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| Sharaf Sultan |
The reliance on temporary workers applies across a wide range of industries, including technology, construction, agriculture and health care and includes a range of skills, from lower to higher skilled workers.
Employers of foreign workers are expected to take important steps to maintain the health and safety of not just foreign nationals, but also of the workforce in general. The onset of the COVID-19 pandemic has served to both reinforce existing obligations and add others, with the goal of curbing the spread of the virus.
Given the significant number of migrant workers in Canada (and the expected increase as Canada’s economic recovery gains momentum), the following reviews both the obligations of employers as well as the rights of temporary foreign workers to ensure compliance with laws aimed at protecting the health and safety of Canadians, permanent residents and foreign workers.
Legislative framework to protect foreign workers
Employer obligations (and by extension, protection to employees) are described through a range of legislative tools at both the federal and provincial levels, including the Immigration and Refugee Protection Regulations, Emergencies Act and Quarantine Act, related orders-in-council, the Occupational Health and Safety Act and relevant employment standards and human rights legislation.
The legislation acts to confirm that the employment relationship between an employer and a temporary foreign worker commences immediately upon the foreign worker’s arrival in Canada.
This means that an employer becomes responsible for a foreign worker regardless of whether they are under government mandated quarantine in relation to COVID-19. For example, under current regulations, those arriving in Canada must respect a 14-day quarantine.
The employer must compensate an employee during this period, regardless of whether they will be carrying out any work during this period. This includes providing the employee with regular wages and benefits as would normally be the case while working. Depending on the program under which the individual is granted entry to Canada, the employer may be required to adhere to the terms described within a Labour Market Impact Assessment (LMIA) or LMIA-exempt “Offer of Employment.”
While an employee is observing the 14-day quarantine period, it is illegal for their employer to prevent the foreign worker from meeting any requirements of any orders under the Emergencies Act and/or Quarantine Act. There may also be restrictions in terms of what an employee can do while in quarantine, including the extent to which they are able to perform work.
Employers are also responsible for monitoring the health of all workers while in quarantine and to provide foreign workers with information on COVID-19 and the tools necessary to practise good hygiene.
Further, employers who provide accommodations to foreign workers, including seasonal and migrant workers (in connection with obligations under an LMIA), are subjected to additional obligations aimed at preventing the spread of COVID-19. These include, but are not limited to, the following obligations:
- Separating accommodations between foreign workers who are in quarantine from foreign workers who are not subject to quarantine;
- Separating foreign workers who are housed together by two metres;
- Posting information about preventing the spread of COVID-19 in the accommodation;
- Ensuring surfaces in the accommodations are cleaned and disinfected regularly;
- Ensuring that the accommodation does not prevent foreign workers from avoiding contact with adults aged 65-plus and those with medical conditions who are at risk of developing serious illness; and
- Providing accommodations, including a private bedroom and bathroom, to symptomatic foreign workers to enable self-isolation.
Consequences for non-compliance
Given the seriousness of the COVID-19 pandemic, new regulations and penalties surrounding inspections have also been introduced to ensure that new employer requirements related to COVID-19 are being complied with. Specifically, changes have been made to the penalties for non-compliance to reflect the seriousness of disregarding the orders under the Emergencies Act and/or Quarantine Act.
Any employer who contravenes these measures, and/or interferes with a foreign worker’s obligations under the Emergencies Act and/or Quarantine Act, may be subject to sanctions, including the following:
- A monetary penalty ranging from $1,000 to $100,000 per violation, up to a maximum of $1 million over one year;
- A ban from participating in the immigration programs for a period of one, two, five or 10 years, or a permanent ban for the most serious violations;
- A publication of the business name and address on a public government website with details of the violation(s) and/or consequences; and/or
- A revocation of any previously issued LMIAs.
In addition, there exists a range of penalties and sanctions aimed at protecting foreign workers from abuse in employment, including under the Employment Protection for Foreign Nationals Act, 2009, which carries strict penalties for non-compliance.
COVID-19 legacy on foreign worker program
The COVID-19 pandemic has exposed the impact of unsafe working conditions, particularly as it relates to migrant workers.
As we continue to rebuild our economy and recover from the impacts of COVID-19, there is a call to develop immigration and employment law policies that recognize the vital roles foreign workers play in supporting Canada’s critical industries. COVID-19 will therefore only serve to accelerate the development of laws aimed at protecting foreign workers while they support Canada’s growth and prosperity.
Sharaf Sultan is the principal at Sultan Lawyers and focuses his practice on both employment and workplace immigration law. He can be reached at ssultan@sultanlawyers.com.
Photo credit / Pavel Muravev ISTOCKPHOTO.COM
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