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COVID-19 compliance obligations for employers of foreign workers

Thursday, May 07, 2020 @ 10:52 AM | By Valerie Kleinman

Valerie Kleinman %>
Valerie Kleinman
Companies who employ foreign workers on employer-specific work permits are subject to a compliance regime. This framework includes work permits that are based on Labour Market Impact Assessments (LMIAs), a process where the local labour market is tested, and LMIA-exempt work permits. Employment and Social Development Canada (ESDC) and Immigration, Refugees and Citizenship Canada (IRCC) have regulatory tools available to ensure that companies are respecting the conditions of their LMIAs and/or their employees’ work permits.

New regulations in the Immigration and Refugee Protection Regulations (IRPR) have created additional obligations for employers in light of COVID-19. Employer compliance inspections can be random, based on suspected non-compliance or previous non-compliance. According to the Regulatory Impact Analysis Statement of the Regulations Amending the Immigration and Refugee Protection Regulations (Emergencies Act and Quarantine Act): SOR/2020-91 (Canada Gazette, Part II, Volume 154, Extra Number 2), these new measures will allow inspections to be initiated in other situations: when a communicable disease presents at the workplace of a foreign worker or when a foreign worker is or was required to comply with an order of the Emergencies Act or Quarantine Act.

Covid-19-related compliance obligations

Employers cannot impede on a foreign worker’s ability to comply with requirements under the Emergencies Act or the Quarantine Act. Anyone entering Canada must now self-isolate for a 14-day period upon entry, subject to limited exceptions for individuals who have received approval. Forcing a foreign worker to show up to a workplace during the 14-day period would be considered to be a violation of this new requirement. The employer also cannot interfere with any requirements that the foreign national must meet under provincial legislation dealing with public health as a result of COVID-19.

Other requirements are in place to ensure that foreign workers’ wages are protected. The obligation to pay the foreign worker “substantially the same” as the amount indicated in the LMIA or Offer of Employment extends to the 14-day self-isolation/quarantine period upon entry to Canada. One difference to note is that the existing requirement is that foreign workers must be paid “substantially the same, but not less favourable wages and working conditions,” (ss.209.2(1)(a)(iii) and 209.3(1)(a)(iv) of the IRPR), whereas the new regulations covering the self-isolation period require the employer to pay “wages … that are substantially the same” (ss.209.2(1)(a)(vii) and 209.3(1)(a)(xii) of the IRPR.)

For employers who provide accommodation, which is mandatory under some LMIAs, the obligations are greater. Foreign workers who must respect the Emergencies Act or the Quarantine Act are required to be provided with cleaning supplies. Employers must ensure that self-isolating/quarantined foreign workers are separate from other foreign workers and must be able to have two metres of space from another person. Foreign workers who display any COVID-19 symptoms must be given a private room and bathroom.

Penalties for non-compliance

Penalties for non-compliance include administrative monetary penalties, revocation of existing LMIAs/work permits, bans on new LMIAs/work permits and publication on a list of non-compliant employers. In determining the penalty/penalties, an officer uses a points-based system to determine the penalties/amounts based on the types of violations. Other discretionary criteria are assessed with a range of points to apply. For example, the officer can consider whether the employer derived economic benefit as a result of non-compliance or whether the foreign worker faced abuse. Two new items have been added to Table 5, Schedule 2 of the IRPR:

  • The violation put the foreign national’s health or safety at risk in relation to a communicable disease as defined in Section 2 of the Quarantine Act.
  • The violation put the public’s health or safety at risk in relation to a communicable disease as defined in Section 2 of the Quarantine Act.

For each of these items the officer can attribute 0-10 points, allowing for considerable discretion. An employer who is found to be non-compliant is afforded an opportunity to respond and argue that the justification provisions in the IRPR are applicable.

Implications for foreign workers

In addition to the compliance measures, the amended regulations also allow IRCC to penalize foreign workers whose actions compromise public health. Under the new regulations, foreign nationals who are convicted of violating an order under the Quarantine Act or Emergencies Act would be inadmissible to Canada. The foreign national would be unable to enter Canada for a year without permission through an Authorization to Return to Canada request.

COVID-19 a new age in compliance

This has proven to be a challenging time for everyone, and employers and foreign workers are no exception. Both employers and foreign workers face significant consequences for non-compliance. The regulatory changes demonstrate the importance being placed on protecting public health and wage security. Time will tell how the compliance regime deals with rapidly changing economic circumstances that are likely to impact employers.

Valerie Kleinman is a senior associate at Green and Spiegel LLP where she leads the firm’s compliance and inspections practice.

Photo credit / Inna Dodor ISTOCKPHOTO.COM

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