- Andrew Carvajal
ESDC announces virtual inspections to ensure employer compliance with COVID-19 measures
Employers under the Temporary Foreign Worker Program (TWFP) and their immigration representatives received a new notice from Employment and Social Development Canada (ESDC) regarding new Special Compliance Inspections for Employers of the Temporary Foreign Worker Program during COVID-19.
The notice advises that in accordance with new regulations that were introduced to the Immigration and Refugee Protection Regulations (IRPR), employers have a specific responsibility in helping to prevent the introduction and spread of the Coronavirus disease (COVID-19). Most importantly, employers are required to refrain from doing anything that prevents a worker’s compliance with orders or regulations under the Quarantine Act or Emergencies Act, including their obligation to self-isolate for 14 days upon entering Canada. More information on employers' responsibilities in light of COVID-19 can be found here.
To ensure compliance with these measures, Service Canada will be exercising its authority under the IRPR to conduct random inspections, with or without prior notice. These inspections will be conducted remotely/virtually, they will focus on specific conditions, and must be completed within a shortened timeframe. Additional COVID-19 requirements imposed by provinces/territories on temporary foreign workers and/or their employers will also be taken into account during Service Canada inspections.
If selected, a Service Canada investigator will contact the employer by phone and by email and the employer will have up to 48 hours to submit the requested documentation by email or through an online portal. As such, it is "highly recommended" that employers have the necessary documentation prepared in order to respond to such an inspection within the designated timeframe.
If there is no response from the employer within 48-hours, they will receive a Notice of Preliminary Finding by email and registered mail, to which they must respond to within 5 days. If the response is not received, ESDC will move to apply penalties.
During the inspection, employers may be asked for:
Proof of wages paid (i.e. paystubs). Employers have been previously advised that they need to pay employees during the self-isolation period for at least 30 hours per week, starting on the day they arrive.
Where accommodation is provided by the employer, they may be requested to provide:
Photos of accommodations respecting social distancing space if more than one worker is in quarantine at the same time (e.g. sleeping quarters with beds two metres apart, dining areas with chairs two metres apart, and kitchen and washroom facilities).
Photos of a private isolation space if it is deemed necessary for the worker to be in separate accommodations.
Proof of adequate supply of sanitation products for the worker to use (paper towels, household cleaning and disinfecting products, dish soap, laundry soap, sanitizers, etc.).
A virtual tour of the accommodations and/or facilities.
Some workers will be contacted by inspectors for interviews via phone or video conference.
Penalties for Non-compliance
Employers found non-compliant with new COVID-19 measures as a result of a Service Canada inspection may face "the most severe consequences possible". Depending on the severity of the violation, penalties may include one or more of the following:
Administrative monetary penalties ranging from $1,000 to $100,000 per violation, up to a maximum of $1 million over one year.
A ban from using the TFWP for one, two, five or ten years, or permanent bans for the most serious violations.
The publication of the employer's name and address on the public list of non-compliant employers, with information of the violation(s) and penalty(ies).
The revocation of previously-issued Labour Market Impact Assessments.
In addition to these penalties, temporary foreign workers and employers found to be non-compliant with an Emergency Order under the Quarantine Act can face additional sanctions.
Andrew Carvajal is a Toronto lawyer, partner and Head of Economic Immigration at Desloges Law Group. He specializes in immigration law, administrative law and professional discipline litigation.