Immigration Compliance for Employers After Covid-19

The emergence of covid-19 brought about regulatory developments which require employers’ careful attention. Updated guidelines provide new requirements for integrating temporary foreign workers into the Canadian workforce. Foreign nationals need authorisation to work in Canada, which is provided by work permits issued under two distinct programmes.

The temporary foreign worker programme allows employers to hire foreign nationals on a temporary basis if there are no Canadians or permanent residents available for the position. Work permits are issued based on Labour Market Impact Assessment (LMIA) opinions issued by Employment and Social Development Canada. The LMIA process evaluates whether the needs of the employer can be met through the Canadian workforce. If not, the LMIA authorises an employer to seek foreign workers to fill its requirements, on a temporary basis.
The international mobility programme enables foreign workers to be hired without a LMIA. It provides Canada with broad competitive advantages, while its citizens and permanent residents enjoy reciprocal benefits. Eligible workers include those entering Canada as part of trade treaties such as the Canada United States and Mexico Agreement (CUSMA), or the Comprehensive Economic Trade Agreement (CETA) and other international treaties; those entering as intra-company transferees; and persons entering on open work permits under limited circumstances.

Employer inspections

Employers must fulfill their responsibilities and obligations under the Immigration and Refugee Protection Act (IRPA) and the Immigration and Refugee Protection Regulations (IRPR). In addition, they must comply with the conditions set out in the LMIA issued and its Annexes. Employers are required to demonstrate that their business and job offer are legitimate and that they can comply with all the regulatory requirements.

An inspection may be conducted on any employer that has employed a temporary foreign worker under a LMIA or under the international mobility programme if there is reason to suspect non-compliance. Inspections may also occur if an employer has previously been found non-compliant or is selected as part of a random verification. Inspecting officers have the authority to review employer activities, relevant documents and records associated with the LMIA and the business. These documents must be retained by the employer for six years.

Generally, there are three circumstances that trigger a compliance inspection: prior non-compliance, random selection, and reason to suspect non-compliance. The impact of covid-19 has created two additional triggers. First, an inspection can be conducted if an officer of Employment and Social Development Canada is notified of the introduction or spread of a communicable disease where a foreign national works. Second, an inspection of the employer may be conducted if a foreign worker is or was subject to an order or regulation under either the Emergencies Act or the Quarantine Act.

Compliance reviews

Work permits granted under the temporary foreign worker programme may subject employers to Employer Compliance Reviews. Like during an inspection, under a Review, Employment and Social Development Canada investigates compliance-related documents for up to the past six years. The distinction between an Inspection and a Review is that a Review verifies prior compliance for the LMIA application, whereas an Inspection scrutinises employer operations after the work permit is granted and while the foreign worker may still be employed. While not as intrusive, Reviews can nonetheless be onerous.

Under IRPA, the Minister may issue Ministerial Instructions to achieve public policy goals. Instructions are often of limited duration, directed to immigration officers. A Review under Ministerial Instructions may justify the suspension or revocation of an active LMIA, or the refusal to process an LMIA application on public policy grounds.

A Review under Ministerial Instructions seeks to determine if labour market conditions have changed, or if newly available information suggests that the basis for issuing a positive LMIA is no longer valid. A review may occur at any time after a positive LMIA has been issued, and the processing of new LMIA applications may be suspended until the review is completed. The processing suspension can represent a hardship for many employers who rely on foreign workers for their labour force, most notably in the agricultural and food processing industries.

Factors assessed during inspection

Investigators seek to verify whether an employer has upheld the conditions set out in the positive LMIA and its Annexes. The IRPR require that employers actively engage in the business described in the offer of employment, and that they comply with the laws that regulate employment and recruitment.

Temporary foreign workers must be provided employment in the same occupation, with wages and working conditions that are substantially the same and no less favourable than those in set out in the offer of employment. Employers need to take reasonable steps to provide a workplace free of abuse, implementing anti-abuse policies, codes of conduct, and provide guidelines to staff. Importantly, employers must adhere to provincial laws governing public health in response to covid-19.

Workers cannot be prevented by their employers from complying with their quarantine obligations regarding covid-19 protocols. Where applicable, adequately furnished, and private accommodations must be provided, separate from those of persons not in quarantine. The accommodations for a symptomatic worker must include a bedroom and bathroom, solely for the use of the worker in self-isolation.

Employers issued a positive LMIA must fulfill their commitments related to job creation, job retention, training, and the development or transfer of skills and knowledge for the benefit of Canadians and permanent residents. Employers are required to demonstrate both reasonable efforts to hire and train Canadians or permanent residents and that the information provided in the LMIA application was accurate.

Employers that hire caregivers need to ensure that the foreign national resides in a private household in Canada. The caregiver must provide care in that household, without supervision. Adequately furnished, private accommodations in the household are required, as well as the employer’s financial ability to pay the wages that were offered.

"Employers are obligated to attend inspections, reasonably assist the inspector, and provide necessary documents or information. Employers must retain all documents for six years with respect to all IRPR conditions."

Officers may have several grounds to justify conducting on-site inspections:

• where an employer fails to communicate to the point of avoidance;
• where the officer suspects that inaccurate information was provided;
• where there are allegations of abuse;
• where the officer deems it necessary to properly investigate compliance.

