Accessing Agriculture Industry Temporary Foreign Workers – Recent Changes In Response To COVID-19

At the outset of the COVID-19 outbreak, the Government of Canada put in place initial restrictions on travel into Canada to help slow the number of travel related infection cases in the country.

These travel restrictions resulted in an almost complete ban on foreign nationals coming to Canada. The blanket restriction created significant problems for industries that rely heavily on temporary foreign workers, including the agriculture industry. Thousands of seasonal and non-seasonal temporary foreign workers enter Canada every year and play a vital role in Canada’s food supply chain.

The Government of Canada has recognized the importance temporary foreign workers play in vital supply chains, with specific recognition of those working in the agriculture industry.  Modifications have now been made to the Temporary Foreign Worker Program (the “TFWP”) and various travel restrictions to better allow access to foreign workers. Although changes have been made, businesses and employers in the agriculture industry may still see some significant issues when trying to access temporary foreign workers for primary agriculture positions under the Seasonal Agricultural Worker Program or the Agricultural Stream of the TFWP.

Beneficial Changes Under The TFWP For The Agriculture Industry

The two main streams for primary agriculture positions, the Seasonal Agricultural Worker Program and the Agricultural Stream, are still accepting applications. Agriculture-based organizations can apply for a Labour Market Impact Assessment (“LMIA”) as they would have prior to COVID-19. There are some important changes in that processing of key occupations in the agriculture and agri-food sectors that employers should know.

Recruitment Requirement Waived

The recruitment requirements for LMIA applications for certain key occupations related to the agriculture and agri-food sectors are waived until October 31, 2020. This means LMIA applications for those key occupations can be made without the standard Canadian labour market recruitment and advertising. This waiver is not for all positions, so employers should check before assuming recruitment requirements have been waived.

Priority LMIA Processing

Employment and Social Development Canada (“ESDC”) has been instructed to give priority processing to key occupations related to the agriculture and agri-food sectors. Notwithstanding the likely overall reductions in processing capacity at ESDC, priority processing is being provided to ensure the security of Canada’s food supply chain. There is no official statement on expected processing times, just that priority will be given.

Acceptance Of Previously Approved Housing Inspection Reports

Under the Seasonal Agricultural Worker Program and the Agricultural Stream, employers are obligated to submit a Housing Inspection Report (“HIR”). Employers applying for an LMIA under these two categories may submit a previously valid HIR. If an employer cannot submit a valid HIR due to COVID-19, they must try to submit a satisfactory HIR from the previous three years.

LMIA Name Changes Will Be Expedited

LMIA applications under agricultural streams are usually for multiple foreign workers in one position. This results in significant turnover and change in the foreign nationals named to any LMIA approval. ESDC will be expediting the application process for changing named foreign nationals on approved LMIAs.

Effective Period For Changes

These changes are being applied retroactively to all LMIA applications already under review and to any new applications received after March 20, 2020 going forward. It is expected these changes will be in place until October 31, 2020, with the possibility of extension.

Travel Issues Will Slow Down Foreign Worker Access

On March 26, 2020, the Government of Canada released two Orders in Council that covered travel restrictions that applied to travellers coming to Canada. These Orders in Council lifted the absolute ban on foreign nationals travelling to Canada with the goal of allowing industry access to foreign workers. The Orders in Council achieve that goal, but only to a limited degree. Foreign nationals attempting to travel to Canada from any country other than the U.S. have a different set of rules than those travelling from the U.S.

Foreign nationals attempting to travel to Canada from any country other than the U.S. are prohibited from entering Canada. Although there is a blanket prohibition, there are certain exemptions, some of which apply to foreign workers. Foreign workers who hold certain types of valid work permits will be allowed entry to Canada, and thus can board a flight to Canada. Foreign workers who have had certain types of work permits pre-approved outside of Canada can travel and enter Canada. This does not apply to all work permit types, so a review must be done before conducting travel to ensure the travel will not be considered an optional or discretionary purpose.  If travel is optional or discretionary, it will be refused.

A foreign national attempting travel to Canada from the U.S. must meet a different standard. When travelling from the U.S., the foreign national must have been within the U.S. or Canada for the prior 14 days and cannot be travelling for an optional or discretionary purpose.  Assuming the criteria are met, the foreign national can travel to Canada and apply for a work permit at the port of entry, subject to standard eligibility criteria.

Employers should expect that the travel restrictions under the Orders in Council will create delays.  If foreign workers are travelling from a country other than the U.S., work permits will need to be approved before travel can occur. This will cause delays in processing for foreign workers who may have normally been able to apply for their work permit faster on entry to Canada. Further, many work permit applications from outside of Canada are being held up by the fact that foreign nationals cannot obtain various mandatory support documents or biometrics. Even when a foreign national can successfully obtain a work permit approval, flights to Canada are limited and carry inflated costs. All of these issues will impact access to foreign workers for the agriculture industry.

It should be noted that the ability to travel to Canada is restricted for any traveller who is showing symptoms related to COVID-19. If a traveller is symptomatic, they will not be allowed to board a flight to Canada, and any non-Canadian or non-permanent resident of Canada will be denied entry to Canada at a land port of entry. Also, all other standard immigration conditions regarding admissibility to Canada will apply.

The Orders in Council and their restrictions are in place until at least June 30, 2020. It is possible the measures could be extended past that date.

14 Day Self-Isolation Will Apply, Creating Further Access Delays

When an employer is able to get a foreign worker into Canada, they will not be able to put them right to work. There are various federal and provincial 14-day self-isolation orders in place that are mandatory. There are exemptions to the self-isolation requirement, but few if any of those will apply to workers in the agriculture industry. Further, employers are expected to begin paying foreign workers under LMIAs as soon as they enter Canada and during the 14-day self-isolation period. There are restrictions on giving foreign workers alternative duties to conduct remotely while in isolation.

Agriculture employers should expect that any foreign worker new to Canada will need to self-isolate for 14 days. This will cause a further delay in utilizing those foreign workers.

The immigration group at MLT Aikins has a wealth of experience in assisting employers and the agriculture industry. If your business has a continued reliance on foreign worker access during these difficult times, we can help make the immigration process easier.

Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.