April 15, 2020
The COVID-19 pandemic is disrupting more than Canada’s domestic workforce. It’s also disrupting Canadian employers’ access to temporary foreign workers generally and in specific sectors long heavily reliant on temporary foreign workers, such as fish and seafood processing and agribusiness, particularly during the upcoming fishing and planting seasons. Canada’s current travel ban focusses on prohibiting non-essential travel. Technically, foreign workers are exempt from the travel restrictions if they aren’t travelling for an optional or discretionary purpose. In practice, however, it’s a very different – and evolving – story. For the past few weeks, employers and their immigration lawyers have been working to interpret the travel restrictions and their implications for temporary foreign workers to Canada. Here are the (current) answers to employers’ top ten immigration law questions.
1. What travel restrictions apply to temporary foreign workers travelling to Canada?
That depends on from where and for what purpose.
On March 26, 2020, the Canadian federal government released two Orders in Council pursuant to the federal Quarantine Act to provide guidance for travel to Canada.
United States. The Order for travel from the U.S. is in force until April 21, 2020, and prohibits entry from the U.S. for foreign nationals who wish to enter Canada for an optional or discretionary purpose (tourism, recreation and entertainment).
Non-U.S. The Order for travel from any country other than the U.S. is in force until June 30, 2020, and prohibits all travel to Canada unless the foreign national holds a valid work permit or a work permit approval letter or, meets one of the narrow exemptions provided in the Order, which were identified as critical for health, safety and food security reasons. Some of these exemptions include:
All foreign workers who enter Canada, except “essential service providers”, and truck drivers who regularly cross the border, are subject to the current mandatory 14-day quarantine period.
2. Can temporary foreign workers apply for a work permit at the Port of Entry?
Normally, foreign nationals that do not require a temporary resident visa (TRV) to travel to Canada are eligible to apply for their work permits at the Port of Entry (airport or land border). The new travel restrictions pursuant to the Orders in Council provide the following:
United States. The Order for travel from the U.S. does not require temporary foreign workers to have a valid work permit or approval letter prior to travelling to Canada (provided they have been in the U.S. for at least 14 days); as such, foreign nationals travelling from the U.S. are entitled to apply for a work permit at the Port of Entry. However, the travel restrictions are being enforced strictly by both air carriers and the Canada Border Services Agency (CBSA).
Air Travel: If a foreign national travelling from the U.S. wishes to fly to Canada to apply for a work permit at the Port of Entry, they must first be able to board the plane. This may be challenging: before boarding a flight, a foreign national must confirm that they have read the Order and that, to the best of their knowledge, they are not prohibited from entering Canada under this Order. However, the federal government has advised air carriers that anyone who does not clearly meet one of the travel restriction exemptions is not permitted to board a plane, and they face heavy fines if they improperly board and fly a person to Canada. As a result, foreign nationals may have issues boarding a plane to Canada to apply for a work permit at the Port of Entry. As such, a worker may have to enter Canada at a land border.
Application to Canada Border Services Agency: Upon arrival at a Port of Entry, a foreign national will submit their work permit application to a CBSA agent for processing. On March 26, 2020, the President of the CBSA issued a statement indicating the CBSA is “working aggressively to limit the spread of COVID-19 in Canada”, but that “essential travel” continues unimpeded and travel is permitted for people who need to cross the border for work purposes. It also states that healthy workers who provide essential services and maintain critical infrastructure can cross the border. Therefore, while the Order only prohibits travel for optional or discretionary purposes, a CBSA agent has the discretion to determine whether to issue a work permit and may refuse to issue work permits to individuals whose travel to Canada is deemed non-essential.
Non-U.S. Foreign nationals, whether they require a TRV or not, will not be allowed to board a plane departing from any country other than the United States if they don’t have a work permit or an approval letter. In other words, foreign nationals travelling from outside the U.S. will not be able to apply for a work permit at the Port of Entry.
3. Can foreign workers still apply for a Canadian work permit online during the COVID-19 pandemic and despite the travel restrictions?
