own bedroom and bathroom; and
• The employer must ensure the foreign worker’s compliance with provincial/territorial laws that regulate the health response to COVID-19.

Responsibilities During the Inspection

• The employer must cooperate with an investigator by responding to requests in a timely manner (i.e., within 48 hours) and providing relevant documents, including:
  • Proof of paid wages (i.e., pay stubs)
  • Photos of accommodations respecting social distancing requirements (if more than one foreign worker is in quarantine at the same time)
  • Photos of private isolation space (if it is deemed necessary for the foreign worker to be in separate accommodations); and
  • Proof of adequate supply of sanitation products for the foreign worker to use (i.e., paper towels, household cleaning and disinfecting products, dish soap, laundry soap, sanitizers, etc.)

Serious Penalties for Non-Compliance

Where an illness related to COVID-19 is detected, the Service Canada Investigator is required to immediately report this to the local public health officials.

However, where the employer is found in contravention, particularly of the new COVID-19 related requirements, or if they fail to provide a response to the investigation requests, the Service Canada Investigator has the authority to impose the most severe penalty possible.

Penalties will depend on the severity of the violation and may include:

• Monetary penalties ranging from $1,000 to $100,000 per violation up to a maximum of $1 million over one year;
• A ban from accessing the Temporary Foreign Worker Program for one, two, five or ten years, or a permanently for the most serious violations;
• The publication of the employer’s business name and address on a public website with details of the violation(s); and/or
• The revocation of previously-issued LMIAs

Employers who do not agree with the ultimate findings of the investigator do have the right to a judicial review of the final decision.

For further information relating to the changes to the law or if you are a foreign worker and your employment has been impacted by COVID-19 whether through a layoff, termination of employment, or otherwise, please contact Toronto employment and immigration lawyers Sultan Lawyers at 416-214-5111 or here.