The Canadian agricultural and food industry relies heavily on foreign labour to ensure the country has a reliable domestic supply of foodstuffs. Specifically, foreign workers have for decades supported Canada’s food industry in a range of ways including machinery operation, livestock handling, planting, maintaining stock, and harvesting crops, trees, and other plants.
As the 2020 farming season has begun, employers are understandably concerned that both the current travel restrictions and the employment landscape will make it impossible for them to secure the workers needed to sustain their operations and industry overall.
As employment lawyers, we continue to look at developing matters relevant to the workplace specific to COVID-19 and its effects on various employment avenues. The following outlines key information that pertains to both employers and employees in the agricultural industry.
The Government of Canada Responds
The Government of Canada has responded by exempting a range of foreign nationals working in the agricultural industry from travel restrictions.
Specifically, Immigration Canada will expect foreign agricultural workers to identify themselves as essential workers, after which they will be confirmed (or not) as eligible both to travel to Canada and to be granted admission to the country upon arrival. This will include a requirement to show airline personnel either a Port-of-Entry letter or a work permit from Immigration, Refugees, and Citizenship Canada (“IRCC”).
Further, these workers will be subject to both a health screening prior to boarding their flight and to fourteen (14) days of mandated self-isolation after arrival, regardless of whether they are exhibiting symptoms.
Employers are further responsible for paying their temporary foreign workers for a minimum of thirty (30) hours per week during self-isolation at the rate of pay specified on the Labour Market Impact Assessment (LMIA). The employer can withhold standard contract deductions (Employment Insurance, housing, transportation, etc.) as per applicable program stream requirements, however the employer cannot deduct any additional amounts.
Setting this aside, all travellers who are exhibiting symptoms of COVID-19, regardless of whether they are deemed an essential worker, will be restricted from travelling to Canada. More specifically, if a traveller is symptomatic, they will not be allowed to board their flight to Canada or, if arriving to Canada by land, be denied entry at the relevant land border.
Changes to the Food & Agriculture LMIA Process
In addition to the exemptions outlined above, the Government of Canada has made several changes to the LMIA process, which is specifically targeted at the agricultural industry, including that:
- Employers are not required to submit minor administrative changes to the LMIA that would not change the basic terms and conditions of employment
- The recruitment requirements for LMIA for key occupations related to the agriculture and food industries are waived until October 31, 2020. This means that LMIA applications for these key occupations can be submitted without any recruitment or advertising efforts
- Employment and Social Development (“ESDC”) is giving priority processing to applications for key occupations related to the agriculture and food industries to ensure there is no disruption in Canada’s food supply chain
- Employers applying for an LMIA under the Seasonal Agricultural Worker Program (“SAWP”) and Agricultural Stream may submit a previously approved Housing Inspection Report (“HIR”) if needed. If an employer cannot submit a valid HIR due to COVID-19, they must try and submit a valid HIR from the previous three (3) years
- Expedited name change process for employers wishing to change the name of an already identified foreign worker
The above changes are being applied retroactively to all LMIA applications currently being reviewed, and to any applications received after March 20, 2020. These changes will likely be in effect until October 31, 2020, with the possibility of an extension due to the COVID-19 pandemic.
Additional Criteria for Employers That Provide Accommodations to Workers
Finally, employers who provide accommodations to temporary foreign workers must abide by the following supplementary criteria in addition to the general criteria outlined by the Government of Canada to prevent the spread of COVID-19:
- Accommodations must be separate from others who are not subject to self-isolation even if that means paying for alternative housing beyond what was initially contemplated.
- Shared facilities (bathroom, kitchen, living space, etc.) are allowed, if there is sufficient space in the accommodations for workers to respect the self-isolation requirements.
- The employer must ensure that surfaces in the accommodations are cleaned and disinfected regularly.
- Employers must post information about preventing the spread of COVID-19 in the accommodations, including information that outlines best practices for workers in maintaining the bathroom and other washing facilities. Several resources to assist are available online, including here.
- Employers must ensure that there is no contact with adults 65 of age or older or those with medical conditions at risk of developing serious illness if needed.
If employers fail to comply with these measures, it could result in sanction by the appropriate government authority and/or a finding by the courts of bad faith treatment, a violation of human rights, wrongful dismissal, or otherwise.
If you have any questions relating to employment laws in particular in relation to COVID-19 and the upcoming transition period, whether relating to hiring, termination, wrongful dismissal, unjust dismissal or otherwise, please contact Toronto immigration and employment lawyers Sultan Lawyers at (416) 214-5111 or here.
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