The relief that you may feel after hiring a live-out caregiver for your children, family members that are ill or disabled, or aging parents can quickly turn into stress, if it is determined that you have violated your employment obligations pursuant to the Employment Standards Act, 2000 (the “Act”).
When hiring a domestic live-out caregiver, you become that individual’s employer. You have the responsibility to abide by the provisions and regulations set out in the Act for domestic workers. You additionally have the responsibility to deduct appropriate tax, Canada Pension Plan, Employment Insurance and Workplace Safety and Insurance Act deductions. You should ensure that you speak with an Accountant in regard to the source deductions to your live-out caregivers wage and your contributions as the employer.
Live-out caregivers are hired to work in a private home to do things such as; housekeeping or provide care, supervision or personal assistance to children or people who are ill, elderly or disabled. An individual is not considered a “Domestic Worker” pursuant to the Act if; the individual is a sitter that provides occasional or short-term care, supervision or personal assistance to children, or if the individual is someone who is employed by an Agency to work in a private home. Live-out caregivers have the same rights pursuant to the Act irregardless of whether they are employed full-time or part-time.
WAGES
The provincial general minimum wage rate applies to live-out caregivers. A live-out caregiver’s gross pay, before any deductions are made, must add up to at least the minimum wage for all hours worked.
As the employer, you are able to deduct board (meals) from the live-out caregiver’s wages if the employee has received the meals. The current rate pursuant to the Act for each meal is $2.55, with a weekly maximum of $53.55. As the employer you must therefore pay the live-out caregiver, before deductions, the difference between the minimum wage for all hours worked and the amount deemed to have been paid for board.
A regular pay period and a regular payday must be established by you for the live-out caregiver’s pay.
OVERTIME PAY
Overtime is calculated on a weekly basis and begins for live-out caregivers after they have worked 44 hours in a work week. After that time, live-out caregivers must receive overtime pay. Overtime pay is 1 ½ time the live-out caregiver’s regular rate of pay.
HOURS OF WORK
The maximum number of hours live-out caregivers may work in a day is eight (8) hours or the number of hours in an established regular workday, if it is longer than eight hours. The only way the daily maximum can be exceeded is by written agreement. The maximum number of hours live-out caregivers can be required to work in a week is 48 hours. The weekly maximum can be exceeded by written agreement and approval of the Director of Employment Standards.
Live-out caregivers are entitled to at least 11 consecutive hours off work each day and 24 consecutive hours off work in each work week or 48 consecutive hours off work in every period of two consecutive work weeks. This requirement cannot be altered by a written agreement between you and the live-out caregiver.
VACATION
Live-out caregivers are entitled to a minimum of two (2) weeks of vacation time after each 12 month vacation entitlement year. Vacation pay is earned by live-out caregivers on each hour worked and must be at least four (4) percent of the gross wages earned by the live-out caregiver in the 12 month vacation entitlement year.
PUBLIC HOLIDAYS
Live-out caregivers in Ontario are entitled to take the nine (9) public holidays as days off work and be paid public holiday pay. Alternatively, a live-out caregiver can agree in writing with you as the employer to work on the holiday and be paid: public holiday pay plus a premium for the hours worked on the public holiday or their regular rate of pay with a day off in lieu with public holiday pay.
LEAVES
Live-out caregivers can qualify for the following leaves pursuant to the Act: pregnancy and parental leave, family medical leave, organ donor leave, and reservist leave.
TERMINATION NOTICE AND/OR PAY IN LIEU
If you end the employment of a live-out caregiver who has been employed continuously for at least three (3) months, you must provide the live-out caregiver with either written notice of termination, termination pay or a combination of both pursuant to the notice period set out in the Act. Live-out caregivers are not entitled to notice of termination or termination pay if you had cause for dismissal. You as the employer bear the burden of establishing cause for dismissal.
You would benefit as an employer to have a clear and concise employment agreement with your live-out caregiver. An employment agreement establishes the live-out caregiver’s duties of employment, your expectations and the live-out caregiver’s entitlements.
If you would like to discuss your employment law obligations owing to a live-out caregiver and/or would like assistance drafting an employment agreement, please contact us.