As outlined in previous updates, Canada has implemented travel restrictions due to the COVID-19 situation. The travel restrictions generally prohibit the entry of foreign national (FN) international travellers into Canada, but also provide a number of exemptions that allow some temporary foreign workers (TFW) to enter Canada for work related purposes.
The overall travel restriction scheme is made up of a number of orders-in-council, practice directions, IRCC guidelines and Transport Canada orders, all of which are affected by the overarching public health concerns and rules arising from the COVID situation. This has resulted in a scheme which is quite complex and difficult to navigate.
This update will highlight some of the recent developments regarding the entry of TFWs into Canada, as well as the mandatory self-isolation requirements. It will also highlight some new employer compliance requirements placed on employers bringing TFWs into Canada.
Since the rules and guidelines keep evolving, employers hiring TFWs, and Foreign Nationals (FNs) contemplating travel into Canada, should review the latest information on IRCC's website to determine whether they may be able to travel to and enter Canada under one of the exemptions to the travel restrictions. We recommend that legal advice be obtained.
Canada's Travel Restrictions on TFWs
Canada's borders remain closed to the vast majority of foreign nationals, with some exemptions to the travel ban. This section will focus on the restrictions and exemptions that affect temporary foreign workers (TFWs) seeking entry to Canada. Employers transferring or hiring TFWs need to be aware of the applicable rules.
Canada's temporary travel restrictions are based on two Orders in Council (OIC). One deals with entry from the United States and the other deals with entry from any other country. The OICs exempt some symptom-free foreign nationals from the travel restrictions.
In addition, IRCC has set out program delivery guidelines regarding the travel restrictions: Travel restriction measures: COVID-19 program delivery. That webpage is updated from time to time and so should be reviewed prior to any potential travel.
Further details are set out below.
1. Entry of TFWs from the USA:
The underlying OIC is here: OIC re Prohibition of Entry into Canada from the United States. The U.S.-Canada agreement to close the border to discretionary travel is set to expire on June 21, 2020. Readers should monitor the situation to see if it is extended further.
The "USA OIC" states: "A foreign national is prohibited from entering Canada from the United States if they seek to enter for an optional or discretionary purpose, such as tourism, recreation or entertainment."
The reference is to "a foreign national", which includes a U.S. citizen or a non-U.S. citizen traveling to Canada from the United States.
Therefore, entry for "non-optional or non-discretionary" purposes from the U.S. is allowed. The issue is how that phrase is being interpreted and applied by border officials.
IRCC has provided some guidance and examples of non-optional/non-discretionary travel in the economic context in its Travel restriction measures: COVID-19 program delivery instructions, and in a second program delivery guideline specifically on Non-optional and non-discretionary travel.
"Non-optional or non-discretionary" travel includes delivering economic services, supporting the supply chain, supporting critical infrastructure, engaging in cross-border employment, entering Canada to work (with appropriate documentation), and any other activities deemed non-optional or non-discretionary "based on an officer's assessment."
Border officers have a great deal of discretion in interpreting the guidelines. For example, some ports of entry appear to be applying an "essential services" test to work permit requests. This is a more difficult test for TFWs to meet compared to simply asking if the entry is "non-optional/non-discretionary", which we would argue is always the case where a TFW has a job or assignment lined up in Canada and is seeking a work permit to provide economic/work related services.
Here are some considerations regarding the potential entry of new TFWs from the United States to Canada:
- Canadian Ports of Entry (POE) are supposed to entertain employer-specific work permit applications at the U.S.-Canada border for TFWs traveling from the USA to Canada, where the applicant has been in the United States for at least 14 days. The TFW must also meet the usual requirements, such as having a work permit category under which to apply, and being eligible to request processing of a work permit at the POE (American citizens and TRV(entry visa)-exempt Foreign Nationals are eligible to request most types of work permits at the POE when arriving from the U.S.).
- However, note that flagpoling (where a Foreign National is already in Canada and travels to the U.S. side of the border and back into Canada to try to apply for immigration services at the Canadian POE) is currently not allowed and should not be attempted.
