Since the World Health Organization assessed COVID-19 as a pandemic on March 11, 2020, the Government of Canada has introduced aggressive new measures to contain the coronavirus. This has directly impacted business travel to Canada.
This bulletin highlights and explains some of the key areas in Canadian immigration law affected by these new government measures that are relevant to employers in managing their global mobility function and in hiring foreign nationals to fill executive, senior managerial or specialized knowledge roles in Canada.
The following areas will be highlighted and discussed:
- Travel Restrictions;
- Exemptions to Travel Restrictions;
- Options for Business Travelers to Canada;
- New Employer Compliance Obligations; and
- Temporary Policies to Facilitate Foreign Workers Seeking to Change Employers.
What are the Travel Restrictions?
In order to manage the COVID-19 pandemic, the Government of Canada implemented temporary travel restrictions on foreign nationals travelling to Canada from overseas and from the United States since March 20, 2020, unless the foreign nationals are exempted. The travel restrictions apply to travel by land, air and water, and prevent foreign nationals from travelling to Canada for optional or discretionary purposes, such as tourism, recreation and entertainment. The current travel restrictions are valid until at least March 21, 2021. The travel restrictions do not apply to Canadian citizens and permanent residents. The Government of Canada has not provided any indication on when the current travel restrictions will be relaxed. The travel restrictions will unlikely be relaxed until most people wanting to enter Canada are vaccinated. According to the Public Health Agency of Canada, the targeted date to get everyone vaccinated is the end of September 2021.
Currently, the rules for foreign nationals to enter Canada depend on whether they are entering Canada from the United States or elsewhere. Foreign nationals seeking to enter Canada from the United States do not need to provide evidence that they meet one of the travel exemptions as long as they provide evidence that they are travelling to Canada for a non-optional or non-discretionary purpose and a negative COVID-19 test taken within 72 hours. Foreign nationals who are able to travel to the United States first are also able to enter Canada under the same rules. Conversely, if the foreign national is entering Canada from outside the United States, then they are prohibited from boarding an aircraft for a flight to Canada unless they are covered by one of the travel exemptions in the Order in Council and a negative COVID-19 test taken within 72 hours. In some cases, foreign nationals will need to obtain a travel authorization from the Government of Canada before they can board an aircraft to Canada. The onus is on the foreign national to demonstrate the purpose of their travel to both the airline and Canada Border Services Agency.
Despite the laws relating to COVID-19 changing frequently, the Government of Canada has clear guiding principles that will stay for the foreseeable future. The guiding principles are as follows:
- Travelers to Canada have to be asymptomatic in order to protect public health by limiting the spread and impact of COVID-19;
- Travelers need to travel for a non-optional or non-discretionary purpose; and
- Allowing entry to certain asymptomatic travelers whose travel to Canada is essential to commerce, trade, economic services and supply chains.
Who can Travel to Canada?
The Government of Canada has an extensive list of who is exempt from the travel restrictions. From the perspective of employers, we have highlighted some of the relevant exemptions. The foreign national has to self-isolate for 14 days upon entering Canada and complete the first three days of the 14 days quarantine period at a government designated hotel, unless the foreign national is exempt from the mandatory quarantine requirement. The new mandatory hotel quarantine requirement for three days only applies to travelers arriving in Canada by aircraft.
- Temporary Workers: In general, employers can continue to hire foreign nationals or transfer key personnel to work in Canada. The current travel exemptions for temporary workers are summarized below:
o A foreign national with a valid Canadian work permit and who normally resides in Canada may travel to Canada.
o A foreign national with a work permit application approval letter may travel to Canada if the foreign national has a valid job offer from an employer in Canada. This means foreign nationals with an approved open work permit application without a job offer from an employer in Canada may not be authorized to travel to Canada.
- Class of Persons determined by the Chief Public Health Officer that will provide an Essential Service while in Canada: The Chief Public Health Officer determined four classes of persons who are exempt from the travel restrictions and the mandatory quarantine requirement if the foreign national is asymptomatic. There is one class of persons that is relevant for employers; namely: technicians or specialists specified by a government, manufacturer, or company to enter Canada in order to install, inspect, maintain or repair equipment necessary to support critical infrastructure in the Energy and Utilities, Information and Communication Technologies, Finance, Health, Food, Water, Transportation, Safety, Government and Manufacturing sectors. This includes activities of persons providing after-sales service.
- Workers who are permitted to work without a work permit: The following activities continue to be permitted without a work permit and the foreign national may be exempt from the mandatory quarantine requirement:
o air or marine crew members;
o providers of emergency services for the protection or preservation of life or property;
o persons permitted to work as a student in a health field;
o persons who seek to enter Canada for the purpose of making certain medical deliveries;
o persons determined by the Chief Public Health Officer (CPHO) to be providing an essential service;
o workers in the marine transportation sector who are essential for the movement of goods by vessel.
