Accommodating Invisible Disabilities in the Workplace

Morgan Jones-Axtell, Staff Attorney, Eastern Region Office

The word disability often evokes images of ramps, long white canes, or assistive devices. However, there are a vast number of invisible disabilities that encompass physical, mental, or neurological impairments that are not easily perceived, such as epilepsy, HIV, or anxiety disorders. People with invisible disabilities encounter unique challenges compared to workers with visible disabilities, including challenges associated with disclosing their disability in the workplace, stigma, and obtaining reasonable accommodations guaranteed by the Americans with Disabilities Act (ADA). For example, to obtain reasonable accommodations under the ADA, which defines a disability as any “physical or mental impairment that substantially limits one or more major life activities[,]” people with invisible disabilities must disclose their disability. In the workplace setting, disclosing can be stigmatizing, particularly if others perceive accommodations as unfair given the invisible nature of the condition. Approximately 88 percent of people with an invisible disability had negative views about disclosing their disability to their employer. Some may fear being inaccurately stereotyped as lazy, slow, or incapable. This negative stigma discourages people with invisible disabilities from disclosing and seeking the necessary accommodations, which can interfere with their ability to succeed.

Workplace accommodations are not gifts or competitive advantages to those with disabilities—accommodations merely attempt to level an uneven playing field. Laws and employer policies should focus on equity (i.e., providing employees with disabilities the accommodations necessary to allow them to do their job), instead of equality (i.e., treating every employee the same). This approach recognizes that each employee has different circumstances and that allocating necessary resources achieves fairness. Examples of accommodations for invisible disabilities may include:

• An employee with ADHD requiring a workplace with fewer distractions.
• An employee with arthritis requiring an ergonomic chair.
• An employee with chronic dizziness requiring a stool if typically required to stand.

Approximately 61 million U.S. adults have a disability that impacts major life activities, and the U.S. Bureau of Labor Statistics reported that only 17.9 percent of people with disabilities were employed in 2020. Despite the ADA, disability remains a barrier to employment for millions of people. While changes to workplace policies that favor flexibility can allow people with disabilities to function better at work, true accommodation requires a shift in attitude to view disability as a valuable form of diversity instead of a liability. A study from the U.S. Department of Labor’s Office of Disability Employment Policy (ODEP) found that employers who embrace disability as part of their overall talent strategy benefit from improvements to employee retention, safety, and productivity.

Employees with a disability do much more than tick a diversity box; they are under-recognized, under-utilized, and deserve a seat at the table. The current legal approach to managing diversity (including invisible disabilities) generally elicits a reactive and bare-minimum level of compliance from employers. A more proactive approach would focus on creating an inclusive work environment rather than merely avoiding discrimination lawsuits. Policies and legislation should specifically address invisible disabilities, which have been minimally accounted for in current policies as compared to other medical conditions. A community and policy-based effort is required to discard ableist perspectives, embrace a more considerate approach to disability, and provide the necessary accommodations that people with disabilities need to succeed. Advocates from the disability community are vital to this discussion as they can accurately portray their experience and provide insightful leadership for meaningful change.

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How the ADA Discriminates Against People with Substance Use Disorder

Amy Lieberman, Senior Attorney, Southeastern Region Office

The ADA provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” Substance use disorder (SUD) is considered a disability under the ADA if it impacts a person’s major life activities, if the person has a history of SUD, or if a person is regarded as having an SUD. However, an individual with a qualifying SUD disability is generally ineligible for the ADA’s protections if they are currently using illegal drugs. As a result, individuals with an SUD who seek to reduce the harm associated with the current use of drugs by accessing syringe services programs (SSPs), which generally provide sterile drug use supplies, naloxone, and other services, are not protected by the ADA. Leveraging this carve-out in ADA protection, some localities have passed laws banning or restricting SSPs—laws which likely would be illegal if the ADA protected people who are currently using illegal drugs.

Ideally, the ADA would protect persons with SUD from disability discrimination by public entities. Even under the current language of the ADA, the illicit drug carveout is not supposed to be used to deny an individual “health services, or services provided in connection with drug rehabilitation, on the basis of the current illegal use of drugs if the individual is otherwise entitled to such services.”  SSPs surely provide health services, and many provide connections to drug rehabilitation services as well. Courts have found that the ADA clearly prohibits laws banning or restricting the location of SUD treatment services such as methadone clinics, but it is not yet clear whether the ADA similarly prohibits laws banning SSPs. In the absence of an ADA challenge to laws restricting SSP operation, it is unclear how a court would interpret the definition of health services or the “otherwise entitled” language in the SSP context. To address this ambiguity and ensure that people who use drugs are able to access lifesaving supplies from SSPs, Congress should modify the ADA to ensure that everyone—including individuals with an SUD who are currently using illicit drugs—benefits from its protections.  

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Phasing Out the Subminimum Wage for Workers with Disabilities

Susan Fleurant, Senior Legal Researcher, Mid-States Region Office

Section 14(c) of the Fair Labor Standards Act authorizes approved employers to pay wages below the legal minimum wage to workers with disabilities. The objective of the 14(c) program was to give people with disabilities an opportunity to learn job skills before transitioning into integrated employment; however, many workers never receive support for this transition. A 2020 report by the U.S. Commission on Civil Rights calls for the elimination of subminimum wages as the 14(c) program has failed to realize its intended promise while perpetuating poverty and isolation for people with disabilities.

