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Pivot and Thrive: Guidance for Employers of Foreign Workers and Essential Post-COVID Planning

Blog posted on by Evelyn Ackah in Business Immigration to Canada, Business Immigration Law and Coronavirus - COVID

Pivot and Thrive: Guidance for Employers of Foreign Workers and Essential Post-COVID Planning

As Canadian businesses prepare for the end to the COVID lockdown and a gradual return to business, employers with foreign workers have unique considerations and issues to make sure they are protecting their business and the rights of foreign workers. Many Canadian employers rely on temporary foreign workers and have unique employer compliance and Human Resources issues, as well as issues relating to the management of foreign workers during the COVID crisis.

Foreign Workers Already in Canada

Treat foreign workers almost the same as a Canadian-born worker. However, foreign worker's work permits are tied to their employer, so their mobility is different. It's not as easy for a foreign worker to find new employment in Canada:

  • Are they eligible for unemployment?
  • Do they need to be sponsored by another employer?
  • How do layoffs affect a foreign worker's application for permanent residence?
  • Are they in Canada under an LMIA where you sponsored them to come and you lay them off or decrease their salary?
  • Can they count their time not working towards PR?

Foreign workers in Canada may qualify for Employment Insurance (EI) benefits, and their status of an Open or Closed work permit. If you make changes in a foreign worker's status, particularly if they are under LMIA, you must update Service Canada to be sure you are in compliance.

Our Advice: Consult your immigration employment lawyer to make sure you are in compliance

Essential Workers

The Canada Border Services Agency (CBSA) officer has total discretion on who may enter Canada and what qualifies as "essential travel." As a result, who is allowed to enter Canada differs from one crossing to the next. In order to have the best chance to be permitted to enter Canada as an essential worker, the foreign worker must make sure all their documents are in order:

  • Employer confirmation letter and work permits
  • Medical clearance documentation from a verified health care provider
  • Quarantine plan to show how you will comply with the 14-day mandatory Quarantine Act

Our Advice: Consult an immigration lawyer if you are a foreign essential worker traveling to Canada

Expired Work Permits

Renew expiring work permits as quickly as possible - BEFORE they expire. IRCC is open and processing applications. You can keep working under "implied status" as long as it's in process and you re-apply before the permit expires.

Our Advice: Re-apply for expiring work permits ASAP

Foreign Worker Applicants

IRCC is open and process work permit applications and Express Entry visa applications during the coronavirus pandemic. Foreign workers who already have a work permit or whose applications have been approved or are approved in the future are allowed to enter Canada.

  • Temporary foreign workers can travel to Canada by air or land for essential travel: not for recreation, tourism or entertainment.
  • Work permit applications submitted outside of Canada that require an in-person submission and biometrics are on hold. All biometrics appointments are cancelled until further notice.
  • Most Canadian visa application centers outside of Canada have been temporarily closed.
  • Applications for work permits at the border or at Canadian airports are no longer authorized.
  • All foreign workers entering Canada must comply with the 14-day Quarantine Act.

Our Advice: Beat the upcoming backlog: apply for temporary work permits and Express Entry ASAP

The essential worker travel ban from any country other than the U.S. is in force until June 30, 2020, and prohibits all travel to Canada unless the foreign national holds a valid work permit or a work permit approval letter or meets the criteria of an essential worker.

Canadians Who Are Working Outside of Canada

Canadian ex-pats are allowed to return to Canada, but they must comply with the 14-day Quarantine Act. CBSA has full discretion over who they admit to Canada, and there have been many instances where Canadians and their immediate family members - spouse, dependent children - have been turned away at the border.

Our Advice: Consult an immigration lawyer if you have Canadian employees returning to Canada with family members who are NOT Canadian citizens

Canadians Expats Who Are United States Essential Workers

Canadians who are working in the United States and qualify as essential workers in the U.S. must comply with all CBP (U.S. Customs and Border Patrol).

Our Advice: Consult a U.S. and Canada immigration and NAFTA lawyer to make sure Canadian essential workers have all needed documentation to cross into the United States

COVID Employer Immigration and Refugee Protection Regulations Compliance Inspections

Effective immediately, and during the course of the COVID-19 pandemic, Service Canada Investigators will conduct inspections that will focus on employer compliance with the new Immigration and Refugee Protection Regulations (IRPR) inspections:

Service Canada has the authority under the IRPR to conduct an inspection, with or without prior notice, in order to verify your compliance with the TFW Program, including within the first fourteen (14) days of the temporary foreign worker’s arrival.

You must immediately inform Service Canada when your employee (s) arrive at your work location by sending an email message to:

ESDC.ISB.QUARANTINE-QUARANTAINE.DGSI.EDSC@servicecanada.gc.ca

If you are found non-compliant as a result of a Service Canada inspection, specifically to the new IRPR requirements related to COVID-19, the Department has the authority to apply the most severe consequences possible.

Our Advice: Consult an immigration employment lawyer if you have Canadian employees returning to Canada with family members who are NOT Canadian citizens

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Evelyn Ackah

Founder/Managing Lawyer

Ms. Ackah is passionate about immigration law because it focuses on people and relationships, which are at the core of her personal values. Starting her legal career as a corporate/commercial ...

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Ackah Business Immigration Law is one of Waste Management’s primary counsel for Canadian immigration matters. Evelyn Ackah and her knowledgeable staff are skilled and trusted advisors to the Company. Ackah Business Immigration Law understands the importance of our business in Canada and provides quality work at a cost that is reasonable and significantly less than the big firms. I highly recommend Evelyn and the team at Ackah Business Immigration Law.

– LaTonya Warner, Senior Paralegal - Labour & Employment

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