Tag Archives: disability

Depressing Statistics on Employment of People With Disabilities

An Associated Press story yesterday included some lousy news for those with disabilities (and their advocates): The percentage of people with disabilities who are in the work force has declined in the last four years, and hasn’t changed appreciably since the Americans with Disabilities Act (ADA) was passed 23 years ago. According to the story (here is the Washington Post’s version), only 18% of working age Americans with disabilities are, in fact, working, compared to 63% for those without disabilities. Not reported in the article, but just as depressing, is the disability wage gap: Full-time employees with disabilities earn $6,100 less per year, on average, than full-time employees who don’t have disabilities. (You can find this figure, along with piles of other disability statistics, in the Disability Status Report.)

Conjectures about what’s still holding back employees with disabilities range from employer prejudice and outdated attitudes to compliance costs. Here’s the thing, though: Studies show that compliance with the ADA — at least in the form of providing reasonable accommodations to allow those with disabilities to perform their jobs — is not that expensive after all. In 2009, the Equal Employment Opportunity Commission pulled together various statistics and studies on the cost of reasonable accommodations, as part of the process of drafting regulations to implement the Americans with Disabilities Act Amendments Act (ADAAA). Those studies show significant variations in the reported mean cost of an accommodation, ranging from $462 up to more than $1,400. Where the studies agree, however, is that many accommodations — the majority, in some studies — are free.

In response to reader questions and search popularity, we recently added a Reasonable Accommodations page, with articles on the right to accommodation and specific accommodations for a variety of disabilities. For detailed information on accommodations for dozens of disabilities, along with compliance assistance, check out the website of the Job Accommodation Network.

Pregnancy Leave in California

California has what are probably the most generous pregnancy and parental leave laws in the country. Employees are entitled to take a “reasonable period” of leave — up to four months — during the time when they are disabled by pregnancy, childbirth, or related conditions. This time off might run concurrently with an employee’s 12 weeks of allowed leave under the federal Family and Medical Leave Act (FMLA). However, it does not run concurrently with an employee’s right to take parental leave under the California Family Rights Act (CFRA). Leave for pregnancy-related disability is not covered by CFRA. Although this might at first glance sound ungenerous, the effect is the opposite: An employee who uses all four months of pregnancy disability leave is still entitled to 12 weeks of CFRA leave for parenting after the child is born.

And, California is one of only a handful of states that pay employees for this time off. California’s temporary disability insurance program, which covers pregnancy-related disability, pays employees up to 55% of their usual wages while they are unable to work due to pregnancy and childbirth. Once the employee has her child and recovers from giving birth, California’s paid family leave  (part of the temporary disability insurance program) kicks in, to pay benefits for six weeks of parental leave.

Last week, the California Court of Appeal for the Second District issued an opinion that might stretch these rights even further. The Court found that an employee who has used up her four months of pregnancy disability leave may be entitled to yet more time off, as a reasonable accommodation for a disability related to pregnancy. In this case (Sanchez v. Swissport), the employee had a very high risk pregnancy. She was put on bed rest almost eight months before her due date. Therefore, when she used up her four months of pregnancy disability leave, she was still months away from giving birth and finally getting out of bed. Her employer fired her after she exhausted her pregnancy disability leave and used up all of her accrued time off.

Sanchez sued, claiming that her employer fired her because of her pregnancy and should have given her additional time off as a reasonable accommodation for her disability. Although the trial court threw her case out, the Court of Appeal reinstated it. Even though the employer gave Sanchez the full four months of pregnancy disability leave required by law, the Court found that this fact didn’t conclusively defeat her claims. The right to pregnancy disability leave and the right to a reasonable accommodation are distinct: Fulfilling one doesn’t necessarily satisfy the other. As the Court pointed out, California’s Fair Employment and Housing Commission recently amended its pregnancy discrimination regulations to address this issue. (The regulation states that an employee who has used up her four months of pregnancy disability leave may yet be entitled to leave as a reasonable accommodation for a disability, whether or not that disability is related to her pregnancy.)

The Court of Appeal didn’t determine that Sanchez was entitled to additional leave: It decided only that she might be, and that she should have the opportunity to present facts supporting her claims. Her employer will also have this opportunity: It can argue, for example, that allowing Sanchez to take additional time off would pose an undue hardship, or that such an accommodation wouldn’t be “reasonable” under the circumstances. However, at least in the Second District of California (which includes Los Angeles), employers can no longer assume that a pregnant employee’s time off can be capped at four months of pregnancy disability leave plus three months of CFRA leave following childbirth for parenting.

