April 17, 2018
There’s no shortage of media coverage about a doctor shortage in Canada and the resulting impact on Canada’s healthcare system. Most non-Canadian clinical physicians enter Canada for work based, at least initially, on a work permit issued pursuant to a Labour Market Impact Assessment (a.k.a. LMIA). This means Canadian staff physician recruiters considering foreign candidates must understand the LMIA process and how to obtain an LMIA to hire a non-Canadian physician.
Here’s a look at the LMIA requirements for foreign physicians to enter Canada, and five practical tips for obtaining an LMIA to recruit international staff physicians.
LMIA Recruitment Requirements
A “Labour Market Impact Assessment” is the document the federal department of Employment and Social Development Canada (ESDC, the responsible federal government department) issues to a Canadian employer authorizing it to hire a foreign worker through the federal temporary foreign worker program. Most employers consider obtaining a LMIA to be a long, arduous and costly process.
LMIA Exceptions. There are some exceptions to the requirement to obtain an LMIA, some of which apply to foreign physicians. For example, NAFTA (at least for now) allows qualified U.S. and Mexican citizens in certain “designated professions”, which includes physicians, to temporarily enter Canada for work under the “NAFTA professional work permit” without an LMIA – but this exemption is limited to teaching and research positions, and doesn’t apply to physicians whose primary activity is direct patient care. In addition, a physician nominated for permanent residence in Canada through certain provincial nominee programs (PNP) won’t require an LMIA to obtain a work permit; for example, Nova Scotia recently introduced a Physician Stream under its PNP. However, most foreign clinical physicians still enter Canada for work on a LMIA-based work permit, at least initially.
Specific Requirements. The ESDC’s website describes the purpose of an LMIA as, “verif[ying] that there is a need for a temporary worker and that no Canadians are available to do the job.” Therefore, to obtain an LMIA the employer must demonstrate it has conducted exhaustive recruitment. ESDC has very specific recruitment requirements, so it’s critical that recruiters review all of ESDC’s requirements on its website before applying for an LMIA.
Advertising. One of those specific recruitment requirements pertains to advertising for the job vacancy. The advertising requirements vary depending on whether the position falls into the “high-wage” or the “low-wage” category; all physicians are in the high-wage LMIA category. Before applying for a high-wage LMIA, ESDC requires employers to advertise in a minimum of three locations and, in most cases, on the government of Canada’s Job Bank. ESDC also expects the advertisements will contain detailed information about the vacancy, and run for a minimum of four weeks within the three months immediately before the LMIA application, with at least one maintained on an ongoing basis until ESDC makes a decision. All advertising must contain this information:
5 Practical Tips for Effective International Physician Recruitment
Here are five practical tips to help effectively recruit international physicians in compliance with the LMIA recruitment requirements.
Physician compensation arrangements can be complex, making it difficult to know how to comply with ESDC’s wage disclosure requirements. In our experience, ESDC prefers the employer include in the advertisement as much information as possible on the compensation arrangement. Therefore, applicants are wise to provide as much detail as possible in the advertising campaign on the compensation arrangement, including whether the physician will receive a mix of fee-for-service payments and salary, a signing bonus, and other incentive payments.
There’s an important variation to the advertising requirements for fee-for-service positions. Generally, an employer must advertise the wages (or at least the wage range) it’s offering, and those wages must be consistent with the prevailing wage rate for the occupation. But ESDC has issued an advertising variation for fee-for-service physicians: “Compensation paid to Physicians (NOC codes 3111 and 3112) based on a fee-for-service remuneration model is generally considered to be consistent with the prevailing wage rate for the occupation.” Simply put, this means an employer advertising a fee-for-service position isn’t required to advertise a specific wage or wage range, but in all advertising should state the position is fee-for-service. However, where an employer will pay a physician a combination of fee-for-service and salary, in our view the employer should specify in the advertising the amount of the salaried portion (or the salary range).
