Appendix 212-C Risk Management Consumer Advisory Information | HCBS-5300-MANUAL

Area Agencies are encouraged to consult with their legal counsel and develop written advisory materials that Support Options Counselors can use to inform potential enrollees in consumer directed services, as well as their representatives, of practices as employers that will protect them from potential liability.^[1] Suggested content includes, but is not limited to information that covers –

Negligence in maintaining the workplace. As the consumer’s home is the workplace, s/he faces potential risk of personal liability for injuries sustained by individual workers s/he employs to provide care. Some workers, those defined as “domestic employees,” such as homemakers, are exempt from coverage for workers’ compensation. However, even exempt workers may seek compensation from the employer for injuries sustained as a result of a employer/homeowner’s creating or failing to correct hazardous conditions in the home. If the consumer/employer lives with a family member or friend who is the owner or renter of the consumer’s home, the family member/friend also may be liable for injury caused to any person, including an employee, invited into his/her home.

The legal principle of “duty of care” may be invoked: the consumer, as employer, has a duty to provide a reasonably safe work place. The owner of the premises where the provider works, who may or may not be the consumer, will also have a duty under premises liability law. Consumers and family members who own their own homes will want to verify the coverage against liability provided to them under their homeowners’ insurance policies.

Discriminatory employment practices. While federal and state laws prohibiting discriminatory employment practices generally apply to employers of 15 or more employees, nonetheless, participants in the state Consumer Direction Program are encouraged to avoid employment practices that may appear, or in fact, be discriminatory in nature. Georgia law prohibits discrimination in hiring based on someone’s age, having filed bankruptcy, having a disability, race, color, religion, national origin, and gender (with respect to both hiring and compensation). One exception regarding questions that an employer may ask a prospective worker involves the worker’s country of origin. Employers are required to hire only those employees who may legally work in the United States. For that reason, employers may ask if the prospective employee is eligible to work in the United States

While it is unlikely that a consumer would consider the age of an applicant an issue in hiring his/her workers, workers over the age of 40 are protected from discriminatory hiring practices. The law, however, does not prohibit interviewers from posing questions about age, but does prohibit discrimination on the basis of age, unless age directly affects the job. For example, an employer may rightfully inquire whether or not a job candidate meets the minimum federal age requirement for employment under child-labor law.

It is illegal to discriminate against an applicant on the basis of his/her religion. An exception to asking interview questions about the applicant’s religion may be when an employer has a specific religious orientation and might ask questions relevant to religious practices and beliefs. Employers may also contact people and organizations affiliated with an applicant’s religious beliefs, if those people and organizations were provided as references.

In general, employers may not ask questions related to an applicant’s family situation. However an employer legally may inquire whether the applicant has ever worked under a different name or whether s/he has personal responsibilities that could interfere with requirements of the job.

Under the Americans with Disabilities Act and Rehabilitation Act, employers may not discriminate on the basis of disability. However, an employer legally may ask whether an applicant has any conditions that would keep him/her from performing the specific tasks of the job for which s/he is applying. Agencies as employers often require that all job candidates for certain positions pass medical examinations that are relevant to the responsibilities of those jobs and may subject job candidates to drug tests or ask if they take illegal drugs.

A separate issue involving the workplace itself is that of avoiding the creation of a hostile work environment. This is a form of discrimination that includes harassment that creates an intimidating, offensive, abusive or hostile work environment for employees.

Support Options Counselors should advise the consumer/representative to avoid even the appearance of discrimination in employment decisions, including the need to be careful about making candid comments that might be misinterpreted or taken out of context.

Wrongful discharge and other employment issues. The philosophy that drives consumer direction holds that consumers have the authority to select and hire the workers of their choice, but at the same time, that they are able to discharge workers whenever the consumers become dissatisfied with the care they are receiving. Georgia is an “at will” state for employment, meaning that the consumer can generally lawfully discharge a worker at any time, or “at will.” Exceptions to this rule are when the employee has been provided a contract or some other evidence of a promise or guarantee of continued employment, or the employer’s reason for discharge is unlawful.

