Tuesday, November 8, 2016

What are the Workers' Comp/OHS implications of Temporary Foreign Workers?

The demographics of the Canada, the US and Australia are changing.  Falling birth rates, increasing longevity, and shifts in participation rates have consequences for the composition of the labour force.  One demographic effect is the importance of temporary foreign workers who are increasingly filling demand at all skill levels in the economy—a fact that has implications for occupational health and safety (OH&S) and workers’ compensation on both the policy and practice fronts.

The need for temporary foreign workers (TFWs) is often lost in the political rhetoric about undocumented workers and economic migrants.  Changing demographics of the labour force may create skill or personnel shortages in specific sectors or occupations.  When a country has insufficient personnel willing, trained and able to fulfill position necessary to the economy, foreign nationals may be invited or encouraged to fill vacancies.  In some cases, this may be a prelude to a formal application to immigrate; more often than not, however, the legal work authorization is restricted to a specified employer, designated occupation and for a specified time frame.  Seasonal agricultural workers, for example, may be permitted legal authority to work for a specific farmer through the farming cycle (mid-February to October in Canada); work beyond the specified time, for non-specified employers or in roles unrelated to farm duties (childcare, for example) are not permitted.

International students typically are granted authority to work either in their discipline as part of their training or as a means of supporting their continuing education.  “Working holidays” are also encouraged by many governments, as a labour source, a means of encouraging eventual migration, and as part of reciprocal agreements that provide similar opportunities for a country’s own citizens.
How many documented temporary foreign workers are there?  Comparative data are hard to find. OECD published material (OECD, International Migration Outlook 2014) provides the following temporary migration data:




The rising use of legally authorized temporary foreign workers is evidence of the need for them to fill skilled positions in the economy. In Australia, (Subclass 457 quarterly report quarter ending at 30 June 2016) more than 85% of visas were issued to professionals, technicians, skilled trade workers, and managers.  Local labour market shortages for lower level positions such as cooks, developer programmers and café or restaurant managers for most of the remaining visa authorizations granted. 

Canada has two main streams to consider: 
·         International Mobility Program International Mobility Program (By exempting some foreign nationals from needing a Labour Market Impact Assessment before being able to work in Canada, the IMP aims to provide competitive advantages to Canada and reciprocal benefits to Canadians)  and
·         Temporary Foreign Worker Program (requires Labour Market Impact Assessment)

Looking at the number of individuals with valid work permits at year end in these two categories demonstrates the rising presence of authorized temporary foreign workers in workplaces across the nation.  [Note:  in most cases, any accompanying family members of authorized temporary foreign workers are also granted permission to work].

It is true that not all temporary foreign workers will have formal work authorizations.  Where demand is high for a particular occupation, workers without appropriate status may be enticed to take on jobs.  The enticement of (relatively) higher wages and (relatively) safer or better working conditions than available in their home country may fuel the supply of would-be temporary migrants or permanent immigrants.

Comparative data on undocumented workers is even more difficult to obtain for most countries.  In the US, there are 8.1 million undocumented workers; about half work in agriculture [Jeffrey s. Passel and D’Vera Cohn,  Size of U.S. Unauthorized Immigrant Workforce Stable After the Great Recession, Pew Research Institute, November 3, 2016].  That represents about 5% of the US labor force.  Even the supply of undocumented foreign workers is changing.  In the case of the US and Mexico, improving economic conditions in Mexico has contributed to a decline in the flow of undocumented workers.  [Note: undocumented workers may be characterized as “illegal immigrants” but this may incorrectly imply intent to settle rather than return to their home country].

The significant size of the temporary foreign workers (documented or otherwise) component of the labour force has implications for policy and practice in OH&S and workers’ compensation.  These workers are technically subject to the same occupational safety standards and usually have legislative eligibility for workers’ compensation laws as nationals in the employed labour force.  These protections and entitlements are not always clear to the temporary foreign worker or employer.  