- Applicants should demonstrate that the job in Canada still exists and that the business is operating or will be operating at the end of the 14 day self-isolation period. Is the business or activity deemed to be an essential business/service by the applicable jurisdiction and therefore one that is operating? Public Safety Canada has set out a list of essential services and functions at this website, which also has links to the provincial and territory lists: https://www.publicsafety.gc.ca/cnt/ntnl-scrt/crtcl-nfrstrctr/esf-sfe-en.aspx.
- Applicants must demonstrate that they have a viable self-isolation plan.
- Entry for a non-optional/non-discretionary purpose that is work permit exempt may also be possible at a U.S.-Canada POE. For example, an after-sales service provider supporting the installation or repair of equipment that is used in an essential business in Canada.
- The POE where the TFW intends to enter should be contacted in advance to find out how that particular POE is interpreting "non-optional/non-discretionary" travel.
- If the TFW arriving from the U.S. will have accompanying foreign national dependents such as a spouse or children moving to Canada with them, advice should be sought on whether the accompanying family members will also be able to enter Canada from the U.S.
2. Entry of TFWs from International Destinations (other than the USA):
The underlying OIC is here: OIC re Travel Prohibition regarding entry from all other countries (other than the USA). It is valid to June 30, 2020. Readers should monitor the situation to see if it is extended further.
This "International/Non-USA OIC" is more restrictive than the "USA OIC".
For a foreign national to be able to overcome the travel restriction and fly into Canada from a country other than the USA, they must demonstrate that they come under one of the International OIC's travel restriction exemptions, in addition to showing that the entry is non-optional/non-discretionary.
For TFWs, the TFW must already have a work permit OR must have a work permit approval letter issued by IRCC in order to be able to fly into Canada. TRV/visa exempt foreign nationals can no longer fly into Canada to apply for an initial work permit upon arrival. Rather, they must make an online work permit application and get a work permit approval letter to be able to fly into Canada.
- FNs requiring a work permit, whether TRV/visa required or not, will not be allowed to board a plane departing from any country other than the United States if they do not already have a work permit or a work permit approval letter.
- FNs will not be able to apply for a work permit at the POE (unless entering from the U.S.), so they must apply online for a work permit to obtain a work permit approval.
- FNs must also demonstrate that the entry is non-optional/non-discretionary.
The COVID situation has increased processing timelines for online work permit applications.
Furthermore, COVID has caused the temporary closure of most Visa Application Centres (VACs). Online work permit applicants must provide biometrics once the application is uploaded. Biometrics must be done in person at one of the VACs. The closure of the VACs means that this step cannot be done. Therefore, unless a visa office agrees to waive the biometrics requirement on a specific online work permit application, the work permit application cannot be processed until biometrics can be obtained. The list of VACs, and information on whether they are open, is here: Visa Application Centre Information.
There are restrictions on travel for accompanying family members (spouse and children) which would need to be assessed if the TFW has accompanying family. A special travel authorization letter issued by a visa office to allow for family reunification must be obtained to allow accompanying children to overcome their travel restriction. Family members would also need anything else that is usually required to fly to Canada, such as an eTA or a temporary resident visa, depending on their citizenship. IRCC's policy is that, since this special letter is for family reunification, the principal TFW must travel to Canada first before the family members can request the family reunification letter, as otherwise there is no one in Canada to trigger the need to reunite.
3. Further Information on TFW Entry and Work Permit Processing
For those applying for a Work Permit either at a POE when traveling from the U.S., or online, IRCC has provided special program delivery instructions regarding those processes and procedures: IRCC's Work Permit COVID-19 Program Delivery Guidance. This is in addition to the program delivery guidelines regarding travel restrictions, which includes a section on TFWs: Travel restriction measures: COVID-19 program delivery.
There are also a few potential travel restriction exemptions under the International OIC for FN workers to enter Canada without needing a work permit approval letter. For example, providers of emergency services, including medical services, for the protection or preservation of life or property.
