Jacqueline Bart^[1]
Bartlaw, Toronto
info@bartlaw.ca

 

In response to the Covid-19 outbreak, the Government of Canada has utilised a number of executive and legislative tools to contain the spread of the outbreak, while simultaneously maintaining the flow of essential workers, goods and services that are necessary to protect Canada’s economy and public health during these unprecedented times. The government’s efforts in this regard have resulted in a complex web of ever-evolving special measures, travel restrictions and quarantine rules with significant consequences for the administration of Canada’s immigration programme, particularly on the 100,000s of temporary foreign workers who make up the Canadian workforce.^[2]

Canada’s response to Covid-19

In recent weeks, the Canadian federal government has responded to the coronavirus outbreak by issuing a series of emergency orders and regulations, pursuant to its authority under the Quarantine Act^[3] and the Aeronautics Act.^[4] These initiatives are intended to contain the spread of the virus by imposing restrictions and obligations on individuals and airlines alike, inhibiting travel to and on arrival in Canada.

Travel restrictions and exemptions

One of Canada’s main methods for containing the spread of Covid-19 has been to impose strict and rigorous travel restrictions on who can enter Canada, with different rules applying to foreign nationals (ie, non-Canadian citizens or permanent residents) travelling from the United States compared to all other countries.

On 18 March 2020, the Minister of Transport issued the first ‘Interim Order to Prevent Certain Persons from Boarding Flights to Canada due to COVID-19’(the Interim Order). Currently in its fifth iteration,^[5] the Interim Order prohibits airlines from allowing foreign nationals to board flights to Canada if they are departing from any country other than the US. Air carriers are also required to conduct health checks of all passengers before boarding, and travellers are statutorily required to answer all questions regarding their health conditions truthfully. Failure to comply can result in financial penalties of up to CAN$5,000 (approx. US$3,500) for individuals and CAN$25,000 for airlines.

Separately, the Canadian government subsequently exercised its authority under the Quarantine Act, issuing a series of Orders-in-Council aimed at barring non-essential travel to Canada by most foreign nationals. Under the Order-in-Council, ‘any foreign national, […] is prohibited from entering Canada if they arrive from a foreign country other than the United States.’^[6] For travellers entering from the US, all asymptomatic foreign nationals are prohibited from entering Canada if they seek to enter for an ‘optional or discretionary purpose, such as tourism, recreation or entertainment.’^[7]

Under the original Interim Order and the Orders-in-Council, certain groups of people were exempt from these restrictions, including but not limited to immediate family members of Canadians or permanent residents, those invited by the Minister of Health to assist with the Covid-19 response, those whose presence is deemed to be in the national interest, or people providing an essential service while in Canada.

However, in recognising the critical role that foreign workers play in the Canadian economy, particularly in agricultural and food production sectors, the Canadian government has since expanded and consolidated the list of exemptions to the travel restrictions under the Interim Order and Orders-in-Council.

The list of persons exempt from the travel restrictions currently includes the following:

• all temporary foreign workers; immediate family members of Canadian citizens or permanent residents;^[8]
• a person who is authorised, in writing, by an immigration or consular office, to enter Canada for the purpose of reuniting with immediate family members;
• a person invited by the Minister of Health to assist in the Covid-19 response;
• a person who, in the opinion of the Chief Public Health Officer, does not pose a risk of significant harm to public health, or will provide an essential service while in Canada;
• select international students and study permit holders;
• emergency service providers;
• people delivering, maintaining, or repairing medically-necessary equipment;
• people making medical deliveries required for patient care in Canada;
• permanent residence visa holders; and
• protected persons.^[9]

These travel restrictions, specifically as they relate to foreign nationals travelling from any country other than the US, are effective until 30 June 2020.

Pro-immigration measures and processes

The importance of foreign workers to Canada’s Covid-19 response is also reflected in the special measures and processes that have been implemented to provide flexibility for foreign workers and reduce the administrative burden on employers.

For instance, certain application requirements under Canada’s Temporary Foreign Worker Program, such as the requirement for employers to conduct recruitment efforts to hire Canadians and permanent residents first before recruiting temporary workers, are being waived for key occupations, including the agriculture and agri-food sectors. Similarly, applications to recruit foreign workers in agriculture and agri-food sectors are being prioritised for processing.

The government has also instituted a series of beneficial measures aimed at facilitating ongoing immigration applications by extending limitation periods and visa validity. Some of these measures were introduced prior to the travel restrictions, this highlighting that protecting and maintaining Canada’s foreign worker and immigration programmes are of fundamental importance, notwithstanding Covid-19.

