7 September 2022

Foreign Workers' Rights Enhanced In Canada Through New Regulatory Amendments

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Immigration, Refugees and Citizenship Canada has announced amendments to the Immigration and Refugee Protection Regulations, to take effect on September 26, 2022.
Canada Immigration
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Immigration, Refugees and Citizenship Canada has announced amendments to the Immigration and Refugee Protection Regulations, to take effect on September 26, 2022.

Snapshot Summary

These amendments impact the Temporary Foreign Workers Program, and the International Mobility Program, placing greater responsibility on employers to protect the rights of foreign workers.

The regulatory amendments aim to protect foreign workers' rights and to improve employer compliance by addressing gaps in worker protections, workplace conditions for foreign workers, and ensuring access to information on employment rights, as well as focusing on providing improved access to healthcare services for foreign workers.

What Immigration Programs are Affected?

There are two streams to hire temporary foreign workers in Canada: the Temporary Foreign Workers Program (TFWP) and the International Mobility Program (IMP).

The Temporary Foreign Workers Program (TFWP) requires employers to obtain a Labour Market Impact Assessment (LMIA). An LMIA confirms that there is a need for a temporary foreign worker, and that no Canadian citizens or permanent residents are available to do the job. Under the TFWP, employers apply for an LMIA, and once issued, foreign workers may apply for a temporary work permit. Work permits under the TFWP are employer-specific.

The International Mobility Program (IMP) allows certain employers to hire temporary foreign workers without an LMIA by matching a the job posting to an LMIA exemption code, paying and employer compliance fee, and submitting an offer of employment to the government. The temporary foreign worker may then apply for a work permit. Work permits under the IMP may be either employer-specific, or open for any employer in any region in Canada. Examples of work permits under the IMP include Intra Company permits.

What Changes Will Go Into Effect?

Below is a detailed look at the regulatory amendments:

Amendments Providing for Enhanced Temporary Foreign Worker Protections:

Program Impacted Amendment Significance of This Amendment
TFWP and IMP 1.1 Providing information to temporary foreign workers about their rights in Canada Employers must now provide a copy of the most recent information about worker's rights in Canada, to the temporary foreign worker, in the worker's choice of language (English or French).
TFWP and IMP 1.2 Providing an employment agreement to the temporary foreign worker Under the TFWP, employers must provide the foreign worker with a signed copy of their employment agreement on or before the first day of work, and must agree to the terms therein. Under the IMP, employers must attest that they have provided an employment agreement to the foreign worker. Under the TFWP and IMP, the employment agreement must provide for the same terms as in the employment offer. The employment agreement must also be in either English or French, and must be signed by both the worker and the employer.
TFWP and IMP 1.3. Amending the definition of "abuse" to include "reprisal" against temporary foreign workers This expands the definition of "abuse" to include retaliatory behaviour ("reprisal") by the employer against the temporary foreign worker.
TFWP and IMP 1.4. Prohibit employers from charging or recovering fees for the provision of services in relation to an LMIA, Employer Compliance fee and fees related to recruitment and require that employers ensure that any recruiters they use do not charge or recover these fees Under the TFWP, employers must affirm that they have not or will not charge or seek to recover fees from a foreign workerin relation to the LMIA or recruitment. This also applies to employers using third parties to charge or recover fees. Under the IMP, employers must attest that they have not or will not charge or seek to recover fees from a foreign worker for the employer compliance fee or recruitment costs. This also applies to employers using third parties.
TFWP and IMP 1.5. Protecting the health and safety of temporary foreign workers Under the TFWP and the IMP, employers mustprovide access to health care services if the worker becomes ill or injured in the workplace. Under the TFWP, employers must obtain and pay for private health insurance covering emergency medical care for workers, if not already covered under applicable provincial health insurance.

Amendments Providing for Program Integrity, Applicable to TFWP and/or IMP:

Program Impacted Amendment Significance of This Amendment
TFWP and IMP 2.1. Requiring documents from third parties The Employment and Social Development Canada (ESDC) and Immigration, Refugees and Citizenship Canada (IRCC) can now require, without consent from the employer and/or foreign worker, that third parties provide documents to verify employer compliance.
TFWP only 2.2. Suspend processing of a request for an LMIA so long as there is reason to suspect employer non-compliance with certain regulatory conditions and serious risk to health or safety of foreign national ESDC can suspend processing an LMIA for employers suspected of non-compliance. This can occur when the employer fails to: (1) be actively engaged in the business offering employment; or (2) provide working conditions that are substantially the same as but not less favorable than what was offered; or (3) make reasonable efforts to provide an abuse-free workplace; or (4) comply with any COVID-19 conditions.
TFWP only 2.3. New assessment requirements for employers applying for an LMIA ESDC will confirm if employers made reasonable efforts within the last two years to provide an abuse-free workplace, and were not an affiliate of an employer ineligible under the TFWP. This applies to employers who have not employed a worker under the TFWP in the past six years.
TFWP only 2.4. Make wage and labour dispute factors stand-alone LMIA requirements ESDC will assess if a foreign worker's employment is likely to have a neutral or positive affect on Canada's labor market, using seven factors to evaluate. ESDC will also assess if the offered wages to foreign workers meet the prevailing wage rate, and if employing a temporary foreign worker will affect any ongoing labor disputes. Failure to pass both criteria will result in an LMIA refusal from the ESDC.
IMP only 2.5 Collecting information regarding compliance with IMP conditions to ensure program integrity Under the IMP, ESDC can collect personal information on employers and temporary foreign workers related to compliance with the IMP conditions. This information will also be shared by ESDC with IRCC inspection officials.

A full description of the regulatory amendments can be found here.

Impact on Employers

Canada has previously introduced similar amendments to the Immigration and Refugee Protection Regulations in August 2021 in order to protect vulnerable foreign workers, against the backdrop of the COVID-19 pandemic. The newest amendments set to go into effect on September 26, 2022 will further enhance foreign worker protections by providing more specificity to the regulations. Employers should review their responsibilities and compliance obligations under both the TFWP and IMP streams when employing foreign workers.

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This Mayer Brown article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.

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