In addition, the International OIC allows Canada's Chief Public Health Officer to determine classes of persons who provide an essential service while in Canada and who would be exempt from the travel restriction. Currently, this includes: "Technicians specified by a government, manufacturer, or company, as required to maintain or repair equipment necessary to support critical infrastructure (Energy and Utilities, Information and Communication Technologies, Finance, Health, Food, Water, Transportation, Safety, Government and Manufacturing)."
As with any potential entry to Canada, in addition to any of the COVID related requirements, a TFW or FN must also have in place any of the usual entry requirements such as an entry visa or an eTA.
Mandatory Self-Isolation Requirement
Travellers entering Canada must isolate themselves for a MINIMUM of 14 days, whether or not symptoms of COVID-19 are present. This self-isolation requirement is based on an Order in Council: OIC 10 - Mandatory Isolation OIC.
This is mandatory for everyone entering Canada (with very few exceptions discussed below) and will be enforced by the government. Anyone found to be in violation of the self-isolation rules may be subject to hefty fines and possibly jail time. Furthermore, a TFW who breaches the mandatory self-isolation requirement may also jeopardize their work permit status in Canada.
Travellers entering Canada will also be screened and will be required to provide contact information. This contact information will be used by Canadian authorities to follow up to ensure that the traveller is not breaching the mandatory self-isolation requirement.
1. Quarantine Plan
Travellers entering Canada must have an isolation/quarantine plan, detailing their plan for self-isolation upon arrival in Canada. If a plan is not in place, the traveller may be denied entry or made to isolate at a government-designated location for a minimum of 14 days.
Those required to isolate must go directly to the place of isolation without stopping anywhere.
The isolation plan must include:
- Information on where the traveler will quarantine (self-isolate) in a place where they will have no contact with vulnerable people (e.g. people 65 years or older).
- Information on how they will access basic necessities, such as food and medication, or a suitable plan to have it delivered or supplied without breaking quarantine.
More information on mandatory self-isolation and isolation plans may be found here: Traveller Isolation and Isolation Plans.
A TFW seeking entry to Canada must ensure that, before arrival, they have a well thought out quarantine plan that meets the requirements. Mandatory isolation must then be strictly followed upon arrival.
2. Mask Requirements for Travellers
Transport Canada requires anyone travelling to Canada by air to wear non-medical masks or face coverings (Transport Canada News Release re non-Medical Masks), which at a minimum are required to cover their mouth and nose, in the following situations:
- At Canadian airport screening checkpoints
- When it is not possible to physically distance, or as directed by airline personnel
- When directed to do so by a public health order or public health official
Travellers arriving in Canada by air should also be prepared by having a mask available for travelling from the airport to their place of mandatory self-isolation.
Travelers arriving at land POEs should also be prepared by having a mask available for entry and when dealing with border officers.
3. Exemptions to the Self-Isolation Requirement for TFWs
For TFWs entering Canada, there are a few limited exceptions to the self-isolation requirement. These exemptions are much narrower than the travel restriction exemptions.
OIC 10 - Mandatory Isolation OIC sets out self-isolation exemptions in Section 6.
For TFWs, the mandatory self-isolation exemptions include someone who:
- Crosses the border regularly to ensure the continued flow of goods and essential services
- Provides essential services to Canadians
- Is a person or in a class of persons that the Chief Public Health Officer determines will provide an essential service
The Chief Public Health Officer has determined that the following classes of persons are exempt:
- Persons in the trade or transportation sector who are important for the movement of goods or people, including truck drivers and crew members on any aircraft, shipping vessel or train, and that cross the border while performing their duties or for the purpose of performing their duties;
- Persons who must cross the border regularly to go to their normal place of employment, including critical infrastructure workers (Energy and Utilities, Information and Communication Technologies, Finance, Health, Food, Water, Transportation, Safety, Government and Manufacturing), provided they do not directly care for persons 65 years of age or older within the first 14 days after their entry to Canada; and
- Technicians specified by a government, manufacturer, or the manufacturer warranty, as required to maintain or repair equipment necessary to support critical infrastructure (Energy and Utilities, Information and Communication Technologies, Finance, Health, Food, Water, Transportation, Safety, Government and Manufacturing).
