Changes to TFWP 2022

The restrictions, testing and quarantine requirements introduced to combat the COVID-19 pandemic introduced in 2020 continue to be in place, but there are changes were introduced in 2022 to address labour shortages. Much of the measures that were introduced in 2021 (such as the changes to the Labour Market Impact Assessments (LMIAs)) are still effective, but some policies have been relaxed, making it easier for TFWP to work in Canada.

As of April 4th, 2022, the federal government of Canada has relaxed measures to make it easier for employers to hire workers through the Temporary Foreign Workers Program (“TFWP”). There are changes that are immediate and some that are effective at a later date. Outlined below are the changes since 2021.

Three Major Changes Effective Immediately

• The Labour market Impact Assessments (“LMIA”) will now be valid for 18 months instead of 9 months and 6 months (2021 and 2019 respectively). Preparing LMIAs continues to be a requirement for most employers to show the Canadian government the necessity of hiring foreign workers and that no qualified Canadian workers were overlooked. The “high-wage” and “low-wage” classifications continues.
• High-Wage and Global Talent Stream Programs (fast tracking for foreign technology focused talent) has now been extended from 2 years to 3 years.
• The Seasonal Cap exemption is now permanent; employers no longer have a time limit for low-wage positions that seasonal industries can hire. It has increased from 180 days of employment a year to 270 days per year.

Five Changes Effective April 30th/May 1st

• If employers can show demonstrated labour shortages, they are allowed to hire up to 30% of their workers through TFWP. Eligible sectors include: food and wood manufacturing, food services, construction, hospitals, and nursing/ residential care facilities.
• All other employers are allowed to hire up to 20% through TFWP—increasing from the previous 10% cap (introduced since June 2014).
• Canada will end the policy that automatically refuses LMIA applications for low-wage jobs in food and retail sectors where there is unemployment over six percent.
• Alberta is lifting all restrictions on occupations in the ‘refusal to process’ list identified here: https://www.canada.ca/en/employment-social-development/services/foreign-workers/refusal.html#LOC.
• The TFW Program Ministerial Consultative Roundtable (created to improve the TFWP, helping employers and employees) is holding its first meeting in June 2022, focusing on housing accommodations for TFWP.

Numbers from Statistics Canada Q4 2021 show the highest job vacancies per sectors as listed below, and federal and provincial governments are is attempting to shrink the vacancies through TFWP.

• Canada– 915,545 vacancies
• Accommodation and Food Services – 130,070 vacancies
• Health Care and Social Assistance – 119,590 vacancies
• Retail Trade – 103,990 vacancies
• Manufacturing – 81,775 vacancies

Employment and Social Development Canada (ESDC) is also implementing additional compliance regimes to protect temporary foreign workers. These include:

• Strengthening inspection tools and mandatory training
• Leveraging its tip line service, making it easier to report abuse
• Expanding work with consulates to identify concerns needing immediate attention

Update on TFWP (courtesy of the authors)

See: https://www.mobilework.law/2022/09/foreign-workers-rights-enhanced-in-canada-through-new-regulatory-amendments/?utm_source=Mayer+Brown+LLP+-+The+Mobile+Workforce&utm_campaign=67338bf238-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_b0a5a706e3-67338bf238-87155203

COVID-19 Updates

Still applicable:

To qualify as a foreign worker, individuals must satisfy as a fully vaccinated traveller: having received two doses of proof of vaccinations, mandatory use of ArriveCAN (an application that collects information about travellers), and having no symptoms of COVID-19.
If unvaccinated, workers still require on-arrival COVID testing, day-8 test and 14-day quarantine period (exceptions and exemptions are discussed below).

Changes include:

• People are no longer required to wear a mask in public spaces or at work, but must still follow the guidelines set by employers.
• Fully vaccinated workers no longer need a pre-entry COVID test.
• Different isolation regulations depending on vaccination records are applicable:
  • Fully vaccinated (2 doses)- you must isolate for 5 days or until symptoms resolve, whichever is longer
  • Partially vaccinated (1 dose)- you must isolate for 10 days or until symptoms resolve, which is longer
  • If you test negative, you should wait until symptoms resolve and stay away from others to decrease risk or spread

Exceptions

There are four exceptions to the above COVID-19 restrictions. You must qualify as fully vaccinated to enter Canada, except:

• For agricultural or food processing workers under the national Occupational Classifications (NOCs)
• For marine crew members- this is considered essential work for transporting goods;
• If you will be making medical deliveries; or
• If you will be working with medical equipment or devices.

Quarantine Exemptions

There are also additional exemptions for the 14-day quarantine if you satisfy the checklist below:

• Your work permits and documents are ready;
• You have a pre-entry test result (unless fully vaccinated);
• You have registered in advance for the on- and pre-arrival test;
• You have a quarantine plan set in place; and;
• You have used ArriveCAN to submit travel documents

Benefits

There are still some COVID-19 benefits provided by the Canadian government that are available to workers who are negatively impacted by Covid under the TFWP, but there are new timelines that are addressed below:

• The Canada Recovery Sickness Benefit (CRB) is only available until May 7th, 2022.
• Canada Worker Lockdown Benefit available until May 7th, 2022
• Canada Recovery Caregiving Benefit only available until May 7th, 2022
• The Alberta emergency financial assistance is still available to workers who face an unexpected emergency beyond their control

TFWP Worker’s Rights

The employer must deduct from the pay for the Canada Pension Plan, employment Insurance and income tax. Also, the pay must account and accommodate for break times, days off and overtime.

Also, if the position is a low-wage position or following the Agricultural Stream, the employer must:

• Pay for all transportation costs to and from Canada;
• Provide private health insurance until eligible for provincial health insurance;
• Pay/ensure proper accommodations;
• Give advance notice before termination of employment; or pay for termination pay in lieu of notice;
• Give notice to the employee to find a new job before being out of work; and
• Cannot force unsafe or dangerous work onto the workers.

Additional information can be found here https://www.canada.ca/en/employment-social-development/services/foreign-workers/protected-rights.html#h2.6.1
Employment standards documents are below:

• Employment Standards
• Temporary Foreign Worker Advisory Office brochure

Quarantine plan

In the case of COVID-19 infection, there should be a quarantine plan in place to address and limit the spread of COVID-19 including:

• Following the earlier addressed isolation periods in accordance with vaccine history;
• The employer should provide necessities such as water, food and living accommodations in quarantine period; and
• Prevent contact with others and visitors during isolation.

Abuse

All workers, including TFWPs are protected in Canada under Canadian law.

All types of abuse including threatening, bullying, keeping documents of pay, or imposing different obligations not mentioned in the LMIA, all should be reported via phone, in person or email to the Government of Canada; these are all anonymous and kept from the employer.

See: https://www.canada.ca/en/employment-social-development/services/foreign-workers/report-abuse.html

Employer Obligations

Employers:

• Cannot force someone to work when they are sick or injured;
• Cannot force someone to work under pressure of deportation;
• Cannot force someone to perform untrained duties;
• Must use the Employer Notification form to inform about arrival date and vaccination records of any TFWs;
• Should have accommodations that are regularly and promptly clean to prevent the spread of COVID-19;
• Must monitor and keep track of employee’s health and report to the health authorities in case of infection/spread;
• Must meet and follow the guidelines set out in the LMIA;
• Comply with any inspections following the Immigration and Refugee Protection Regulations (IRPR);

Any non-compliance by the employer are subject to violations including but not limited to:

• Verbal or written warnings,
• penalties up to $1 million per year, and
• permanent bans from the TWFP.