Mandatory 14-day quarantine

In addition to the travel restrictions, the government has also issued an Order-in-Council^[10] requiring all individuals (including Canadian citizens) who enter Canada by land or air to self-isolate for 14 days. The penalties for wilful or reckless non-compliance with the mandatory isolation order include fines of up to CAD 1,000,000 and three years’ imprisonment. The Minister of Health has indicated that spot checks are being conducted by the Government of Canada to verify compliance.^[11]

As with the travel restrictions, there are some limited exceptions to the mandatory isolation requirement for those who cross the border to provide critical services and goods, including lorry drivers or crew members, persons making medical deliveries for patient care and persons who regularly cross the border for work such as healthcare workers, critical infrastructure workers, and emergency responders.^[12]

The requirement to self-isolate that has been imposed on temporary foreign workers entering Canada, in turn creates several compliance obligations for employers of foreign workers.^[13] For instance, employers of foreign workers must comply with all laws and policies regarding the employer-employee relationship, starting from the day that the foreign worker arrives in Canada, and including the 14-day self-isolation period. This includes the requirement to pay the worker regular remuneration and benefits for the entire self-isolation period.

Employers are also prohibited from authorising foreign workers to work during the self-isolation period, even if requested by the foreign worker. Employers are also prohibited from asking a foreign worker to perform duties that fall beyond of the scope of their usual job duties.

For all foreign workers entering self-isolation, employers should provide them with information and resources about Covid-19, either on or before the day that self-isolation begins. Once the foreign worker begins self-isolation, employers are responsible for regularly monitoring the health of all self-isolating workers and should maintain daily communication with the foreign worker, to check for symptoms. In order to provide evidence of compliance with these requirements, employers are encouraged to maintain a record of all communication with the foreign worker. If a foreign worker becomes symptomatic at any time, employers must arrange for the worker’s full and immediate isolation from others, and should also contact local public health officials.

Additional obligations apply to employers who provide accommodations for their employees. Most notably, employers must separate self-isolating workers from those who are not self-isolating, which may include finding alternate accommodation. While employers may house foreign workers who are self-isolating together, their accommodations must enable them to be two metres apart from each other at all times. Employers also have an obligation to ensure that surfaces in accommodations are cleaned and disinfected regularly, particularly in common areas. Finally, employers must also ensure that accommodation allows self-isolating workers to avoid contact with older adults (65 years or older) or those with underlying medical conditions. If an employee is found to have breached the mandatory 14-day self-isolation period, or has otherwise contravened the Quarantine Act, employers are obliged to report the violation to local law enforcement.

Canada prioritises the health and safety of temporary foreign workers, by mandating clear guidance to employers so that foreign workers may comply with the compulsory isolation requirements while meeting the terms and conditions of their job offer.

Changes to foreign worker terms of employment

Temporary foreign workers already working in Canada are subject to compliance legislation. Under Canada’s employer compliance regime, all employers applying for work permits for their employees must file employer compliance documentation before the foreign national obtains their work permit. This information is retained by the government for the purposes of future immigration compliance audits. The employer compliance filing is based on complex legislative criteria that involve a formula-based financial penalty system for non-compliance. The employer must document the terms of the proposed employment, including wage, hours of work, hourly rates, benefits, specific job duties and many other terms of the proposed employment in Canada. While performing their job duties in Canada, the employee’s job duties must not deviate from the terms that have been filed with the government. The government has the legal authority to investigate employers who have hired temporary foreign workers in Canada at any time without a warrant. One in four employers will be audited. During an immigration audit, Immigration, Refugees and Citizenship Canada will review the terms of each temporary foreign worker’s employment in Canada to ensure that it meets the terms specified in the online offer of employment.

If a foreign worker is laid off, is asked to reduce the number of hours worked, has received a salary reduction and/or is required to work from home, any of these employer-initiated economic measures will result in non-compliance with the terms and conditions of the foreign worker’s work permit. In the event of non-compliance, the foreign worker is required to inform immigration, because employment conditions are a material change to the job offer. In such circumstances, it is anticipated that disclosure should temporarily be sufficient to protect the foreign worker’s position. It is also recommended that the employer voluntarily disclose the change of the job offer. If the employer is audited, there are justifications for non-compliance such as measures implemented by an employer in response to dramatic changes in economic conditions that directly affected the business of the employer (provided that those measures were not directed disproportionately at foreign nationals) or force majeure.

This is a complex and burgeoning area of immigration compliance which could potentially result in foreign worker loss of status, misrepresentation and/or non-qualification for permanent residence as a result of the epidemic. Although Canada has current mechanisms in place to protect vulnerable or destitute workers, or to address humanitarian and compassionate situations, for most foreign workers, a layoff, termination or significant reduction in hours or pay, at a minimum will result in loss of status or their inability to qualify for permanent residence.

Conclusion

The Canadian government’s response to the Covid-19 outbreak has had profound and immediate effects on the administration of its immigration programmes, particularly for temporary workers and the employers of temporary workers. Nevertheless, throughout this crisis, foreign workers have emerged as a critical force in the Covid-19 response, by providing vital services and by maintaining food production, health and safety and security. This is reflected in the government’s efforts to facilitate the entry of temporary foreign workers to Canada, while the borders remain closed to other foreign nationals. Notwithstanding Covid-19, the government has indicated and demonstrated every intention of continuing all permanent immigration programmes with a specific focus on attracting foreign workers permanently.

In a post-pandemic economy, temporary foreign workers will continue to be an essential source of labour supply in Canada and will play a critical role in rebuilding Canada’s economy, whether or not they provide an essential service.

 

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