A request for an exemption to the self-isolation requirement may be made to Public Health by sending the request to email@example.com. The request must include the following information:
- Nature of work and reason for travel
- Number of persons requesting the exemption
- Port of entry
- Time and duration of trip
The mandatory self-isolation requirement may also be waived at the port of entry, without having a written exemption from Public Health, where the TFW is entering to provide essential services. An issue is that "essential services" are not well defined and therefore there is significant discretion regarding whether officers might waive the mandatory quarantine exemption. Anyone requesting such an exemption should have very strong documentation regarding the essential services, and show how the entry ties into one of the examples set out above.
CBSA officers at the port of entry can access or contact Public Health officials regarding whether an exemption to the mandatory quarantine may be granted. FNs and TFWs entering Canada should still have a plan to minimize the risks posed by COVID even if they are granted an exemption to the self-isolation requirement. They should also be prepared and have a plan to self-isolate for 14 days if an exemption is not granted.
4. Provincial Public Health Requirements
Travelers arriving in Canada also need to check to see if there are specific provincial level public health requirements.
For example, B.C. has a special program that requires travelers to B.C., including TFWs, to submit an online Self-Isolation Plan before or when a traveler arrives in B.C.
Alberta has also instituted special rules. There are provincial screening checkpoints at the Calgary and Edmonton airports. As of May 20, all travelers entering Canada by air must complete an Alberta isolation questionnaire. The plan will be reviewed by provincial public health officials. Further information is at this link: Alberta Provincial Isolation Requirements.
New Employer Compliance Requirements under IRPA
Employers bringing in new TFWs to Canada face increased compliance requirements due to COVID-inspired regulatory amendments made on April 20, 2020 to IRPA's regulations. Employers may face special inspections relating to the new compliance requirements so it is imperative to be aware of them.
- Require employers to refrain from doing anything that prevents a TFW from complying with COVID-related orders or requirements, including the mandatory 14 day quarantine period.
- Prevent employers from authorizing a TFW to work during the quarantine period, even if requested by the worker.
- Stipulate that a TFW's employment begins upon arrival in Canada and includes the initial 14 day quarantine period.
- Stipulate that the employer must provide the TFW's pay and benefits during the initial 14 day quarantine period. During this time, the TFW must be paid a minimum of 30 hours per week at the rate set out in the underlying LMIA or in the Employer Portal information uploaded by the employer.
If an employer breaches the IRPA conditions, they may face significant fines and be banned from using the temporary foreign worker program.
Information on the new employer conditions, compliance requirements and inspections may be found here: Employer compliance inspections: COVID-19 program delivery
ESDC/Service Canada has provided this Guidance for employers of TFWs regarding COVID-19, which sets out employer requirements.
The process of hiring new TFWs in Canada or transferring TFWs to Canada from related companies elsewhere, has been affected by COVID-19. Canadian authorities have had to move quickly to introduce public health oriented policies and restrictions. A complex web of new rules, procedures and program directives has been introduced, which affect processing options and whether a TFW can travel to Canada under one of the exemptions to the travel restrictions.
Employers need to be aware of the rules and aware of the increased compliance requirements placed on them.
However, despite these changes, Canada's approach has been to continue to provide exemptions to allow for the entry of TFWs. Processing of LMIAs and work permits continues. A TFW who obtains a work permit approval and who has a job available in Canada should be able to travel to and enter Canada, as they should be able to demonstrate that the entry is non-optional/non-discretionary.
Given the complexity and the evolving nature of the rules and policies, employers and TFWs are strongly advised to obtain legal advice regarding these matters.
Please contact a member of the Gowling WLG Immigration Group if you have any questions.