April 6, 2020
COVID-19 Policy Update: Employment and Skills Development Canada (ESDC) The Work Must Go On!
Despite the unprecedented challenges that COVID-19 is inflicting on the world, the work must inevitably go on. With regards to Labour Market Impact Assessments (LMIA) applications, ESDC has communicated that officers will be issuing LMIAs with a nine-month validity and will be accepting requests to extend current six-month LMIAs by an additional three months. ESDC confirmed that there are no regulatory or other technical barriers to LMIAs being issued with a nine-month validity.
ESDC to their credit is responding to the fluidity of the current job market by processing temporary foreign workers (TFWs) transfers and name changes within one day. The agriculture stream LMIAs will be exempt from advertising for six months, although the exact end date of this measure has not been made available.
Canadian Employer Obligations
Concerning the intersection of COVID-19 public health requirements and TFW employer requirements, ESDC has confirmed that such employers are responsible for ensuring employee compliance with requirements to quarantine or self-isolate. During any required fourteen-day self-isolation periods, employees are not to work, and employers are to maintain any LMIA undertakings, including those related to wages/salaries, benefits and accommodation. ESDC has noted that all employees and TWFs are subject to fourteen-day isolation where required.
For employers who are subject to accommodation undertakings, ESDC has indicated that TFWs may remain in shared accommodation but should practice social distancing and should not interact with those who are in self-isolation. Where TFWs exhibit COVID-19 symptoms, they must be separately accommodated. Employers with LMIA accommodation undertakings remain liable for any additional accommodation costs arising out of these circumstances. However, if an employer has discontinued operations, it may no longer be able to respect the employment conditions. Consistency between how employers are addressing temporary workers, and other employees will be a factor in evaluating employer compliance.
Temporary Foreign Workers – A Number of Considerations
According to the Canadian Bar Association, there remain many questions about travel restrictions and exemptions that were announced and implemented over the past two weeks, including questions about temporary workers. The exemption applies to all Temporary Foreign Workers as long as they are not travelling for an optional or discretionary purpose. This includes workers who were already residing in Canada but were temporarily abroad when the restrictions took effect, workers who were approved but had not yet travelled to Canada, and new applicants. Processing priority is being given to family reunification, vulnerable populations, and in Canada applicants who do not benefit from implied status (i.e. restoration, change of conditions). The Department will continue to process work permit applications for all temporary workers on a best effort basis. If there is a need to prioritize, we will focus on industries listed in the media release.
Future COVID-19 measures may include the suspension of the requirement to report layoffs and work-location changes (such as where TFWs temporarily work from home). In this regard, ESDC also noted that TFWs who are laid off might be eligible for Employment Insurance benefits in accordance with the requirements. The Department recognizes that workers with employer-specific work permits have limited options if their employer has discontinued operations. Workers need to confirm that their employer is still operating, that they need to travel to Canada at this time, and that they have a plan for self-isolation upon arrival. A worker can identify themselves as being exempt from travel restrictions by showing their valid work permit or a letter of introduction to present to the Border Service Officer at the Port of Entry (POE). The LMIA can serve as a secondary document.
As it relates to family members, spouses with work permits or study permits and dependents with study permits are covered by the exemption. Other immediate family members may be authorized in writing by immigration or consular officer. Then they can provide an email to demonstrate to the airline at boarding or to the officer at the POE. IRCC will be writing to Provincial health authorities to request that they consider implementing facilitative measures to ensure continuity of health coverage for temporary workers and students on implied status, who will be subject to regular eligibility requirements. Ultimately this will be at the discretion of individual provinces and territories.
As policy continues to develop, we can expect to become aware of updates directly from ESDC’s website, where a Q&A will shortly become available. The Canadian Bar Association also continues to provide ongoing updates through its Chair Ravi Jain and others. Ultimately though one thing remains certain, the work must go on.
Thank you for reading.