Interpretation Guidelines Manual British Columbia Employment Standards Act and Regulations

EMPLOYMENT STANDARDS REGULATION - PART 7 - VARIANCES AND EXCLUSIONS

ESR Section 32 – Employees excluded from the Act


Contents:

Summary
Text of Legislation
Policy Interpretation
Related Information


Summary

This section identifies persons, when performing specific types of employment duties, or when receiving certain types of income assistance or benefits are not covered by the Act. 


Text of Legislation

32. (1) The Act does not apply to any of the following:

(a) a student who is employed, by a board as defined in the School Act or an authority as defined in the Independent School Act, to work at the secondary school where he or she is enrolled;

(b) a student enrolled at a secondary school under the supervision of a board as defined in the School Act or an authority as defined in the Independent School Act in a work study, work experience or occupational study class;

(c) sitter;

(d) repealed. [BC Reg. 396/95, s.32(2).];

(e) repealed. [BC Reg.356/97, s.(a)];

(f) a person receiving benefits under the Unemployment Insurance Act (Canada) as a result of working on a job creation project under section 25 of that Act;

(g) a person participating in Youth Community Action while working for financial credit towards post-secondary tuition fees under that program.

(2) Spent.

(3) The Act does not apply to a person receiving

(a) income assistance or benefits under the BC Benefits (Income Assistance) Act,

(b) a youth allowance or benefits under the BC Benefits (Youth Works) Act;

(c) a disability allowance or benefits under the Disability Benefits Program Act,

while the person is participating in a time-limited government program that provides on-site training or work experience and is operated under an act referred to in paragraph (a), (b) or (c).


Policy Interpretation

Section 3 of the Employment Standards Act establishes that the Act applies to all employees other than those excluded by regulation, as is the case for certain employees and persons identified in this section.

Specifically, under this section of the Regulation, the Act does not apply to persons who:

  • perform the work activities specifically described; or
  • are receiving certain types of income assistance, allowances or benefits.

Subsection (1)

Certain types of work activities

The Act does not apply to persons identified in this section who perform specific work activities, as listed in subsection (1)(a) through (g)

Specific information regarding some of the employees performing certain types of work as identified in subsection (1) is as follows:

  • Subsection 32 (1) (a) and (b) Refer to definition of “independent school ” in s.1 of this Regulation.
  • Subsection 32 (1) (c) Refer to the definition of “sitter” in s.1 of this Regulation.

A “sitter” is employed solely to attend to a child, or a disabled, infirm or other person in a private residence, not a day care facility. A “sitter” does not reside in the private residence where they work.

A “sitter” should also be distinguished from other types of personal caregivers. For more information, refer to the definitions of the following:

Employment Standards Act, section 1.

  • “domestic”

Employment Standards Regulation, section 1

  • “live-in home support worker”
  • “night attendant”
  • “residential care worker”
  • Section 32(1)(f)

    Under this subsection, a person “receiving benefits” under the Employment Insurance Act (formerly Unemployment Insurance Act (Canada)) is not covered by the Act as long as they are performing work on a job creation project under s.25 of that Act.

    A person can receive benefits, grants, or both from Human Resources Development Canada. For purposes of this subsection, there is a distinction between a person receiving “grants or contributions” and a person “receiving benefits”. Therefore, a person receiving grants or contributions is not excluded from the provisions of the Act.

Subsection (3)

Persons undergoing rehabilitation or habilitation are not normally performing work. However, involvement in a therapeutic, work experience or training program does not necessarily mean that the individual is not performing work.

A person is excluded from the Act when they are receiving income assistance or benefits or a youth allowance or disability allowance under one of the Acts named in this subsection and is:

  • Participating in a time-limited government program
  • Receiving on-site training or work experience provided by the government program

Government Program

A government program in this subsection is one where the funding government agency signs off on a training plan.

Maximum Time limit

Training programs or work experience must be clearly set out with specific respect to course outlines, content, expectation and goals. They must be time limited with clear indications of review and completion dates. They must not exceed one year.

Criteria for successful completion must be established.

Extensions and Time Limits

Training programs cannot be repeated more than two times. A “Repeated” training program must differ from the original training program. There can be a maximum of 2 repetitions of any Training Program/Course Curriculum.

In total, the Training Program/Curriculum must not exceed three years for any one occupation. At the expiry of the third year of a training program in an occupation, the participant will no longer be excluded from the Employment Standards Act while performing work in that occupation.

There is no limit to the number of Training programs that an individual may participate in during their lifetime, provided that the maximum time limits and number of repetitions for each occupation is not exceeded.

Training Program Description/Course Curriculum

Training may include work experience and work exploration. Any training program must be able to demonstrate that it is time limited and that participants acquire skills; there must be a start date and a completion date.

