COVID-19

Employer and Foreign Worker Obligations Regarding Holiday Travel

With the holidays quickly approaching, employees may want to travel to visit friends and family outside of Canada. While the Canadian government does not recommend non-essential travel, it may be inevitable. It is important for employers and foreign workers to understand obligations in place upon the foreign worker’s return to Canada./intro]

Employer Obligations:

Pursuant to the Immigration and Refugee Protection Regulations (SOR/2002-227) there is a positive obligation on employers to pay most foreign workers during their quarantine period upon their return to Canada,  regardless of whether the foreign worker travels out of Canada for work or vacation.  On its face, the Regulation requires employers toprovide the foreign worker with wages that are substantially the same as those set out in their offer of employment during the 14-day quarantine period.

This requirement is likely to prove challenging for employers as it creates a two-tiered system.  In other words, unless required by a contract or collective agreement, there is no statutory obligation requiring a Canadian worker to be paid during the quarantine period.

In addition to the above, foreign worker employees may work remotely from their isolation location during quarantine only if their work has been deemed essential by the Public Health Agency of Canada or if they hold an Labour Market Impact Assessment (“LMIA”)-exempt work permit. If the foreign worker’s permit is LMIA-based, they may not work during quarantine (again, unless deemed essential), even if they are able to do so safely from their location of isolation.  For an LMIA-exempt worker, the following criteria must be met in order to work during quarantine:

  • The position and job duties are suitable for remote work and the foreign worker will continue to respect and abide by the Quarantine Act and other related Acts, including the Public Health Agency’s guidelines;
  • The work complies with the employment contract or the offer of employment submitted for the international mobility program; and
  • The quarantine location is furnished with the necessary equipment for the foreign worker to perform their work.
Re-entry of Temporary Foreign Workers:

Foreign workers who hold a valid work permit and normally live in Canada will be able to return, as their entry will be considered non-discretionary.  Prior to entry, all travellers are required to submit a Quarantine Plan, either by downloading the ArriveCAN app or providing this information on the website.

Once submitted, travellers will receive a confirmation receipt which they must show to the border officer at customs. Those who do not complete the ArriveCan app, may face additional questioning and possible enforcement action ranging from a warning to a $1000 fine.

Upon entry into Canada, travellers will need to:

  • Confirm arrival to the quarantine location within 48 hours of arriving in Canada;  and
  • Complete daily health self-assessments.

For additional details on the ArriveCan requirements, please see our In A Flash dated November 19, 2020 New Entry Requirements for Travellers to Canada Including Citizens and Permanent Residents.

Certain airports in Canada are offering a COVID rapid test pilot program. This program can reduce quarantine time to a few days. Travellers who are interested should contact their Canadian arrival airport to see if they might be eligible.

This continues to be a confusing time, with frequent rule changes. Please do not hesitate to be in touch with a Mathews Dinsdale lawyer if you have further questions on this or any related topic. You may also refer to the Firm’s COVID-19 website resources.

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