Updated employer compliance requirements for employers of foreign workers
The Government of Canada has recently taken steps to further protect foreign workers employed in Canada. These efforts by the government have, in some cases, created additional obligations that employers must comply with while strengthening others.
The recent changes came into effect on September 26, 2022 when the amendments to the Immigration, Refugees and Protection Regulations (“IRPR”) were implemented. These amendments are in response to the 2016 report of the Standing Committee on Human Resources, Skills and Social Development and the Status of Persons with Disabilities (“HUMA”), and aim to address gaps in worker protection, expand existing program policies, and strengthen program integrity. As these amendments do have a significant impact on an employer’s obligations when employing foreign workers, it is vital for employers to update their practices to remain compliant.
Below we summarize the major changes and the impact to employers. Please note that this article only touches on the significant updates and does not discuss all new employer compliance obligations or those that have remained unchanged.
LMIA – New Employer Workplace Abuse Review
The government’s first significant update targets employers who have not employed a foreign worker within the past six years. Specifically, all new employers applying for a Labour Market Impact Assessment Application (“LMIA”) are now subject to a review of their “reasonable efforts” to provide a workplace that is free from abuse. In particular, the review will confirm whether these employers have made proactive efforts to prevent workplace abuse and taken reactive measure to stop abuse.
These employers will also be subject to a review of whether they are an affiliate of an employer that is ineligible for the temporary foreign worker program or in default of an administrative monetary penalty. An affiliate for this purpose includes two employers that are under common control or that are not operated at arm’s length.
Employers who have not employed a foreign worker within the past six years should ensure their workplace harassment policy is updated prior to applying for an LMIA to prepare for this review. While returning employers are not subject to this review, it is nonetheless important for them to maintain an up-to-date policy due to the emphasis the government is placing on ensuring foreign workers are provided with a workplace free of abuse.
Provide Temporary Foreign Workers with Information about their Rights
In an effort to ensure that foreign workers are aware of their rights while in Canada, the government is now requiring that all employers provide their foreign national employees with information regarding their rights. This information must be provided to the foreign workers on or before their first day of work and must be made available to them throughout their employment. The Government of Canada has prepared an information package entitled “Temporary foreign workers: Your rights are protected” that should be provided to the workers.
This requirement is applicable to both new and returning employers and to foreign workers hired under both the Temporary Foreign Worker Program or the International Mobility Program. As a reminder, the Temporary Foreign Worker Program (“TFWP”) includes all workers working pursuant to LMIA-based work permits, while the International Mobility Program (“IMP”) includes most LMIA-exempt work permit categories
Provide Temporary Foreign Workers with their Employment Contract
While it is already common practice for most businesses, employers are now obligated to provide their foreign workers with copies of their employment contracts before they begin their employment in Canada. The government has implemented this new obligation to ensure that Immigration, Refugees, and Citizenship Canada (“IRCC”); Employment and Social Development Canada (“ESDC”); the employer, and the foreign worker all have the same information regarding the worker’s conditions of employment.
To comply with this obligation, the contract provided to the foreign worker must be in their Canadian language of choice (English or French). It must be signed by both the employer and foreign national and must provide for employment in the same occupation and with the same wages and working conditions as set out in the offer of employment that was made as part of the LMIA or LMIA-exempt work permit.
The timing of when the contract must be provided to the foreign worker depends on whether the foreign worker is obtaining a work permit through the TFWP or the IMP. Workers falling under the TFWP must be provided with a copy of their contract on or before their first day of employment. Alternatively, workers under the IMP must be provided with a copy of their contract before the company submits their Online Offer of Employment or Employer Compliance Submission as part of the foreign worker’s work permit application process.
Provide Temporary Foreign Workers with Access to Health Care
As part of the new employer obligations, the government is also ensuring that all foreign workers have access to emergency health care services. This includes requiring that all employers make reasonable efforts to provide access to health care services when a temporary foreign worker is injured or becomes ill at the workplace. This is applicable to all employers, regardless of whether the worker obtained their work permit under the TFWP or the IMP.
The Government of Canada has provided examples of what constitutes “reasonable efforts” such as ensuring there is a telephone available for the foreign worker to use to contact emergency services and / or organizing transportation to a hospital or doctor. While there is an obligation that the employer makes these efforts, there is no requirement under this obligation that the employer pays for the transportation to the hospital or doctor.
Temporarily Provide Temporary Foreign Workers with Private Health Care Coverage
While previously a policy, this requirement has now been added to the IRPR, but it only applies to employers of workers under the TFWP. Specifically, employers under the TFWP must obtain and pay for private health insurance that covers emergency medical care for any period during which a temporary foreign worker is not covered by the applicable provincial or territorial health insurance system. Each province and territory has different health care coverage eligibility requirements, so it is important for employers to be aware of these waiting periods and plan accordingly.
As noted, employers of foreign workers under the IMP are not subject to this requirement.
Must not Charge or Recover any Fees or Costs from the Temporary Foreign Worker
While this employer compliance requirement has been a policy in place for quite a while at the federal level and included in some provincial labour standards legislation, it has now been added to the IRPR. This regulation prohibits any employer or any person who recruited the foreign national from directly or indirectly charging that worker, or recovering from that worker, any fees associated with their hiring or recruitment. These fees include fees for LMIA applications, employer compliance fees, and fees related to recruitment. Employers can, however, require their foreign workers to pay the fees related to any temporary visa, temporary resident permit, or work permit applications.
While this has been a long-standing policy and is unlikely to result in any significant adjustments to employer requirements, it is still important to note that this is now included as part of the IRPR.
ESDC and IRCC Granted Authority to Obtain Documents from Third Parties
Lastly, these amendments have also granted authority to IRCC and ESDC to require, without the consent of the employer or worker, that third parties provide any document in their possession that relates to the employer’s compliance with regulatory conditions. While not an employer compliance obligation directly, employers should be aware that the government can obtain documents from third parties such as banks and payroll companies to verify their compliance with their obligations.
The government’s recent amendments to the IRPR have created and extended several employer compliance obligations. The intent of these changes is to protect foreign workers and strengthen the program’s integrity. As a result, employers must now take additional proactive steps to remain compliant.
This update is intended for general information only. If you have further questions about these programs or are an employer seeking to support your workers, please contact a member of our Immigration Group.
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