The vast majority of 14(c) certificate holders are community rehabilitation providers operating programs for individuals with disabilities. Between 2017 and 2018, the average hourly wage of an individual working for an employer under a 14(c) certificate was $3.34. The federal minimum wage is $7.25. Wages are calculated based on an individual worker’s productivity in proportion to a standard of productivity for workers without disabilities performing the same type of work. Subminimum wages reinforce stereotypes of workers with disabilities as less capable and unworthy of integrated employment and fair compensation.

In 2015, states began phasing out the subminimum wage. While the number of people with disabilities receiving subminimum wages is declining, the federal government estimates that over 100,000 people continue to receive the exploitative wages. Among the states that have eliminated the subminimum wage are New Hampshire and Maine while Oregon, Colorado, and Minnesota are phasing out the subminimum wage over the next few years. Other state legislatures have taken similar actions, yet employers in most states can still legally pay workers with disabilities a subminimum wage, as low as pennies per hour, for work often conducted in segregated settings.

Transitioning workers with disabilities to integrated employment with competitive wages can advance their dignity, self-reliance, and independence. Investments in job training, employment opportunities, accommodations, and supports are necessary to provide options for all individuals with disabilities who want to pursue integrated employment. Workers’ rights movements must not leave workers with disabilities—including those working for subminimum wages in sheltered workshops—behind.

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Police Violence Against People with Disabilities

Colleen Healy Boufides, Deputy Director, Mid-States Region Office

In the United States, people with disabilities are more likely than people without disabilities not only to be arrested, but also to be involved in lethal encounters with police. In fact, it is estimated that between one-third and one-half of lethal encounters with the police involve a person with a disability—even though only about a quarter of U.S. adults have a disability. In addition, a recent study estimated that people with disabilities are significantly more likely to be arrested by age 28 (42.65 percent) as compared to people without disabilities (29.68 percent), and that the probability of arrest is higher for Black people with disabilities (55 percent), and higher still for Black men with disabilities (65.73 percent). The risk of arrest likely varies depending on the type of disability, too—for example, “people with autism spectrum disorders are seven times more likely to interact with police over their lifetimes, compared with people without a cognitive disorder.” Although recognized and lamented by disability advocates, the extent of the problem is poorly understood by the general public due to a lack of data—especially data that can link race and disability—and poor or nonexistent media coverage of victims’ disabilities.

One of the key legal issues arising in this context is whether and how the ADA applies to arrests. Title II of the ADA prohibits public entities from discriminating against a person because of their disability, including by failing to reasonably accommodate their disability. Courts have recognized at least two types of Title II claims relating to arrest, including wrongful arrest (when a person’s disability is misperceived as criminal activity, leading to their arrest) and reasonable accommodation (when a person is properly arrested for a crime unrelated to their disability, but the police fail to reasonably accommodate the person’s disability during the arrest). Although several federal appeals courts have addressed these types of claims, the U.S. Supreme Court has not and, as a result, different approaches exist across the country. For example, while the Fifth Circuit has held that Title II does not apply to an arrest until the officer has “secur[ed] the scene and ensur[ed] that there is no threat to human life,” other Circuits have held that the ADA applies to an arrest but that exigent circumstances inform the reasonableness of an accommodation. Thus, there needs to be clarification—whether through federal legislation, rulemaking, or the Supreme Court—that “there is no police exception to the Americans with Disabilities Act.”

The appalling frequency with which people with disabilities—and especially Black people with disabilities—become victims of police violence is among the most horrific consequences of our nation’s ugly history of racism and ableism. It is essential that conversations about policing reforms account for and address the disproportionate police violence experienced by people with disabilities and the intersectional identities of victims of police violence.

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Assistance Animals on Airplanes: One Step Forward, Two Steps Back

Sandra H. Sulzer, Legal Researcher, Mid-States Region Office

People with disabilities face tremendous stigma when they engage in routine daily activities, including airline travel. In an infamous 2018 news story, a passenger at the Newark, New Jersey airport tried to bring an emotional support peacock on a flight. Picked up by the Associated Press, Dexter the peacock became a ubiquitous symbol of a perceived growth in “fake” assistance animals, while also galvanizing disability rights activists.

Following the controversy, Congress asked the Department of Transportation (DOT) to revisit the definitions of service animals and emotional support animals included in rules promulgated under the Air Carrier Access Act (ACAA). Much of the impetus for the change was the growth in airplane incidents that involved animals. Since 2018 United Airlines has reported a 75 percent annual increase in customers bringing emotional support animals on board, as well as an increase in incidents caused by those animals. Delta reported an 84 percent increase in animal-related on-board incidents since 2016, ranging from urination to biting. While exotic animals that could pose a public health risk have never been permitted on flights as emotional support animals under the ACAA regulations, animals perceived as exotic or fraudulent nonetheless overtook the media spotlight. With the controversy framed around passenger safety and alleged assistance animal fraud, DOT developed new ACAA regulations to address what kind of assistance animals should be allowed on flights.

