On February 3, the White House announced a new guide for employers that provides a central repository of key federal and federally-funded resources for employing individuals with disabilities (the "Resource Guide"). The Resource Guide is a federal interagency effort, including the Equal Employment Opportunity Commission (EEOC), and a product of the Administration's "Curb Cuts to the Middle Class Initiative," created with the stated goal of increasing equal employment opportunities for individuals with disabilities. In addition to highlighting currently accepted best practices in hiring, retaining and employing individuals with disabilities, the Resource Guide also provides the Government's suggestions for employers to diversify their workforce to include more disabled individuals and to support current employees who have disabilities. While the Resource Guide offers valuable information for employers to implement effective practices when employing people with disabilities, the recommended best practices could make an already challenging area of employee relations more unwieldy.
The Resource Guide outlines three best practices sections:
- Recruiting candidates with disabilities
- Respecting, retaining and promoting employees with disabilities; and
- Providing reasonable accommodations.
Some of the best practices offered by the Resource Guide are those we currently encourage employers to incorporate into their policies and procedures. Some of the Resource Guide's suggestions, however, may require some thoughtful consideration based upon restrictions pursuant to the Americans with Disabilities Act (ADA) and some state/local laws regarding inquiring about an individual's disability status or any medical condition the individual may have. Nonetheless, the Resource Guide makes clear that employers are expected to take additional actions to hire, retain and promote disabled individuals (without running afoul of disability laws) by providing the following guidance:
In Section One (Recruiting), the Resource Guide details the following strategies to successfully recruit individuals with disabilities (emphasis added):
- Establish internal policies that prioritize hiring people with disabilities;
- Ensure hiring people with disabilities is a part of the company's overall hiring plan;
- Conduct targeted outreach to attract qualified candidates with disabilities;
- Develop community linkages;
- Retain and review applications from applicants with disabilities when future openings occur; and
- Ensure fully accessible online job applications and electronic and social media recruitment materials.
The Resource Guide also outlines specific steps to implement these strategies:
- Conduct targeted outreach with federal/state/local groups;
- Form community linkages or partnerships;
- Post job announcements in targeted spaces; and
- Start an internship program.
The Resource Guide also encourages employers to build a talent pipeline of young people with disabilities and veterans with disabilities and to take practical steps in the hiring process (advertisements, applications and interviewing) to ensure individuals with disabilities have equal access to opportunities. The Resource Guide reminds employers that they may invite applicants to voluntarily self-identify as an individual with a disability for affirmative action purposes. Federal contractors, subject to a written affirmative action program, have an obligation to invite applicants to voluntarily self-identify.
In Section Two (Respecting, Retaining & Promoting), the Resource Guide suggests an employer develop and implement retention strategies as part of its overall disability employment initiative to ensure the workplace embraces diversity and fosters inclusion, leading to increased productivity. Examples of programs an employer can create are orientation and on-boarding programs, career development programs, mentoring programs and employee resource groups. The Resource Guide then outlines specific resources to implement these types of programs to support employees with disabilities in the workplace.
In Section Three (Reasonable Accommodations), the Resource Guide reviews an employer's obligation to provide a reasonable accommodation to employees with disabilities. The Guide describes certain tax benefits and incentives that may be available to employers to help them offset the costs related to providing accommodations and for employers who hire veterans with disabilities. The Resource Guide lists the following as some common reasonable accommodation requests:
- Adjusting and modifying tests and training materials;
- Allowing the use of a job coach (paid by a public or private social service agency);
- Modifying or acquiring equipment or devices;
- Modifying policies or workplace rules;
- Modifying work schedules;
- Providing qualified readers or interpreters;
- Job restructuring;
- Leave (to recover from treatment or when a condition "flares up");
- Reassignment to a vacant position; or
While some of these examples of accommodations are not new to employers, a few of the examples will require a balancing of needs. For instance, allowing a job coach to accompany the disabled employee into the workplace may prove to be unreasonable for some employers. Also, with regard to providing leave for "flare ups," unlike intermittent leave available under the Family and Medical and Leave Act, the ADA does not require employers to completely forgo enforcing time and attendance policies, to allow open-ended schedules, or to accept irregular, unreliable attendance as accommodations, especially if time and attendance are essential functions of the job. Similar issues may arise when considering whether and to what extent job modification or restructuring should occur.
The final Section of the Resource Guide provides an overview of the two key federal laws on private sector employment of individuals with disabilities: the ADA and Section 503 of the Rehabilitation Act.
The Resource Guide is being provided by the Government as a centralized reference source for employers to create a more diverse and supportive workplace for individuals with disabilities. The Guide seeks to offer new best practices to navigate the various aspects of the ADA and other disabilities laws that can be difficult. As some of the suggestions provided in the Resource Guide may become expectations by the EEOC and other federal agencies, it will be important to take extra time and consideration in crafting and executing employment policies and procedures with the assistance of experienced counsel.
For More Information
For more information about this alert, please contact the author, a member of Polsinelli's Labor and Employment practice, or your Polsinelli attorney.