Changes to the TFWP and COVID-19: 2021

Immigration, Refugees and Citizenship Canada imposed travel restrictions as of March 26, 2020 due to the COVID-19 pandemic of which various amendments continue to be in place throughout 2021.

The Temporary Foreign Worker Program (“TWFP”) employers and workers are expected to follow the latest public health and safety requirements to help prevent the introduction and spread of COVID-19. The Government of Canada is working closely with all involved in the TFWP to ensure compliance with the health and safety requirements.

Administrative Information for Employers – COVID-19 Update

Service Canada is still processing Labour Market Impact Assessment applications (“LMIAs”). However, the Government of Canada has introduced new measures to improve flexibility and reduce administrative burdens for employers during the COVID-19 pandemic. The following measures apply proactively to all existing and new LMIAs:

- employers are not required to submit minor administrative changes to the LMIA that would not change the terms and conditions;

- LMIAs for occupations considered essential during the COVID-19 pandemic are prioritized for processing,

- minimum recruitment requirements for LMIAs in certain occupations are waived until December 31, 2020 (For positions located in the Province of Quebec, please see Hiring in the Province of Quebec);

- the maximum duration of employment under LMIAs is increased from 1 to 2 years for employers of workers in the low-wage stream as part of a three-year pilot;

- approved LMIAs are valid up to a maximum of nine months (or until December 15, 2021 under SAWP), and

- name addition and change requests have been expedited if they are for reasons related to COVID-19 or for eligible TFWs already in Canada.

- For the 2021 SAWP season, work permits for SAWP will indicate a 9-month work duration instead of the usual 8-month duration to accommodate the quarantine period (noting that work terms cannot exceed December 15, 2021).

- Due to COVID-19 employers were temporarily given Housing Inspection Report (HIR) flexibility. This flexibility now only applies if the employer can prove that the appropriate authority is unable to conduct an inspection. For more information see the program requirements for HIRs for the Agricultural stream or SAWP.

For more information, click here: https://www.canada.ca/en/employment-social-development/services/foreign-workers/notice-covid-19.html

TFWP COVID-19 Protocols

Temporary foreign workers require a negative COVID-19 test before coming to Canada. All travellers 5 years of age or older, regardless of citizenship, must provide proof of a negative COVID-19 test result to enter Canada. Airlines have been mandated to refuse boarding to travellers who are unable to provide a valid molecular test result.

As of August 9, 2021 fully vaccinated temporary foreign workers may be exempt from the 14-day quarantine provided they meet all the required conditions. Required conditions can be found on the COVID-19 vaccinated travellers entering Canada page.

Unvaccinated temporary foreign workers are still required to quarantine for 14 days on arrival, even if they have received a negative COVID-19 test result within 72 hours prior to departure.

Vaccination Requirements

Fully vaccinated temporary foreign workers with the full series of a vaccine, or combination of vaccines, accepted by the Government of Canada, administered at least 14 days prior to entering Canada, and who meet the requirements (asymptomatic, electronically submit COVID-19 information on ArriveCAN prior to departure, including proof of vaccination in English or French [or certified translation]) are exempt from quarantine, the requirement to stay at a government-authorized hotel and the Day-8 test.

Fully vaccinated travellers must continue to meet all other entry requirements, including a pre- and on-arrival test, and have a suitable quarantine plan in place. Travellers not meeting all the criteria must follow entry restrictions, testing and quarantine.

For more information on accepted vaccines, and to determine if you are considered fully vaccinated, please see the COVID-19 vaccinated travellers entering Canada page.

COVID- 19 Testing Requirements

Day-8 tests are required by travellers who have received a negative on-arrival test and who are not fully vaccinated. The process for Day-8 testing for temporary foreign workers depends on where they arrive and where they are quarantining. More information will be provided upon arrival. If your test will be managed by Switch Health or Dynacare, more information is provided at: https://www.canada.ca/en/employment-social-development/services/foreign-workers/employer-compliance/covid-faq.html#h2.01

The Government of Canada has introduced new supports for employers of temporary foreign workers in the agriculture, agri-food, fish and seafood sectors to support the facilitation of the COVID-19 test. Temporary foreign workers are allowed to leave quarantine to have this test; however, they are expected to follow all public health measures (e.g. wearing a mask and practicing physical distancing) issued by government authorities when they do so. For more information see the how to quarantine section of the Mandatory quarantine or isolation page.

