WHERE DO YOU WORK?

This document contains general information for educational purposes and should not be construed as legal advice. It is not intended to be a comprehensive statement of the law and may not reflect recent legal developments. Created in 2014 by Disability Rights NC.

“WHAT IF…?”

• What if you never got to make a mistake?• What if your money was always kept in an envelope where you

couldn't get it?• What if you grew old and never knew adulthood?• What if your only chance to be with people different from you

was with your own family?• What if the job you did was not useful?• What if you never got to make a decision?• What if you never got a chance?”

-Linda Stengle, Laying Community Foundations for Your Child with a Disability

Picture: Keys

2

Why We Advocate That People With Disabilities Work

•$1,145/month August 2014 average SSDI benefit•$972/month 2014 poverty guideline for household of one•$553/month August 2014 average SSI benefit (ages 18-64)

3

Picture: dollar bill with pennies stacked on top.

Scenarios: Encouraging Work

Franklin

Franklin is 35 years old and has been receiving SSDI benefits since he had a TBI 5 years ago. He just had his second child and would like to return to work to bring more money into the household. He is fearful of losing his benefits.

5Picture: father and daughter.

Franklin (2)• Trial Work Period – individual can earn over Substantial

Gainful Activity (SGA) limits for a total of 9 total months (do not have to be consecutive) and none of the earnings will be counted for purposes of benefit eligibility

• Extended Period of Eligibility (EPE) – for 36 months after TWP, receive SSDI for any month earnings fall below SGA.

• Expedited Reinstatement – if the individual has demonstrated ability to earn SGA and benefits have stopped, but is now unable to continue earning SGA, the individual can request expedited reinstatement of benefits up to 5 years later without having to complete a new application.

6

Franklin (3)

If Franklin uses the Ticket to Work program:• He receives a “ticket” that he can assign to an

Employment Network. In return, the Employment Network will provide him with vocational services and equipment to aid him in finding or maintaining employment, and will earn payment commensurate with his success in employment.

• Suspension of Medical Continuing Disability Reviews (CDR) – if the Ticket is assigned before notice of a medical CDR is given, no CDRs will be conducted while Franklin is participating and making progress in the Ticket to Work program.

7

Franklin (4)

If Franklin is receiving SSDI of $1100/month and finds a full-time job earning $35,000 per year.

• First twelve months: − maintains SSDI during trial work period and

extended period of eligibility. Total income: $4000 per month

• After TWP, SSDI benefits cease− Monthly income of about $2900 still far exceeds

SSDI, and enables income growth not tied to SSDI limits

− Remains Medicaid eligible through the Medicaid buy-in, paying a monthly premium of about $211/month

8

Jasper

Jasper is 16 years old and has autism. When he graduates from high school, Jasper plans to work and have an apartment.

9

Picture: Boy standing in front of periodic table of elements.

Jasper (2)

If Jasper has SSI, are he and his parents aware of available work incentives*?

• Plan To Achieve Self-Support (PASS) plan: individual with disability is allowed to save up money towards work goal. For example, allows individuals to save up money for vehicle, wheelchair, or computer if needed to work. (If not for the PASS plan, the money saved would be considered an “asset” that counts against Jasper in determining his SSI eligibility.)

• Student Earned Income Disregard: individual under age 22 who is regularly attending school is allowed to earn up to $1,730/month, and up to $6,960/year, and it will not be counted as income for purposes of calculating SSI benefit amount.

*Consult a Work Incentives Planning Agency (WIPA) for help.10

Jasper (3)

As a student with autism enrolled in public school, Jasper should already be identified as a student with a disability and be receiving special education services under an IEP.

A student with an IEP has the right to a transition plan.

− Age 14+: must include statement of need for services

to support student’s transition to

“life after high school”

− Age 16+: must set goals to be met during high school to help student transition, and identify the services needed to meet goals (parents may consider advocating for this stage of planning to begin at 14 for students with complex needs)

11

Picture: student

Jasper (4)

Transition Plan goals to be addressed:

additional education

employment living

arrangements community

participation

Is the plan “real”?• The plan is specific about how student will reach goals.

• Other agencies are included in planning, such as VR, mental health.

12

Jasper (5)

Additional referrals/resources for Jasper:• Vocational Rehabilitation

− May pay for college tuition and supplies− May provide supported employment services− May pay for vehicle modifications and other

independent living needs• Managed Care Organization (MCO):

− These entities manage publicly-funded behavioral health services, including Supported Employment, CAP I/DD (Innovations Waiver)

13

Mercedes

Mercedes has just graduated from high school. Mercedes has significant physical disabilities and receives personal care and other medical services through Medicaid. She is fearful about trying work because she is worried about losing Medicaid.

14Picture: woman reading book.

Mercedes (2)

Mercedes should be made aware of Health Coverage for Workers with Disabilities (the Medicaid Buy-In). Individuals who are eligible:

− are between the ages of 16 and 64− have a disability (as defined by the Social Security

Administration)− are working− have unearned income (e.g. SSDI, SSI, alimony)

under 150% of the federal poverty level. There is no earned income limit.

