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Legal E-Bulletin - May 2018

Integrated Employment Status

Andy Winnegar
Vinh Nguyen

On December 21, 2017 Attorney General Jeff Sessions rescinded 8 guidance documents related to the Americans with Disabilities Act (ADA) by the United States Department of Justice (DOJ).[1] The list included an October 31, 2016 statement by the department on the Olmstead integration mandate. The Attorney General has directed the department to reissue this statement with an express recognition of the importance of giving each person with a disability the right to choose the setting that best meets his or her individual needs. The Supreme Court’s decision in Olmstead v. L.C., 527 U.S. 581 (1999), ruled that the ADA prohibits the unnecessary segregation of persons with disabilities but still allowed individual choice.

The “right to choose" a segregated setting over a more integrated environment may indeed be the most appropriate setting if the person chooses this option.  However, individuals with intellectual disabilities or developmental disabilities may not have any choice in the placement decision. It is also a presumption  that they know what they need.  This premise is tricky of course in that they may not know what they need, and there could be times when their guardians may not have their best interests at heart.

The lobbying organization ACCSES which reports of its website  to represent 1,200 community organizations serving  individuals with intellectual and developmental disabilities has taken credit  for the recension of the guidance letter on the Olmstead integration mandate and a number of other delayed or modified federal integration rules and regulations .[2] Many of the community rehabilitation service providers represented by ACCSES receive federal contracts through Javits-Wagner-O’Day program operated under the US AbilityOne Commission, as well as, Medicaid funding from the Centers for Medicaid and Medicare Services (CMS), and State Vocational Rehabilitation Act funding through the Rehabilitation Services Administration of the US Department of Education. Most of the ACCSES represented organizations receive payment for residential, employment, and day services provided by a state in settings that could be interpreted as segregated under the Olmstead Mandate, CMS and other federal agencies.  The lobbying group is seeking greater regulatory flexibility to continue a business model which supports their operations.

The rescinded AG guidance letter specially stated, “It also violates the civil rights of individuals with disabilities, under the ADA and Olmstead, when such persons are unnecessarily segregated in facility-based day programs for all of their daytime hours,” and may also return to a segregated residential setting at night. [3] The regulation elimination environment under the Trump administration is perhaps also an opportune time to roll back competitive employment and workplace integration rules, according to an ACCESES website post.[4] Currently, ACCSES is advocating that its members to contact legislators to request that the Secretary of Education direct the Rehabilitation Services Administration to redefine their definition of "competitive integrated employment" under 34 CFR § 361.5(9) in the Workforce Innovation and Opportunity Act to include workers employed by community rehabilitation programs even if these workers are paid subminimum wages or work in segregated work settings.

Paying sub-minimum wages to Americans with disabilities has been legal under federal law since 1938. Under section 14(c) of the Fair Labor Standards Act (FLSA), employers are able to pay a wage below the federal minimum wage to workers whose work is affected by a mental or physical deficiency. The reduction in wage corresponds to the reduction in productivity as compared with a worker without a disability. This means that some disabled workers can make significantly less than the minimum wage, in some cases even less than a dollar per hour. Employers must obtain a certificate from the Wage and Hour Division to set a wage below the federal minimum. According to the U.S. Labor Department, the certificate program has been implemented in the employment of over 420,000 disabled Americans.

In 2014, President Barack Obama issued Executive Order 13658, which established a minimum wage for workers working on or under a contract with the federal government. The order specifically included disabled workers under purview of section 14(c) of the FLSA. While the executive order requires that all workers working on or under contracts of the federal government be paid a minimum of $10.15 per hour, the order did not inhibit the use of commensurate wages. Employers are still able to pay disabled individuals less than other workers as long as the wage remains at or above the $10.15 minimum. Recently Alaska joined New Hampshire and Maryland and adopted workplace integration and minimum wage regulations.  In Alaska workers with disabilities must be paid at least the state's $9.84 minimum hourly wage. The Alaska Department of Labor repealed the subminimum wage regulations that allowed employers to get an exemption to pay workers with disabilities less than the minimum wage if their disability limits their ability to get a job.[5]

The ADA generally prohibits discrimination on the basis of disability. It guarantees the right of individuals with disabilities to receive reasonable accommodations in order to work and participate in all aspects of society. In signing the law, President George H.W. Bush declared that the ADA would ensure people with disabilities “the opportunity to blend fully and equally into the rich mosaic of the American mainstream.”

