October 27, 2020

Key LMIA Updates on Employer Compliance Regarding COVID-19

Posted by Lijing Cao - Bellissimo Law Group PC

Coping with the COVID-19 pandemic, Immigration, Refugees and Citizenship Canada (IRCC) and Employment and Social Development Canada (ESDC) have released a series of regulations and guidance for employers of temporary foreign workers in the compliance regime. It is of vital importance for employers who employ foreign workers to be aware of and comply with these new regulatory requirements.

Compliance Obligations

Amendments to Immigration and Refugee Protection Regulations (IRPR) came into force on 20 April 2020 (Canada Gazette, Part II, Volume 154, Extra Number 2), where new regulations have imposed additional responsibilities on employers to assist in preventing the spread of COVID-19, including:

  • Not prevent a foreign worker from complying with the requirements of orders made under the Emergencies Act or the Quarantine Act, as well as provincial law governing public health in response to COVID-19.
  • Pay a foreign worker substantially the same wages as those set out in the offer of employment and/or Labour Market Impact Assessment for the quarantine/isolation period upon entry into Canada as per ss. 209.2(1)(a)(vii) and 209.3(1)(a)(xii) of the IRPR.
  • Additional requirements for employers providing accommodations to foreign workers as per ss. 209.3(1)(a)(ix) – (xi) and 209.3(1)(a)(vi) of the IRPR.

Employers should keep records of proof of wages paid. In the case where an employer provides accommodations to a foreign worker who is subject to an order/regulation made under the Emergencies Act or the Quarantine Act, cleaning products (e.g., paper towels, soap, cleaning and disinfection products) must be provided to the worker. If a foreign worker develops any sign or symptom of COVID-19, the employer is required to provide the worker with a private bedroom and private bathroom. Employers must make sure that quarantining foreign workers are separate from those who are not in quarantine.

Compliance Inspections

Under the new regulations of ss. 209.5(d) and 209.5(e) of the IRPR, inspections may be triggered if either of the following conditions is met:

  • IRCC or ESDC is notified of an introduction or spread of a communicable disease at any premises or place where a foreign worker performs work; or
  • The employer employs a foreign worker who is/was subject to an order made under the Emergencies Act or the Quarantine Act.

During the COVID-19 pandemic, ESDC inspections are conducted in a virtual manner, with or without prior notice. If selected, an investigator will notify the employer by phone and email with details about the inspection and documents required. Once requested, the employer must provide requested documentation within 48 hours by email or through an online portal. Failure to do so could result in non-compliance penalties.

During an inspection, employers may be asked for one or more of the following:

  • Proof of wages paid (i.e. pay stubs).
  • Photos of accommodations regarding social distancing space if more than one worker is in quarantine at the same time.
  • Photos of private isolation space if it is deemed necessary for the worker to be in separate accommodations.
  • Proof of adequate supply of sanitation products for the worker to use.
  • Virtual tours of the accommodations and/or facilities.

Consequences of Non-compliance

Division 6 of Part 11 under the IRPR sets out the ground rules for non-compliance penalties, the purpose of which is to encourage compliance and not to punish as stated under s. 209.94. 

If an officer determines that an employer has not complied with the requirements on the basis of an inspection and any other relevant information, penalties for non-compliance include warning letters, administrative monetary penalties, suspended processing of work permit applications, revocation of work permits, a ban from hiring foreign workers, and publication on a list of non-compliant employers[1].

Under the new regulatory amendment, an employer found to be non-compliant will be given an opportunity to respond and justify the non-compliance in limited circumstances as stipulated in s. 203(1.1)(h) of the IRPR, in the event of an error made in good faith regarding the interpretation of certain regulatory conditions.

Implications for Foreign Workers Violating Quarantine Requirements

Foreign workers entering Canada will be required to quarantine for 14 days upon arrival, unless they qualify for certain exemptions from the quarantine requirements. Significant penalties could be levied against foreign workers for non-compliance of the quarantine plan, including fines, jail time and inadmissibility.

Under the new regulation of s. 22.1 of the IRPR, a foreign national who is convicted of contravening an order made under the Emergencies Act or the Quarantine Act would be inadmissible to Canada, meaning the person could be removed from Canada and barred from re-entry for a period of time, unless a written authorization to return to Canada is provided within that timeframe.

A New Era in Compliance

Regulations and policies in compliance regime are expected to continue evolving. Employers should be aware of the increased compliance requirements placed on them. Given the significant consequences of non-compliance and the complexity of the policies and regulations, employers and foreign workers are advised to obtain legal advice for any specific situation.