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Employees Excluded from the Act - Regulation Part 7, Section 32

Last updated on November 27, 2024

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 the student 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) a sitter who works for an employer for an average of 15 hours or less per week in any 4-week period;

(c.1) a home care worker who works for an employer for an average of 15 hours or less per week in any 4-week period;

(d) Repealed.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

(e) Repealed.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

(f) a person who is a claimant, as defined in the Employment Insurance Act (Canada), and is

(i) attending a course or program of instruction or training referred to in section 25 (1) (a) of that Act, or

(ii) participating in any other employment activity referred to in section 25 (1) (b) of that Act.

(g) Repealed. [B.C. Reg. 32/2018, s. 3.]

(2) Spent.

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

(a) income assistance or supplements under the Employment and Assistance Act,

(b) disability assistance or supplements under the Employment and Assistance for Persons with Disabilities Act,

(c) Repealed. [B.C. Reg. 36/2019, s. 3(a).]

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) or (b).

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 in a private residence, not a day care facility. A sitter does not reside in the private residence where they work. Sitters are excluded from the Employment Standards Act if they work for an average of 15 hours or less per week in any 4-week period.

A "home care worker" includes any personal care giver who, in a private residence, provides the service of attending to another adult person, regardless of the nature of the responsibilities. The duties of a home care worker typically include bathing, dressing, feeding, lifting from chair to bed, tidying up, accompanying on outings, and generally being there to help if an emergency arises. The duties could also include more specialized care and require training, such as trachea care, suctioning, bowel care and catheterization. Home care workers are excluded from the Employment Standards Act if they work for an average of 15 hours or less per week in any 4-week period.

Sitters and home care workers should also be distinguished from nurses, therapists, employees of child care or home care businesses and 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 who is a "claimant" under the Employment Insurance Act (Canada) is not covered by the Act as long as they are attending a course or program or training, or participating in another employment activity under s.25 of that Act. For further information, contact Service Canada.

Subsection (3)

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

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

There is no set time limit for such a program, but there must be a reasonable prospect that the participant will obtain an intended level of experience or complete their training, at which time the participant's involvement with the program will end.

The government may not directly operate a government program, but it generally establishes the program and sets and measures goals and outcomes. Additional factors in considering whether a program is a government program for the purposes of this regulation include:

  • Funding
  • Oversight
  • Public communication about the program

Assessing whether a person is excluded by this regulation

The onus is on the group or person providing work experience or training to prove that an individual is excluded from the Act under this regulation.

Related Information

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