Fees and premium amounts included in manuscript attachments.

15

Jack

Jack receives $721/month of SSI and is interested in trying work. He’s not sure whether he wants to work part-time or full-time.

16Picture: man looking at stock prices

Jack (2)

−Job pays $10/hour −20 hours/week

• Jack will earn $866/month

• Jack’s SSI will be reduced to $331; he will maintain Medicaid

• His overall income will increase to about $1197/month

• Job pays $10/hour• 40 hours/week

• Jack will earn $1,733/month.

• Jack will lose SSI cash payment.

• Maintains Medicaid through buy-in.

• Free from burdens of SSI rules.

17

EMPLOYMENT RIGHTS:ADA OVERVIEW

Picture: people working in an office.

ADA Definition of Disability

• a physical or mental impairment that substantially limits one or more major life activities

OR • a person with a record

of such an impairment (even if that record is inaccurate)

OR • a person who is

regarded as having such an impairment

In contrast to the definition of

disability used by SSA, the ADA definition of

disability does not turn on the ability to work or do a certain kind of

work.19

ADA Definition of Disability (2)

Substantially Limits• An impairment is a

disability if it substantially limits the condition, manner, or duration under which an individual can perform a major life activity as compared to most people in the general population

Duration• Temporary, non-chronic

impairment of short duration (like broken bone) usually not substantially limiting

• Impairments that are episodic or in remission are disabilities if substantially limiting when active

20

ADA Definition of Disability (3)

Major Life Activities include, but are not limited to:

• Hearing• Speaking • Breathing• Learning • Working• Standing• Lifting• Bending• Concentrating• Thinking

…and major bodily functions:

• Immune system• Normal cell growth• Digestive• Bowel• Bladder• Reproductive functions• Neurological • Brain• Respiratory• Circulatory• Endocrine

21

Who does the ADA not cover?

Some people are explicitly excluded from coverage, including:

• current users of illegal drugs − those with a history, but who are not current

abusers of drugs or alcohol are covered− employer may conduct drug tests on

employees for illegal drugs • transgendered, homosexual, and bisexual

individuals• those who have the conditions of compulsive

gambling, kleptomania, or pyromania

22

Reasonable Accommodation (1)

• Before rights attach, must establish that individual is “qualified” to do the job – meaning he or she can, with or without reasonable accommodation, perform the essential functions of a desired job or job currently held.

• A reasonable accommodation is any modification, adjustment, or change to the work environment that will enable a qualified person with a disability to perform the job or to access the benefits available to similarly situated employees who do not have a disability.

23

Reasonable Accommodation (2)

• Individuals must ask for reasonable accommodations; accommodations must be provided at the employer’s expense.

• An employer may request medical documentation substantiating the employee’s need for an accommodation if the disability (or disabilities) and the nature of the employee’s physical limitations are not obvious.

• Defense: undue hardship24

Picture: accessible parking sign.

Leave As An Accommodation

• Employer must grant leave unless it would be an undue hardship.

• Employer must hold job open during leave. If holding job open would cause an undue hardship, employer must consider reassignment.

• Employer may offer a different accommodation (such as telework or modified schedule) than leave if still effective. 25

Picture: calendar

FMLA/ADA Overlap

• Disability-related leave from work may sometimes qualify as a reasonable accommodation under the ADA and leave under the FMLA.

• If both laws apply, employer must provide leave under whichever statute provides the greatest rights to employees.

• If both laws apply, an employee can request additional leave beyond 12 week FMLA leave (or 26 weeks for military) as a reasonable accommodation under the ADA.

• If leave qualifies as FMLA leave, the right to leave is absolute. FMLA does not consider the “reasonableness” of the leave.

26

Statute of Limitations - ADA• Within 180 days of the discriminatory act, an

employee must file an administrative complaint with the Equal Employment Opportunity Commission.

• This is an administrative remedy which must be exhausted before individual can file court action, and can include mediation with the employer in an attempt to resolve the complaint.

• If EEOC does not find a violation, employee receives a “right to sue letter” and has 90 days to file lawsuit in court or forfeit rights under ADA

27

New Laws

• Workforce Innovation and Opportunity Act (WIOA): Increased emphasis on employment of individuals with disabilities, particularly transition-age youth.

• Home and Community Based Services (HCBS) regulations: defines “community based services” that can be supported with federal funds (and which cannot).

• Executive Order 13658 (Establishing A Minimum Wage For Contractors): 14(c) subminimum wage must be calculated based on $10.10 minimum wage for federal contractors.

28

Contact Information

Disability Rights North Carolina3724 National Drive

Suite 100 Raleigh, NC 27610

919.856.2195877.235.4210

888.268.5535 TTY919.856.2244 fax

www.disabilityrightsnc.org

29