Foreign Worker Travel to Canada During COVID-19 — What Employers Should Know

There have been several recent announcements from the Government of Canada regarding travel to Canada while the COVID-19 pandemic is ongoing.

These restrictions are split between air travel restrictions and land travel restrictions. What a traveller may expect will vary depending on whether they intended to fly to Canada or drive to a land port of entry.

As an employer you may currently have critical foreign workers who must still travel to Canada, notwithstanding the ongoing risks posed by COVID-19. The Government of Canada does appear to be understanding of the critical need for employers in all industries to access foreign workers and has proposed continued adjustments to ensure essential travellers can still come to Canada and enter the country for work via air or land.

As with anything relating to COVID-19, it is important to note that information is changing on a daily basis. The information provided in this blog is accurate to the date it was released, however, changes may occur at any time. You should consult legal counsel before strict reliance on the information provided. MLT Aikins will be updating this blog post as new developments are announced.

If you are an employer who needs to bring foreign workers to the United States, please see our companion insight on foreign worker travel restrictions for that country.

Air Travel Restriction

Restrictions on air travel to Canada were implemented by way of an Order in Council effective March 18, 2020. The travel restrictions are set to be in place until June 30, 2020. The general rule is that foreign nationals, including foreign workers with valid permits, are prohibited from boarding a flight to Canada departing from any country other than the United States.

Based on this restriction, most foreign nationals cannot board a flight with the end destination being Canada, unless that flight is leaving from the United States. As an additional requirement, the foreign national must have been inside the United States or Canada for at least the 14 days prior to the flight’s departure. This helps ensure self-isolation/quarantine periods have been met.  If a foreign national intends to travel to Canada via air from any other country, they will be denied boarding and unable to travel. Foreign workers who already hold a valid work permit and those seeking to have work permits issued are being denied boarding and are unable to reach Canada, unless they are coming out of the United States and have meet the 14-day period.

There are exemptions to the blanket restriction on air travel from countries other than the United States. Foreign nationals who are immediate family members of Canadian citizens or permanent residents are exempted and can board a flight from anywhere, subject to clearing health screening. Immediate family is deemed to include spouses, common-law partners, dependent children (and their dependent children), the foreign national’s parents or step-parents and those of their spouse, or a foreign national guardian or tutor. Any foreign national attempting to board a flight under an exemption is expected to self-identify and have official evidence of the relationship.

Please note that any travel to Canada is still subject to standard travel and immigration requirements that would otherwise be applied despite COVID-19.

This current Order in Council is subject to a forthcoming updated Expansion To Essential Travel Exemptions that is expected from the Government of Canada between dates of March 24, 2020 and March 31, 2020. More details on this expected expansion of travel availability are outlined below.

Land Travel Restrictions

On March 20, 2020, Canada and the United States announced a joint initiative to apply temporary restrictions to non-essential travel via land ports of entry. This measure will be in place for 30 days. Only essential travel is allowed at the land borders. This announcement was implemented to restrict tourism and recreational travel. Unless the travel is essential, entry to Canada will be denied. What is considered essential is not exactly clear. Travel connected to the preservation of supply chains that ensure food, fuel, and life-saving medicine reach both countries are considered essential travel. Supply chains, including trucking is not intended to be impacted by the restriction. Further, crossing the border for essential work or for other urgent essential reasons will not be impacted. As a result of a lacking definition, there is a greater opportunity to argue a foreign national driving in from the United States is an essential traveller.

As with the air travel restrictions, there is an expectation that there will be an Expansion To Essential Travel Exemptions coming in the next few days.

Expected Expansion To Essential Travel Exemptions

On March 20, 2020, the Government of Canada acknowledged that allowing foreign workers to enter Canada is of vital importance to the Canadian economy. As a result of the critical importance foreign workers have, further expansion of the travel exemptions is on its way. For air travel, exemptions will be implemented that allow for foreign nationals who are coming to Canada to work or study to board flights, subject to medical screening. This will allow foreign workers to arrive from any country, not just the United States. For land travel, foreign workers will be deemed as essential travellers, eliminating any argument as to whether the reason for entry meets the current definition of essential or not.

These expansions are not yet implemented so it is recommended that foreign worker travel be delayed until a new Order in Council is implemented.

Although there is currently a delay on the exemption expansion, employers should consider which foreign workers may be critical to their operations and start making arrangements for upcoming travel in the coming weeks.

Canadian Travellers And Permanent Resident Holders Have A Right Of Entry

Although there are various restrictions on travel to Canada from other countries, Canadian citizens and permanent residents of Canada have a legislative right to enter the country. As a result of this right, Canadian citizens and permanent residents are allowed to board a flight to Canada from any originating country. Further, they are able to appear and be examined for entry at a land port of entry. As long as they can prove their Canadian citizenship (passport, birth certificate, government issued identification, etc.) or permanent resident status (permanent resident card), they must be granted entry to Canada.

This right to enter Canada only applies at a Canadian port of entry. Prior to boarding a flight, Canadian citizens and permanent residents must appear for health screening as required. If a Canadian citizen or permanent resident fails to clear health screening, they can and will be denied boarding on any flight to Canada. If they can make it to a Canadian port of entry (land or airport) they will be granted entry to Canada, subject to additional screening and possible self-isolation or quarantine.

Expect Increased Medical Screening

Any foreign worker expecting to come to Canada should be prepared to experience increased medical and health screening. Canadians, permanent residents, and foreign nationals must all submit to these exams if they want to travel by air or enter Canada via land ports of entry. If a foreign worker is experiencing any related symptoms to COVID-19 they should not attempt travel.

Prepare For Self-Isolation Periods

As outlined above, there are still some options for foreign workers to be brought to Canada. It is also expected that the ability to bring foreign workers to Canada will be expanded over the coming weeks. As employers prepare for foreign workers to return and enter Canada, they should keep in mind that many jurisdictions have recommended or legally mandated self-isolation or guarantee requirements for international travellers. Further to this, as of March 25, 2020, international travellers arriving in Canada are legally mandated to self-isolate for 14 days. There will be some exceptions for essential workers. Sanctions for failing to follow the federal self-isolation order are not yet known. Refer to our Federal Government Implements Mandatory 14-Day Isolation for Individuals Entering Canada blog for more information.

Employers should expect any foreign worker arriving to Canada will be delayed from working for at least 14 days. Employers should also make sure a self-isolation or quarantine plan is in place to ensure newly arrived foreign nationals are properly isolated to protect other staff already in Canada.

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.