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At various stages of our lives, many of us will require the services of a live-in caregiver. Whether to care for young children or an elderly parent, the full-time services provided by these employees allow us to return to work or provide medical services that we are simply not trained for. This type of employment is unique in a number of ways that can generate challenges when it comes to the standards employers must meet, especially for things like paying overtime. Caregiving requires employees to be on duty for long hours, although they may only be required to perform tasks periodically. As well, the employee’s residence is often also the place of employment. These characteristics make it difficult to distinguish actual working hours from down time which, in turn, creates friction between the reality of the employment and employment standards. As a result, British Columbia’s legislature has created categorical exclusions for certain types of caregivers and overtime requirements in respect of their employment. It is critical for employers of live-in caregivers to know these differences and to set expectations and requirements with the employee that restrict them to the exempted categories in order to avoid paying excessive overtime.
B.C.’s Employment Standards Act and Employment Standards Regulation define a number of different categories of different categories of specialized caregivers, each of which is subject to different requirements. These categories include night attendant, live-in home support worker, residential care worker, domestic and sitter.
If an employee bring a complaint against the employer regarding overtime and it proceeds to adjudication, the central question will usually be what category applies. This is a critical question because a residential care worker, a night attendant and a live-in home support worker are all exempt from the hours of work and overtime requirements of the Act; sitters are exempt from the Act completely. Domestics, however, are not subject to any exemption and must be paid daily and weekly overtime. A night attendant essentially provides care for a maximum of 12 hours and sleeps at the residence. By contrast, a live-in home support worker provides services 24 hours a day on a live-in basis but must be paid for through a government-funded program to fall into this category.
These categories are fairly straightforward. Where confusion arises regarding overtime is with the categories of residential care worker, sitter and domestic.
A domestic is defined as a person who lives at and is employed at an employer’s private residence to provide cooking, cleaning, childcare or other prescribed services. A sitter means a person employed in a private residence solely to provide the service of “attending to” a child, or to a disabled, infirm or other person, but does not include a nurse, domestic, therapist, live-in home support worker or an employee of an agency.
A residential care worker is employed to supervise or care for anyone in a group home or a “family type residential dwelling”, and is required by the employer to “reside” on the premises during periods of employment. However, the definition encompasses two problematic terms: “reside” and “family-type residential dwelling”. The issue of residency is especially relevant in cases where the caregiver sleeps in the dwelling on some nights but not others.
The Employment Standards Tribunal has held that ‘residence’ does not require that all the benefits of private residency be met, but that there must be an element of privacy and permanence. It’s also worth noting that the tribunal has rendered contradictory decisions with respect to what constitutes a family-type residential dwelling. Some adjudicators have held that the term leans more to group care settings, while others have held that a private residence is encompassed in the definition. Such ambiguity of the law fosters a high degree of risk when proceeding to adjudication.
In a series of decisions, the tribunal has concluded that a caregiver may also fall within the definition of sitter, finding that the ordinary meaning of attending—the term used in the definition of sitter—includes “the work of caring for or attending to someone or something”. In cases involving caregivers for disabled adults, the tribunal has held that the performance of incidental tasks of caring for a dependent person, such as some cleaning and feeding, do not prevent that person from being a sitter. However, whether the cleaning and feeding are incidental or primary tasks of the employee will be determined on the facts.
Given the extent of uncertainty when proceeding to adjudication on these matters, the best tool is knowledge and preventative action. This means it is critical for employers of live-in caregivers to do the following:
Naturally when a caregiver is living in one’s home and caring for loved ones, it is easy for the formalities of an employment relationship to slip away and be replaced by the give-and-take of a familial relationship. Still, it is important to remember that as an employer you carry the burden of keeping track of hours worked, ensuring vacation time is used and all other obligations an employer has under statute and common law. Forgetting this could result in a significant financial liability down the road.
For more information on all the legal implications of employing caregivers, please contact Reut.
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