Although a growing number of disabled Americans are finding jobs, disabilities continue to be an obstacle to obtaining employment for many.

The unemployment rate among disabled individuals decreased to 9.2 percent in 2017, down from 10.5 percent in 2016, according to the Bureau of Labor Statistics, and employers also are increasingly hiring disabled employees to perform certain job duties.

As a way to create more opportunities for people with disabilities, the Equal Employment Opportunity Commission (EEOC) adopted a new federal civil rights law that requires federal agencies to engage in affirmative action hiring practices and actively seek to hire individuals with disabilities and “targeted” disabilities.

The new rule amends the regulations implementing Section 501 of the Rehabilitation Act of 1973, which prohibits federal agencies from discriminating against job applicants and employees based on disability. Effective January 3, 2018, it directs that agencies of the federal government must:

• adopt employment goals for individuals with disabilities, with sub-goals for individuals with targeted disabilities;
• provide personal assistance services (PAS) to certain employees who need them because of a disability; and
• meet a number of other requirements designed to improve the recruitment, hiring, retention, and advancement of individuals with disabilities in the federal workforce.

Using the Americans with Disabilities Act (ADA) definition, the EEOC defines a disability as:

“a physical or mental impairment that substantially limits one or more major life activities, a person who has a history or record of such an impairment, or a person who is perceived by others as having such an impairment.”

A condition does not have to be permanent or severe to be an ADA disability.

“Targeted disabilities” are a subset of the larger disability category, according to the EEOC. The federal government has recognized that qualified individuals with certain disabilities, particularly manifest disabilities, face significant barriers to employment, above and beyond the barriers faced by people with the broader range of disabilities, according to the EEOC. As listed by the EEOC, targeted disabilities include:

• developmental disabilities (for example, cerebral palsy or autism spectrum disorder);
• traumatic brain injuries;
• deafness or serious difficulty hearing, benefiting from, for example, American Sign Language;
• blindness or serious difficulty seeing even when wearing glasses;
• missing extremities (arm, leg, hand and/or foot);
• significant mobility impairments, benefitting from the utilization of a wheelchair, scooter, walker, leg brace(s) and/or other supports;
• partial or complete paralysis;
• epilepsy and other seizure disorders;
• intellectual disabilities;
• significant psychiatric disorders (for example, bipolar disorder, schizophrenia, PTSD, or major depression);
• dwarfism; and
• significant disfigurement (for example, disfigurements caused by burns, wounds, accidents, or congenital disorders).

The rule requires federal agencies, as an aspect of affirmative action, to provide PAS to employees who need them because of a targeted disability, unless doing so would impose an undue hardship on the agency.

PAS are non-medical services, and can include helping an individual take off and put on a coat, eat, and use the restroom. These services are needed by individuals whose specific disabilities make it difficult for them to perform such activities on their own.

Agencies are also called on to set overall goals for the percentage of people with disabilities in their workforce. It does not require agencies to establish a preference for hiring people with disabilities.

According to the Bureau of Labor Statistics:

• People with disabilities tend to be older than those with no disability, reflecting the increased incidence of disability with age.
• In 2017, 48 percent of people with a disability were 65 and over, compared with 16 percent of those with no disability.
• Women are somewhat more likely to have a disability than men, partly reflecting the greater life expectancy of women.
• In 2017, the prevalence of disability continued to be higher for blacks and whites than for Hispanics and Asians.

Discrimination on the basis of any disability continues to be prohibited, and the standards for determining whether a federal agency has discriminated on the basis of disability are the same ones that apply under the ADA.

The new regulations only apply to the federal government, not state or local government or private businesses. Employers or employees seeking more information about the rules related to hiring people with disabilities should contact a labor and employment attorney.

Allen A. Shoikhetbrod, Esq. is an attorney at Tully Rinckey PLLC in Albany, NY. He focuses his practice on federal, state and private employment law matters, including claims of discrimination, harassment, retaliation, qui tam and whistleblower actions, and disciplinary matters.