Theoretically, foreign workers can still apply online for work permits to Canada during this time and they may wish to submit applications now to get them in the queue, despite the potential for delays. This also applies to applicants who are normally allowed to apply at the Port of Entry. Practically, however, there are many barriers. Most foreign workers need to obtain medical examinations and/or biometrics before they will be issued a work permit; however, most visa application centers worldwide are closed. If applicants cannot meet these requirements, and their work permit applications cannot be processed in the usual course, it is reasonable to expect delays when applying for new work permits.
4. Are temporary foreign workers in seasonal industries subject to the travel restrictions?
Employment and Social Development Canada (ESDC) has implemented changes to the Temporary Foreign Worker Program (TFWP) that specifically exempt seasonal agriculture workers and seafood processors from the COVID-19 travel ban and has temporarily modified the Labour Market Impact Assessment (LMIA) process to waive the required 2-week recruitment period for the next 6 months. Employers hiring workers under the TFWP can also increase the maximum employment duration for workers from one to two years, intended to improve flexibility and reduce the administrative burden for employers. Specific instructions for agricultural workers under the Seasonal Agricultural Worker Program and the Agricultural Stream are being developed, with more details to follow.
5. What can foreign workers travelling to Canada do to improve their chances of getting across the Canadian border?
While employers await further guidance and clarity from IRCC, the following four tips might help foreign workers travelling to Canada at this time:
Employer confirmation. Foreign workers with valid work permits or work permit approval letters are technically exempt from the travel ‘ban’, but they must also carry: the employer’s confirmation it’s still operating and is not subject to mandatory closure of non-essential businesses; confirmation the job is still available; and an explanation of why they need to travel to Canada at this time, since all non-essential travel, even if it’s work-related, is to be avoided. Port of entry applicants should carry similar documentation.
Medical Clearance. Canada’s federal government is asking airline operators to conduct a health check of all air passengers travelling to Canada from international locations. To reduce the chance a foreign worker is held back for health reasons, it will be helpful if they carry recent medical evidence confirming their health.
Self-isolation Plan. CBSA is doing its best to ensure travelers to Canada adhere to the 14-day self-isolation rule implemented by the federal government. In order to assist, have a self-isolation plan ready, addressing key questions, like: Where are they self-isolating? How are they going to get to their accommodations without being in contact with anybody? How are they going to have groceries delivered? If the worker is exempt from the self-isolation requirements, bring the relevant self-isolation exemption order issued by the province of destination.
Family Members. If a foreign worker plans to travel to Canada with immediate family members, they will need authorization from a consular officer, as family members of foreign nationals do not meet one of the exemptions under the Orders in Council.
6. I have a number of temporary foreign workers in Canada on Labour Market Impact Assessment (LMIA) supported work permits. Do I risk non-compliance with the terms of the LMIA if I temporarily lay these employees off because of COVID-19?
Non-compliance in these circumstances is probably justified.
An employer that hires a temporary foreign worker pursuant to an approved LMIA is bound to provide that worker with wages and working conditions the same as those set out in the job offer. It’s critical that an employer of a Temporary Foreign Worker in Canada comply with immigration laws, or both the employer and the Worker could face legal compliance enforcement mechanisms. Typically, an employer that reduces the hours or wages of its foreign workers will face fines or other penalties for any non-compliance, but that non-compliance may be justified in certain circumstances:
Dramatic economic change. The implementation of measures by the employer in response to a dramatic change in economic conditions that directly affected the employer’s business, as long as they weren’t directed disproportionately at foreign nationals employed by the employer.
Force majeure. Generally, the inability to comply because of an unforeseeable event beyond anyone’s control.
Whether a situation dramatically changes the employer’s economic position or is an unforeseeable event beyond its control is a fact-specific analysis. However, if the employer had to reduce the scope of their operations due to COVID-19, they may be safe from strict compliance with the immigration law requirements.
7. Should I voluntarily disclose non-compliance?
Not necessarily immediately.
