ESDC releases guidelines on the Temporary Foreign Worker Program and COVID-19
On April 4, 2020, Employment and Social Development Canada (ESDC) released several guidelines regarding changes to the Temporary Foreign Worker Program (TFWP) in light of the Canadian government’s response to the Coronavirus disease (COVID-19).
ESDC’s main site on COVID-19 can be accessed here. Frequently asked questions regarding changes to the TFWP in light of COVID-19 can be found here. Also available is a joint letter to employers from the Canadian Minister of Health, Patty Hajdu, and the Minister of Employment, Workforce Development and Disability Inclusion, Carla Qualtrough, outlining employees’ obligations to self-isolate upon entering Canada. Employers under the TFWP and their representatives also received an email guidance document dated March 27, 2020 accessible here.
In this post, we summarize the most important measures recently announced by ESDC and the Canadian government.
Emergency Order to Self- Isolate and Exemptions
Emergency Order PC number 2020-0175 made under section 58 of the Quarantine Act provides that as of March 25, 2020, it is now mandatory for all persons who enter Canada to self-isolate for 14 days.
Temporary foreign worker found to be non-compliant with an Emergency Order under the Quarantine Act can face penalties of up to $750,000. Moreover, a person who causes a risk of imminent death or serious bodily harm to another person while wilfully or recklessly contravening the Act or the regulations could be liable for a fine of up to $1,000,000 or to imprisonment of up to three years, or both. The government is also assessing options for penalties for employers of foreign nationals under other regulatory regimes, such as the Immigration and Refugee Protection Regulations.
Some work performed by temporary foreign workers is exempted from the Emergency Order or has been deemed essential to maintain the health and welfare of Canadians by the Chief Public Health Officer (CPHO) of Canada. This includes people who:
Make necessary medical deliveries of cells, blood and blood products, tissues, organs, or other similar lifesaving human body parts, as required for patient care;
Work in the trade and transportation sector who are important for the movement of goods and people, including truck drivers, crew on any plane, train or marine vessel, and that cross the border while performing their duties, or for the purpose of performing their duties;
Cross the border regularly to go to work in Canada, including in the healthcare sector or critical infrastructure workers; and
Cross the border to provide or receive essential services, including emergency responders and personnel providing essential services to Canadians related to the COVID-19 outbreak.
Those mentioned above are the only categories of employees exempted from the mandatory 14-day self-isolation requirement of the Emergency Order. Services and occupations labelled “essential” by provincial or territorial governments are not exempted from mandatory self-isolation, unless they fall under the categories listed above.
Employers of foreign workers are responsible for facilitating their employees’ self-isolation according to public health requirements. Those employers required to provide housing under the TFWP policy, must ensure that the housing meets these minimum standards:
Adequate space in the accommodations to allow for social distancing (remain 2 metres apart at all times);
Ensuring that those who are in self-isolation are separated from other individuals who are not in self-isolation;
Keeping self-isolated workers away from older adults and those with medical conditions who are at risk of developing serious illness; and,
Providing materials that enable workers to practice adequate sanitation (i.e. soap).
Temporary Foreign Workers’ Responsibilities Upon Arrival in Canada and During Self-Isolation
Foreign workers arriving by air will undergo mandatory health checks prior to boarding AND an assessment upon arrival in Canada. If the employee has symptoms before boarding, they will not be permitted to travel to Canada.
If the foreign worker has symptoms upon arrival, they will be placed in quarantine at the point of entry or be sent to the hospital depending on the severity of condition. Once they have recovered, their admissibility will be assessed and, if applicable, they may be permitted to travel onwards to their employment.
If the foreign worker does not have symptoms upon arrival and meets the entry requirements, they will be permitted to travel onwards (including connecting flights), and then in a private vehicle to their housing where they must self-isolate for 14 days.
If an employee becomes symptomatic after arrival at their Canadian residence (or believes that they were exposed to someone who was sick with COVID-19), they must be isolated from others and local public health authorities should be contacted immediately for direction. This obligation continues following the end of the mandatory self-isolation period.
Employers are responsible for monitoring the health of employees and reporting to local health authorities anyone who becomes symptomatic. This includes temporary foreign workers as well as other employees.
Work and Wages During Self-Isolation
Employers CANNOT authorize foreign workers to work during the self-isolation period, even if requested by the worker, except for those providing an essential service (see list above). Moreover, the employer cannot ask the worker to perform other duties during that period, such as building repairs or administrative tasks.
A foreign worker’s period of employment is intended to begin upon their arrival to Canada and includes the self-isolation period. Employers must pay foreign workers for a minimum of 30 hours/week during self-isolation, at the wage specified in the Labour Market Impact Assessment (LMIA). The employer can withhold standard contract/payroll deductions (e.g. Employment Insurance, housing, transportation, etc.) as per the applicable LMIA stream requirements. The employer is not allowed to deduct any additional amounts due to the self-isolation period.
The above requirements also apply to workers in the Seasonal Agricultural Worker Program (SAWP) and the 14-day period of paid self-isolation will be in addition to the minimum 240 hours of pay as specified in the SAWP contract.
Steps to Take if an Employee Becomes Sick with COVID-19
If a worker becomes sick with COVID-19, at any time, the employer must immediately arrange for the worker to be fully isolated from others and contact local public health officials. If this takes place during the initial self-isolation period, the worker will be paid.
If the worker becomes ill after the initial self-isolation period, they may be entitled to either paid or unpaid sick leave, depending on their employment contract and the relevant federal, provincial or territorial employment standards.
Foreign workers may also be eligible for Employment Insurance (EI) or the Canada Emergency Response Benefit (CERB). In both cases, foreign workers are subject to the same eligibility criteria as Canadians and permanent residents.
Health Care Coverage While in Canada
Foreign workers should receive health care coverage equivalent to other Canadian residents. For workers in the low-wage and primary agriculture streams of the TFWP, if the provincial/territorial health care is not provided from the first day that the worker arrives in Canada, equivalent private health insurance must be provided by the employer until the worker becomes eligible for the provincial/territorial plan. Some provinces are currently waiving waiting periods for provincial coverage.
Additional New Measures under the TFWP in Response to COVID-19
ESDC also announced certain measures taken by the government to improve the flexibility of the TFWP and reduce the administrative burden for employers. The following measures are being applied to all existing LMIA applications under review, as well as to new applications:
Employers are not required to submit minor administrative changes to the LMIA that would not change the terms and conditions;
LMIAs involving certain occupations related to agriculture, food processing and trucking are given priority processing. Minimum recruitment requirements for these positions will also be waived until October 31, 2020*;
The period of validity of an LMIA is extended from 6 to 9 months;
The maximum duration of employment under low-wage LMIAs is increased from 1 to 2 years, as part of a three-year pilot;
Employers must submit a valid Housing Inspection Report (HIR) (if applicable); and
The name change process for employers wishing to change the name of an already identified foreign worker in an LMIA, for reasons related to COVID-19, has been expedited.
Reporting Non-compliance and Quarantine Act Violations
Individuals who observe suspected violations of the Quarantine Act are asked to notify local law enforcement. This includes employers who observe a violation on the part of a self-isolating worker.
Those who observe a suspected contravention of the expectations of employers are asked to report through ESDC’s Online Fraud Reporting tool or by calling 1-866-602-9448.
*See the list of eligible occupations here.
For updated information and government guidelines regarding COVID-19 and its impact on Canadian immigration practice, visit lpen.ca/covid19