Temporary Foreign Worker Program and COVID-19

Immigration, Refugees and Citizenship Canada imposed travel restrictions as of March 26, 2020 due to the COVID-19 pandemic. However, Temporary Foreign Workers (“TFW”) are exempt from these restrictions. The exemptions include seasonal agricultural workers, fish/seafood workers, caregivers and all other TFW.

The Temporary Foreign Worker Program (“TWFP”) employers and workers are expected to follow the latest public health and safety requirements to help prevent the introduction and spread of COVID-19. The Government of Canada is working closely with all involved in the TFWP to ensure compliance with the health and safety requirements.

Administrative Information for Employers – COVID-19 Update

Service Canada is still processing Labour Market Impact Assessment applications (“LMIAs”). However, the Government of Canada has introduced new measures to improve flexibility and reduce administrative burdens for employers during the COVID-19 pandemic. The following measures apply proactively to all existing and new LMIAs:

-        employers are not required to submit minor administrative changes to the LMIA that would not change the terms and conditions;

-        recruitment requirements for LMIAs in key occupations related to the agriculture and agri-food sectors are being waived until October 31, 2020;

-        LMIAs in key occupations related to the agriculture and agri-food sectors will be prioritized for processing;

-        the maximum duration of employment under LMIAs is increased from 1 to 2 years for employers of workers in the low-wage stream as part of a three-year pilot;

-        employers applying under the Agricultural stream or Seasonal Agricultural Worker Program can submit a previously valid Housing Inspection Report (HIR), and

-        the name change processes for employers wishing to change the name of already identified foreign worker, for reasons related to COVID-19, has been expedited.

For more information, click here: https://www.canada.ca/en/employment-social-development/services/foreign-workers/notice-covid-19.html

TFWP COVID-19 Protocols

Health Screening Protocols

As of March 25, 2020, TFW must undergo mandatory health checks prior to boarding and upon arrival in Canada. If the TFW exhibits symptoms before boarding, they are not permitted to travel to Canada.

If the TFW exhibits symptoms upon arrival into Canada, they will be placed in quarantine or be sent to the hospital depending on the severity of their condition. Once they have recovered, their admissibility into Canada will be re-assessed and, if applicable, they may be permitted to travel onwards to their employment under TWFP.

If the TFW exhibits symptoms after their arrival to their Canadian residence, they must be isolated from others. Local public health must be contacted immediately afterwards who will provide advice about the TFW and close contacts.

If the TFW does not have symptoms upon arrival and meet the entry requirements, they will be permitted to travel onwards in a private vehicle to their housing where they must self-isolate for 14 days.

Self-Isolation Protocols

As of March 25, 2020, it is mandatory for all persons who enter Canada to self-isolate for 14 days. The period of employment for the TFW will begin upon their arrival into Canada which includes the mandatory self-isolation period and they will be paid during this period. The employer must also comply with all laws and policies regarding the employer-employee relationship during this period. The following people, including TFW, are exempt from this mandatory 14-day self-isolation period:

-        Workers who will make necessary medical deliveries;

-        Workers who will work in the trade and transportation sector to move goods and people;

-        Workers who cross the border regularly to go to work in Canada, including in the healthcare sector or critical infrastructure workers; and

-        Workers who 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.

According to the Minister of Health and the Minister of Employment, Workforce Development and Disability Inclusion, the four exemptions mentioned above are the only categories of workers that are exempted from the 14 day self-isolation period.

Employer Obligations

Employers under the TFWP have certain obligations pursuant to the Emergency Order PC number 2020-0175 (“Emergency Order”) made under section 58 of the Quarantine Act. More specifically, penalties up to $750,000 can be levied against a TFW for non-compliance with the Emergency Order. In addition, a person who causes a risk of imminent death or serious bodily harm to another person while willfully or recklessly contravening this 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 to both.

For more information, click here: https://www.canada.ca/en/employment-social-development/corporate/notices/minister-letter-foreign-workers.html

Employer Responsibilities during COVID-19

Employers of the TFWP are responsible for facilitating the employees’ self-isolation period pursuant to the appropriate public health requirements. The following are a few of the employer’s responsibilities:

-        providing adequate space in accommodations to allow for social distancing (remain 2 metres apart at all times);

-        ensuring 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).

-        Surfaces in the accommodations should be cleaned and disinfected regularly and workers should have access to facilities that enable them to wash their hands often with soap and warm water, or use an alcohol-based sanitizer if soap and water are not available. Employers are also expected to follow any unique guidelines established by the province in which they operate.