Olmstead v. L.C. was one of the most important civil rights decisions for people with disabilities. Lois Curtis and Elaine Wilson were confined in institutions for many years even though their doctors believed they could receive appropriate care living in the community, and they sued the state of Georgia for community-based treatment options. The Supreme Court held that unjustified segregation of persons with disabilities constitutes discrimination and explained that “the most integrated setting” is one that “enables individuals with disabilities to interact with nondisabled persons to the fullest extent possible.[6] . Its holding "reflects two evident judgments." First, "institutional placement of persons who can handle and benefit from community settings perpetuates unwarranted assumptions that persons so isolated are incapable of or unworthy of participating in community life." Second, "confinement in an institution severely diminishes the everyday life activities of individuals, including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment."[7]

The ADA mandates that public entities to “administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.”[8] In June 2013, the Department reached an Interim Settlement Agreement with the State of Rhode Island and the City of Providence to provide relief to approximately 200 individuals with intellectual and developmental disabilities who received services from the segregated sheltered workshop and day activity service provider Training Through Placement, Inc., and the Harold A. Birch Vocational Program, a special education program which operated a segregated sheltered workshop inside a Providence high school. Under the agreement individuals will receive access to integrated supported employment and integrated day activity services, allowing them to become more active participants in the community. [9] The DOJ Consent Decree with Rhode Island further clarified the Olmstead employment integration mandate and provided detailed direction for the state supported day services which included employment placement for working-age adults with intellectual or developmental disabilities. It directed the state that,  “Integrated Day Services for working-age adults with I/DD must include an adequate mix of leisure, employment related, and daily life activities that are comparable to those activities engaged in by working-age non-disabled peers, and will include the availability of paid and natural supports.”[10]

Perhaps the most impactful DOJ Settlement regarding integrated employment was the 2015, Lane v. Brown (formerly Lane v. Kitzhaber) – 12-CV-00138 – (D. Or. 2012) with the State of Oregon to resolve alleged violations of the Americans with Disabilities Act and to provide relief that will impact approximately 7,000 Oregonians with intellectual and developmental disabilities (I/DD) who can and want to work in typical employment settings. As a result of the proposed settlement, over the next seven years, 1,115 working-age individuals with I/DD who are currently being served in segregated sheltered workshops will have opportunities to work in real jobs at competitive wages. Additionally, at least 4,900 youth ages 14 - 24 years old will receive supported employment services designed to assist them to choose, prepare for, get, and keep work in a typical work setting. Half of the youth served will receive, at a minimum, an Individual Plan for Employment through the State's Office of Vocational Rehabilitation Services.[11]

The U.S. Department of Labor’s Office of Disability Employment Policy defined integrated employment, as work paid directly by employers at the greater of minimum or prevailing wages with commensurate benefits, occurring in a typical work setting where the employee with a disability interacts or has the opportunity to interact continuously with co-workers without disabilities, has an opportunity for advancement and job mobility, and is preferably engaged full time. This definition aligns with the recent passage of the Workforce Innovation and Opportunity Act, which contains a similar definition for the term “competitive, integrated employment”.[12]

It now will be left to workers with disabilities, the courts and states to define policy that improves working conditions for individuals with disabilities. Private individuals may file a lawsuit for violation of the ADA’s integration mandate or a complaint about violations of Title II and Olmstead with the Department of Justice. According to a statement by the Equal Employment Opportunity Commission, The federal employment discrimination laws depend on the willingness of employees and applicants to challenge discrimination without fear of punishment.