Employment Standards Act - Home and Residential Care Workers

To Whom Does This Apply?

Regulation 61/99 applies to a person who is employed to provide care and supervision for a child, adolescent, or an adult person who cannot live independently, in the home of the care recipient or in a family-type dwelling and who resides in the home during work periods. This regulation does not apply in cases where:

• The residential or home care worker does not reside in the home of the care recipient. These workers are covered by the general employment standards legislation.
• Care is provided by family members.
• The care recipient continues to live in their own home and where they pay for an attendant.
• Domestic workers perform duties in a private family home and are paid by a member of the family.
• Foster parents are the care providers.

Summary

As a home and residential care worker or employer of a home and residential care worker, your rights and responsibilities are outlined in The Employment Standards Code and The Home and Residential Care Workers Regulation - Regulation 61/99 including those relating to the payment of wages; general holidays; vacations with pay; maternity and parental leave; and termination of employment.

FACTORS DETERMINING WHETHER THE EMPLOYEE RESIDES IN THE HOME

• The employee regularly lives in the residence.
• The employee has his or her own room or sleeping arrangements.
• The employee leaves personal effects in the home.
• The employee has free use and access to the household facilities.
• An employee who comes in just to cover sleep/rest periods would not be considered as residing in the home. Also, the regulation cannot be used in conjunction with an Hours of Work Variation Order, except in exceptional circumstances.

HOURS OF WORK VARIATION ORDER

To facilitate the arrangement or rotation of shifts, the Manitoba Labour Board may authorize an employer to have employees working more than the daily or weekly standard hours of worker without the requirement to pay overtime. Deductions for sleep or personal time cannot be made while using an Hours of Work Variance Order. (NOTE: For more information contact the Board directly at (204) 945-3783.)

COMMON EMPLOYER

A common employer refers to a situation where the employee works for the same organization (the common employer), but works in different residences and/or programs. In these cases, all if the daily or weekly hours worked by the employee must be considered in combination to determine the correct payments of benefits such as overtime, general holiday pay, etc.

WAGES AND BENEFITS

Employees are to be paid a minimum of $6.25 per hour. Other rights established under employment standards legislation, such as: overtime, vacation pay, general holidays, notice of termination etc., also apply to residential and home care workers. If an employee is a worker under the regulation, time free from the performance of duties may be unpaid. This includes cases where the worker is attending to personal business, resting or sleeping, or during any agreed upon time free from the performance of duties. If a home care workers accompanies a client on holidays, the employee would still have to be paid for all hours worked.

OVERTIME PROVISIONS

All hours worked beyond eight (8) hours per day or 40 hours per week must be paid at a rate of 1 ½ times the employee’s regular rate of pay. If the worker works less than 12 hours, eight (8) hours are paid at the regular hourly rate and the balance at 1 ½ times their normal hourly rate. After working more than 12 hours, the worker is entitled to the wages payable above as well as the overtime wages for each additional hour. The worker must keep a record of the hours worked and provide the record to the employer on or before the pay day next following the pay day for pay period in which the work is performed.

DEDUCTIONS

The employer is allowed to charge:

• Up to $20 per week for the worker’s room
• $1.25 per meal to a maximum of $20 per week for meals

EMPLOYER RECORDS

Employers must keep payroll records for a period of 12 months from the time each record was made excepting vacation records which must be kept for three (3) years. The employer’s records must indicate an employee’s hours worked or on duty with overtime shown separately.

DISCLAIMER
Information contained in this section is of a general nature only and is not intended to constitute advice for any specific fact situation. For particular questions, the users are invited to contact their lawyer. For additional information, see contact(s) listed below.

Manitoba Contact(s):
Manitoba Labour and Immigration
639 Park Avenue
P.O. Box 50
Beausejour, Manitoba  R0E 0C0
Telephone: (204) 268-6042
Fax: (204) 268-6045
Toll-free (information): 1-800-821-4307