- Family Reunification: The foreign worker’s immediate family member (i.e. spouses, common-law partners, dependent children, parents or guardians) may travel to Canada if they plan to live in Canada with the foreign worker. The immediate family member is required to obtain a written authorization to travel to Canada from Immigration, Refugees and Citizenship Canada (“Immigration Canada”), unless travelling from the U.S.
What are the Options for Business Travelers Wishing to Enter Canada from any Country other than the U.S.?
The main category of business travelers who are exempted from the current travel restrictions are technicians or specialists travelling to Canada to install, inspect, 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). These travelers are not required to obtain any written authorization from Canadian authorities prior to their trip in order to be authorized to board their plane to Canada. However, they will need to carry supporting documents that explicitly state they will be installing, inspecting, repairing or maintaining equipment on critical infrastructure.
In exceptional circumstances, a foreign national may apply for a national interest exemption from either the Minister of Foreign Affairs, the Minister of Citizenship and Immigration, or the Minister of Public Safety and Emergency Preparedness. The Minister responsible has to determine that the person’s presence in Canada is in the national interest. However, the Government of Canada has not defined what types of cases qualify as being in the “national interest”. Based on previous cases, there appears to be a requirement to support Canadian jobs and/or Canada’s economic recovery. As of December 13, 2020, the Government of Canada issued 1,790 national interest exemptions and 15 percent were given to business travelers. If the Minister responsible issued a national interest exemption, the foreign national is also exempt from the mandatory quarantine requirement.
What are the New Employer Compliance Obligations?
Employers who hire foreign nationals under the International Mobility Program and Temporary Foreign Worker Program have to comply with the new employer responsibilities related to COVID-19. Therefore, in order for employers with foreign workers hired under the International Mobility Program and Temporary Foreign Worker Program, to comply with immigration laws they have to do the following:
- Allow the foreign workers to follow any order made under the Quarantine Act and Emergencies Act.
- Allow the foreign workers to comply with any provincial laws or orders related to COVID-19;
- Pay the foreign workers for any period that they are in mandatory isolation or quarantine upon entering Canada under the Quarantine Act, even if the foreign workers are unable to perform any work duties; and
- Provide the foreign workers with information on COVID-19 either on or before their first day of quarantine.
Further, effective December 15, 2020, employers who hire foreign workers in British Columbia through the Temporary Foreign Worker Program are required to register with the Government of British Columbia before they can commence in recruiting foreign workers. The provinces of Manitoba, Saskatchewan and Nova Scotia also have the same employer registration requirement.
The Government of Canada introduced temporary public policies to assist foreign workers in Canada. Foreign workers usually hold employer specific work permits. This means that if they want to change their employer or their terms of employment, including occupation and employment location, then they need to obtain a new work permit before they can commence their new employment. Immigration Canada introduced the following temporary public policies to facilitate the processing of new work permit applications to assist foreign workers to look for new employment in Canada:
- Exemptions to Work Permit Conditions when Changing Employment in Canada: Immigration Canada launched a new temporary public policy that allows a foreign worker in Canada on an employer specific work permit to work for a new employer while the new work permit application is processing. This temporary policy will reduce the processing time to approximately 10 days as opposed to approximately 77 days. The foreign worker needs to wait for a confirmation letter from Immigration Canada before they can commence employment with the new employer.
- Work Permit Approvals for Applications Submitted Outside of Canada: Foreign nationals who are currently in Canada but submitted their work permit applications when they were outside of Canada normally need to leave Canada and re-enter Canada in order to activate their work permits. However, due to COVID-19 travel restrictions, these foreign nationals cannot leave and re-enter Canada to present their letter of introduction for examination. To address this problem, Immigration Canada has introduced a temporary public policy to conduct the examination and issuance of the work permit. Under the temporary policy, the foreign national can submit a Web Form inquiry to request Immigration Canada to issue the work permit while the foreign national is in Canada. This temporary public policy will be valid until March 31, 2021.
The Government of Canada is still processing work permit applications during the travel restrictions, and it has provided for exemptions to those restrictions and mandatory quarantine requirements. Accordingly, employers can continue to hire foreign workers to fill positions in Canada. However, the processing time for work permit applications may be longer than before. Further, new immigration policies could be introduced with short notice in order to manage the COVID-19 situation in Canada. Accordingly, in order to prevent delays in your global mobility plan it is recommended that you contact your legal counsel for immigration as early as possible. If you have any questions regarding how the current immigration policies may apply to your company, please contact Daniel Lee or Joanie Lebrun.