Once Forbidden Question about Disability Now Has to Be Asked

Once Forbidden Question about Disability Now Has to Be Asked

This story from the Wall Street Journal notes that federal contractors will now have to ask their employees one question that used to be forbidden: Do you have a disability?

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 don’t employ a minimum of 7% disabled workers, or can’t 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.

That final caveat is important, since the rule will apply to even small businesses that get a local federal contract for services such a janitorial services or training services. The lower threshold of $50,000 is pretty low and could actually force some businesses to forgo government contract work.

While the regulatory goal of 7% disabled workers (and a concurrent set of regulations of 8% veteran employment) are intended to be “aspirational” the fact is that with it written in the Code of Federal Regulations and the requirement that a contractor demonstrate their efforts to achieve the goal, makes ignoring the regulation difficult.

But the requirement also opens a number of potential gateways to difficulty. For example, a person with a medical condition that generally does not impact their performance might be reluctant to to disclose the fact that they have a disability.

Alongside long-recognized impairments like blindness, the list now includes conditions such as cancer, diabetes, major depression, epilepsy and obsessive-compulsive disorder…The number of disabled workers will be accurately captured only if employees are willing to raise their hands and be counted…

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 cost of compliance might also increase for employers as well. If you are a small business with a federal contract, having employees disclose a disability might also result in the employer having to make accommodations under the ADA that might have been unncessary if the employee did not need an accommodation when their disability was a private matter.

The larger concern for small businesses in general might be two-fold. First, is this the proverbial camel’s nose? Second, is this encroaching on employees’ privacy rights.

Finally, the philosophical question that comes to mind, “if a person has a disability that does not affect their work, are they really disabled?”