Agribusinesses tackle new challenges in employing foreign workers

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.

Requirements from the federal government

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.

Guidelines for all Employers Hiring TFWs

Required Actions. Under the new guidelines, employers hiring TFWs must: 

• comply with all laws and policies regarding the employer-employee relationship during that period; 
• monitor the health of self-isolating workers and any employee who becomes sick at any time; 
• arrange for a sick worker to be fully isolated from others and contact local public health officials about the sick worker immediately; 
• ensure all workers have access to resources so they can practice good hygiene;
• report violations of the Act to local law enforcement; 
• follow the latest public health requirements and/or guidance from the Government of Canada and the province/territory in which they operate; 
• follow all applicable federal and provincial/territorial employment and health and safety laws, including any new provisions for job-protected sick leave as a result of the COVID-19 pandemic; and 
• pay employees regular pay and benefits for the self-isolation period: for workers in the Seasonal Agricultural Worker Program, the provisions of the applicable contract must be followed and for other workers a minimum of 30 hours per week must be paid at the rate of pay specified on the Labour Market Impact Assessment.

Recommended Actions. Employers hiring TFWs should: 

• provide information to workers about COVID-19 on or before their first day of self-isolation in a language each worker understands, and in writing or orally as appropriate; 
• communicate daily with any workers in self-isolation (including those who become sick after the initial self-isolation period) to inquire about symptoms and keep a log of responses; and
• contact the appropriate consulate if an employee exhibits COVID-19 symptoms. Employers can obtain materials in several languages by contacting the Public Health Agency of Canada at 1-833-784-4397 or phac.covid19.aspc@canada.ca. 

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: 

• deduct any costs associated with the self-isolation period from the employee’s pay (though the employer may still withhold standard contract deductions); or
• authorize the employee to work or perform any duties during the self-isolation period, except those deemed as providing an essential service by the chief public health officer.

Guidelines for Employers Providing Accommodations to TFWs

Required Actions. In addition to the requirements above, employers providing housing accommodations must: 

• house self-isolating workers in separate accommodations from workers no longer subject to self-isolation; 
• ensure all accommodations enable workers to remain two metres apart at all times, including distance between beds and space in common areas, such as kitchens, washrooms, and living spaces; 
• provide cleaning materials to workers so they can maintain proper COVID-19 cleaning procedures; and
• during the self-isolation period, ensure the accommodation arrangements permit the worker to avoid contact with older adults (65 and older) and those with medical conditions who are at risk of developing serious illness.

Recommended Actions. Employers providing housing accommodations should:

• post information about preventing the spread of COVID-19 in the accommodations in a language the worker understands, including information about best practices for maintaining bathrooms and other washing facilities; 
• ensure surfaces are cleaned and disinfected regularly (at minimum daily for common areas); 
• maintain cleaning logs; and
• take date-stamped photos of the facilities to demonstrate compliance.

Permissive Actions. Employers providing housing accommodations may: 

• house workers in self-isolation together, but note: the clock resets each time new workers are added to that particular self-isolation housing; 
• allow workers to clean their own living spaces and common areas, as these tasks constitute essential care; and
• hire cleaning staff to clean common areas. 

New responsibilities for agribusinesses

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. 

COVID-19-related Changes That Affect Agribusiness Employees, Generally

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. 

Consequences and risks of noncompliance

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:

• risk to employee health and safety;
• operational issues (including closure) and negative publicity; and
• costly and lengthy litigation.

Solutions and a view to the future

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.