Another complex issue for physician employers is whether – or not – to advertise vacant positions on the government’s Job Bank. In our experience, the Job Bank isn’t an appropriate nor an effective method of physician recruitment.
Election. Arguably, the Job Bank still isn’t an appropriate nor an effective method of recruitment for either fee-for-service or for salaried physician positions: clinical physicians simply don’t search the Job Bank for employment opportunities. While ESDC states it considers using the Job Bank mandatory, individual employers can elect not to use the Job Bank and instead use an alternative third method of advertising, such as a national occupation-specific method like the Canadian Medical Association’s (CMA) Dr. Careers site. In such a case, the employer must submit to ESDC a written rationale and explanation for using the alternative method. In my experience, ESDC has been receptive to the argument the Job Bank isn’t an appropriate or effective method of physician recruitment. But recruiters that do elect to use the Job Bank should be aware that ESDC now requires employers to use the Job Match function, obligating the employer to invite eligible candidates to apply for the position.
ESDC requires employers to use recruitment methods that are consistent with the occupation. It’s therefore generally wise to use occupation-specific advertisers, such as the CMA or the provincial Colleges of Physicians and Surgeons, or private occupation-specific sites or recruiters. ESDC recently amended its requirements to state it may consider multiple online ads that don’t have unique value and target unique audiences as only one method of advertising. It’s therefore wise for employers to consider using both online and print ads, and to consider the unique value each method brings. In any campaign, ESDC requires that at least one method of recruitment be “national”, by which ESDC means “Canadians and permanent residents must have the capacity to search advertisements for work locations across Canada in a single site, as opposed to referring to individual or regional sub-sites”.
Here are a few additional tips for staff physician recruiters applying for their first LMIA.
LMIA Fees. The fee to apply for an LMIA is $1,000.00 – per position. This can really add up: if you’re seeking approval to hire five physicians, the fee to obtain the LMIA will be $5,000.00. And this doesn’t include any legal fees or other recruiting-related costs you’ll incur in the recruitment process.
Processing. A special Service Canada Centre of Specialization in Saint John, New Brunswick – not the processing centre for other LMIAs for your region – processes all LMIA application for physicians. This is advantageous for employers: the Centre of Specialization staff are very knowledgeable and understand the unique issues related to LMIAs for physicians.
Expiry. Be sure to note the expiry date of the LMIA. An LMIA is normally good for six months, meaning the foreign worker should apply for their work permit within six months of ESDC’s approval of the LMIA.
Follow-Through. The work of the employer of a foreign physician doesn’t necessarily end when the physician begins work in Canada: there are benefits to encouraging the physician to proceed with their Permanent Residence application and, if the employer committed to assist the physician with that application, to do so.
Please contact your McInnes Cooper lawyer or any member of the Immigration 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.
© McInnes Cooper, 2018. All rights reserved. McInnes Cooper owns the copyright in this document. You may reproduce and distribute this document in its entirety as long as you do not alter the form or the content and you give McInnes Cooper credit for it. You must obtain McInnes Cooper’s consent for any other form of reproduction or distribution. Email us at [email protected] to request our consent.
Aug 3, 2021
On July 29, 2021, the Supreme Court of Canada refined the test for determining when a plaintiff has discovered a claim for the purpose of a…
Jul 27, 2021
Canadian entities regularly contract with foreign companies to provide services in Canada. To complete its obligations under the contract, the…
Jul 21, 2021
Many now agree: it’s imperative that workplaces be both diverse and inclusive. Perhaps the most often-quoted (and definitely most succinct)…
Jun 24, 2021
Many employers use equity compensation plans like employee stock option plans to attract, motivate, and retain talent. One reason stock options…
Jun 21, 2021
There is a duty to consult Indigenous groups when the Crown contemplates actions that may adversely affect their rights under section 35 of the…
Subscribe to McInnes Cooper to stay current with our leading insights on legal updates, trends, news, events, and services.