To be confident in their ability to hire and fire employees without facing potential legal problems, consumers should be advised to:

Since the doctrine of “at will” employment is based on the concept that employment is voluntary and indefinite on the part of both employer and employee, it is important that employment agreements also contain language that requires the employee to provide specific written, advance notice, of his/her intent to terminate the employment agreement.

Issues involving third parties. While most employees in the Consumer Directed Program will be classified as “domestic servants,” and thus excluded from coverage by Workers Compensation laws, there is still some potential for liability issues to arise when workers have contact with third parties who are not either the employer or his/her representative.

Worker is injured by a third party. This may be the most common situation, one in which a worker is injured by a third party while the work is acting within the scope of his/her job. For example, a worker is injured in an automobile accident while running an errand for her employer. While the “domestic servant” definition holds in this case and the worker is not entitled to workers compensation, she may bring a personal injury claim against the driver of the other car. However, if the other driver was not at fault, or was uninsured, and therefore “judgment proof,” the worker still may not receive any compensation for injuries sustained.

Worker causes injury to a third party. Also a common situation is an injury to a third party cause by the worker while acting within the scope of his/her job. In this instance the third party could seek compensation from both the worker and the consumer, under the argument that the employer is “vicariously liable” for any act of negligence or wrongdoing committed by the worker within the scope of employment. For example, a worker is operating the consumer’s vehicle to transport the consumer to a medical appointment. She parks the car, but leaves it running, while getting out to assist the employer from the vehicle. The car starts rolling and the consumer, still in the car, accidentally pushes the accelerator instead of the brake while trying to stop the car. The worker and a bystander are injured by the moving vehicle. The bystander sues the consumer as employer and the worker for damages. In this instance, if a provider, worker or consumer has significant assets that could be at risk, the provider or consumer should consider obtaining a personal liability umbrella policy or similar coverage against this type of claim.

Consumer injures a third-party and the worker is sued. This is a less common situation and one in which the worker is sued for the actions of the employer. A worker is hired to provide care for a consumer who uses a motorized wheelchair. The consumer strikes a third party while operating the wheelchair and the individual sues the worker for having failed to control the actions of the consumer. In this case it is unlikely that the third party could recover damages from the worker, since the consumer controls the relationship between herself and the worker, and, although the worker does have a duty to provide care to the employer, she does not have “custody” of the employer, and therefore cannot be held liable in this situation.

Breach of fiduciary duty. In addition to the areas of potential risk and liability that may apply to both consumers and authorized representatives, representatives also may be found to have a heightened “fiduciary duty,” to the consumer, particularly if the representative also has been appointed by the court as the consumer’s guardian. In those circumstances the representative owes a very high duty of care to the consumer, both to oversee the spending plan and to supervise support workers. The most blatant example of a breach of such duty would be the representative’s use of the consumer’s benefits or supports for the representative’s personal benefit. Because most representatives are friends or relatives of the consumer with a high level of commitment to the person, this type of situation is unlikely to occur.

Negligent hiring of a worker. If a representative is responsible for hiring workers to assist a consumer who exhibits any behaviors that could result in harm or injury to the worker, the representative should fully disclose to prospective employees the consumer’s behaviors that may cause harm. The representative faced with hiring support workers for behaviorally-difficult consumers also should obtain necessary assurances, primarily by checking references, that the worker(s) would be competent to supervise the consumer and ensure that such dangers and risks do not occur. Finally the representative should be careful to supervise and instruct the worker(s) on how to prevent the dangers and risks.

Liability as the employer of the worker. The representative will generally be considered to be the joint employer, or the sole employer of the worker, if the consumer is not able to self-direct his/her care. In that role the representative faces the same liability as the consumer as employer.

Liability for abuse, neglect, or exploitation of the consumer. The representative could be prosecuted if found to have abused, neglected or exploited the consumer. Also DAS policy treats the representative as a mandatory reporter to Adult Protective Services, when abuse, neglect or exploitation of the consumer by others is suspected by or evident to the representative.