SUBMITTED BY VOR
Individuals with intellectual and developmental disabilities (I/DD) have found the services and supports they rely upon increasingly undermined by advocacy efforts meant to provide more community care options. The question arises, however, why does providing more community options come at the expense of closing equally important facility-based options that provide vital care to individuals with severe and profound disabilities?
Sheltered workshops and facility-based day programs are coming under increasing pressure by recent changes in federal law and litigation. It’s important to ensure the benefits of these programs are understood so that individuals who cannot handle and benefit from competitive work are not left unemployed and underserved.
What Sheltered Workshops Provide
Sheltered Workshops are private non-profit, state, or local government entities that provide employment opportunities for individuals with disabilities. Persons served in this environment may include those with developmental, physical, and/or mental impairments, ranging from mild to extreme/profoundly affected individuals. Sheltered workshops:
• Provide prevocational training, with the goal to prepare for competitive employment for available jobs in the open labor market
• Emphasize support of individual needs, based on ability to choose work activities that fit with a person’s skills
• Often include additional training in personal care, living skills and developing social skills
• Honor the depth and scope of the DD population, recognizing that some individuals may not ever be able to be competitively employed
After completing a rehabilitation program, many individuals are able to leave the workshop environment and enter regular employment, if there is a job available for which they qualify. Individuals unable to obtain regular employment because of the severity of their impairments or unavailability of jobs may remain in the workshop environment. Individuals performing services are paid a fraction of, or up to minimum wage, depending on their capacity to perform the services. 1
While work is the main focus at facility-based programs, sheltered workshops also provide opportunities for people with disabilities to challenge themselves, further their self-esteem and self-confidence, develop friendships and engage in their communities. Because of the supports and protections in place, those with more severe/profound impairments can find success in meaningful and productive activities that may not otherwise be possible for them in mainstream businesses. Sheltered workshops often include services emphasizing personal care, living skills, developing social skills, etc.
Individuals with disabilities too severe for sheltered work rely on day programs for community integration and meaningful and constructive activities during the workday. These programs are often facility-based and provide opportunities for building self-esteem, confidence, social skills and friendships important for both mental and physical health.
For those individuals with intellectual and developmental disabilities (I/DD) who enter the competitive workforce, specialized supports are often required to ensure a successful work experience. Proponents of “supported employment” contend that as long as the appropriate supports are in place, the goal of “real” employment should be achievable for everyone with a disability. While this is a laudable goal, society must recognize the pressures that exist in business that are driven by economic issues, deadlines and competition in the market. For many with I/DD, these realities interfere with their ability to maintain competitive jobs long-term and for a full eight-hour workday.
Eliminating Special Minimum/Commensurate Wages
Provisions for Special Minimum Wage Certificates, under the Department of Labor, Fair Labor Standards Act (FLSA) of 1938, Section 14(c), help people with disabilities obtain jobs in a competitive workforce. Employers who receive a certificate from the U.S. Department of Labor’s (DOL) Wage and Hour Division (WHD) have the ability to pay special minimum wages (below the federal minimum wage) to employees who have disabilities, if the disability affects job performance.2
This provision of the FLSA is often inaccurately referred to as offering a “Sub-Minimum Wage” in what appears to be an intentionally derogatory manner to dampen public support for the program. There have been formal attempts to eliminate Special Minimum Wage Certificates altogether. For example, H.R. 831 was a bill intended to phase-out special wage certificates under the Fair Labor Standards Act.
Efforts to end the provision of special minimum wage certificates could adversely affect individuals with significant and profound disabilities if they are unable to produce goods at the same rate as less disabled or non-disabled workers. Liability issues, and the additional costs involved with providing necessary specialized supports in the work environment can also become disincentives to hire individuals with the most significant needs. Offering a special minimum wage incentivizes and enables employers to provide employment to individuals with disabilities who may not otherwise be given the opportunity to work.