Employers are obligated to attend inspections, reasonably assist the inspector, and provide necessary documents or information. Employers must retain all documents for six years with respect to all IRPR conditions. The retention period begins on the first day of employment. During an investigation, compliance related documents must be provided upon request, which may include:

• business license/permit, tax filing documents, commercial lease agreements;
• provincial or territorial employer and recruiter registration certificate or licence;
• anti-abuse policies, codes of employee conduct, guidelines provided to staff, protection/support protocols, training, steps taken to resolve complaints of abuse, anti- harassment policies;
• payroll records, cancelled cheques, money orders, bank statements;
• time sheets;
• job descriptions;
• registration with provincial/territorial workplace safety insurance or workers’ compensation clearance letters;
• travel itinerary or invoices, accommodation information;
• confirmation of insurance coverage;
• employment contracts.

Consequences for non-compliance

An employer is non-compliant if they fail to conform to the conditions under inspection without acceptable justification. The consequences of non-compliance are determined based on a points system that considers: the type of violation, the employer’s compliance history, the severity of non-compliance, the size of the employer’s business (for financial penalties), and whether the employer voluntarily disclosed information about any potential non-compliance before an inspection is initiated.

Non-compliant employers are subject to warnings, administrative penalties, interim or permanent bans from temporary worker programs, and the revocation or suspension of previously issued LMIAs. The sanctioned employers names and addresses are published on the Immigration, Refugees, and Citizenship Canada website, with details of the violations and/or consequences.

Steep penalties are enforced to curb non-compliance with the updated IRPR. Employers found non-compliant during an inspection may be fined $1,000 to $100,000 per violation and up to $1 million over a year. Programme eligibility bans range from one, two, five, to 10 years. Permanent eligibility bans are issued for the most serious violations and previous LMIAs may be revoked. These penalties reflect the imperative nature of IRPR compliance, employers’ disregard for these requirements can be fatal to their operations.

The IRPR account for situations that may arise where an employer is unable to comply with their obligations. Non-compliance is justified when the law changes, collective agreements are modified, or economic conditions shift, impacting all employees equally. Errors may be justified when they occur because of good faith, unintentional accounting, or administrative mistakes.

A good faith justification can be claimed where non-compliant conduct is viewed to benefit the worker and is in the worker’s best interest. As an example, an increase in wages can justify non-compliance in limited circumstances.

To justify administrative and accounting errors, the employer must have provided subsequent compensation for the shortfall or have made sufficient efforts to do so. Unforeseeable circumstances may also be accepted as justification. When an employer fails to retain documents to demonstrate accurate information, the breach is justified if all reasonable efforts to comply were made.

Rules specific to covid-19

Updated guidelines published in April 2020 seek to minimize the spread of covid-19, and to protect health and safety. A foreign worker’s period of employment begins upon arrival to Canada and includes the mandatory 14-day quarantine period under the Quarantine Act. An employer cannot prevent a worker from meeting Quarantine Act obligations.

Workers must receive regular pay and benefits for the quarantine period. Regular pay is a minimum of 30 hours per week at the hourly rate of pay specified on the LMIA or the offer of employment. Additional amounts may not be deducted from pay because of the quarantine period unless the worker consents. Some Canadian employers have been found non-compliant for failure to provide wages during the mandatory isolation period.

Employers cannot authorize work during the quarantine period, with some exceptions for essential services. They need to monitor their workers’ health and notify local public health officials if a worker becomes symptomatic. Workers must be provided the necessary tools to practice good hygiene, which includes access to facilities equipped with soap and warm water for handwashing or alcohol-based sanitiser. Facilities include kitchens, washrooms, and common areas.

Violations of the Quarantine Act by workers in isolation are to be reported to local law enforcement. Employers must follow the latest public health requirements and guidance from the Government of Canada and their respective province or territory.

Information on covid-19 must be posted inside accommodations, in a language that the worker understands, on or before day one of their quarantine. Violations of the Quarantine Act by workers in isolation are to be reported to local law enforcement. Employers must follow the latest public health requirements and guidance from the Government of Canada and their respective province or territory. There is a particular set of criteria for worker accommodations. Quarantining workers must be housed separately from other employees. Workers subject to quarantine may be housed together, if situated at least two metres apart. Shared facilities are permitted if there is adequate space. Date-stamped photos of the facilities may demonstrate compliance. Alternate accommodations must be provided if an employer is unable to meet these requirements. Employers can lodge workers in hotels to avoid non-compliance. They may find increased accommodations costly, but preventative measures insulate employers from financial penalties and reputational damage.

Surfaces in accommodations must be cleaned and disinfected regularly. Cleaning constitutes essential care, so it may be done by workers or a professional cleaner. Employers must ensure that the premises have information available for preventing the spread of covid-19 posted inside. The quarantine period accommodations must allow workers to avoid contact with both older adults (65+) and those susceptible to illness due to medical conditions. If a worker becomes symptomatic, the employer must immediately provide accommodations that enable isolation.

Violations can have dire consequences. An Ontario farm was fined $200,000 and sanctioned with a permanent ban for covid-19 infractions. These penalties were incurred because the employer prevented temporary foreign workers from complying with a covid-19 related order or regulation and failed to provide accommodations that met quarantine protocols.

Non-compliance may lead to severe repercussions, affecting employers’ hiring prospects. Employers that seek to employ temporary foreign workers must retain relevant documents and comply with all obligations as set out in the IRPR, the LMIA and its Annexes. Covid-19 related issues require heightened attention; the authorities are aggressively conducting inspections of employers, especially on those who provide accommodations to foreign workers.