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Are You Disabled? Your Boss Needs to Know New Regulations Require Federal Contractors to Ask Employees if They Have a Disability
March 18, 2014
Source: Wall Street Journal
Nearly a quarter of the U.S. workforce will soon have to answer a personal question from the boss: Are you disabled?
U.S. regulations going into effect next week require for the first time that federal contractors—a group that includes Boeing Co., Dell Inc. and AT&T Inc., among some 40,000 others—ask their employees if they have a disability.
Those that do not employ a minimum of 7% disabled workers, or cannot prove they are taking steps to achieve that goal, could face penalties and, in the most extreme cases, the loss of their contracts, according to a government official. The target applies to contractors with 50 or more employees or more than $50,000 in government work.
The Labor Department issued the rules as part of an effort to reduce the high jobless rate among people with disabilities; a similar initiative calls for an 8% hiring target for military veterans. Government officials say the targets are "aspirational" and not rigid quotas. Employees are not required to disclose their specific impairment.
Still, the rules have left contractors anxious about stepping on legal minefields. The Americans With Disabilities Act, or ADA, forbids companies to gather information on the disability status of workers, since the disclosures could lead to discrimination. The Equal Employment Opportunity Commission has made an exception so that federal contractors can comply with the new rules.
Now, these companies face a dilemma. If not enough workers come forward to self-identify as disabled, company recruiters will need to retool their hiring practices to show they are trying to meet the targets. But employees may be uneasy disclosing health-related information to their bosses.
"The word disability means you are not able to do something. People do not want to be perceived that way," said Joe Gavigan, a 37-year-old engineer at contractor GE Aviation. Mr. Gavigan was paralyzed in 1999 while a student at the U.S. Air Force Academy and later co-founded an employee resource group for individuals with disabilities at the General Electric Co. unit. "You do not want your boss to see you as being limited in your capability," he said.
A 2008 amendment to the ADA expands the definition of disability. Alongside long-recognized impairments like blindness, the list now includes conditions such as cancer, diabetes, major depression, epilepsy and obsessive-compulsive disorder. Under that broader definition, many large companies may meet or surpass the 7% target already, said Daniel Yager, president of the HR Policy Association.
The number of disabled workers will be accurately captured only if employees are willing to raise their hands and be counted.
"A lot of employees do not see those issues as being properly categorized as disabilities. They see it as something they have learned to live with," said Chris Miller, vice president of employee relations at electric-power utility Southern Co. , an Atlanta-based contractor with 26,000 workers.
At Intuitive Research and Technology Corp. in Huntsville, Ala., an engineering firm with contracts from the Department of Defense, 19% of workers have disabilities, said Juanita Phillips, director of human resources. Intuitive recruits and sponsors classes and lecture series at the nearby Redstone Arsenal, a U.S. Army post. The partnership helps Intuitive meet two compliance goals at once by hiring veterans, some of whom have disabilities because of military service-related injuries.
Still, Ms. Phillips said, "We have people who are visibly handicapped that choose not to self-identify as such."
The new guidelines were pushed in part by disability advocates, who say that previous government rules were ineffective at finding jobs for veterans and victims of illness or accident, even while technology has expanded the categories of jobs they are able to perform.
Individuals with disabilities had an unemployment rate of 14.3% in February, nearly twice that of the non-disabled population. They are more than three times less likely than other workers to be in the labor force at all, a figure that has hardly changed over the last five years, according to the Bureau of Labor Statistics.
But even some of the proponents of the rule admit that a groundswell of hiring from that pool is unlikely to occur if employers are able to prove that enough disabled workers are already on the payroll.
"Why have the target in there if it is not encouraging the hiring of people with disabilities?" asked Mike Aitken, vice president of government affairs at the Society for Human Resource Management.
Employers are gearing up now to implement the survey. Pharmaceutical giant Merck & Co., subject to the new rules because of supply contracts with the Department of Veterans Affairs and other agencies, plans to use its internal newsletters to address the changes with its 29,000 U.S. workers.
"We are putting our toe in the water on this and right now we are vetting" the materials, said David Gonzales, chief diversity officer. "Our focus is to make sure it is done in a very safe, private and confidential manner," he said, declining to provide further details.
While acknowledging that collecting the data is no easy task, Labor Department officials say the challenge itself will make workplaces more accommodating.
"It is a cultural change," said Patricia Shiu, director of the office that issued and oversees the rules. "Part of this is about creating an environment where people feel safe identifying that they are a person with a disability, that they will not be retaliated against if they ask for reasonable accommodations."
As a model, employers could look to their programs aimed at gays and lesbians, since sexual orientation, like most disabilities, is not apparent without some form of self-disclosure, said Jill Houghton, executive director of the U.S. Business Leadership Network, a nonprofit group that assists companies with hiring people with disabilities.
The government has also established language for the self-identification surveys, which includes examples of qualified disabilities that workers may not realize fall under the ADA, such as cancer and major depression.
The three options: "yes," "no," and "I do not wish to answer."
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