Missing from this initial congressional charge was an emphasis on the 25.5 million Americans who have travel-limiting disabilities, or that passengers with disabilities have long reported cases of persistent discrimination in air travel. While many agreed that the rules needed revisions due to inconsistencies in federal disability laws and possibly discriminatory impacts, the impetus for revisions did not center on the needs of passengers with disabilities. Rather, the rulemaking process centered on the profit motives of airlines (the notice of final rule cites lost revenue due to perceived fraudulent assistance animals) and endorsed common stereotypes that service animals are limited to certain kinds of dogs for certain kinds of disabilities (such as a guide dog). Meanwhile, no data proved that there was a rash of false assistance animals on planes, or that the number of animals on planes exceeded the number of people who should qualify to have one.

As a result, the January 2021 regulations present a mixed bag that can best be characterized as one step forward, two steps back in terms of the fundamental right of persons with disabilities to travel freely. Under the revised ACAA regulations, a service animal is “a dog, regardless of breed or type, that is individually trained to do work or perform tasks for the benefit of a qualified individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability.” Positive developments include that airlines can no longer request additional documentation of a disability from persons with mental health disabilities, and they can no longer require persons traveling with a service animal to arrive early or turn in paperwork in person. (Furthermore, the forms that can be submitted have been standardized by the DOT, simplifying the process across carriers.)  

There are two major negative developments. First, emotional support animals (ESA’s) are no longer considered assistance animals under the ACAA, meaning that a large class of persons with disabilities who may need to travel to a work interview, to see family, or who simply wish to vacation without leaving behind their needed accommodation will face either outright bans or pet fees to travel. Importantly, some advocates argue that the distinction between ESA’s and service animals is inherently discriminatory against persons with invisible disabilities. Second, miniature horses were excluded as a category of service animal, even though they are recognized as one of the two species of service animals protected by the ADA. Often used for mobility issues and balance, this is a step backward from the previous regulations which limited animals based on their ability to fit on the plane, be housebroken, and meet other space considerations, rather than disqualifying entire species.

The new ACAA regulations define service animals as trained, task-assistance dogs, limiting the types of assistance animals permitted on planes more strictly than in any other setting. While this may achieve some positive public health ends, such as a reduction in dog bites for airline staff or passengers, it also represents a step backwards for the mobility of persons with disabilities. New regulations have yet to be fully implemented given their recency and the decline in pandemic travel, so the consequences are not fully evident. However, programs that focus on incentivizing pet owners for responsible travel alongside education to better inform the public about disabilities would likely be more productive uses of federal resources. The goal of reducing discrimination toward persons with disabilities would be better served by shifting the conversation away from stereotypes about what disabilities and service animals look like and toward an assumption of legitimacy when service animals are in public spaces.

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Investments in Medicaid Home and Community-Based Services

Susan Fleurant, Senior Legal Researcher, Mid-States Region Office

Under federal law, any state that receives federal Medicaid funding must provide institutional long-term services while most home and community-based services (HCBS) are optional. Because of this institutional bias, older adults and people with disabilities often unnecessarily end up in nursing homes because community-based options are limited. Over three quarters of adults aged 50 and older want to stay in their communities as they age, but current policies and funding shortages prevent them from realizing those preferences.

HCBS are typically provided through Medicaid Waivers under section 1915(c) of the Social Security Act. These waivers allow states to waive traditional Medicaid rules which prohibit enrollment caps; in other words, states may implement enrollment caps for HCBS. As a result, over 800,000 older adults and people with disabilities are on HCBS waiting lists across the country, either seeking to leave institutions, receiving care from family members and other caregivers, or otherwise waiting to receive state services. Long-term investments in HCBS are necessary to advance the ADA’s integration mandate and promote the health and wellbeing of older adults and people with disabilities. In particular, investments are needed for the recruitment, training, and retention of the direct care workforce—a sector that experiences severe worker shortages in part due to poverty-level wages.

The 2021 American Rescue Plan Act, part of the federal response to the COVID-19 pandemic, included increased federal matching funds for HCBS through March 31, 2022 to states that agree to supplement, rather than replace, existing state funds. The 10 percent increase provides a temporary boost in resources available to support community-based services—which are acutely critical during a pandemic that has disproportionately infected and killed individuals residing in institutions and congregate care settings. The House of Representatives recently passed the Build Back Better Act, which provides $150 billion for HCBS, including workforce investments and a 6 percent increase in federal matching funds. The Act awaits a Senate vote. Though a much lower investment than the previously proposed $400 billion, if the House version of the Build Back Better Act is signed into law it will represent a historic investment in HCBS.

The Network for Public Health Law provides information and technical assistance on issues related to public health. The legal information and assistance provided in this document do not constitute legal advice or legal representation. For legal advice, readers should consult a lawyer in their state.

Support for the Network is provided by the Robert Wood Johnson Foundation (RWJF). The views expressed in this post do not represent the views of (and should not be attributed to) RWJF.