Hiring temporary foreign workers: Employer responsibilities | Colin Singer
Monday, April 26, 2021 @ 8:48 AM | By Colin Singer
Some countries have requirements that citizens must meet before leaving the country. They may need an exit visa or other documents related to their Canadian employment. Temporary workers should check with their governments to find out what the requirements are before they attempt to leave.
The employer’s responsibilities do not end with the hiring of the temporary foreign worker. Once that worker is hired, the employer still has to:
- see their work permit and know its expiry date;
- meet the conditions listed on the work permit, including the job location and length of time the worker can work in Canada;
- meet the details of the offer of employment, including the provision of a job in the right occupation with duties that match the National Occupation Classification (NOC) code, and that the pay and working conditions are equal or more favourable than those offered to Canadian workers;
- set up medical insurance and workers’ compensation benefits upon the temporary foreign worker’s arrival in Canada as required by the province or territory and as listed in the offer of employment;
- be active in the business that submitted the offer of employment for as long as the work permit is valid;
- meet all applicable federal, provincial and territorial employment and recruiting laws;
- ensure the workplace is free of physical, sexual, psychological and financial abuse, as well as any form of workplace retaliation for whistleblowers;
- show up for any inspections — or designate an employee to do so — to answer questions and hand over all requested documents or information;
- be able to show that the information submitted on the offer of employment was accurate, and that the employer provided the temporary worker with the same employment contract.
During the COVID-19 global pandemic, employers must also:
- let employees follow any order made under the Quarantine Act and Emergencies Act;
- let workers comply with any provincial law or orders related to COVID-19, and;
- pay the foreign worker for any period that they are in mandatory isolation or quarantine upon entering Canada under the Quarantine Act, even if the worker is unable to perform any work duties.
Temporary Foreign Worker Program (TFWP)
When an employer wants to hire a temporary foreign worker and needs to go through the Labour Market Impact Assessment (LMIA) process, there are two main streams through which he or she may apply under the TFWP. Those are the High Wage Stream (HWS) and the Low Wage Stream (LWS). Each comes with its own requirements.
An employer offering a wage to a temporary foreign worker that is at or above the provincial or territorial median hourly wage, must apply under the HWS. Conversely, an employer offering a wage below the provincial or territorial median hourly wage, must apply under LWS.
HWS processing fee waived for caregivers
The processing fee for the LMIA under the HWS is usually $1,000 but is waived when someone is trying to hire a temporary foreign worker to provide home care for someone needing medical assistance. The processing fee can also be waived for anyone with a gross annual income of $150,000 or less hoping to hire a temporary foreign worker to provide childcare in their home for children under the age of 13.
That fee must be paid in Canadian dollars by the employer using:
- American Express;
- a certified cheque;
- a money order, or;
- a bank draft.
Employers can get help from third-party representatives to act on their behalf when trying to hire temporary foreign workers through the TFWP. Authorized third-party representatives include:
- a member in good standing of a Canadian provincial or territorial law society or students-at-law under their supervision, or the Chambre des notaires du Québec;
- a paralegal in the province of Ontario (under the Law Society of Ontario);
- a member in good standing of the Immigration Consultants of Canada Regulatory Council; or;
- unpaid third-party representatives.
When an employer uses a third party to complete the LMIA, the cost of those services cannot be recovered from the temporary foreign worker. All employers applying to the TFWP must supply documents along with LMIA application to demonstrate that their business and job offer are legitimate.
What is a transition plan?
Among the documentation an employer must provide under the HWS of the program is a Transition Plan. This is a detailed description of the activities the employer agrees to undertake to recruit, train and retain Canadians and permanent residents during the period of time the temporary foreign worker is employed to reduce the employer’s reliance on the TFWP.
This Transition Plan must be included as part of the LMIA for high-wage positions. There are, however, exceptions to the rule to include a Transition Plan.
It is not needed for caregivers, including:
- private household employers (under North American Industry Classification System (NAICS) code 8141) for caregiving positions, (specifically National Occupational Classification (NOC) codes 3012, 3233, 4411 and 4412);
- health care institutions (under two-digit NAICS 62) for caregiving positions (specifically NOC 3012, 3233 and 3413);
- positions under the Seasonal Agricultural Worker Program, the Agricultural Stream and other primary agriculture occupations;
- specialized occupations that qualify for Quebec’s facilitated LMIA process (applicable only to the first request for the same job at the same work location).
It is not needed for limited-duration employment where:
- the job is time-limited in nature and the employment duration may range from one day to a maximum of two years;
- there is no reasonable expectation that the employer could transition the position to a Canadian or permanent resident;
- the job will not be filled after the departure of the temporary foreign worker as the position will no longer exist, or;
- in some cases, where there is repeated use of the specific position for the industry, but each employment duration is limited.
It is not needed for unique skills or traits which belong to a specific individual and are not readily available in Canada.
This is the second of a three-part series. Read part one: Hiring temporary foreign workers: International mobility
Colin R. Singer is immigration counsel for www.immigration.ca. He can be reached via Twitter: @immigrationca.
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