New Enhancements to Protect Foreign Workers
On September 26, 2022, new legislation will come into force to enhance protections for foreign workers.
These regulatory amendments will impact both the Temporary Foreign Worker Program (TFWP) and the International Mobility Program (IMP). Their aim is to improve employer compliance by addressing gaps in the current worker protection regime, ensure access to information on employment rights, provide access to healthcare for foreign workers, and increase accountability for non-compliance.
What Employers Need to Know
Many of the new amendments impact how employers onboard their foreign workers. For example:
- Employment Information: Employers must ensure that foreign workers are provided with information on their workplace rights in their language of choice (English or French). This information will be supplied to employers by the Government of Canada.
- Employment Agreement: Employers must provide the workers they hire with a copy of their employment agreement, drafted in English or French (depending on the workers’ preference), and ensure the agreement is signed by the worker before providing the offer of employment to IRCC (for IMP) on or before the first day of work (for TFWP). The employment agreement must contain the same terms relating to wages, occupation, and working conditions as those set out in the offer of employment.
- The importance of drafting an employment agreement extends beyond the legislation. The need to contemplate the consequences of early termination cannot be overstated. Because these workers have a limited ability to find replacement work, employers may find themselves surprised by the financial consequences of an early termination if they have not considered the prospect of an early termination.
- If you have any questions or need assistance in drafting your employment agreements, please contact any member of our Labour & Employment practice group.
- Abuse-Free Workplace: Employers are obligated to make reasonable efforts to provide a workplace that is free of abuse. This mirrors and overlaps duties already found in Occupational Health and Safety Act, SA 2020 and obligations to ensure that the workplace is free from discrimination under human rights law. In fact, common law already holds that an employee may be deemed to be dismissed (and entitled to damages) if exposed to toxic working conditions. This can include retaliation by the employer/management against an employee for making a good faith complaint and indeed, the definition of ‘abuse’ has been expanded to include retaliatory behaviour by an employer against a temporary foreign worker who may come forward with a complaint. However, it can also include the actions of other employees and even clients and customers where an employer fails to address the problem. Practically speaking, employers must act swiftly to identify and bring an end to unwelcome behaviours using investigations and corrective measures (such as discipline and education).
- Fee Recovery: Employers and third-party recruiters acting on their behalf are prohibited from charging or recovering from foreign workers any recruitment-related fees associated with their hire, including Labour Market Impact Assessment (LMIA) processing fees. While these prohibitions have been mentioned previously in Employment and Social Development Canada (ESDC)’s policies on the TFWP, this is the first time they have been imposed by regulation.
- Fees related to temporary visas, temporary resident permits, and work permits are excluded as workers may be expected to pay these fees. Fees related to the recruitment of seasonal agricultural workers that are authorized under an international agreement between Canada and one or more countries are also excluded.
- Employee Health Care: Employers must provide access to healthcare services if a worker becomes ill or injured in the workplace.
- Private Health Insurance: Employers who have hired foreign workers under the TFWP are responsible for obtaining and paying for private health insurance that covers emergency medical care for the workers during any period for which they are not covered by the provincial or territorial health insurance system.
- Temporary foreign workers on a work permit are eligible for public Alberta Health Care if they intend to stay in Alberta for 12 months. To qualify for the Alberta Health Care Insurance Plan (AHCIP), the minimum acceptable work permit length is six months. The provincial health regime imposes a waiting period of a few months prior to foreign workers becoming eligible for public health coverage, so it is recommended that employers provide private health coverage for emergency medical needs upon the arrival of foreign workers or renewal of work permits under the TFWP. Employers are prohibited from recovering these costs from the foreign workers.
- Consequences for Non-Compliance: Employers found to have violated the program requirements may face consequences for non-compliance, including warning letters, administrative monetary penalties, and temporary or permanent ineligibility to access these programs.
There are also amendments related to increasing program integrity and employer accountability:
- Third Party Verification: Where in line with the Privacy Act, ESDC and IRCC can require, without consent from either the employer and/or foreign worker, that third parties (including banks and payroll companies) provide relevant documents to verify employer compliance. This will not impact law firms because of solicitor-client privilege but may apply to recruiters.
- Increased Due Diligence: Under the TFWP, ESDC can suspend processing of a LMIA for employers suspected of non-compliance. This can occur when an employer fails to: (1) be actively engaged in the business offering employment; (2) provide working conditions akin to those set out in the employment offer; (3) provide an abuse-free workplace; or (4) comply with COVID-19 related conditions.
- Our Labour & Employment team would be pleased to assist employers in creating a workplace policy related to these issues.
- Wage and Labour Now Stand-alone Dispute Factors: Under the TFWP, ESDC will now assess whether the wages offered to a foreign worker meet the prevailing wage rate for the occupation, and whether employing a temporary foreign worker will affect any ongoing labour disputes. Failure to pass both criteria will result in a LMIA refusal.
- Collecting Information: Under the IMP, ESDC has authority to collect personal information about employers and temporary foreign workers (ie. information received through the TFWP Service Canada Confidential Tip Line, the online reporting tool, or future communication media) related to compliance with the IMP conditions; this information is also shared with IRCC inspection officials.