Training plans must be in place and include the following:

  • topic/title (what course)
  • definition of the skill to be developed
  • clearly defined goals and training objectives
  • planned length of course/program or training experience with sequence of topics or areas to be taught
  • methods of instruction;
  • materials, supplies, equipment and tools to be used
  • training location
  • minimum requirements necessary to participate
  • performance standards against which progress will be assessed and methods of assessment
  • requirements for extension or completion
  • job-related work behaviors that will be addressed in the training program
  • proper health and safety procedures related to the job.

Assessing whether a person is excluded by this regulation

The onus is on the individual support group or person providing work experience or training who is claiming that an individual is excluded from the Act under this regulation to prove that the requirements of this subsection have been met. An assessment will be made on a case by case basis and will include reference to a current Personal Services Plan and Training Plan.

Supported Work

The government funded program usually includes services that are directed towards helping the person with a disability improve his/her quality of life and become included as an integral part of the community by helping that person become successful in areas such as employment, building meaningful personal relationships, and living as independently as that person chooses.

Supported work refers to where individuals have the use of an on site trainer, typically provided by an external agency, who uses training methodology specific to the individual’s learning needs and not typically provided by an employer.

Typically the process of “Supported Work” has 3 support components:

  • work site selection and placement
  • on the job site training
  • follow up / retention

Supported Work would be considered “training” for the purposes of this section until the time that the agency provided trainer completes the training process and is providing follow up / retention support.

The following matrix is provided as a guide to identify when the Act has jurisdiction over the specific work activity and as such the exclusion in this subsection no longer applies.

Specific Work Activity Leads to Coverage under ESA

The following identifies, through the use of a specific work activity, the conditions that must exist in order that an appropriate classification can be made. The specific work activity is painting boards.

Support

Preparation

Training

Employment

An individual is allowed to attend a site that provides the boards, brushes and paint. While general support and safety is provided, there is neither instruction or expectation for painting or work related behaviors.

An individual is expected to attend a site that provides the boards, brushes and paint. The painting has neither quantity or quality expectation and is used as a vehicle to facilitate instruction in work related behaviors with specific outcomes expected.

An individual is expected to attend a site that provides the boards, brushes and paint. Instruction is provided in the skills related to painting and there is an expectation of improved productivity.

An individual is expected to attend a site that provides the boards, brushes and paint. The individual is expected to produce a product within a determined quality and quantity level.

Maintenance of existing skill and/or related behavior level with/out work activity

Work related behavior development is the primary focus with/out work activity

Employment skill development is primary focus with/out work activity

Employer expected skill and related behavior performance with work activity

May occur on or off industrial site

May occur on or off industrial site

May occur on or off industrial site

Occurs on industrial site

No economic gain expected

No economic gain expected

No economic gain expected

Economic gain expected

Opportunity to participate is provided

Expectation to attend set hours

Expectation to attend set hours

Expectation to attend set hours

No product performance expectations

No product performance expectations

Product performance expectations

Product performance expectations

 

Life Skills

   

<----------------------- REHABILITATION ------------------------>

 

 

 

<------------- EMPLOYMENT ------------->

GOALS:

Support

Preparation

Training

Employment

  • Support
  • relationship building
  • explore options
  • build trust
  • support
  • create opportunities to explore options and develop goals
  • life skills training
  • pre-vocational skills
  • build confidence
  • set goals
  • develop goal plan
  • implement goal plan
  • work experience
  • educational/skills training
  • work habit/ethic
  • work skills
  • develop skills
  • choose, get, keep job of choice
  • part or full-time employment
  • employment

<----------------------- REHABILITATION ------------------------>

 

 

 

<------------- EMPLOYMENT ------------->

ENVIRONMENT:

Support

Preparation

Training

Employment

  • safe, supportive
  • non-demanding
  • no time limits
  • therapeutic
  • some expectations for performance
  • "work" activity secondary to therapeutic goals of individual
  • some time limits
  • supportive skill development
  • expectations for review and completion
  • supported work
  • time-limited
  • ongoing support as needed
  • supported employment

REMUNERATION:

Support

Preparation

Training

Employment

 
  • incentive allowance
  • training allowance
  • wage

<----------------------- REHABILITATION ------------------------>

 

 

 

<------------- EMPLOYMENT ------------->

PROGRAM STANDARDS SET BY:

Support

Preparation

Training

Employment

Ministry of Health, Ministry of Social Services, Ministry of Education, Skills and Training

Ministry of Health, Ministry of Social Services, Ministry of Education, Skills and Training

Ministry of Health, Ministry of Social Services, Ministry of Education, Skills and Training

Ministry of Labour

ACT APPLIES:

NO

NO

YES -- exemption

YES

<----------------------- REHABILITATION ------------------------>

 

 

 

<------------- EMPLOYMENT ------------->


Related Information

Other:

School Act

Independent School Act

Employment Insurance Act

BC Benefits (Income Assistance) Act

BC Benefits (Youth Works) Act

Disability Benefits Program Act