Personal Care Attendants

Avoiding Liability in Using Personal Attendants

The use of personal attendants is growing. The Department of Labor projects that Americans will employ 433,000 more attendants for home-based services by 2008, an increase of 58% over current levels. Personal attendants can help individuals with SCI become more active and independent and to realize their goals. Like any other resource, however, attendants need to be properly managed in order to provide the greatest potential benefit. The following guidelines can help you assure a satisfying relationship and avoid legal pitfalls.

Hiring the Personal Attendant.

Hiring attendants through agencies is costly and affords less control over the process. Hiring attendants directly places you in the daunting and probably unfamiliar role of being an employer. Either way, before retaining anyone, you should make a thorough inventory of your personal needs and desires. Consider all your options and all potential benefits. Would you like the attendant to provide personal care, homemaking services or transportation assistance? Based on your inventory, you should be able to determine the attendant's qualifications, requirements and wages. Your inventory will help frame any advertisements that you run for the position, any expectations that you create during the job interview, and any written contract that you may ultimately execute with the attendant.

Regardless of the skill level required, any candidates should meet certain minimum criteria: 1) they should be at least 18 years old (you cannot execute a legally enforceable employment contract with a minor); 2) they should possess a valid social security number (you will not be able to pay withholding or social security taxes otherwise); and 3) they should possess a driver's license and authorize you to perform a criminal check (you should have the local police investigate the candidate's background to protect your safety and others).

You should ask job applicants to bring at least two professional references to the interview. When interviewing applicants, be careful how you frame questions. It is illegal to ask candidates about their ethnic origin or background, nationality, race, political beliefs or source(s) of income. Certain other sensitive areas may be examined, but only if they legitimately affect the essential functions of the job. For example, you cannot legally ask candidates if they are married or have children, but you can ask them if work on weekends or holidays would pose a problem. Likewise, you cannot legally ask if candidates have a disability or pre-existing health condition, but you can inquire whether there is any reason why they could not help you transfer from a wheelchair. You cannot ask candidates their age, but you can obtain the assurance that they are 18 years or older.

If you extend a job offer, you may want the attendant to sign a written contract. The employment contract should specify the job duties, hours of work, days off, wages, and possible grounds for termination. The grounds for termination should be broadly phrased to permit discharge for any reason within your complete discretion.

Managing the Personal Attendant.

After hiring an attendant, it is important to provide proper training. Doing so prevents confusion if any performance-related controversy arises later. Proper training may also protect you from possible liability to third parties in case the attendant negligently injuries another while on the job.

An orientation program should include: a tour of the house showing where supplies and equipment are kept, a discussion of your disability and any specific health-related issues, and a review of expectations and specific duties. You should advise the attendant of any safety guidelines for disability-related equipment or household appliances involved. You should also discuss whether the attendant has the right to use any personal items in the household and what your ground rules are for privacy and confidentiality.

If you hired the attendant directly, you are the employer and the attendant is your employee. If you are using an agency, you are considered a supervisor, and you will still be expected to direct any work in your home, even though you are not the attendant's direct employer. In either instance, accurate record keeping is necessary for compensation and tax purposes. You may want the attendant to sign time sheets to verify the amount of hours he or she has worked.

The nature of attendant work often blurs the lines between employer/supervisor and employee. The attendant might be involved with many private, sensitive aspects of your life. You need to remember how your interactions with your attendant may be perceived. To protect yourself from possible liability, you must avoid conduct that could be considered sexual harassment or abuse.

Firing the Personal Attendant.

Sometimes even the best-laid plans do not work out. In addition, some people view attendant work as only a temporary occupation. Regardless of the reasons, you should always be prepared for the possibility that an attendant will leave your employ.

If the separation is initiated by you, you should be prepared in advance. Make sure that you have provided the attendant prior feedback about his or her job performance. Give the attendant an opportunity to improve. If the employee has not been able to improve, then you may wish to terminate him or her.

Unless your employment contract provides otherwise, attendants are generally considered "at will" employees and may be fired at any time for any reason, so long as the reason (for example, unlawful discrimination or retaliation) does not offend public policy. If a terminated employee might get upset and leave immediately, you should plan for a back-up. If there is a chance that the employee might become angry and put you at risk, arrange to have a third person attend the discussion. Before concluding the relationship, be sure to retrieve any keys in the attendant's possession.

You should probably terminate an attendant's employment immediately if he or she has stolen anything from you, been abusive or severely breached your employment contract. Any misconduct which violates the law should also be reported to the police. If immediate termination is not necessary, you may wish to give the attendant two week's notice to find a new position, provided continued employment would not make you uncomfortable. Take care before agreeing to provide a former attendant any job references. Cautious individuals will only verify a former attendant's dates of prior employment and will refrain from expressing any subjective opinions about job performance which might be considered defamatory or actionable.

Personnel attendants can be an excellent adaptive resource for attaining your fullest potential. While everyone's situation is different, the more time you devote to the process of hiring, training and supervising an attendant, the more likely you will be to have a beneficial and hassle-free relationship.