In addition to the above requirements, employers are responsible for monitoring the health of employees and reporting to local health authorities anyone who becomes symptomatic. This includes the TFW as well as others that they may employ. Employers who are required to provide housing under the TFWP also must meet the minimum standards.

It is important that employers must not do anything that prevents the TFW from meeting their requirements of orders under the Quarantine Act.

Additional criteria, information, and guidance for employers of TFW during COVID-19 is found here: https://www.canada.ca/en/employment-social-development/services/foreign-workers/employer-compliance/covid-guidance.html

Compliance/Inspection Changes

Amendments to the Immigration and Refugee Protection Regulations (“IRPR”) came into force on April 20, 2020. This means that employers of the TFWP have new responsibilities and obligations that they must be aware of during the COVID-19 pandemic.

The service standards, compliance inspections timelines, and administrative monetary penalties framework have been revised. In addition to these changes, it remains the employer’s responsibility to ensure they are complying with the conditions attached to their LMAI and the IRPR.

More information is found here: https://www.canada.ca/en/employment-social-development/services/foreign-workers/employer-compliance/covid-inspections.html

Rights and Responsibilities of TFW

TFW are responsible for complying with health screening and self-isolation protocols. After the mandatory quarantine period, TFW must continue to practice physical distancing, consider the use of a mask, self-monitor for symptoms, practice good hygiene habits, and follow instructions of their local public health authorities. 

TFW should receive health care coverage that is equivalent to other residents of Canada. For workers in the low-wage and primary agriculture streams, equivalent private health insurance must be provided by employers until the worker becomes eligible for the provincial/territorial plan.

If a TFW becomes symptomatic at any time, the employer must immediately arrange for the worker to be fully isolated from others and contact local public health officials.

Income Information for TFW

If the TFW becomes ill during the self-isolation protocols: the worker is to be paid by the employer during this quarantine period.

If the TFW remains ill or becomes symptomatic during the 14-day self-isolation period: the worker is to be paid by the employer during the extended quarantine period.

If the TFW becomes ill after the 14-day isolation period: the worker may be entitled to either paid or unpaid sick leave, depending on their employment contract and the relevant federal, provincial, and territorial employment standards.

Income Information in Alberta

The Employment Standards (COVID-19 Leave) Regulations in Alberta were updated on March 17, 2020. The regulations states that, as of March 5, 2020, all employees who are in quarantine due to COVID-19 are eligible for 14 days of unpaid leave.

The regulations also state that employees may not be terminated or temporarily laid off for being on leave. An exception is if the employer temporarily suspends operations (which may result in a temporary layoff) or permanently cease operations which would result in termination. Another exception is that if circumstances beyond the employer’s control make employment impossible, employers may terminate employees without termination notice.

For more information on COVID-19 leave, please visit: https://www.alberta.ca/covid-19-leave.aspx.

Frequently asked questions: Changes to the Temporary Foreign Worker program regarding COVID-19: https://www.canada.ca/en/employment-social-development/services/foreign-workers/employer-compliance/covid-faq.html

COVID-19 Income Support for TFW

Although employers must pay the TFW during the 14 day self-isolation period, employers do not have to continue payment if TFW get sick after this period.

An employer cannot end the employment contract with the TFW if they are sick with COVID-19. However, if the TFW became sick with COVID-19 or has been laid off, new financial supports are available that they may be eligible for.

If the TFW have lost their income due to COVID-19, they may be eligible for Canada Emergency Response Benefit (“CERB”). The CERB gives a payment of $2,000 for a 4-week period ($500 a week) for up to 16 weeks. Eligibility for CERB depends upon:

-        Residence in Canada (including TFW);

-        Having stopped working because of reasons related to COVID-19 or are eligible for Employment Insurance (EI), regular or sickness benefits or have exhausted your EI regular benefits between December 29, 2019 and October 3, 2020;

-        Having had employment and/or self-employment income of at least $5,000 in 2019 or in the 12 months prior to the date of your application, and

-        have not quit your job voluntarily.

Additional Resources for TFW

COVID-19: A Guide for Temporary Foreign Workers in Canada: https://www.canada.ca/en/employment-social-development/campaigns/foreign-worker-rights/covid19-guide.html

CERB/Support/Resources from the Government of Canada: https://www.canada.ca/en/department-finance/economic-response-plan.html#individual