June 24, 2020

McLennan Ross Update for Wednesday

By McLennan Ross Labour & Employment Team
What we are seeing
  • On May 27, 2020, we provided a brief synopsis of the continued operation of the Temporary Foreign Worker ("TFW") program during the COVID-19 pandemic. At the time, the Government of Canada had temporarily relaxed some requirements for employers seeking to bring in TFWs in the Agriculture, Food Processing, and Trucking industries.
  • The Federal Government has subsequently further updated certain aspects of the program. Due to higher unemployment rates resulting from COVID-19, recruitment and advertisement requirements have been updated, with recruitment efforts being required to take place in the current labour market to ensure Canadians and Permanent Residents are considered first for available jobs. This update applies to pending Labour Market Impact Assessments ("LIMA") received prior to June 15, 2020 and includes the following:
    • Any ads posted before March 15, 2020 may need to be re-posted for an additional two consecutive weeks.
    • When re-advertising, employers must also meet all the minimum recruitment requirements. 
  • However, as of June 10, 2020, the TFW program is prioritizing certain occupations considered "essential". The program is prioritizing and waiving minimum recruitment requirements for the following non-exhaustive list of occupations:
    • Agricultural service contractors, farm supervisors, and specialized livestock workers;
    • General farm workers;
    • Labourers in food, beverage and associated products processing;
    • Harvesting labourers;
    • Butchers, meat cutters, and fishmongers in retail and wholesale;
    • Butchers and meat cutters, poultry preparers and related workers in industrial settings; and
    • Nursery and greenhouse workers. 
  • Employers hiring a replacement worker under the Agriculture stream are not required to re-advertise the vacant position when submitting a LMIA application for the replacement worker. This applies only if the replacement worker is in the same Job Bank economic region and the same occupation as the ones stipulated in the previous positive LMIA. 
  • The program is prioritizing and not waiving the minimum recruitment requirements for other occupations such as registered nurses, specialist physicians, general practitioners and family physicians, pharmacists, light duty cleaners, and transport truck drivers. 
  • Agriculture businesses will have until June 30, 2020 to apply for the Mandatory Isolation Support for Temporary Foreign Workers Program, a program providing up to $1,500 per TFW to assist employers with incremental costs associated with the mandatory 14-day isolation period imposed under the Quarantine Act.
  • As a brief reminder, employers must always pay for the TFW's private health insurance. Coverage must begin from the time the TFW arrives in Canada until the worker is covered by the appropriate provincial/territorial health insurance plan. Under no circumstances can an employer recover the health insurance costs from the TFW. 
  • Separately, due to significant concerns regarding the recent deaths and ongoing safety of Mexican TFWs working at farms, Mexico and Canada have reached an agreement wherein Canada committed to increased farm inspections and further supports for Mexican officials and workers, including identifying and reporting unsafe working conditions. The requirements on employers are strict and subject to audits by Employment and Social Development Canada. If found in contravention, the employer is subject to strict penalties, including fines of up to $1 million and a ban from hiring TFWs in the future.

What we are hearing
  • On June 22, 2020, Ontario announced its approach to reopening schools for the 2020-2021 school year. Unfortunately, the approach is as non-specific as the current Alberta plan.
  • In both Alberta and Ontario, the governments are planning for one of three scenarios
    • In-school classes resume with near normal operations while still following public health measures and directions;
    • In-school classes partially resume with modified routines, smaller class sizes, cohorting and alternative day or week attendance; or
    •  Continued, although enhanced, at-home learning.
  • The takeaway for employers is that even if there is an ability for employees to safely return full-time to the workplace as of September, childcare issues will likely continue to impair the ability of certain employees to do so and no clarity will be forthcoming until August 2020.

What we are saying
  • Ontario announced it would be launching a new privacy-first exposure notification app within the next two weeks called COVID Alert, a voluntary download that will give people who test positive for COVID-19 the option of anonymously alerting all other app users who have been close contacts in the last 14 days.
  • Although Ontario is stating that COVID Alert is a fast, secure and privacy-protected way to notify users of potential exposure, that is will never collect personal data or GPS location data and the app leverages global best practices to protect privacy, similar promises were made about the ABTraceTogether app launched in Alberta in early May 2020, which assurances were quickly disputed by privacy experts. 
  • A question that arises is whether an employer can force its employees to download and enable either COVID Alert or ABTraceTogether as a condition of employment. Please see our discussion on this topic in our email alert "ABTraceTogether: Contact Tracing All in the Workplace".
  • Employers should be cautious, however, as if the app is not as secure as represented by the developers. A further question arises as to whether the employer, by requiring an employee to download and enable the app, would be liable to the employee for any loss suffered by the employee if a hacker using the app to secure and misuse the employee's personal information.
  • Any employer who is considering making it a condition of employment that its employees download and use the app should discuss the possible legal issues arising from such a direction with legal counsel.

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