If the temporary foreign worker is working in Canada under an employer-specific (or “closed”) work permit, the employer must consider its obligations under either the TFWP or the International Mobility Program (as applicable) and whether it must voluntarily disclose it is non-compliant with: the wage (including the prevailing wage requirements); hours; and/or location of work (for example, if the employee is working remotely). The non-compliance might be justified if the employer can demonstrate that all employees, not only the temporary foreign workers, were laid off or had hours reduced.
It is generally best for an employer to voluntarily disclose non-compliance. However, in the current circumstances, you might want to delay disclosure for the first few weeks. ESDC has indicated it will be providing guidelines to ease the administrative burden of reporting, and is considering the implications of changes to the wage, hours, and other conditions. ESDC is expected to provide a list addressing specific information that employers must and must not report under the current circumstances and this guidance will be critical for employers wondering what to disclose.
8. Are temporary foreign workers entitled to Employment Insurance (EI) benefits if I lay them off because of COVID-19?
Possibly. Under the Employment Insurance Act, all “insured” workers can access EI benefits: they must have paid into the EI account and have worked in insurable employment. Workers unable to work because they are temporarily unemployed, sick, pregnant, caring for a newborn or newly adopted child, or providing support to a seriously ill family member, may receive temporary financial assistance if they meet specific qualifying and entitlement conditions. Temporary foreign workers employed in insurable employment must pay EI premiums because it is the employment, not the individual, that is insured. However, foreign workers are exempt from EI premiums when they remain covered under an EI program in their originating country while working temporarily in Canada.
9. How do temporary foreign workers satisfy the availability for work criteria for EI benefits eligibility?
ESDC must assess the availability of an EI benefits claimant who holds a valid work permit based on their individual circumstances, taking into consideration all the terms of their work permit.
Open Work Permit. When a claimant indicates they are available for work, and there is no issue with the work permit or any contradictory evidence on file concerning the claimant’s availability, ESDC must consider their entitlement to benefits the same as for any other claimant.
Closed Work Permit. A claimant whose work permit is “closed” – that is, includes a restriction to one employer or location of work – is not normally considered available to accept work from another employer, and could be disentitled from collecting EI benefits. However, a closed work permit does not, by itself, determine eligibility for EI, and the mere fact the work permit restricts the worker to one employer is not the only factor relevant to the claimant’s availability. It is important to fact find and take all factors into consideration before determining that a foreign worker is unavailable because their work permit restricts their employment to one employer. There are contradictory decisions on the issue of whether a foreign claimant with a closed work permit should be considered unavailable for work. While there is a presumption of non-availability when a claimant’s work permit includes a restriction to one employer, it is possible to rebut the presumption. Therefore, any temporary worker affected by a Covid-19 related lay off should apply to have their EI eligibility assessed:
Expired Work Permit. If the claimant proves they applied for a new work permit before the previous work permit expired, availability is considered the same as it is for any claimant. If a claimant’s work permit has expired and they cannot show that they applied for an extension prior to the expiry date, the claimant no longer has any status in Canada and, as such, they will be unable to prove they are available for work, and a disentitlement may be warranted.
10. As an employer, I have supported temporary foreign workers for permanent residence through the Atlantic Immigration Pilot Program or a Provincial Nomination program. If I must temporarily lay off employees with nominations, will they lose their nomination?
IRCC seems to have taken the position that they will not. Only the New Brunswick immigration office has issued a statement, saying “measures taken because of Covid-19 (self-isolation, etc.) will NOT impact their immigration applications currently being processed by our office, or applications currently being processed federally for permanent residency. We will also be considerate of the program requirements and Covid-19 measures will not impact client eligibility (reduced hours or a break in employment) for new applicants. We understand all measures are outside of their control and the reduction in work hours and availability will be considered.” It is reasonable to believe IRCC has given the other Atlantic Provinces similar direction.
Please contact your McInnes Cooper lawyer or any member of our Immigration Law Team @ McInnes Cooper to discuss this topic or any other legal issue.
McInnes Cooper has prepared this document for information only; it is not intended to be legal advice. You should consult McInnes Cooper about your unique circumstances before acting on this information. McInnes Cooper excludes all liability for anything contained in this document and any use you make of it.
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