Employees...in a dangerous time: Covid-19 measures for Canadian employers

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Catherine A Sas QC
Sas & Ing Immigration Law Centre, Vancouver
catherine@sasanding.com

While the Canadian border is closed to many, in an effort to maintain the strength of the economy, on 26 March 2020, Canada’s Minister of Immigration Refugees and Citizenship Canada (IRCC) introduced travel restriction exemptions for Temporary Foreign Workers (TFWs). Persons who have been issued work permits are exempt from the border restrictions and will be permitted to enter Canada subject to following the latest public health and safety guidelines. With new measures being introduced or revised on an almost daily basis, it is challenging to keep up with the pace. Here is a summary of what employers need to know about bringing workers into Canada.

TFWs are still welcome to come to Canada. However, in accordance with an Emergency Order enacted on 25 March 2020, most TFWs will be required to self-isolate for a period of 14 days. Federal exemptions to the self-isolation requirements have been introduced for those workers deemed essential to maintain the health and welfare of Canadians by Canada’s Public Health Officer (CPHO), including those who:

• make necessary medical deliveries;
• work in the trade and transport sectors moving goods and people;
• cross the border regularly to go to work in Canada, including in the healthcare sector or critical infrastructure workers; and
• cross the border to provide or receive essential services, including emergency responders and personnel providing essential services to Canadians related to the Covid-19 outbreak.

This federal exemption from the need to self-isolate following cross-border travel only applies to workers deemed essential pursuant to federal legislation. Workers deemed essential by provincial or territorial governments are still subject to a 14-day period of self-isolation on arriving in Canada.

Employers are responsible for facilitating their employees’ self-isolation, as well as employee compliance with all other public health safety measures. Employers cannot authorise an employee to work during the 14-day self-isolation period, even if requested by the TFW, neither can an employer ask a worker to perform other duties such as building repairs or administrative tasks. Employers are also required to pay their TFWs a minimum of 30 hours per week during the self-isolation period in accordance with the terms of the offer of employment. Those employers who are required to provide accommodation for their TFWs must ensure that it meets minimum requirements to allow for social distancing and for the separation of workers who must self-isolate from those workers who are not in self-isolation. On 1 April 2020 Canada’s Minister of Health, The Honourable Patty Hajdu, and Minister of Employment, the Honourable Carla Qualtrough, wrote an open letter to employers advising them of their vital role and responsibilities in continuing to bring and support TFWs to Canada.^[1]

The penalties facing employees for non-compliance with Emergency Orders are severe, with up to CAD 750,000 (approx. $530,000) in fines. In addition, any person who causes imminent death or serious bodily harm to another person by wilfully or recklessly contravening the Quarantine Act or regulations could be liable to a maximum fine of CAN 1,000,000 or imprisonment of up to three years. The Government of Canada is currently assessing options for penalising employers of foreign nationals who infringe these provisions. The message is clear: employers have a responsibility to ensure that their TFWs comply with all of the Covid-19 directives.

Employers are also responsible for providing safe work environments for their all of their workers whether Canadian or TFWs. Surfaces in both work environments and accommodation 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 have access to an alcohol-based sanitiser. Employers are also required to follow any specific guidelines established by the province in which they operate. Finally, employers are responsible for monitoring the health of all of their employees, whether Canadian or TFWs, and reporting anyone who becomes symptomatic to the local health authorities.

It is commendable that the Government of Canada continues to recognise the significance of TFWs to the Canadian economy, and that they are both permitting their entry to Canada as well as continuing to process both Labour Market Impact Assessment and work permit applications for new applicants notwithstanding the challenges of Covid-19. The statutory provisions and policy guidelines facing both employers and TFWs will continue to change frequently so it is important to remain informed of further updates.^[2]

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