Foreign Worker Travel to the United States During COVID-19 — What Employers Should Know

There have been several recent announcements from U.S. Agencies and President Trump regarding travel to and from the U.S. while the COVID-19 pandemic is ongoing.

What a traveller may expect will vary depending on whether they intended to fly to the U.S. or drive to a land port of entry. For employers with employees who must travel to the U.S. for work or business purposes, notwithstanding the ongoing risks posed by COVID-19, these restrictions could cause delays in travel or even denials of entry. It is important that the purpose of any foreign worker travel meets the increased standard for travel during the pandemic.

In various notices, the issuing government agencies encourage everyone to avoid international travel for at least the next 30 days. There has been recognition, however, of the critical need for some employers in specific industries to continue the travel of essential foreign workers. Specific exceptions to the travel restrictions have been made and in all circumstances, travellers will have higher burden of proof when claiming their travel is “essential” during this time.

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. The MLT Aikins immigration law and labour and employment law teams continue to work at full capacity and are available to aid you in addressing any issues caused by the current travel restrictions.

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

Air Travel Restriction

The Department of Homeland Security has imposed “arrival restrictions” in connection with COVID-19 and has already published notices relating to restrictions on individuals arriving from China, Iran and many European Countries. To date, Canada is not included in this list of countries.

To facilitate these restrictions, several U.S. airports have been designated for arrivals of individuals who were recently present in any restricted countries in the last 14 days and will implement strict health protocols. If individuals are identified as having travelled to any of the noted countries in the 14 days prior to travel, they will be directed to one of these U.S. airports and be screened immediately upon arrival.

Most notices specifically outline that flights carrying cargo only and not passengers will be exempt from these restrictions. Based on these restrictions, there have been reports of increased wait times and delays.

Land Travel Restrictions

On March 20, 2020, Canada and the U.S. announced a joint initiative to apply temporary restrictions to non-essential travel via land ports of entry. The temporary restrictions impact those travelling via land ports of entry, by passenger rail and by ferry between the U.S. and Canada. This measure is intended be in place for 30 days from March 21, 2020.

During this time only essential travel is allowed at the land borders. Essential for the purposes of employment is defined as: “Individuals travelling to work in the United States (e.g., individuals working in the farming or agriculture industry) who must travel between the United States and Canada in furtherance of such work and individuals engaged in lawful cross-border trade (e.g., truck drivers supporting the movement of cargo between the United States and Canada).” Individuals travelling for tourism purposes, including sightseeing, recreation, gambling or attending cultural events do not qualify as essential travellers and will be denied entry if applied. There have even been instances of Canadian travellers attempting to travel to the U.S. to visit family members and have been denied as their travel is not considered essential.

There is an expectation that there will be an Expansion To Essential Travel Exemptions at the Canada-U.S. land border coming in the next few days.

Separate and specific restrictions have also been implemented for land travel through the U.S.-Mexico borders.

U.S. Citizens and U.S. Permanent Residents Continue to Have A Right Of Entry

In its announcement on March, 20, 2020, The Department of Homeland Security recognized the fundamental right that U.S. Citizens and U.S. Permanent Residents have to enter the U.S. upon application for admission and outlined that U.S. Citizens, and returning U.S. Permanent Residents will continue to be considered essential for travel purposes.

Expect Increased Screening when Travelling

The Centers for Disease Control and Prevention (the “CDC”) classifies countries by Level which triggers increased screening for people arriving from those counties. The levels consist of the following:

  • Level 1 – Watch, Practice Usual Precautions
  • Level 2 – Alert, Practice Enhanced Precautions
  • Level 3 – Warning, Avoid Nonessential Travel
  • Level 4 – DO NOT TRAVEL
  • Level 4 restrictions are typically only implemented for countries that are dangerous or are at war, but have been used for several countries which have fast spreading or high numbers of COVID-19 cases. Many countries in Europe have been classified as Level 3 countries.

Any traveller expecting to travel to the U.S should prepare to experience increased medical and health screening as well as screening of the nature and purpose of essential travel to the U.S.  U.S. Citizens and U.S. Permanent Residents as well as any foreign nationals must all submit to these exams if they want to travel by air or enter Canada via land ports of entry. While U.S. Citizens and Permanent Residents have the right to enter, they can be quarantined upon arrival, or may be prevented from bordering a flight if any symptoms are present. If a traveller is experiencing any related symptoms to COVID-19 they should not attempt travel.

Prepare For Self-Isolation Periods

The CDC currently strongly recommends that individuals who have travelled to any Level 3 Countries remain home for 14 days following entry. Employers should be prepared with a self-isolation or quarantine plan for any foreign workers arriving to the United States.

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.