MT❯iplus Edition: Employer Obligations After The Issuance Of A Closed Work Permit

When a closed work permit is issued for a temporary foreign worker, an employer's responsibilities extend well beyond the initial hiring. Ongoing compliance with Canadian immigration and employment laws is essential, not only to avoid penalties, but also to ensure a positive and lawful employment experience for both employer and worker.

A closed work permit restricts employment to a specific employer, position, and location. Depending on the program under which the permit is issued - either the International Mobility Program (IMP) or the Temporary Foreign Worker Program (TFWP) - employers must navigate different sets of obligations and requirements under Canadian immigration law.

Overview of the Programs

The IMP allows employers to hire foreign workers without the need for a Labour Market Impact Assessment (LMIA), typically for positions that bring broader economic, cultural, or other competitive advantages to Canada. In contrast, the TFWP requires an LMIA to demonstrate that hiring a foreign worker will not negatively impact the Canadian labour market.

Employer Obligations: What Applies to Both Programs

Retaining the Work Permit and Employment Documents

Once the work permit is issued, employers must keep a copy of the document in the employee's file and note the expiration date to confirm the employee's continued eligibility to work for the organization.

As a best practice, employers should proactively set reminders to follow up with the foreign worker at least nine months before the work permit's expiry. This allows sufficient time to review and initiate renewal procedures, helping to avoid delays due to lengthy processing times for extensions or new permits and ensuring the worker's continued employment without interruption.

Employers must keep all documents related to the employment of temporary foreign workers for six years.

Adhering to Employment Terms

It is essential that employers comply with the conditions specified in the job offer submitted via the Employer Portal or in the LMIA submitted with Service Canada:

• Job title
• Job description
• Work location
• Salary
• Benefits
• Number of hours worked per week

Before making any changes, employers should confirm whether the employee must apply for a new work permit to reflect the updated terms, as non-compliance can lead to penalties.

In addition, employers must give the temporary workers a copy of the signed employment agreement which should include information on the wages, working conditions, and occupation, as listed in the offer of employment. For workers hired under the IMP, the signed employment agreement must be provided before they apply for a work permit.

Providing Worker Rights Document

Since September 26, 2022, it is mandatory to provide temporary foreign workers with a document outlining their rights in Canada before their first day of work. This document must also be visibly posted in the workplace.

It is recommended to send this document by email and keep proof of communication.

• IMP: International Mobility Program – Get to know your rights while working in Canada
• TFWP: Temporary foreign workers: Your rights are protected

Workplace Safety and Abuse

Employers must promptly support injured or ill workers by facilitating access to medical care and providing information or assistance as needed. They are required to maintain a safe, abuse-free workplace, investigate reported hazards, and supply proper training and protective equipment at no cost. Employers cannot penalize workers for refusing unsafe work or for making workers' compensation claims.

Inspections and Compliance

Federal authorities may conduct inspections to verify compliance with program requirements. Inspections can be triggered randomly, by complaint, or due to previous non-compliance, and may include requests for records, on-site visits, and interviews with employees. During an inspection, employers must provide requested documentation and cooperate fully.

Failure to meet obligations can result in administrative penalties, bans on hiring foreign workers, public disclosure of non-compliance, and reputational damage.

Obligations Specific to the TFWP

Prevailing Wage Review

Employers must respect the prevailing wage, which must be reviewed annually according to Job Bank data, and update the compensation of foreign workers accordingly.

For LMIAs submitted after January 1, 2024, employers are responsible for reviewing the salary of foreign workers annually to ensure it continues to align with the updated prevailing wages. This salary update and review aims to ensure that TFWs continue to receive the prevailing wage from the beginning to the end of their employment period.

The prevailing wage is defined as the highest wage of either:

• the median wage on Job Bank (or, in Quebec, the wage established by the Ministère de l'Immigration, de la Francisation et de l'Intégration (MIFI));
• the wage that is within the wage range that you are paying your current employees hired for the same job and work location, and with the same skills and years of experience.

Since wages on Job Bank are updated annually in the fall, employers have until January 1^st of the following year to conduct their review and adjust wages where required.

Private Health Insurance

As part of the TFWP, employers must subscribe to private insurance covering emergency medical care for temporary foreign workers before their arrival in Canada, until they are eligible for public health coverage.

If there is a period where the worker is not covered by the provincial or territorial health insurance where they are working, the employer must obtain and pay for a private health insurance that covers emergency medical care. The employer cannot deduct any money from the employee's pay for this private health insurance.

Declaration to the CNESST (Quebec, TFWP Only)

Any employer in Quebec who hires a temporary foreign worker following an LMIA must declare it to the CNESST via the dedicated portal, in accordance with the Act respecting labour standards.

Conclusion

Compliance with the requirements of the IMP and TFWP is essential to avoid sanctions and ensure a positive experience for temporary foreign workers. Our team is available to support you in navigating these requirements and ensuring your organization remains compliant.

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The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.