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Essential Corporate News – Week ending 1 November 2024
On 30 October 2024, the Chancellor of the Exchequer delivered the Autumn Budget 2024.
Canada | Publication | April 30, 2020 - 10 AM ET
Agribusinesses traditionally rely on temporary foreign workers (TFWs) to fulfill operational needs. COVID-19 poses new challenges for these businesses. Logistical issues abound, including those related to securing work permits. In many cases, TFWs will have issues with completing required processes such as providing fingerprints or undergoing a medical exam. Even with an approval in hand, they may face other challenges such as finding flights or being denied entry at the border.
Once the TFWs enter Canada, the agribusinesses that hire them must be mindful of a number of new COVID-19-related rules and guidelines. This update summarizes some of these rules and guidelines, outlines risks agribusinesses face, and provides practical solutions to navigating these challenging times.
Employees and employers must adhere to the Quarantine Act (the Act), including emergency order number 2020-0175, which requires TFWs to self-isolate for two weeks upon arrival into Canada. The federal government has sent a letter to employers of TFWs informing them, among other things, that TFWs could face up to a $750,000 penalty for failing to comply with the self-isolation requirements. Further, if a TFW willfully or recklessly contravenes the Act or any regulation thereunder and causes bodily harm to another person, that individual could face up to a $1 million fine and/or imprisonment up to three years.
Employment and Social Development Canada (ESDC) also issued a guidance paper for employers of TFWs in light of COVID-19, as outlined below.
Required Actions. Under the new guidelines, employers hiring TFWs must:
Recommended Actions. Employers hiring TFWs should:
Permissive Actions. The employer can still withhold standard contract deductions (e.g., employment insurance, housing, transportation, etc.) per applicable program stream requirements.
Forbidden Actions. Employers cannot, even if the employee requests it:
Required Actions. In addition to the requirements above, employers providing housing accommodations must:
Recommended Actions. Employers providing housing accommodations should:
Permissive Actions. Employers providing housing accommodations may:
The Act, the above-cited emergency order and the guidance summarized above create new responsibilities for agribusinesses relying on TFWs. These include: the responsibility to pay employees during the two-week self-isolation period, ensuring employees do not work during that period, implementing heightened hygiene and cleaning procedures, and, for employers providing housing, potentially increasing the amount of housing stock or paying for hotel rooms to allow workers to adhere to the mandatory requirements.
To improve flexibility and reduce administrative burdens for employers, however, the Government of Canada increased the maximum allowable employment duration to two years for low-wage TFWs, up from one year previously. Further, the federal government recently announced it will provide employers with $1,500 for each TFW employed to offset the cost of paying workers during the self-isolation period.
Various levels of government are rapidly responding to COVID-19 by introducing new legislative measures affecting employees, including TFWs. For example, British Columbia amended its Employment Standards Act to require employers to provide unpaid, job-protected leave related to COVID-19 for as long as the employee needs it. Further, employers must now provide up to three days of unpaid, job-protected leave for employees who cannot work due to personal illness or injury of any kind – a permanent rule that is not just a temporary emergency measure.
The Canadian Food Inspection Agency (CFIA) has also called on agribusiness employers to facilitate physical distancing, acknowledging that agribusinesses may not always be able to separate employees by two metres. Where such measures are not feasible, however, the CFIA called for heightened hygiene practices, and for employers to consult the risk-informed decision-making guidelines for workplaces and businesses.
A detailed list of COVID-19 changes employers must consider is available on the ESDC website.
The Government of Canada recently confirmed that it may investigate employers, and those that do not adhere to the 14-day quarantine requirements could face fines ranging from $500 to $100,000 per violation up to a maximum of $1 million per year, be publicly named and be banned from accessing the TFW program, including permanent bans.
Further, the Act itself provides for criminal punishment of any officer, director or agent or mandatary of a corporation who authorizes, assents to, acquiesces in or participates in the commission of an offence under the Act. Though no criminal charges have yet been laid, employers should understand that the government is empowered to take such steps.
Other serious consequences can include:
In an age of uncertainty and a rapidly changing legal and regulatory landscape, agribusinesses must ensure they comply with new TFW-related rules and guidance by staying abreast of new statutory and regulatory changes, implement new policies and procedures to ensure compliance, and utilize available government support programs, including the TFW self-isolation payout per worker, the emergency wage subsidy, and loan deferral programs through Farm Credit Canada to the extent required. With many groups calling for enhanced government oversight, an agribusiness following these guidelines will safeguard TFWs from harm and mitigate potential risks to their company, including reputational harm.
For information about other available government relief programs, refer to our guide.
The author wishes to thank Preston Brasch, articling student, for his help in preparing this legal update.
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On 30 October 2024, the Chancellor of the Exchequer delivered the Autumn Budget 2024.
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