Understanding Workplace Personal Assistance

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.”

-The Applicability of the ADA to Personal Assistance Services in the Workplace, Institute for Community Inclusion

Key Questions About Workplace Personal Assistance

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 a person 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 person with a disability? If so, other sources of funding can cover the services, including California’s In-Home Supportive Services or the person’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.”

-The Applicability of the ADA to Personal Assistance Services in the Workplace, Institute for Community Inclusion.

AB 925 authorizes workplace personal assistance that is “relevant and necessary in supporting and keeping employment.” This includes any activity that helps a person land a job, such as interviewing or training.

Eligible persons 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 person 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 persons 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.”

Workplace personal assistance support may also be available from the California Department of Rehabilitation, the Veterans Administration, workers' compensation coverage, or other entitlements or resources.

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, a person must first contact their IHSS eligibility worker. At this time, the person 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 persons qualify for other Medi-Cal eligibility categories, such as Aged and Disabled Federal Poverty Level, the Working Disabled Program, or Supplemental Security Income-Linked 1619(b) provisions, which allow access to the IHSS program. Earnings may result in a person having to pay a Medi-Cal monthly share of cost. Persons who become responsible for a share of cost, because of earned income from a job, may want to consider enrollment in Medi-Cal's Working Disabled Program (WDP). The WDP program allows persons to earn $61,720 annually (in some cases even more) and keep 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 person 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.

Sources

The California Comprehensive Strategy on Employment of People with Disabilities supplies the state with a policy framework for improving employment rates of persons with disabilities.

The Governor’s Committee on Employment of People with Disabilities advises the Governor and reports to Sacramento legislators on progress with the Comprehensive Strategy on Employment of People with Disabilities.

Robert Silverstein’s Policy Brief: The Applicability of the ADA to Personal Assistance Services in the Workplace explores the responsibilities of employers to offer Personal Assistance Services in the workplace.

The California Department of Rehabilitation works in partnership with consumers and other stakeholders to offer services and advocacy resulting in employment, independent living, and equality for persons with disabilities.

The Mental Health Services Act (MHSA) addresses prevention, early intervention and service needs in the area of mental health.

California's Department of Social Services All County Letter No. 04-43 (ACL 04-43) describes how In-Home Supportive Services can be used in the workplace.