For more information on travelling to Canada, visit the COVID-19: Travel, testing, quarantine and borders page.

Documentation Requirements during COVID-19

All travelers will be required to disclose COVID-19 vaccination information, including whether they received a COVID-19 vaccine, the brand name or any other information that identifies the vaccine that was received, the dates on which the vaccine was administered, and the doses received. Travellers must retain a copy (paper or electronic) of their vaccination documentation and the originals of any certified translations for verification at the border and for 14 days following their entry into Canada

A quarantine plan that includes details for the following information:

- isolation accommodation for 14 days or possibly longer

- the accessibility to the necessities of life, including water, food, medication, and heat without leaving quarantine

- prevention of contact of others who did not travel

- prevention of visitors while in quarantine

- a receipt from ArriveCAN confirming information was submitted (screenshot, email or printout)

- address of quarantine location (housing)

Workers who must quarantine must remain in quarantine until they receive a negative result from Day-8 test and have completed their mandatory 14 days of quarantine. Workers who have not received the results of their Day-8 COVID-19 test before the expiration of the 14-day quarantine period, beginning on the day they enter Canada, are required to remain in quarantine until they receive their negative test result via a PHAC-identified laboratory or for another 14-day period – whichever comes first.

- In short, after 28 days, the worker has no further obligations under the Order in Council and their quarantine period ends

If a worker receives a positive result on their Day-8 test, they must isolate from others immediately for a period of 14 days that begins from the time they took the test with the positive results

For more information, see the Flying to Canada: COVID-19 testing for travelers page.

Employer Responsibilities during COVID-19

Employers of the TFWP are responsible for facilitating the employees’ self-isolation period pursuant to the appropriate public health requirements. The following are a few of the employer’s responsibilities:

- help prevent the spread of COVID-19, and

- protect your Temporary Foreign Workers (TFWs) from contracting COVID-19

- Employer is also responsible to follow Labour Market Impact Assessment (LMIA) and the IRPR conditions.

- Surfaces in the accommodations should be cleaned and disinfected regularly and workers should have access to facilities that enable them to wash their hands often with soap and warm water or use an alcohol-based sanitizer if soap and water are not available. Employers are also expected to follow any unique guidelines established by the province in which they operate.

In addition to the above requirements, employers are responsible for monitoring the health of employees and reporting to local health authorities anyone who becomes symptomatic. This includes the TFW as well as others that they may employ. Employers who are required to provide housing under the TFWP also must meet the minimum standards.

It is important that employers must not do anything that prevents the TFW from meeting their requirements of orders under the Quarantine Act.

Additional criteria, information, and guidance for employers of TFW during COVID-19 is found here: https://www.canada.ca/en/employment-social-development/services/foreign-workers/employer-compliance/covid-guidance.html

Compliance/Inspection Changes

Apart from those deemed exempt by the Chief Public Health Officer of Canada temporary foreign workers entering Canada are subject to the requirements of the Quarantine Act, which includes mandatory quarantine. Penalties of up to $750,000 can be levied against a temporary foreign worker who violates this Order.

A person who causes a risk of imminent death or serious bodily harm to another person while willfully or recklessly contravening the Quarantine Act or associated regulations could be liable for a fine of up to $1,000,000 or to imprisonment of up to 3 years, or to both.

Under the Immigration and Refugee Protection Regulations, workers who are found to have failed to adhere to an isolation order could be found inadmissible, issued a removal order, and barred from coming back to Canada for 1 year.

More information on compliance can be found here: https://www.canada.ca/en/employment-social-development/services/foreign-workers/employer-compliance/covid-inspections.html

Recent changes were made to the TFWP to better protect the TFWs. The changes were made with 3 key objectives:

- Improving protections for temporary foreign workers

- Improving the Government's ability to prevent bad actors from participating in the program

- Strengthening the Government's ability to effectively conduct inspections

Social Development Canada (SDC) has the authority to inspect any employer when the department is made aware of a potential danger or that the safety of workers is at risk. Service Canada will conduct quarantine inspections virtually via phone and video, however on-site inspections remain an important integrity mechanism available to Service Canada agents, particularly if there are egregious concerns or where information provided virtually is deemed insufficient.

