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Should employers be all that concerned about hiring workers with disabilities?

October 31st, 2012  |  Pamela Wolf

As National Disability Awareness Month comes to a close, consider taking a moment to examine your own perceptions, and perhaps, misperceptions, about individuals with disabilities. As the Equal Employment Opportunity Commission (EEOC) continues to ramp up its fight against employment discrimination based on disability, employers are at times concerned and confused about the dos and don’ts related to this particular workforce population. On the other hand, there is increasing evidence that the challenges may be overrated.

Increasingly, employers are establishing initiatives to include participation of individuals with disabilities in their companies as part of workforce planning and diversity strategies, according to a research brief published jointly by the John J. Heldrich Center for Workforce Development and the Kessler Foundation. The brief cites a Society of Human Resources Management survey indicating that almost two-thirds of organizations include individuals with disabilities in their diversity and inclusion plans. Walgreens has met and exceeded by 10 percent its goal of having 30-percent of the workforce at its high-tech distribution centers in Anderson, South Carolina and Windsor, Connecticut be comprised of workers with disabilities, according to the brief.

Compliance challenges. Yes, there are challenges. Federal and state law compliance-related issues may be confusing and challenging for employers. Here are a few tips gleaned from recent developments:

Diploma requirements and disabilities. Under the Americans with Disabilities Act (ADA) a high school diploma requirement may be a problem for an applicant who was unable to graduate due to a disability. But as an EEOC informal discussion letter points out, the applicant must prove that it was actually her disability that prevented her from graduating, not some other reason such as her choice not to complete course requirements. An employer may defend the requirement by showing that it is job-related and consistent with business necessity. However, even when this standard is met, the employer may be required to permit the applicant to demonstrate her qualifications for the job by alternative means as a reasonable accommodation. The employer is not required, however, to provide a reasonable accommodation that creates an undue hardship (significant difficulty or expense). And, an employer is not required to hire an applicant with a disability if another applicant is better qualified.

Job safety standards. With regard to job safety requirements, the ADA “direct threat” standard applies. A “direct threat” is “a ‘significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation,’” according to an EEOC letter addressing regulations pertaining to a commercial motor vehicle (CMV) drivers license. The determination as to direct threat “must be based on an individualized assessment in accordance with ‘the most current medical knowledge and/or on the best available objective evidence.’” In this case, the EEOC letter questioned the appropriateness of a forced whisper hearing test used as a qualification standard for obtaining a CMV drivers license.

Burdening non-disabled workforce. Employers are not generally required under the ADA to burden the entire workforce to accommodate an individual’s disability. For example, a federal court in Ohio recently found that an employer was not obligated to provide a fragrance-free work environment as a reasonable accommodation to an employee with a fragrance sensitivity. The court pointed to Sixth Circuit precedent holding that a fragrance-free workplace was objectively unreasonable and recognizing the burden such a broad policy would have on individual employees who would have to alter all of their personal habits to ensure that all products of daily-living, used in their private homes before coming into the workplace, were fragrant-free (Core v Champaign Cnty Bd of Cnty Comm’rs, October 17, 2012, Black, T). There is nothing in the ADA to suggest that the non-disabled population is expected to give up or substantially alter their lifestyles, concluded the court.

Domestic violence, sexual assault, stalking. Be aware of potential ADA issues when an applicant or employee has experienced domestic or dating violence, sexual assault, or stalking. An EEOC fact sheet outlines several circumstances that may trigger ADA issues, such as when an employer learns that an applicant was a complaining witness in a rape prosecution and received counseling for depression, or when an employee requests a schedule change or unpaid leave to get treatment after being sexually assaulted by an intruder in her home.

Plenty of reasons to hire workers with disabilities. For sure, there will continue to be challenges related to workers with disabilities and ADA compliance. But there are also plenty of reasons why employers should consider tapping into this particular population when employment opportunities arise. Keep in mind, too, that the challenges may not be as great as you fear.

Inclusion as a corporate value. One obvious reason to hire individuals with disabilities is that it’s the right thing to do. Corporations have much to gain by refusing to exclude this substantial portion of the workforce due to outdated and inaccurate stereotypes. And technology has come a long way in terms of reducing and overcoming barriers posed by many types of disabilities. Moreover, cultivating a corporate culture of inclusion has its own rewards both internally and externally, in the marketplace as well as among the pool of potential new-hires, who may appreciate forward-looking corporate social responsibility.

Tax incentives. According to Think Beyond the Label (TBTL), there are many other reasons to hire individuals with disabilities. These include the Small Business Tax Credit, the “Disabled Access Credit,” and the Work Opportunity and Tax Credit for Employers.

Costs can be insignificant or non-existent. TBTL also believes that labels get in the way, but disabilities rarely do. For employers concerned about the costs of hiring individuals with disabilities, TBTL says that among the minority of workers with disabilities who need some type of special equipment or accommodation, 56 percent of these cost less than $600, and many cost nothing at all. TBTL also cites studies showing that workers with disabilities have absentee rates that are no greater than those of employees without disabilities. For employers that want to check out the bottom line, TBTL also provides a return-on-investment calculator.

All things considered, employers could make a far worse investment.