Canada: Employers, Take Note: New Rules For Foreign Workers And Travel To Canada

Increased employer responsibilities effective September 26

On September 26, 2022 new amendments to the Immigration and Refugee Protection Regulations came into force imposing new obligations on Canadian employers as part of the Temporary Foreign Workers Program (connected to Labour Market Impact Assessments ["LMIA"]) and the International Mobility Program ("IMP") (connected to LMIA-exempt work permits). Temporary Foreign Workers ("TFWs") now have enhanced worker protections.

The changes include:

• Employers must provide foreign workers with information about their rights in Canada. A copy of up-to-date information must be provided in the TFW's chosen official language of Canada (English or French). This should be provided on or before the first day of work and must be continuously available throughout the worker's employment. Access to this information should be easily obtained by the worker throughout their period of employment at no additional cost, for example posting a copy on the company's internal website.
• Employers must provide foreign workers with an employment agreement. Employers are now obligated to provide signed employment agreements outlining the same occupation, wages, and working conditions set out in the TFW's offer of employment or approved LMIA. Agreements must be drafted in the TFW's preferred official language of Canada (English or French), signed by both the employer and the TFW, and provided on or before their first day of work. Please speak to one of our employment lawyers for assistance with drafting employment agreements.
• Employers must make reasonable efforts to provide a workplace free of abuse. Employers were previously obligated to make reasonable efforts to provide TFWs with a workplace free of abuse. The amendments have updated the definition of abuse to also incorporate "reprisals," which include threats of dismissal, demotions, disciplinary measures, or other negative action towards a TFW if they report the employer's possible non-compliance with the program requirement
• Employers are prohibited from charging or recovering fees for LMIA services. Employers cannot directly or indirectly charge or recover LMIA fees including fees connected to their recruitment. This regulation extends to any third-party recruiters hired to act on the employer's behalf. Under the IMP, employers must attest on the Employer Portal that neither they nor any third-party hired by them have charged or recovered fees associated with the foreign national's recruitment or employer compliance. Employers should verify with the TFW that no person has charged them such fees. This excludes fees related to work permits, temporary resident permits, temporary visas, and recruitment fees of foreign nationals authorized to be charged or recovered under international agreements between Canada and other countries concerning seasonal agricultural workers.
• Employers must make reasonable efforts to provide access to health care services. The health and safety of TFWs needs to be addressed when a worker becomes ill or injured at the workplace. For example, employers must organize (not pay) transportation to hospitals, clinics, or other medical services and/or provide access to a phone in the workplace for TFWs to call for emergency services.
• Employers are required to obtain and compensate TFWs for reasonable private health insurance for LMIA-based work permit holders. This covers the period before a TFW becomes eligible for provincial health insurance coverage and emergency medical care.
• Employers may be inspected to ensure compliance with the regulations, and compliance verified with third parties, such as banks and payroll companies. Employment and Social Development Canada (ESDC) and Immigration, Refugees and Citizenship Canada (IRCC) have the authority to require third parties to provide relevant documents to verify employers' compliance with the regulations. Suspicion of non-compliance may result in the suspension of LMIA processing.
• ESDC has authority to collect personal information of employers and TFWs regarding compliance with IMP conditions. Any information collected will be shared with the IRCC and ESDC.

What does this mean for employers?

Employers must ensure these obligations are met when hiring foreign nationals. These changes promote greater transparency between employers and TFWs to improve long-term employment, and to ensure workplace safety. Employers should review their current workplace policies and make any changes necessary to comply.

Canadian border and travel restrictions to end effective October 1

The federal government has announced the removal of all COVID-19 entry restrictions, including testing, quarantine, and isolation requirements for anyone entering Canada, effective October 1, 2022.

Beginning at 12:00am EST on October 1, all travelers, regardless of citizenship, will no longer be required to:

• Submit public health information through the ArriveCAN app or website;
• Provide proof of vaccination;
• Undergo pre- or on-arrival COVID-19 testing;
• Carry out COVID-19-related quarantine or isolation;
• Monitor or report if they develop signs or symptoms of COVID-19 upon arriving to Canada;
• Wear masks on planes and trains;
• Undergo health checks for travel by air and rail; or
• Provide pre-board tests, proof of vaccination, or submit public health information through the ArriveCAN app or website to board cruise ships.

Notably, travelers must still continue to follow any provincial or territorial COVID-19 requirements as applicable.

What does this mean for employers?

These changes are intended to help the Canadian economy, boosting the Canadian travel and tourism industry, and speeding up entry into Canada. For employers, these changes mean fewer restrictions on immigration applications, and greater flexibility to send their employees to Canada, regardless of vaccination status or other Covid-related issues. Given the labour shortages in so many industries, removing barriers to entry into Canada is definitely good news.

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