Families face many challenging questions when securing funding and finding workers to support a loved one with a disability. Frequently asked questions include:
- Where do I find a worker?
- How do I know if a worker is trustworthy?
- Do I need a contract?
- How much should I pay a worker?
- What kind of paperwork do I need to keep?
- How can I use my Passport funding or other types of direct funding to pay my worker?
- Is my worker entitled to vacation and other employment related benefits?
- How do I protect my family from liability if my worker gets hurt?
- When can I terminate a worker’s contract?
The issue of “employment” status is key to answering all of these questions. A worker could be an “employee” or they could be “self-employed”. If you haven’t thought about the answer to this question, there might be costly legal and administrative consequences.
To figure out the status of your worker, you should think about:
- Who has control over the work (i.e. how, when, where, what services will be provided and under what working conditions services)? The more control you have the more likely your worker is an “employee”.
- Does the worker have an opportunity for profit (such as reducing costs or increasing their earnings by supporting more people at once, or organizing their schedule to line up their clients such that they can increase their earnings)? If the answer is yes, then this makes them look more like a self-employed person.
- Does the worker have any risk of loss (i.e. does the worker make any financial investment in the work, or risk not being paid if the work isn’t done properly)? If they do, that also makes them look more like a self-employed person.
- Who owns the tools used to do the work (i.e. vehicle, tablet, work premises, supplies, food, cleaning supplies etc.)? If you own all the tools and resources, if any, then this looks more like an employment situation.
Generally, when you supervise, schedule and control a worker and that worker is dependent on your family because they earn most of their income from your family, your worker is at a high risk of being labelled an employee. There are a number of resources available that can help you determine the status of your worker. We have linked a few of these for your reference below.
What if my worker is a “self-employed” independent contractor?
If your worker is an independent contractor:
- The worker is not eligible for paid public holidays or vacations;
- There is no limit for hours of work and the worker is not entitled to overtime;
- The worker is responsible for obtaining their own WSIB and/or insurance coverage;
- Depending on the worker’s revenues, the worker may be required to have an HST number and charge HST;
- The worker is responsible for paying their own Income Tax and you do not have to make CPP or EI contributions or remittances;
- Technically, you are required to provide a T4A for a self-employed contractor if you pay him/her more than $500 per year.
Because there are very few obligations to self-employed workers, many families choose to go this route, but it’s important to remember that just because you call them a “contractor” doesn’t mean that’s what they are and if you get the status wrong you can face liability for unpaid employment related benefits and remittances.
What if my worker is an employee?
If your worker is an employee, or if your worker’s circumstances change and they become an employee you need to consider:
- Income Tax, CPP contributions and EI contributions and CRA reporting.
- Employment Standards Act minimum obligations (minimum wage, public holiday pay, vacation pay, and overtime where applicable.)
- Provide leaves of absence.
- Keep records.
- Provide notice of termination (or termination pay).
- Provide training and information to the worker.
- Ensure safety of your worker and possibly pay for insurance coverage.
If you aren’t sure what to do, seek legal advice before engaging a worker to avoid mistakes that can cost you down the line. Further resources related to employees are included in the list of resources below.
What if I use a Staffing Agency for supports?
Some families choose to purchase fee-for-service supports from a not-for-profit service agency directly or from a for-profit staffing agency instead. The agency will usually pay the worker, deduct and remit to the CRA and ensure appropriate insurance is in place. Not-for-profit government funded service agencies are typically heavily regulated and subject to standards which generally ensure that you and your loved one with a disability are protected.
For-profit staffing agencies are not subject to the same standards. It is important to work with a reputable agency that meets its obligations to its workers. Under the ESA, a family (as a client of a temporary help agency) can be liable for unpaid wages and other obligations if an agency hasn’t paid the worker properly. This risk is higher if the agency treats the worker as an independent contractor.
Before hiring agency staff, ask the agency questions about their employment practices and make sure that your contract with the agency protects your family from liability. You could ask the staffing agency the following questions:
- Have they completed a Police Reference Check and Vulnerable Sector Screening within the last six months for their workers?
- Are the workers treated as employees of the agency?
- Does the agency provide WSIB coverage to its workers?
- What training do the workers have?
Be wary of an agency that does not engage its workers as employees, have WSIB coverage for its workers, screen its workers, or provide training that is suitable and appropriate to your needs.
When to Get Help
It is a good idea to seek further information or legal advice when engaging and managing workers in some situations, such as when:
- You aren’t sure if your worker is a contractor or employee;
- You aren’t clear on your obligations;
- You need help understanding or preparing a contract for your worker;
- Your worker is injured or has an accident;
- Your worker asks for accommodation of some kind (for example, they are pregnant, have a disability, or have a religious observance);
- Your worker asks you about their employment rights and you aren’t sure what they are (such as leaves of absence, vacation, public holiday pay etc.);
- You want to terminate your relationship with the worker;
- Your worker files a complaint or tells you they are thinking about filing a complaint;
- You are contacted by a government agency (HRSDC, the Canada Revenue Agency, Human Rights Tribunal, Ministry of Labour, WSIB, etc.) about your worker.
PooranLaw has extensive experience working with families and individuals seeking to engage private workers, or who are having challenges related to existing private workers. Contact Cheryl Wiles Pooran to learn more about your rights and obligations and check out some of the resources we’ve assembled below.
Helpful Links and Resources
Resources from the Government of Canada
- Employee or Self-Employed Guide
- Determining the Employee/Employer Relationship
- Recruiting and Hiring Workers in Canada
- T-4 Information for Employers
- T-4A Information for Payers (including of self-employed commissions)
- Issuing a Record of Employment on Termination or Interruption of Earnings
- Payroll Deductions Online Calculator Tool
Resources from the Government of Ontario
- MCSS – Hiring a Support Worker Guide
- MOL – Fact Sheet – Difference between an Employee and an Independent Contractor
- ESA Poster
- MOL – What Businesses Need to Know
- MOL – ESA Online Compliance Tools
- OHSA Online Mandatory Training
- MOL – Domestic Workers
- MOL – Special Rules for Residential Care Workers (Live-in)
Resources from Workplace Safety & Insurance Board (WSIB)
Resources from PooranLaw
- Inspiring Possibilities Planning Guide is a free e-book by PooranLaw in collaboration with Community Living Ontario