Ensure you’re compliant when hiring workers with disabilities and giving everyone equal opportunity to apply for your open positions.
As employers scramble to fill positions, they’ll need to look at a broader pool of talent in ways they might not have before. Among the pool of underutilized people are workers with disabilities, said Joshua Basile, community relations manager at accessiBe.
According to Basile, more than 61 million adults in the United States live with a disability. This means that 1 in 4 American adults have a disability. Of that number, 12.6% were unemployed in 2020, compared with 7.9% of people without a disability, reports from the U.S. Bureau of Labor Statistics (BLS) confirmed.
The BLS figures show that employers have a sizable talent pool of workers with disabilities to recruit and hire.
Legal protections for workers with disabilities
Congress passed the Americans with Disabilities Act (ADA) in 1990 to protect people with disabilities from discrimination in:
- State and local government
- Public accommodations
- Commercial facilities
Members of Congress also are subject to the ADA.
Civil rights law applies to employers with 15 or more workers in employment.
Employers must ensure they give people with disabilities equal opportunities in the application process.
Valerie Gonzalez, owner of San Gabriel Valley Law, PC, told Workest that employers have three basic requirements under the ADA when hiring people with disabilities:
- Ensure that they have equal opportunity in the application process
- Enable them to perform the essential functions of a job
- Allow them to enjoy equal benefits and privileges of employment
The ADA is clear about employers’ legal responsibility, said Gonzalez. The U.S. Equal Employment Opportunity Commission (EEOC) enforces the ADA.
Essential functions of the job
You must identify the job’s essential functions in the job description.To qualify for a position, all applicants must be able to perform the “essential functions” of a job, that is, the tasks that are fundamental to the position. The law steps in to protect workers with disabilities when it comes to whether they can perform essential functions.
Under the ADA, “essential functions” are a job’s basic tasks or the reason it exists. According to Gonzalez, employers must identify these functions in the jobs they’re filling and state them in detailed job descriptions.
ADA’s “reasonable accommodation” rule
The ADA defines reasonable accommodation as a “modification or adjustment to a job, the work environment, or the way things are usually done during the hiring process.”
Patrice E. LeTourneau, Esq., an employment lawyer with McCusker, Anselmi, Rosen & Carvelli in New Jersey, told Workest in an email interview that the ADA affirmatively requires employers to make reasonable accommodations for an employee’s or applicant’s known disability unless it would pose a unique hardship to the employer.
A list of reasonable accommodations
Here are reasonable accommodations that employers can provide new hires:
- Reserving a parking space
- Changing job tasks
- Improving workspace accessibility
- Making software, equipment, or product adjustments
- Changing test and training presentations
- Providing a flexible work schedule
- Reassigning a new hire to a vacant position
Employers often overlook the need to make their websites accessible to job seekers with disabilities.
“The fact that small businesses feel overwhelmed has led to less than 2% of the Internet meeting accessibility guidelines,” said Basile. “As a person with quadriplegia paralyzed below my shoulders, it breaks my heart [to know] that 98% of the Internet is not accessible. It is so important for small businesses to recognize that web accessibility does not have to be overly complicated, overly burdensome, or overly costly.”
Other laws protecting workers with disabilities
Besides the ADA, four other federal laws protect people with disabilities from employment discrimination:
- Rehabilitation Act
- Workforce Innovation and Opportunity Act
- Vietnam Era Veterans’ Readjustment Assistance Act
- Civil Service Reform Act
Employers must know what laws their own states and local governments may have to protect workers with disabilities.
The penalties for non-compliance
“Under the ADA, the amount of compensatory and punitive damages is capped depending on the size of the employer; however, these damages alone can be steep for many small businesses,” said LeTourneau. “For example, compensatory and punitive damages are capped at $50,000 for employers with 15-100 employees, $100,000 for employees with 101-200 employees, and $200,000 for employers with 201-500 employees.
You must post an anti-discrimination disability notice in the workplace or risk paying a penalty.
Also, employers could pay a $559 penalty for not posting an anti-discrimination disability notice in a visible area of the workplace, as required by law, LeTourneau added.
LeTourneau said that federal, state, and local government regulations, laws, and reporting requirements change constantly. Therefore, SMBs must keep up with the changes.
The payoff for hiring workers with disabilities
Research shows DEI pays off financially for companies. For example, an Accenture study found that companies with expansive disability hiring practices had a 28% hike in revenues and a 30% increase in their profit margins in four years.
“The bottom line [is that] there are so many ways workers with disabilities can contribute to businesses,” said Basile. “These workers are natural problem-solvers because they’ve had to navigate and overcome barriers daily.”
Best business practices
LeTourneau recommends these best practices for ensuring compliance:
- Adopt policies that address discrimination, retaliation, and accommodations for employees or applicants with disabilities.
- Review these policies regularly.
- Train supervisors in regularly implementing and enforcing these policies.
- Provide all employees with the policies and required postings.
- Regularly remind employees of the importance of following company policies and the consequences for not doing so.