Employment and Social Development Canada (ESDC) has shared the following information to help employers understand their responsibilities towards temporary foreign workers affected by work stoppage situations, as it relates to their obligations under the Temporary Foreign Worker Program.
Program requirements stipulate that employers hiring temporary foreign workers must provide these workers with full-time work, defined in policy as a minimum of 30 hours per week. Of note, Seasonal Agricultural Worker Program (SAWP) contracts — which are subject to annual negotiations with participating source nations — also have minimum hours of work and compensation clauses that may exceed 30 hours a week that employers must also respect. For more info on the SAWP contracts, please visit:
- Contract for the employment in Canada of seasonal agricultural workers from Mexico – 2023 – Canada.ca; or,
- Contract for the employment in Canada of commonwealth Caribbean seasonal agricultural workers – 2023 – Canada.ca
ESDC understands that work stoppages, including those caused by labour disputes, environmental factors, or other unforeseen events, can present significant challenges for employers and their employees. That is why ESDC supports flexibility as it applies to the full-time work condition set out in the Labor Market Impact Assessment (LMIA) under such circumstances. Employers should take note of the fact that periods of work stoppage, unemployment, or a weekly hour reduction can be offset by periods of work that enable the worker to achieve, at minimum, 30 hours per week on average over the entire employment period. This averaging of hours across the entire employment duration excludes any weeks where workers received income supports (e.g., Employment Insurance).
It is also worth noting that temporary foreign workers are subject to provincial and, when applicable, federal employment regulations, and that employers can legally layoff workers should a work stoppage make it impossible for the employer to fulfill their obligations under the LMIA. Under these circumstances, employers remain responsible for fulfilling other obligations under the LMIA, such as providing return airfare to workers where this is a Program requirement.
Employers who make a business decision to retain workers over lengthier work stoppages will therefore be expected to make up any income gaps where circumstances prevent a worker from averaging 30 hours per week over the entire employment duration.
In addition, depending on the timing and duration of a work stoppage, employers may also be responsible for topping up temporary foreign workers’ pay to meet the average of 30 hours per week over the employment duration, excluding weeks where workers were receiving income supports.
If you have questions related to your obligations as an employer or need help with the Temporary Foreign Worker Program, please visit Canada.ca or contact the Employer Contact Centre. If you believe that you have not been complying with the conditions of the Program, you can tell ESDC about the compliance issues by using the voluntary disclosure.