Caring for an Adult Child Under the FMLA

This week, the Department of Labor’s Wage and Hour Division issued its first Administrator’s Interpretation of the new year. The Interpretation clarifies who qualifies as an adult “son or daughter” for whom an employee may take time off under the Family and Medical Leave Act (FMLA).

The FMLA allows employees to take time off to care for a son or daughter with a serious health condition. If the child is 18 or older, however, additional requirements apply. The child must not only have a serious health condition for which he or she is in need of care, but must also have a disability (as defined by the Americans with Disabilities Act) that renders the child incapable of caring for him- or herself.

These requirements were already in place, set out in the law and regulations. The Interpretation makes these additional points:

  • The adult child’s disability may begin after the child turns 18. Previously, there was some confusion about a parent could take FMLA leave to care for a child who became disabled as an adult or only for a child who was under the age of 18 at the onset of the disability. The Interpretation makes clear that the age of onset isn’t a factor. For example, an employee may take FMLA leave to care for a 30-year-old child who becomes disabled as the result of a car accident or cancer diagnosis. 
  • The more lenient standards adopted in the ADA Amendments Act (ADAAA) apply to the FMLA. The ADAAA eased the requirements for proving a disability in order to ensure coverage for more people. For example, a disease that would be disabling when active counts as a disability, even when it is in remission. (For more on the ADAAA, see Nolo’s article ADA Amendments:  More Protections Against Disability Discrimination.) This broader standard is to be used when determining whether an adult child has a disability.
  • Not every disability will qualify under the FMLA, however. The adult child must also be incapable of self-care, which will not be the case for every disability. Someone is incapable of self-care only if that person requires “active assistance or supervision” in at least three activities of daily living. These include basic activities such as grooming and hygiene, bathing, dressing, and eating. They also include things like cooking, shopping, maintaining a home, using public transportation, and so on. An adult child whose disability is in remission or controlled by medication may be fully capable of self-care; therefore, the child’s parent would not be entitled to time off under the FMLA.
  • Employees may be able to use regular FMLA leave to care for an adult child who is injured in military service. Currently, the FMLA gives employees whose children suffer a serious illness or injury while serving in the military the right to take 26 weeks of leave in a single 12-month period. However, this leave entitlement doesn’t renew every year, like the other types of FMLA leave (for which an employee may take only 12 weeks off per year). Unless the adult child suffers a new injury, or another of the employee’s children is also injured, the employee’s right to take 26 weeks off is a one-time-only entitlement. The Interpretation clarifies that an employee who has used up this leave may, in the following year, be entitled to take regular FMLA leave if the adult child’s serious injury qualifies as a disability and renders the child incapable of self-care. This will be a significant relief to parents of wounded service members, whose injuries often require extended or even life-long assistance.

You can find detailed information on every aspect of the FMLA, including how it dovetails with the requirements of the ADA, in The Essential Guide to Family and Medical Leave.

EEOC Guidance for Wounded Veterans

Last week, the Equal Employment Opportunity Commission (EEOC) issued revised versions of two of its publications interpreting the Americans with Disabilities Act for veterans with disabilities. The EEOC’s press release announcing the revisions include a forceful statistic: About 25% of recent veterans report having a service-connected disability. This is roughly twice the rate reported by all veterans. This change, along with the expansion of the ADA in the ADA Amendments Act, add up to a significant increase in the number of veterans who are protected by the ADA.

The broader definition of “disability” in the ADA Amendments Act to include impairments that limit major bodily functions (such as the proper working of the brain and neurological functioning) and to include episodic impairments that are disabling when active are particularly relevant to veterans. These changes mean that service-related injuries such as trauma to the brain and post-traumatic stress disorder will almost certainly qualify as disabilities.

The guidelines also provide detailed examples of reasonable accommodations for veterans with disabilities, such as:

  • providing a glare guard for the computer screen of an employee with a traumatic brain injury
  • providing a job coach or modifying supervisory methods for an employee who has difficulty with concentration and memory, and
  • modifying equipment and work space for an employee who uses a wheelchair.

In addition to the ADA, the guidelines provide information on the Uniformed Services Employment and Reemployment Rights Act (USERRA), affirmative action programs for veterans, and more.