Employers hiring foreign workers in this current COVID-19 pandemic situation have a specific responsibility in helping to prevent the introduction and spread of the coronavirus. The Government of Canada has introduced new public health and safety requirements and guidance to facilitate the entry of temporary foreign workers (TFW’s). New regulations in the Immigration and Refugee Protection Regulations (IRPR) have also created additional obligations for employers considering COVID-19 pandemic. The compliance inspections can be random, based on suspected non-compliance or previous non-compliance. According to the Regulatory Impact Analysis Statement of the Regulations Amending the Immigration and Refugee Protection Regulations (Emergencies Act and Quarantine Act): SOR/2020-91, new measures allow inspections to be initiated in other situations: when a communicable disease presents at the workplace of a foreign worker or when a foreign worker is or was required to comply with an order of the Quarantine Act.
Compliance obligations related to COVID-19
- The foreign worker must self- quarantine for a 14- day period upon entering. Forcing a foreign worker to show up to a workplace during the 14-day period would be considered to be a violation of the new requirement.
- The employer cannot authorize the foreign worker to work during the quarantine period, even if requested by the worker. There are exceptions for those deemed as providing an essential service by the Chief Public Health Officer. In addition, the employer cannot ask the worker to perform other duties during that period, such as building repairs or administrative tasks.
- The foreign worker’s employment period begins upon their arrival to Canada, and includes the initial 14 – days of mandatory quarantine period.
- The employer must pay regular wages and benefits to the foreign worker for the quarantine period based on the hourly wage indicated on the LMIA and/or offer of employment.
- The employer is asked to monitor the health of foreign workers who are in quarantine, as well as any employee who becomes sick after the quarantine period. If a foreign worker becomes symptomatic at any time, the employer should contact local public health officials.
Additional criteria for employers providing accommodations to TFW
- The employer is required to house quarantining foreign workers in accommodations that are separate from those not subject to quarantine. This may require finding alternate accommodations (for example hotel) if this requirement cannot be met.
- Self-isolating/quarantined foreign workers are separate from other foreign workers and remain at least 2 meters away from another person.
- Cleaning products for the purpose of cleaning and disinfecting the accommodations regularly are provided to workers who are in isolation or quarantine.
- For the duration of the quarantine period, the employer is asked to ensure that the accommodations do not prevent the worker from avoiding contact with older adults (65+) and those with medical conditions who are at risk of developing serious illness.
Penalties for non-compliance
If employer is found to be non-compliant as a result of a Service Canada inspection, specifically to the new IRPR requirements related to COVID-19, the department has the authority to apply the most severe consequences possible.
- Administrative monetary penalties
- A ban of one, two, five or ten years, or permanent bans on new LMIAs/work permits for the most serious violations
- The publication on a list of non-compliant employers
- The revocation of existing LMIAs/work permits
Implications for foreign workers
Under the Quarantine Act, temporary foreign workers (TFW’s) will be penalized if their actions are found to compromise public health. TFW’s convicted of violating an order would be unable to enter Canada for a year without permission through an Authorization to Return to Canada request.
The COVID-19 situation is rapidly evolving with new measures being adopted or modified at both the federal and provincial level. It is a challenging time for everyone, and employers and foreign workers are no exception. With new regulations and compliance, there are tools to protect public health and wage security amid COVID-19 pandemic. However, time will tell how the compliance regime deals with rapidly changing economic circumstances that are likely to impact employers.
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The LMIA rules, regulations and requirements are subject to frequent changes. These changes deal with different categories of jobs, duration, exemptions etc. Continuous research, attention to detail and painstaking hard work is required to obtain a positive LMIA. We help in assessment of our client’s profile and advice them on their eligibility to get an LMIA. We help Canadian employers for applying LMIA application and legally representing them before ESDC during the process.We help clients to apply for their Work Permit which authorizes them to legally work in Canada.
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