Since the 1970s, U.S. and California law has come to support equality of opportunity, full participation, independent living, and economic self-sufficiency for all Americans with disabilities. Development of key protections and services mark the enormous progress of this history.
This background includes:
Section 504 of the federal Rehabilitation Act (1973);
The Americans with Disabilities Act (ADA, 1990);
Workforce Investment Act (WIA, 1998);
California’s Fair Employment and Housing Act (FEHA);
California Assembly Bill 2222 (AB 2222, 2000); and Workforce Inclusion Act (AB 925, 2002).
These laws were strengthened with the recent Supreme Court decision in Olmstead vs. L.C. (1999) which requires that appropriate community-based services be provided in the most integrated setting possible. For many, this includes the workplace.
Two milestones in this history are reasonable accommodation, a defined protection, and personal assistance services, which can be publicly funded, provided by an employer or paid for out of pocket. Since 2003, these advances have become interconnected in California. In-Home Supportive Services (IHSS) program participants are now able to use some of their authorized IHSS personal assistance service hours in the workplace.
Understanding Reasonable Accommodation in the Workplace
A reasonable accommodation is an adjustment or modification to a job or workplace that enables an employee to perform the essential duties of the job successfully. The reasonable accommodation is related to, but does not change, the essential functions of the job. The employee must be capable of performing the essential duties of the job with or without the reasonable accommodation.
Reasonable Accommodation Examples
An employee who is blind can request a computer screen reader to successfully perform the essential functions of the job.
An employee with a mental health condition can request a flexible work schedule or can request to schedule time away from work for medical reasons.
Sharing Information about a Disability
The only time it is required to disclose the existence of a disabling condition in the workplace is when requesting a reasonable accommodation. The request can come from the employee or the employee’s medical provider.
Reasonable accommodation rules are considered on a case-by-case basis. Each employer and employee can negotiate terms that work for both under the law. When presented with a request for reasonable accommodtion, employers can only request the documentation that is needed to establish the existence of a disability and the need for reasonable accommodation. This means that in most situations employers cannot request your entire medical record.
Reasonable accommodation protections from the Americans with Disabilities Act (ADA) cover employers with 15 or more employees. Reasonable accommodation protections from California’s Fair Employment and Housing Act (FEHA) cover employers with five or more employees.
Personal Assistance Services (PAS)
In general, personal assistance services can allow an individual with a disability to live and work in the most integrated setting. Personal assistance services include attendant services, assistance with transportation to and from work, reader services, business travel assistance, or job coaches.
Workplace personal assistance services can be used to enable the employee to perform the essential duties of the job. In these cases, the services may be considered a reasonable accommodation under the ADA and California’s Fair Employment and Housing Act; the employer would have a responsibility here to respond to a request for a reasonable accommodation.
“Under the Ticket to Work and Work Incentives Improvement Act and the Rehabilitation Act, the term 'personal assistance services' generally means: A range of services provided by one or more persons designed to assist an individual with a disability to perform daily living activities on or off the job that the individual would typically perform if the individual did not have a disability. Such services shall be designed to increase the individual's control in life and ability to perform everyday activities on or off the job.”
1. Is the personal assistance that is needed job-related? If so, it may be a reasonable accommodation under the law.
Examples:
Filing duties, retrieving work materials that are heavy or out of reach, or performing other nonessential manual tasks;
Communication needs such as an interpreter; and
Assistance with business-related travel for an individual with a mobility or visual impairment.
These services support performing the essential functions of the job.
Workplace personal assistance services can also be used in the workplace for personal reasons not related directly to performing the essential duties of the job. The services in these cases may not qualify as a reasonable accommodation under the ADA or California’s FEHA.
2. Is the assistance that is needed primarily for the personal benefit of the individual with a disability? If so, other sources of funding can cover the services, including California’s In-Home Supportive Services or the individual’s other resources.
Examples:
Assistance with meals or snacks at break time;
Assistance with personal care, grooming, bathroom breaks or with personal hygiene; and
Paramedical services.
These services are primarily personal in nature and not job related. The decision whether the service is job-related or primarily for the personal benefit of the employee is based on the details of each person’s situation and job.
“In a nutshell, the ADA requires employers to provide personal assistance services to an applicant or employee with a disability so long as the services are job-related and are not primarily for the personal benefit of the individual with a disability. Job-related assistance in the performance of such tasks as reading, communication, the performance of nonessential manual tasks, and business-related travel may be considered reasonable accommodations. Assistance in performing such tasks as eating, toileting, dressing and personal hygiene are primarily personal in nature and generally will not be considered reasonable accommodations….This conclusion is based on a thorough review of the ADA statute, regulations, and policy interpretations and guidance issued by The Equal Employment Opportunity Commission (EEOC), the Department of Justice (DOJ), and the Department of Labor (DOL). A review of the case law provided no additional guidance.”
AB 925 authorizes workplace personal assistance that is “relevant and necessary in supporting and maintaining employment.” This includes any activity that helps an individual land a job such as interviewing or training.
Eligible individuals can transfer some of their current authorized monthly service hours (determined by the IHSS needs assessment) from the home to the workplace.
Current rules allow for IHSS personal assistance ‘accompaniment’ to medical appointments and other approved sites. These rules do not allow for IHSS personal assistance travel to and from the workplace.
However, AB 925 does not increase monthly service hours for any individual or allow them to be used in other new locations. The maximum total number of hours allowable remains the same at 283 per month. Eligible individuals can transfer some of their current authorized monthly service hours (determined by the IHSS needs assessment) from the home to the workplace to “obtain, retain, or return to work.”
IHSS hours cannot be used for assistance with college courses or vocational training.
While allowance for services to attend college classes or vocational training is not included, IHSS workplace personal assistance service hours can be used for training that is offered or required by an employer.
To transfer IHSS hours to use in the workplace, an individual must first contact their IHSS eligibility worker. At this time, the individual specifies the number of hours that will be used in the workplace and what services those hours will be used for. The county can then authorize the use of these hours in the workplace.
Many individuals qualify for other Medi-Cal eligibility categories such as Aged and Disabled Federal Poverty Level, the 250% California Working Disabled Program, or Supplemental Security Income-Linked 1619(b) provisions, which allow access to the IHSS program. Earnings may result in an individual having to pay a Medi-Cal monthly share of cost. Individuals who incur a share of cost because of earned income from a job work may want to consider enrollment in the 250% California Working Disabled Program. The 250% Medi-Cal program allows individuals to earn $27,075 annually (in some cases even more) and maintain their Medi-Cal.
Remember: workplace personal assistance services cannot be used to replace any reasonable accommodations that the employer may be responsible for providing.
On October 13, 2004, California's Department of Social Services released the All County Letter No. 04-43 (ACL 04-43) describing how In-Home Supportive Services can be used in the workplace. AB 925 does not increase monthly service hours for any individual or allow them to be used in other new locations. The maximum total number of hours allowable remains the same at 283 service hours per month.
The California Department of Rehabilitationworks in partnership with consumers and other stakeholders to provide services and advocacy resulting in employment, independent living and equality for individuals with disabilities.
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