Employers may be asked for a virtual tour of the employee’s accommodations. Interviews with employers and workers will be conducted by phone or videoconference. Investigators should be informed prior to the interviews if interpretation services are required

When providing photos of accommodations during quarantine, Service Canada does not advocate or expect employers to enter the space occupied by the workers in quarantine. Photos can be taken from outside the structure and by workers when photos inside the accommodations are required. Service Canada recommends that employers take photos of the accommodations before the arrival of the workers.

The photos should clearly show that the accommodations are meeting the regulatory requirements. For example, if bunkbeds are used during quarantine, the photo must show that the beds are 2 metres apart and that only one bunk is being used

More information on inspection regulations can be found at: https://www.canada.ca/en/employment-social-development/services/foreign-workers/employer-compliance/covid-inspections.html

Rights and Responsibilities of TFW

TFW are responsible for complying with health screening and self-isolation protocols. TFW must continue to practice physical distancing, consider the use of a mask, self-monitor for symptoms, practice good hygiene habits, and follow instructions of their local public health authorities.

TFW should receive health care coverage that is equivalent to other residents of Canada. For workers in the low-wage and primary agriculture streams, equivalent private health insurance must be provided by employers until the worker becomes eligible for the provincial/territorial plan.

If a TFW becomes symptomatic at any time, the employer must immediately arrange for the worker to be fully isolated from others and contact local public health officials.

Income Information for TFW

If the TFW becomes ill during the self-isolation protocols: the worker is to be paid by the employer during this quarantine period.

If the TFW remains ill or becomes symptomatic during the 14-day self-isolation period: the worker is to be paid by the employer during the extended quarantine period.

If the TFW becomes ill after the 14-day isolation period: the worker may be entitled to either paid or unpaid sick leave, depending on their employment contract and the relevant federal, provincial, and territorial employment standards.

Income Information in Alberta

The Employment Standards (COVID-19 Leave) Regulations in Alberta states that, all employees who are in quarantine due to COVID-19 are eligible for 14 days of unpaid leave.

The regulations also state that employees may not be terminated or temporarily laid off for being on leave. An exception is if the employer temporarily suspends operations (which may result in a temporary layoff) or permanently cease operations which would result in termination. Another exception is that if circumstances beyond the employer’s control make employment impossible, employers may terminate employees without termination notice.

For more information on COVID-19 leave, please visit: https://www.alberta.ca/covid-19-leave.aspx.

Frequently asked questions: Changes to the Temporary Foreign Worker program regarding COVID-19: https://www.canada.ca/en/employment-social-development/services/foreign-workers/employer-compliance/covid-faq.html

COVID-19 Income Support for TFW

Although employers must pay the TFW during the 14-day self-isolation period, employers do not have to continue payment if TFW get sick after this period.

An employer cannot end the employment contract with the TFW if they are sick with COVID-19. However, if the TFW became sick with COVID-19 or has been laid off, new financial supports are available that they may be eligible for.

Canada Recovery Benefit (CRB)

The Canada Recovery Benefit provides eligible workers with up to 50 weeks of income support for those who are not eligible for EI and are either not employed or self-employed due to COVID-19, or had their employment/self-employment income reduced by at least 50% due to COVID-19. The first 42 weeks are paid at $500 per week (taxable, tax deducted at source), and the remaining 8 weeks are paid at $300 per week (taxable, tax deducted at source). All new Canada Recovery Benefit recipients on or after July 18, 2021 will also receive a rate of $300 per week. This benefit is paid in 2-week periods and has been extended until October 2021.

To qualify for this benefit one must meet certain requirements. The checklist can be found at: https://www.canada.ca/en/revenue-agency/services/benefits/recovery-benefit/crb-who-apply.html

General Rights for TFW

Your employer must:

- pay you for your work

- ensure that your workplace is safe

- give you break time and days off

- respect the terms of your written contract

Your employer cannot:

- force you to perform duties that you were not hired or trained to do

- force you to work if you are sick or injured

- take your passport or work permit away from you

- have you deported from Canada or change your immigration status?