Canada’s mandatory self-isolation laws: Staying compliant
Wednesday, May 27, 2020 @ 12:23 PM | By Annsley Kesten, Carrie Wright and Jacqueline Bart
- Whether a foreign national was legally required to isolate or quarantine upon arrival;
- If required to isolate, how the foreign national was transported from the port of entry to their place of isolation/quarantine;
- Whether the foreign worker was employed from their place of isolation/quarantine and, if so, what arrangements were made to allow the foreign worker to do so;
- Whether the foreign worker was required to come into contact with any person during any period of isolation/quarantine as a result of their job duties;
- Whether the foreign worker is subject to any provincial order in their province of work and, if so, how the foreign worker is complying with that order;
- Whether the foreign worker or the employer is being investigated by the province in relation to provincial health orders made in response to COVID-19;
- Whether the foreign worker has been paid wages substantially the same as those in the offer of employment or labour market impact assessment (LMIA) during the period of isolation/quarantine (with documentary evidence) or, if not, what arrangements are being made to ensure that the foreign worker is paid these wages for this period of time (with documentary evidence to be provided within a specified deadline);
- Where applicable, whether the accommodations provided to a foreign worker meet the required social distancing space (such as photographs of sleeping quarters with beds two metres apart using a tape measure, dining areas with chairs two metres apart using a tape measure, and kitchen and washroom facilities);
- Where applicable, whether it was deemed necessary for a foreign worker to be in separate accommodations and, if so, photographs showing the private bedroom and bathroom provided to the foreign worker;
- Where applicable, whether the employer provided the foreign worker with adequate cleaning supplies to clean and disinfect accommodations, including proof of provision of paper towels, household cleaning and disinfecting products, dish soap, laundry soap, sanitizers, etc.
Employers that provide accommodations may also be asked for a virtual tour of the accommodations and/or facilities. Refugees and Citizenship Canada (IRCC) and/or Employment and Social Development Canada (ESDC) may also interview the foreign worker, by telephone or video conference, to verify these requirements.
Violations of any of these requirements are classified as Type C, the most serious type of violation. For a first violation, a Type C violation will result in the automatic issuance of two points against the employer. Additional points, between 0 and 10, are added if the violation put the foreign national’s health or safety at risk in relation to a communicable disease such as COVID-19, and if the violation also put the public’s health or safety at risk in relation to a communicable disease. Failure to comply with a condition that affects more than one foreign national constitutes a separate violation for each foreign national affected and a separate assessment of points.
The total points are then used to determine the administrative monetary penalty and/or period of ineligibility from employing a foreign worker that is issued against a non-compliant employer. A score of as little as two points will result in administrative monetary penalties of $1,000 for individuals or small businesses, and $2,000 for large businesses per violation. A score of six points will result in administrative monetary penalties of $20,000 for individuals or small businesses and $40,000 for large businesses per violation and a period of ineligibility for one year. For a score of 15 points or more, the administrative monetary penalties are $100,000 for both individuals and small businesses as well as large employers, and a permanent ban from employing foreign workers. Where there are multiple violations, administrative monetary penalties are cumulative to a maximum of $1 million, and the longest period of ineligibility will apply.
It is therefore essential that all employers of temporary foreign workers at this time take extra precautions to ensure that all orders and regulations with respect to COVID-19 are being followed, not just for the health and safety of all their employees, but for the protection of their businesses in the long term as well.
This is the second of a two-part series. Read part one: Canada’s mandatory self-isolation laws: Avoiding penalties.
Jacqueline Bart and Carrie Wright are partners at BARTLAW LLP, Canadian Immigration, Barristers and Solicitors. Annsley Kesten is a senior associate at the firm. They can be reached at firstname.lastname@example.org.
Photo credit / Waldemarus ISTOCKPHOTO.COM
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