Strategy & Insights - Department of Labor Funds Focus on Employment of Individuals with Disabilities

Adding to the increased federal emphasis on employment of individuals with disabilities, the Department of Labor recently announced that it was providing $2.1 million in funding to four organizations tasked with building national and local networks of experts skilled in connecting small employers with disabled individuals. This is the second round of funding through the Department's "Add Us In" initiative in an effort to expand job opportunities for persons with disabilities. "Add Us In" was designed to identify and develop strategies to increase employment opportunities within the small business community for disabled individuals. The four recipients – the Board of Trustees of the University of Illinois in Chicago, the National Organization on Disability in New York City, TransCen Inc. in Maryland, and Oakland's World Institute of Disability – will work collaboratively to create replicable models and strategies that can be used nationwide by employers to connect with and employ people with disabilities in their communities. The DOL's September 30, 2011 announcement comes on the heels of a similar announcement in late September awarding more than $21 million to seven states to fund its "Disability Employment Initiative," through which DOL hopes to improve education, training, and employment opportunities for disabled individuals who are unemployed, underemployed and/or receiving Social Security disability benefits.

Legal Protections Appear Necessary But Not Sufficient

While these announcements reinforce the current administration's commitment to providing equal employment opportunities to disabled individuals, they also tacitly recognize that the Americans With Disabilities Act ("ADA") and similar legislation has had only limited success in returning persons with disabilities to the workforce. Long-term unemployment and under-employment of these individuals was one of the original drivers of the ADA back in 1989. When Congress was deciding whether to amend the law in 2008, it expressed frustration that those figures had not changed materially. Despite recent amendments to the Act and updated regulations, the number of unemployed disabled individuals remains high. According to the Department's announcement, only 21% of individuals with disabilities participate in the workforce (compared to almost 70% of the non-disabled population), and the unemployment rate for disabled persons is almost twice that for the non-disabled: 16.1% versus 8.8%.

That is not to say the ADA has been ineffective. It has undoubtedly made a difference for millions of Americans, especially since employers now recognize that disability discrimination can trigger significant exposure. Most employers have consequently altered their policies and practices. Today, requests for accommodation are common in many workplaces, and many such requests are routinely granted. Nonetheless, extensive data from reliable sources show that millions of individuals with long-term disabilities remain outside the workforce. The Department's initiative recognizes this, and buttresses hope with targeted – albeit limited – funds.

Proactive Steps Towards Compliance And Inclusion

From a practical standpoint, it will take some time before the results of DOL's initiative are available to assist employers in hiring and advancing individuals with disabilities. In the meantime, employers can take several steps to help ensure that their recruiting and hiring practices attract qualified candidates with disabilities – and at the same time comply with the amended ADA and related nondiscrimination laws. These steps include:

• Reviewing your hiring practices to make sure they allow for and openly communicate the availability of reasonable accommodations in the application and testing processes;
• Reviewing your job descriptions to make sure they identify essential job functions (this helps candidates with disabilities better assess whether they can perform those functions, with or without accommodation);
• Reviewing your reasonable accommodation policy to make sure it clearly and effectively addresses the needs of disabled individuals within your workforce (in particular, the policy needs to explains how an individual should request accommodation);
• Providing training of management staff to ensure they generally understand the employer's policies and procedures for providing reasonable accommodations, as well as when to refer accommodation issues to Human Resources;
• Providing training to all employees regarding the employer's non-discrimination and anti-harassment policies that outline the employer's commitment to providing a fair, safe and equitable workplace for all employees.

By: Condon McGlothlen and Nicole Peracke

Condon McGlothlen is a partner in Seyfarth's Chicago office. Nicole Peracke is an associate in Seyfarth's Chicago office. If you would like further information, please contact your Seyfarth Shaw LLP attorney, or Condon McGlothlen at cmcglothlen@seyfarth.com, or Nicole Peracke at nperacke@seyfarth.com.