Farm worker waiver balances the assumption of risk and liability
Dear Mr Brown,
I am asking you about the treatment of Jamaican farm workers who contracted the new coronavirus in Canada. I do not think that the workers should have to choose between earning a living and their safety and security.
Why doesn’t the Jamaican Government take more responsibility regarding the welfare of the workers? I think many of the workers are regretting or are having second thoughts about signing a waiver, releasing both Jamaican and Canadian governments of responsibility if they get COVID-19.
It is my understanding that Jamaican farm workers in Chatham-Kent, Canada, contracted the new coronavirus disease and have been placed in isolation. There was an assurance that the affected workers will continue to be paid 40 hours per week, and be supported with medication and other supplies during their recuperation. There was also an assurance that no one would lose their jobs.
This arrangement seems very reasonable to me and are also in compliance with the new regulations regarding COVID-19.
I understand both sides of the argument, that of the farm workers and that of the the government/employers. If the farm work programme is scrapped to protect workers from the risks associated with contracting COVID-19, then applicants will respond by stating that they are willing to assume all of the risk because they are still interested in working overseas.
The waiver is a balance regarding the assumption of risk and liability in the situation.
I also believe that all workers should understand the contracts that they sign, including waivers.
A waiver entails the voluntary surrender of a right with knowledge of the material facts regarding the circumstances affecting the forbearance of the entitlement.
It is important to highlight the following:
• A waiver is a complete unilateral abandonment or surrender of a claim, right, privilege, or opportunity to take advantage of a wrong that was committed.
• A waiver has to be intentional or voluntary.
• A waiver has to include full contemplation, by the parties involved, about all material facts regarding the situation or circumstances.
Accordingly, I am not sure that I agree with the thought that the employer or government should not have allowed a worker to sign the waiver.
The waiver pertained to the responsibility of the workers for any cost, damages and/or loss that may occur or be incurred as a result of any exposure to the virus. The issues, from my perspective, would be whether the workers understood:
• The risk of COVID-19;
• The right they were giving up; and
• All of the material facts regarding the nature of contracting COVID-19 and the health consequences of it.
The workers should have the same understanding of the situation as the government or the employer. In fact, the purpose of having the waiver raises attention to the issue. For example, an unscrupulous practice would be to place the waiver in fine print, which is not brought to the attention of the worker.
The fact that the risk was raised, contemplated, discussed, and understood would be sufficient. In other words, the “second thoughts” should always be done before signing a waiver.
Of course, people have regrets if the risk actually materialises to their detriment, but that is not wrongdoing on the part of the employer or government. I am sure there were some individuals who decided not to work this year due to the risk.
New compliance rules for employers of the TFW programme
As of April 20, 2020, employers are subject to responsibilities to prevent the spread of COVID-19 and ensure the safety and health of foreign workers under the amended Immigration and Refugee Protection Regulations. These amendments serve to codify policy guidelines into law, and also introduce new requirements pertaining to employer compliance inspections.
To ensure that foreign workers are able to comply with the requirements imposed upon them under federal and provincial/territorial laws, the following conditions have been imposed on the employers of foreign workers under the Temporary Foreign Worker (TFW) programme:
• Employers must not do anything that prevents a foreign worker from complying with an Order or regulation made under the Emergencies Act or Quarantine Act, or with any provincial/territorial laws that govern public health in response to COVID-19.
• Employers must provide foreign workers with wages that are substantially the same as those set out in the offer of employment for the period of employment for which a work permit is issued, which includes the period that the foreign worker is in isolation or quarantine.
• For employers who provide accommodations to their workers, there are additional obligations to ensure that: Workers in self-isolation/quarantine have accommodations that are separate from workers who are not in quarantine; workers are housed in accommodations that allow them to remain at least two metres away from any other person; and, cleaning products are provided to foreign workers for the purpose of cleaning and disinfecting accommodations regularly.
In the event a foreign worker develops any signs or symptoms of COVID-19, employers also have an obligation to provide that foreign worker with a bedroom and bathroom that are solely for the foreign worker’s use, while they isolate themselves.
Penalties for non-compliance with the new requirements under the regulations will vary depending on the severity of the violation and may include one or more of the following:
• Administrative monetary penalties, ranging from Can$1,000 to Can$100,000 per violation, and up to a maximum penalty of Can$1 million over one year;
•A ban of one, two, five, or 10 years, or permanent bans for the most serious violations;
•The publication of the employer’s name and address with details of the violations and/or consequences.
Please visit jamaica2canada.com for additional information on Canadian Permanent Residence programs, including Express Entry, The Study & Work program, Visas or Appeals, etc.
Antonn Brown, BA, (Hons), LLB, MSc, RCIC, is an immigration counsel and an accredited Canadian education agent of jamaica2canada.com —a Canadian immigration & education firm in Kingston. Send questions/comments to firstname.lastname@example.org.
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