Language and cultural barriers may isolate a temporary foreign worker from resources or contacts to facilitate their understanding of and access to the appropriate OH&S and workers’ compensation authorities.  Fear or anxiety regarding immigration status may pose a further barrier to accessing the protections and compensation entitlements.

For documented temporary foreign workers in larger organizations, safety and human resource management systems are likely to overcome some of the barriers.  In general, temporary foreign workers who are documented, educated, fluent, working in larger organizations and originating from countries with strong OH&S policies and robust social insurance that covers work injuries are less vulnerable than other temporary foreign workers. 

For inspectorates in the field and other OH&S professionals, the usual challenges may be complicated by similar barriers. Undocumented workers in particular may fear that reporting a hazard or refusing unsafe work may result in a referral to immigration authorities.  Worker reports and responses to questions are important inspection inputs and prevention factors; understanding and overcoming reticence among TFWs and undocumented workers is essential to identifying hazards, controlling risks and correcting errors that can cause injury, death or disease to workers and others in the workplace.

Adjudicative staff in workers’ compensation programs may experience TFW reluctance to disclose causation because of fear regarding return employment/recall rights for injured TFW in seasonal agricultural worker or guest worker programs in the hospitality industry.  Undocumented workers may not wish to pursue entitlements for fear that reporting by the workers’ compensation agency to immigration or other authorities.  Even if the worker makes a successful workers’ compensation claim, questions about ongoing treatment, rehabilitation, and employability in the TFW’s home country will arise.  What wage rate should be used?  What alternative occupations for loss of earnings determinations should be considered for an undocumented worker who must return to his or her home country following an injury? 

Active claim and hazard/injury reporting suppression may also occur.  There may be misperceptions regarding the responsibilities of employers.  For example, many contracts require TFWs who are unable to work to return to their home country; an employer may legally cease to supply room and board to a worker unable to work thus making return home the only economic alternative for the worker. This may limit diagnosis, treatment and rehabilitation options as well as discourage an injured TFW from filing a  workers’ compensation claim.

For policy makers, there are important questions that may cut across jurisdictional lines.  These include:
  • ·         How can we ensure TFWs are adequately informed of their protections and entitlements under the law?
  • ·         Do TFWs need different approaches to provide equivalent protections and compensation?
  • ·         How can cultural, social and language barriers that inhibit access be minimized?
  • ·         If the worker must return to his or her home country, what standards of treatment, fee schedules, reporting procedures and monitoring should be applied?
  • ·         Can a “mandatory reinstatement” provision be enforced if a worker has no legal rights to remain in or return to the country of injury after recovery?
  • ·         Should there be provisions to assist injured TFWs to continue to stay in the country while receiving treatment for work-related injuries. 
  • ·         How should TFW exposures to occupational toxins and other agents of occupational disease be tracked?  What provisions should there be for occupational disease claims once the TFW leaves the country?

Beyond the TFWs, students and “working holiday” participants noted here, there are other categories of non-citizen workers in the economy.  Refugees are an obvious group who may seek temporary protection due to persecution, genocide, insurrection, or war.  The compassionate act of providing refuge is meaningless without providing a means of support such as authorization to work.  Even if refugees intend to return to their home countries when conditions allow, the OH&S and workers’ compensation issues overlap with the TFW issues noted here. 

The data suggest documented and undocumented TFWs are likely to be present in the economy in substantial numbers for years to come.  Without coherent, specific policies and sensitive, responsive practices workers’ comp and OH&S jurisdictions, at least some TFWs may be disproportionately at risk or exploited.  Incident and injury under-reporting or suppression may obscure serious risks and deficiencies.  Not only is this unfair to TFWs and their families, it may also put citizen workers and others in the workplace at risk

At a minimum, the presence and extent of TFWs in the economy deserves closer attention and research. I could find no specific published studies on the incidence rate of injury or workers’ compensation claim rate among temporary foreign workers.  (Do TFWs have similar injury rates to citizen workers?)    Improved statistics, tracking and reporting are important but the special needs of this segment of the labour force need to be addressed is such a way as to counter fears and overcome the inherent challenges of a temporary foreign resident who suffers work injury or disease.

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