Are migrant workers’ rights protected?
Precarious status, ‘disincentives’ for employers to file claims are systemic issues, experts say
Juan Lopez Chaparro had just celebrated his 26th wedding anniversary, a milestone he marked thousands of miles away from his wife in Mexico, when he was urgently admitted to a Norfolk County hospital with COVID-19.
The virus would claim the life of the 55-year-old father of four just three weeks later, on June 20; he was one of 200 migrant workers at one Ontario farm to test positive.
In response to concerns about how living and working conditions factored into massive outbreaks on farms across the province, Labour Minister Monte McNaughton said this past week that a “worker’s passport does not determine how they are treated in our system.”
“That’s not the Ontario way,” McNaughton said. “If you’re working in this province, I want you to know that your health and safety is a priority for our government.”
Lopez Chaparro’s employer, Scotlynn
Growers, says every precaution was taken to prevent an outbreak — including following public health guidelines, providing protective gear and spending hundreds of thousands of dollars to properly quarantine workers. Scotlynn president and CEO Scott Biddle said Lopez Chaparro’s nephew, who works at the same farm about two hours southwest of Toronto, would be flown back to Mexico to grieve with other family members.
Local pastor Peter Ciallella has organized a GoFundMe for Lopez
Chaparro’s family, who remember him as a decent and hardworking man who loved people. A memorial service will be held Sunday in Burford, Ont., near Brantford.
On Tuesday, a Star investigation revealed a history of complaints made by migrant workers on the farm — from overcrowded housing to bedbug infestations.
Janet McLaughlin, an associate professor of health studies at Wilfrid Laurier University, says outbreaks across Ontario are signs of a system where migrant workers have long struggled to receive the equal treatment the province promises — particularly when it comes to illness and injury.
Ontario farms rely heavily on thousands of workers from Mexico and the Caribbean annually through the Seasonal Agricultural Worker Program (SAWP). In Ontario, migrant workers are covered by occupational health and safety laws that require employers to take all reasonable measures to protect them. They’re also eligible for workers’ compensation when they get hurt on the job, including injuries or illnesses sustained in employer-provided bunkhouses. Nonetheless, McLaughlin says, her research shows “the discrepancy between actual workplace injuries and illnesses among workers and those that get claimed as such.”
As of Friday, the Star’s tally, based on local media reports, identified more than 800 COVID-19 cases among farm workers (including local employees). But there were fewer than 400 compensation claims in the agricultural sector registered with the Workplace Safety and Insurance Board, according to publicly available numbers. (Scotlynn had registered more than160 claims as of mid-June, according to the board.)
“It’s a very small minority of claims that have been made in relation to the many positive cases that have been identified,” said McLaughlin.
The provincial compensation board says it has numerous
Spanish-speaking representatives to assess migrant workers’ COVID-19 claims. Where the WSIB is made aware of potential cases, it says it proactively contacts employers to educate them about their reporting obligations.
McLaughlin says there’s a “direct disincentive” overall for employers to report claims, because it could increase their insurance premiums at the board. Since migrant workers often rely on employers to provide transportation and translation, it can be hard for them to independently seek medical care and advice.
Data obtained by the Industrial Accident Victims Group of Ontario, a Toronto-based legal clinic, shows long-standing issues with injuries being reported to the WSIB. In 2015, the board accepted 129 injury claims from migrant workers, WSIB records show. But data from just one hospital in a region that relies heavily on migrant workers, Norfolk County, had 479 emergency admissions involving migrant workers that same year.
Responding to questions from the Star, a spokesperson for the labour minister said McNaughton “has been very clear” that a worker’s passport doesn’t determine their rights.
“We stand firm against exploitation in our province,” the spokesperson said.
But migrant workers’ precarious immigration status is a significant barrier to equal treatment, says Jenna Hennebry, an associate professor at the Balsillie School of International Affairs.
Migrant workers’ right to be in Canada is tied to their seasonal contract with a single employer. Unlike other workers, they have limited ability to leave a bad job or seek alternative living arrangements. They cannot gain permanent residency here through SAWP.
Employers can hand-select or “name” workers they want to return to their farm. They can also repatriate workers to their home countries for almost any reason.
The terms of the migrant workers program are decided federally — including participants’ immigration status. But those decisions impact migrant workers’ rights provincially, including their ability to exercise the right to refuse unsafe work without reprisal.
“(Migrant workers) face significant barriers,” Hennebry said, “not the least of which is often being sent back to countries of origin.”
Over the past decade, more than 5,500 workers have been repatriated midway through a contract, according to data obtained by the Star from the Mexican Ministry of Labour. In 2014, research by the University of Toronto documented hundreds of cases of medical repatriation in which injured migrant workers were deported after an accident, usually against their will.
“This is a phenomenon without comparators: there are few other Canadian settings where workplace injuries and illnesses result in both deportation and employment termination without further medical care or income security,” the study’s lead author, Aaron Orkin, noted at the time.
If workers are repatriated following an injury, the consequences can be profound — sometimes limiting their ability to claim the support they’re entitled to for lifelong disabilities acquired in Canada.
In 2017, the WSIB’s independent appeals tribunal ruled the board had “abrogated its legal obligations” when it slashed Jamaican migrant worker Michael Campbell’s benefits by claiming he was capable of finding alternative work as a cashier in Ontario after a farm injury.
The tribunal ordered the board to reverse that decision because the worker had been forced to return to a remote farm in Jamaica, had only basic literacy skills and had lost his legal right to live and work in Canada by losing his spot on SAWP.
But as a tribunal decision, the ruling was only binding in Campbell’s case.
“Whole families are basically ruined after these workplace injuries,” said McLaughlin. “Most of these workers do not have formal education. So if they can’t perform manual labour because of an injury, there’s very few other opportunities for them to earn a living for their family in their countries of origin.”
With the long-term impact of COVID-19 still unknown, McLaughlin says the uncertainty around sick migrant workers’ future is even greater.
“If it were to impact workers’ ability to work productively, it would impact their long-term ability to potentially participate in this program and continue earning the income that their families depend on,” she said.
“If you really want to think about the long-term health impacts, it’s not just those acute moments of accident and illness,” adds Hennebry.
“It’s also this other reality of the workers arriving relatively young and healthy and being sent back (with) broken bodies.”
Over the past decade, more than 5,500 workers have been repatriated midway through a contract