Workplace accommodations for employees with disabilities can be hard to navigate normally, and COVID-19 has certainly added complications. Are employers responsible for providing personal assistance services to employees with disabilities? How should employers handle job coaches who count toward a business's reduced-density requirements? This edition of Ask About the ADA clarifies some of the requirements for accommodations involving job coaches and personal assistance at work.
NortheastADA.org
Workplace accommodations for employees with disabilities can be hard to navigate normally, and COVID-19 has certainly added complications. Are employers responsible for providing personal assistance services to employees with disabilities? How should employers handle job coaches who count toward a business's reduced-density requirements? This edition of Ask About the ADA clarifies some of the requirements for accommodations involving job coaches and personal assistance at work.
NortheastADA.org
JOE ZESSKI: Hello. Welcome to Ask About the ADA, the podcast where we answer your questions about the Americans with Disabilities Act and how it applies to your everyday life.
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On this week's edition, we're going to answer two technical assistance questions that we received at the Northeast ADA. Both are about reasonable accommodations in the workplace. So that being said, let's dig into them.
The first question comes from a vocational rehabilitation counselor. This person says that they are working with a large retail store who has informed them that due to COVID-19, they will not be accepting any applicants who use a job coach as a reasonable accommodation. The person asks is, this permissible?
The very short answer is no. An employer can't eliminate an entire class of reasonable accommodation without doing individual assessments of the situation of the person and seeing if there would be an undue hardship for the employer, in other words significant difficulty to their operations or expense. Now, all this is true, even during COVID-19 and the changes that have been forced on us due to the virus.
So an employer can't, as a broad rule, disqualify all people who may use a job coach. However, they have to look at each situation and look if there are steps that can be taken to eliminate or reduce the risk related to COVID-19. So all that being said, an employer could require a job coach to wear a face mask or to follow other health and safety protocols that might be in place in a specific worksite.
But let's say that the store is claiming that they can only allow a certain number of staff in the store at any given time due to a cap on the number of people permitted in the store. Now, since this is a large retailer, they can take steps to reduce the number of people in the store by one, if necessary. In other words, they could limit the number of customers that come in by one while the person is working, thereby staying within the parameters that they need to in terms of number of individuals in the actual physical store. And again, because this is a large retailer open to the public, this would not really pose an undue hardship on the employer in this case.
Regardless, the employer has to do an individual assessment based on the facts of the specific case and the specific reasonable accommodation request. They need to assess whether or not it would cause an undue hardship and look at the true impact of providing a reasonable accommodation. Now that being said, the EEOC, Equal Employment Opportunity Commission, does recognize that during COVID-19, there may be some accommodations that are impacted or an undue hardship that might be created that typically would not be the case.
So for example, there may be issues in terms of delivering equipment for employees, for accommodations, or perhaps reassigning some nonessential job tasks might be a form of accommodation. However, perhaps due to a shortage of employees, this might not be possible during the pandemic. So again, every case is a little different. However, refusing to hire applicants simply because they use a job coach is painting with a very broad brush, and that is something that is not permitted under the ADA.
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Now let's go to our second question. And it's again about an accommodation request. Is asking for a personal assistance service a reasonable accommodation in the workplace under the Americans with Disabilities Act? Well, this answer is a little bit complicated. Under the ADA, private employers are not required to pay for personal services or devices for an employee.
So in that sense, no, asking for personal assistant service to be provided by your employer is not a reasonable accommodation request under the Americans with Disabilities Act. Now, that being said, if someone does use PAS services, In other words Personal Assistant Services, then you can ask your employer to allow the aide or assistant into the workplace and ask to work out a schedule of when that might be possible. That could be a form of reasonable accommodation under the ADA.
Let me explain though a little bit further what personal assistance services are and what it involves. Personal assistant services in the workplace could be things like helping the person with a disability to take on or off their coat. Perhaps a person needs assistance with eating. Or perhaps a person needs assistance with some personal care. These are things that are obviously personal in nature. And so they are not things that an employer is required to provide as a reasonable accommodation.
But as I said, allowing a personal assistant on premise to do these things may potentially be a form of reasonable accommodation. However, the employer is not obligated to cover the cost for this type of an accommodation. Now, as I say that, there is one possible exception, and that is around work travel. In other words, in order for a person with a disability to be able to do their essential job functions when they're not in their work environment, in other words, when they're traveling, an employer may need to consider paying for personal assistant services when someone is on the road. However, that is pretty much the only circumstance under the ADA where this might be required.
Now, an important thing to keep in mind is what employers are covered by the Americans with Disabilities Act. It covers employers with 15 or more employees that are private in nature, and it covers all state and local government employers, regardless of their size. However, federal employers and, in turn, federal employees are not covered under the Americans with Disabilities Act but rather by section 501 of the Rehabilitation Act of 1973.
Under that law and its provisions, federal employers are required to consider paying for personal assistant services in order for a person to be able to do their job. So keep in mind, this is in the federal sector. Things are different than in the private or state and local government area. As I mentioned earlier, the situation is a little bit complicated. So you really have to examine, as always is the case with the ADA, all of the given facts in a specific circumstance and situation.
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Well, that's it for this week's edition of Ask About the ADA. I hope you found this information helpful and useful to you. If you have any other questions about reasonable accommodation or what the ADA covers or does not cover, please feel free to reach out to us here at the Northeast ADA. You can call us at 1-800-949-4232. You can visit us on the web at northeastada.org and send us an email that way or just look at information on our website.
And of course, you can reach us on social media as well. Just look for on @northeastada Facebook, Twitter, LinkedIn, Instagram, all of the usual suspects in social media. So please reach out if there's anything that we can help you with or answer any questions for you. Let me thank Grace Fairchild, our producer, for making this podcast work and also Peter Quinn of the Yang-Tan Institute's media team for polishing things up and making us sound good and thank you for joining us and let's all continue this conversation together.
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