New Employer obligations when hiring Foreign Workers now in effect
As of September 26, 2022, amendments to the Immigration and Refugee Protection Regulations are now in effect and place new requirements and conditions on employers hiring under the Temporary Foreign Worker Program and International Mobility Program. The changes are to improve employer compliance when hiring a foreign worker and to protect foreign workers’ rights, as well as ensure access to health care and a workplace free of abuse.
EMPLOYER PROGRAMS AFFECTED
The Temporary Foreign Worker Program includes the Labour Market Impact Assessment (LMIA) streams, such as high-wage LMIA, low-wage LMIA and the Global Talent Stream LMIA.
The International Mobility Program is for all non-LMIA work permits, such as professionals and intra-company transferees under international trade agreements, charity or religious workers and self-employed entrepreneurs. Many of the streams lead to employer specific work permits, whether it’s a traditional employer-employee relationship, contractual agreement or a business owner entering as self-employed.
SUMMARY OF AMENDMENTS
All employers must ensure they have an employment agreement with the foreign worker that:
- outlines the occupation, wages and working conditions;
- matches the offer of employment;
- is drafted in the foreign workers choice of English or French; and
- signed by both the employer and foreign worker.
The signed employment agreement must be provided to the foreign worker on or before the first date of employment.
For employers under the International Mobility Program, they must also attest to having already provided the foreign worker with a signed employment agreement when they submit the job offer through the online Employer Portal.
Having a signed employment agreement applies to situations where often a Canadian employment agreement may not have been signed previously. For example, intra-company transferees, workers coming for short-term assignments and self-employed foreign nationals working at their own Canadian business.
Health Care Coverage:
Employers using the Temporary Foreign Worker Program must provide all foreign workers holding an LMIA work permit with private health insurance until the worker is eligible for provincial health care coverage.
All employers under both the Temporary Foreign Worker Program and International Mobility Program must make reasonable efforts to provide access to health care services when a foreign worker is injured or becomes ill at the workplace. The government suggests reasonable efforts to include having a phone available for the worker to call emergency services; or organizing, but not paying, for transportation to health services.
Prohibiting Employers from Charging or Recovering Fees:
To protect foreign workers from financial exploitation, the amendments prohibit employers from charging or recovering the following fees:
- fees for the provision of services in relation to an LMIA (this includes government processing fee or third-party fees);
- employer compliance fees; and
- fees related to recruitment.
Employers must also ensure any recruiter involved in hiring the foreign worker does not charge or recover any of these fees.
There is no prohibition to foreign workers paying fees related to temporary visas or work permits.
Information on Employment Rights:
Employers are required to provide foreign workers with information about their rights on or before the first day of work, and in the foreign workers choice of English or French. This information must be available to the foreign worker throughout their employment.
The government provides the following links:
- Temporary foreign workers: Your rights are protected
- International Mobility Program: Get to know your rights while working in Canada
Workplace Free of Abuse:
Employers are obligated to make reasonable efforts to provide a workplace free of abuse and protection against reprisal.
Changes to the LMIA application:
For employers who have not employed a foreign worker under the Temporary Foreign Worker Program in the past six years, they will be assessed under new requirements when submitting an LMIA.
Officers will assess, within the last two years, if the employer:
- has made reasonable efforts to provide a workplace that is free of abuse;
- was not an affiliate of a company who is ineligible the Temporary Foreign Worker Program; or
- has an unpaid administrative monetary penalty.
The government has the authority to request documents from third parties to verify compliance with the regulations. For example, they could request payroll documentation from a payroll company to verify wages paid to the foreign worker.
Employers must comply with provincial laws when it comes to hiring foreign workers or using a recruiter. Some provinces require employers to register with the provincial authority to hire under the Temporary Foreign Worker Program and obtain a certificate, which often must be renewed. Provinces that currently require registration include British Columbia, Manitoba, Saskatchewan and Nova Scotia. Furthermore, recruiters may require additional licensing to recruit internationally.
For information on these amendments, visit the government’s own summary here.
These amendments help clarify when an Employer may be in non-compliance. Should an employer be found to have violated any of the conditions of either the Temporary Foreign Worker Program or International Mobility Program, there are various consequences depending on the severity of the violation. It could be a warning letter or a monetary fine ranging from $500 to $1 million.
DO THESE CHANGES IMPACT YOU?
Whether you have not yet hired a foreign national under the Temporary Foreign worker Program or International Mobility Program or currently have foreign workers on LMIA or non-LMIA employer specific work permits, these new amendments apply. This includes sharing information about worker’s right to your staff and providing private health insurance for any LMIA-based work permit holders who have arrived to Canada less than 3 months ago and have yet be able to register for provincial health coverage.
Should you need help implementing these changes to your current foreign staff or onboarding process for new foreign hires, please contact us. We would be happy to help.