Written by Jason Foster
Governments continue to ramp up their response to the COVID-19 pandemic both through prevention measures to stem the spread and through new initiatives to financially support Canadian workers and businesses in the short term. One group of workers that is at risk of falling through the cracks on both measures are migrant workers in Canada (commonly referred to as Temporary Foreign Workers), especially those with precarious status.
In the early days, migrant workers appeared to be an afterthought in announcements. Travel restrictions protected Canadian citizens’ ability to return but were silent about migrant workers seeking to return to Canada after being abroad. Relaxed Employment Insurance (EI) rules left migrant workers in a gray zone, as their residency status and restricted labour market rights often makes it hard for them to receive EI, even if they have paid into it for months or years.
While the travel restrictions were recently amended to exempt migrant workers “who were already established in Canada or who had made arrangements to come to Canada to work before the travel restrictions were put in place”, the response seems designed to satisfy farm and manufacturing employers more than address the needs of migrant workers.
Which brings us to the Canada Emergency Response Benefit(CERB) announced last week by the federal government. The CERB aims to provide financial assistance to workers negatively affected by the COVID-19 crisis. It will offer $2000 per month for up to four months for workers who have lost income due to the crisis. The program intends to include all types of workers, including self-employed workers and those not eligible for EI. The definition of worker used in the enabling legislationis broad: “worker means a person who is at least 15 years of age, who is resident in Canada and who, for 2019 or in the 12-month period preceding the day on which they make an application under section 5, has a total income of at least $5,000”. It lists employment, self-employment, EI programs and provincial parental income support as eligible sources of income.
Details of the program and its eligibility criteria have not yet been released and are expected sometime in early April. Until that time we can only speculate on whether the CERB will include migrant workers.
The definition strongly suggests that migrant workers with valid work permits who have been in Canada long enough to earn $5000 will be eligible. The key term is “resident in Canada” which does not restrict eligibility to residents with permanent status nor require citizenship. This is good news for migrant workers, many of whom work in restaurants and retail, whose jobs have disappeared in recent weeks.
However, that is not the end of the story. There are some groups of migrant workers that may still be left without financial support during this difficult time.
There is uncertainty about whether migrants in Canada with a Student’s Visa will be eligible. Student migrants are permitted entry to study but are also provided opportunities to work under certain conditions and restrictions. Classes have been cancelled, potentially delaying their program completion. They are likely not able to return home to wait it out given travel restrictions. If a student has earned $5000 through part-time employment while studying, will they be eligible for the program? On the surface the answer seems to be yes, but the devil is in the details.
The main group that is likely excluded from this program are migrant workers with precarious status, more commonly referred to as undocumented workers. These workers’ work permits have expired, and they choose to remain in Canada to keep working and attempt to re-establish their “legal” working status. We don’t know how many undocumented workers reside in Canada, but estimates range from 200,000 to 500,000. Many work informally for cash or other supports (rent, food, etc.). Their work has been drying up alongside other Canadian workers. However, they are not eligible for existing income supports such as EI. Even applying for such supports could put them at risk of deportation.
The CERB has not addressed their situation. While, theoretically, they fall within the definition of worker under the Act, there have been no assurances from the government that legal status will not be an eligibility criterion, nor have they promised a temporary amnesty from enforcement of immigration rules regarding migrant workers.
Regardless of how people may feel about undocumented workers and their decision to remain with precarious status, the COVID-19 crisis has changed the calculus. At the moment even if an undocumented worker wanted to return home, they may not be able to. They may be stuck in Canada, without a source of income, and with little community support. Now is a time when we as a community can ensure that everyone is protected against COVID-19 and offered some basic assistance to help them get by. Or this is a time we can continue with our rigid immigration rules and permit thousands of people to suffer.
The coming days will tell the tale.
Citation: Jason Foster, “Will Migrant Workers Be Covered by the Canada Emergency Response Benefit?” Canadian Law of Work Forum (March 31 2020): http://lawofwork.ca/?p=12151
Bill C-13, Part 2, Section 2
Basia D. Ellis, “The Production of Irregular Migration in Canada,” Canadian Ethnic Studies47, no. 2 (2015): 93-112.