The Government of Canada recently passed legislation amending the Immigration and Refugee Protection Regulations, which will come into force on September 26, 2022. Some of these amendments expand existing program policies and will improve the protection of foreign workers by establishing new requirements and conditions for employers and improving the ability to hold employers accountable for non-compliance with immigration laws.
With growing labor shortages across Canada, employers are increasingly turning to foreign workers in an effort to fill record high vacancies in many sectors across the country. Since April 2022, the Government of Canada has implemented a number of facilitation measures for various immigration programs to help employers bring in more foreign workers to meet their operational needs and help alleviate shortages. persistent labor. Following the implementation of these easing measures, the government has now announced new regulatory changes to the employer immigration compliance regime to strengthen the protection of foreign workers from abuse and exploitation.
Overview of new obligations
The regulatory changes include the following new employer immigration compliance obligations:
- Private health insurance: For employers hiring foreign workers through a Labor Market Impact Assessment (LMIA) under the Temporary Foreign Worker Program (TFWP), employers will be required to obtain and pay for private health insurance that covers emergency medical care for any period before the temporary foreign worker is eligible for provincial or territorial public health insurance.
Since most provincial health insurance plans impose a waiting period of a few months before foreign workers become eligible for public health coverage, it is important that employers make arrangements to provide coverage. private health care provider for emergency medical needs when planning the foreign worker’s arrival or, in certain circumstances, when renewing a work permit under the TFWP. Employers are prohibited from recovering these costs from foreign workers in any form, including through payroll deductions or chargeback clauses in their employment contracts.
- Billing/recovery of processing fees: Employers will be clearly prohibited from charging and collecting government processing fees related to an LMIA application, employer compliance fees, and other recruitment-related fees. These prohibitions were previously mentioned in Employment and Social Development Canada (ESDC) policies on the TFWP, but were not prescribed by regulation until now.
The amendments also specify that employers must ensure that the recruiters they use do not charge or collect the above costs. Thus, international mobility teams must be aware of the new requirements relating to their moving expense clauses.
It is important to note that it is also prohibited to recover the government fees for processing a Quebec acceptance certificate when hiring a temporary foreign worker for a job located in Quebec.
- Health care: Employers will be required to provide foreign workers with reasonable access to health care services when they become injured or sick in the workplace. For example, ensuring a phone is available for the foreign worker to call emergency services. This applies to work permit applications submitted under the IMP and TFWP.
- Information on employment rights: Employers will be required to provide foreign workers with the most up-to-date information on their rights in Canada no later than the first day of work. Employers will be required to make this information available to foreign workers throughout their period of employment in Canada. This applies to work permit applications submitted under the IMP and TFWP.
- Hiring contract: Employers wishing to hire a foreign worker under the TFWP or PMI will be required to provide foreign workers with a signed employment contract outlining the occupation, wages and working conditions, no later than the first day of employment. Thus, employers who send their employees to work in Canada on short-term assignments will have to have secondment agreements in place before applying for a work permit. Prior to this change, except in Quebec, employers were not required to submit employment contracts with all work permit applications. For example, it was possible for employers to finalize the employment contract in accordance with the terms of an LMIA after its approval. For intra-company transferee work permits, it was possible to simply include an existing employment contract with the affiliate and describe the terms of the transfer to Canada in the employer portal.
- Abuse-Free Workplace: Employers hiring foreign workers under the TFWP or IMP are required to make reasonable efforts to provide a workplace free from abuse. The new amendments will add “reprisal” to the definition of abuse to address the concerns of foreign workers fearing retaliation from employers, such as demotion, threats of demotion, disciplinary action or termination, if they choose to report possible non-compliance by the employer with program requirements.
- Increased due diligence during the LMIA application process: The LMIA application process will be strengthened to ensure that all employers applying for an LMIA meet program requirements to prevent foreign workers from entering an abusive workplace. Therefore, employers who have not used the TFWP in the past six years will be assessed against additional requirements. ESDC will ensure that employers are not affiliated with an organization ineligible to participate in the TFWP or in default of payment of any amount payable for an administrative monetary penalty. In addition, processing of LMIA applications may be suspended if there is reason to suspect that an employer is not complying or has not complied with certain program conditions and the non-compliance by the employer of any of these conditions would seriously endanger the health or safety of the foreign national.
- Verification of documents by third parties: ESDC and Immigration, Refugees and Citizenship Canada (IRCC) will have the authority to require documentation from third parties, such as banks and payroll companies, to verify employer compliance with regulatory conditions, such as those relating to salary of a foreign worker.
Employers should be aware of these new immigration compliance obligations when deciding to hire temporary foreign workers to mitigate risk in the event of an immigration audit or inspection. Employers are also encouraged to consider how these regulatory changes will interact with their existing HR and international mobility policies. If you have any questions regarding how the new immigration compliance obligations for employers may apply to your business, please contact the authors or your usual Fasken lawyer if you have any questions.