The Government of Canada recently passed legislation to amend the Immigration and Refugee Protection Regulations, which will be effective on September 26, 2022. Some of these amendments expand existing program policies and will enhance the protection of foreign workers by setting new employer requirements and conditions and improving the ability to hold employers accountable for non-compliance with immigration laws.
With the growing labour shortage across Canada, employers are turning to foreign workers more and more in an effort to fill record-high level of job vacancies in numerous sectors across the country. Since April of 2022, the Government of Canada has implemented a number of facilitative measures to various immigration programs to help employers bring in more foreign workers to meet their operational needs and help alleviate the sustained labour shortages. Following the implementation of these facilitative measures, the government has now announced new regulatory amendments to the existing employer immigration compliance regime to enhance the protection of foreign workers against abuse and exploitation.
Overview of the New Obligations
The regulatory amendments include the following new employer immigration compliance obligations:
- Private Health Insurance: For employers who
hire foreign workers via a Labour Market Impact Assessment (LMIA)
through the Temporary Foreign Worker Program (TFWP), employers will
be required to obtain and pay for private health insurance that
covers emergency medical care for any period before the temporary
foreign worker is eligible for provincial or territorial public
Since most provincial health insurance regimes impose a waiting period of a few months prior to foreign workers becoming eligible for public health coverage, it is important that employers make the necessary arrangements to provide private health coverage for emergency medical needs when planning for the arrival of the foreign worker or, in certain circumstances, when renewing a work permit under the TFWP. Employers are prohibited from recovering these costs from the foreign workers in any form, including through pay deductions or charge back clauses in their employment agreements.
- Charging/Recovering Processing Fees: Employers
will be clearly prohibited from charging and recovering government
processing fees in relation to an LMIA application, the Employer
Compliance Fee, and other fees related to recruitment. These
prohibitions were previously mentioned in Employment and Social
Development Canada (ESDC)'s policies on the TFWP, but had not
been prescribed by regulation until now.
The amendments also specify that employers must ensure that any recruiters they use do not charge or recover the above mentioned fees. As such, global mobility teams need to be aware of the new requirements for their relocation expense clauses.
It is important to note that it is also prohibited to recover government processing fees for a Quebec Acceptance Certificate when hiring a temporary foreign worker for a job located in Quebec.
- Health Care: Employers will be required to provide foreign workers with reasonable access to health care services when they are injured or become ill at the workplace. For example, ensuring there is a phone available to the foreign worker to call emergency services. This applies to work permit applications made under the IMP and the TFWP.
- Employment Rights Information: Employers will be required to provide foreign workers with the most recent information about their rights in Canada, on or before the first day of work. Employers will be required to make this information available to the foreign workers throughout their period of employment in Canada. This applies to work permit applications made under the IMP and the TFWP.
- Employment Agreement: Employers who wish to hire a foreign worker under the TFWP or the IMP will be required to provide foreign workers with a signed employment agreement that outlines the occupation, wages, and working conditions, on or before the first day of employment. As such, employers who send their employees to work in Canada on short term assignments will need to have secondment agreements in place prior to submitting a work permit application. Prior to this amendment, except in Quebec, employers were not required to submit employment agreements with all work permit applications. For example, it was possible for employers to finalize the employment agreement in accordance with the terms of an LMIA after it was approved. For intra-company transferee work permits, it was possible to simply include an existing employment agreement with the affiliate and outline the terms of the transfer to Canada in the Employer Portal.
- Workplace Free of Abuse: Employers who hire foreign workers under the TFWP or the IMP are required to make reasonable efforts to provide a workplace that is free of abuse. The new amendments will add "reprisal" to the definition of abuse to respond to concerns of foreign workers fearing reprisal from employers, such as demotion, threats of demotion, disciplinary measures or dismissal, if they decide to report the employer's possible non-compliance with the program requirements.
- Increased Due Diligence during the LMIA Application Process: LMIA application process will be strengthened to ensure that all employers applying for an LMIA meet the program requirements in order to prevent foreign workers from entering an abusive workplace. Accordingly, employers who have not used the TFWP in the last six years will be assessed under additional requirements. ESDC will ensure that employers are not an affiliated to an organization that is ineligible to participate in the TFWP or in default of any amount payable for an administrative monetary penalty. Additionally, the processing of the LMIA applications may be suspended if there is reason to suspect that an employer is not complying with or has not complied with certain program conditions and that the employer's failure to comply with any of these conditions would put at serious risk the health or safety of the foreign national.
- Document Verification from Third Parties: ESDC and Immigration, Refugees and Citizenship Canada (IRCC) will have the authority to require documents from third parties, such as banks and payroll companies, to verify the employer's compliance with the regulatory conditions, such as those relating to a foreign worker's wages.
Employers must be aware of these new employer immigration compliance obligations when deciding to hire temporary foreign workers to mitigate risks in the event of an immigration audit or inspection. Employers are also encouraged to consider how these regulatory amendments will interact with their existing HR and global mobility policies. If you have any questions regarding how the new employer immigration compliance obligations may apply to your company, please contact the authors or your regular Fasken lawyer if you have any questions.
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.