Why you Should Be Concerned
Many of the taxpayer-funded government agencies and nonprofit organizations that disparage Intermediate Care Facilities (ICF’s) as ”isolating” use the same criteria to stigmatize sheltered workshops. They deliberately disregard the importance of sheltered workshop—and facility-based day programs–to the portion of the I/DD population who depend upon them. These organizations, often taxpayer funded entities, have advocated and litigated against sheltered workshops in the same manner in which they have attacked ICF’s, despite the lack of employment opportunities for individuals with I/DD, and the fact that few employers have an incentive or the ability to hire individuals with profound disabilities. Integration into a non-disabled workplace is not the primary goal for all individuals with I/DD, and should not be given precedence over safety, productivity, or a sense of community among one’s peers.
The continued, and many believe intentional, misinterpretation of the Supreme Court’s Olmstead decision permeates numerous policies, including the Work Innovation and Opportunities Act (WIOA), which increases regulation on employers who pay a commensurate wage. WIOA prohibits employers from paying a subminimum wage to workers age 24 or younger unless the employer has “reviewed, verified, and maintained copies of documentation” that show that the youth has completed pre-employment transition services, vocational rehabilitation and career counseling. Adults over age 24 are also affected by WIOA. Employers cannot provide a commensurate wage to any adult unless the employee undergoes career counseling every six months during their first year of employment and on a yearly basis going forward. The employer must also provide “information about self-advocacy, self-determination, and peer mentoring training opportunities” to employees on an annual basis. 3
The fear for many is that increased regulation will make it harder and more costly for employers to provide sheltered work opportunities, thereby limiting options for individuals with severe and profound needs who are unable to successfully manage the transition to competitive work. While we all want individuals with I/DD to maximize their potential, a compassionate society also recognizes that the maximum will look different for each individual.
In its recently released 13-page Guidance document on Employment,4 the Department of Justice (DOJ) uses the word “segregated” or “segregation” no less than 40 times when referring to sheltered workshops. At the same time, it picks and chooses selective passages from Olmstead, deliberately ignoring those passages that address the needs of those individuals with disabilities who rely upon higher levels of care. In doing so, the DOJ marginalizes our most vulnerable citizens and even puts them at risk by ignoring warnings that permeate Olmstead’s majority and concurring opinions.
DOJ’s selective interpretation of the Supreme Court Olmstead Decision amounts to an unwarranted attack on the portion of the I/DD population with the most complex need, in that it eliminates the settings that best support them. The DOJ refuses to acknowledge that individual choice is paramount in both residential and employment options, and thereby violates the civil and human rights of vulnerable citizens by refusing to meet the need for a wide range of programs to support that choice. People with significant disabilities deemed not qualified to work would be forced to stay at home, receive no wages, and be denied the tangible and intangible benefits of work.
VOR believes in providing more, not fewer, work options and accommodations to address the diverse needs of individuals with I/DD. Expanding and encouraging competitive work opportunities for individuals that can benefit from them should be pursued, while vital existing services that are clearly meeting needs are retained.
There is a place for both integrated and facility-based employment services, as we as a society provide for the full continuum of care for individuals with disabilities as called for in the U.S. Supreme Court Olmstead decision.•
1. Social Security, Program Operations Manual System, RS 02101.270
2. Goodwill Industries, “Employment of People with Disabilities through FLSA Section 14 (c)
3. U.S. Department of Labor Wage and Hour Division Fact Sheet #39H
4. DOJ Statement on Application of Integration Mandate of Title II of the ADA and Olmstead to State and Local Governments’ Employment Service System for Individuals with Disabilities
5. CMS Fact Sheet: Summary of Key Provisions of 1915(c) HCBS Waivers Final Rule https://www.medicaid.
6. CMS, HCBS Final Regulations 42 CFR Part 441: Questions & Answers Regarding HCBS Settings
VOR’s mission is to advocate for high quality care and human rights for all people with intellectual and developmental disabilities.
VOR promises to empower individuals with developmental disabilities to make and protect quality of life choices.
Founded in 1983, VOR is a national 501(c)(3) organization governed by a volunteer board of directors and funded solely by dues and donations. VOR receives no government support.
Throughout its history, VOR has been the only national organization to advocate for a full range of quality residential options and services, including own home, family home, community-based service options, and licensed facilities. VOR supports the expansion of quality community-based service options; VOR opposes the elimination of specialized facility-based (institutional) option. Learn more at http://vor.net