Human Resources Legislative Update
Employers Take Note: New Obligations under Temporary Foreign Workers Program Now in Effect
Date: September 27, 2022
Amendments to the Immigration and Refugee Protection Regulations made under the Immigration and Refugee Protection Act which came into effect on September 26, 2022 place new obligations on employers who employ temporary foreign workers (TFWs). Significantly, these obligations include the requirement for an employer to commit to having an employment agreement in place with the TFW.
As a result of the changes made by the Regulations Amending the Immigration and Refugee Protection Regulations (Temporary Foreign Workers) (Amending Regulations), employers must now review and refine their recruiting and hiring practices related to TFWs to ensure compliance with these new requirements
General Employment-Related Requirements
The Amending Regulations state that employers must comply with all provincial and territorial employment and recruitment laws in the province or territory where the TFW will work, including those laws that specifically relate to TFWs. Among other things, new requirements for employers contained in the Amending Regulations include:
- Where employers hire under the Temporary Foreign Worker Program (TFWP), they must now commit to having an employment agreement with the TFW and providing a signed copy of the employment agreement to the TFW on or before the first day of work. Similarly, employers hiring under the International Mobility Program (IMP) must attest that they have already provided the TFW with an employment agreement when they submit an offer of employment in the IMP Employer Portal.
- Under both programs, the employment agreement must: (1) match the offer of employment (same occupation, wages and working conditions), (2) be drafted in the TFW’s choice of English or French, and (3) be signed by both the employer and the TFW.
- Providing TFWs with up-to-date information about their rights in Canada on or before their first day of work in the foreign worker’s chosen official language (i.e. either French or English). This information must remain available to the TFW throughout their period of employment. Note that the government has created a website titled Temporary Foreign Workers: Your rights are protected.
- Expanding existing protections for TFWs from “abuse” to include protection against reprisal by an employer, for example where a TFW lodges a complaint against their employer.
During employment under the TFWP or IMP, employers must ensure they meet the following health-related requirements regarding TFWs:
- Reasonable efforts must be made to provide access to health care services when a TFW is injured or becomes ill at the workplace. The government has suggested reasonable efforts could include ensuring that there is a phone available to the TFW to call emergency services or organizing, but not necessarily paying for, transportation to a hospital, clinic, or doctor.
- Subject to certain exceptions, all TFWP employers must obtain and pay for private health insurance that covers emergency medical care during the period for which the TFW is not covered by their provincial or territorial health insurance system.
Consequences for Non-Compliance
Employers may be subject to inspections for various reasons, such as where a complaint is lodged or there is notification of the spread of a communicable disease at the workplace, among others.
When non-compliance is identified during an inspection, employers will be given a formal opportunity to provide additional information to demonstrate their compliance. Note that the Amending Regulations provide for justifications for non-compliance, which include a change in federal or provincial law or accounting errors, among others.
Employers who are found to have violated one or more of the TWP or IMP conditions may be subject to consequences such as warning letters, administrative monetary penalties (ranging from $500 to $100,000 per violation, to a maximum of $1 million), and temporary or permanent periods of ineligibility from using either program. Non-compliant employers will also have their names posted on a publicly available government of Canada website.
If you require more information about how these changes may impact your organization, please contact your regular Hicks Morley lawyer.
The article in this client update provides general information and should not be relied on as legal advice or opinion. This publication is copyrighted by Hicks Morley Hamilton Stewart Storie LLP and may not be photocopied or reproduced in any form, in whole or in part, without the express permission of Hicks Morley Hamilton Stewart Storie LLP. ©
