Today’s show is about Competitive Integrated Employment. What is it? What does the term mean? Where did it come from? And how does it all intersect with the new Workplace Choice and Flexibility for Individuals with Disabilities Act (HR 5658)?

INTRODUCTION

Hello and welcome to Day in Washington, your disability policy podcast. I’m your host Day Al-Mohamed working to make sure you stay informed.  Recently, there has been a lot of discussion around the Workplace Choice and Flexibility for Individuals with Disabilities Act and competitive integrated employment. Including a massive protest on the Hill by disability group ADAPT.  What is competitive integrated employment? And why all the fuss?

BACKGROUND

This issue actually has a fairly long history and involves more than one law so bear with me as I try to give a bit of context. This is about disability employment and it goes all the way back to the early 1930s. During those years, as a way to encourage employment for as many people as possible, the National Industrial Recover Act (NIRA) created a system of certificates that allowed for productivity-based wages for people with disabilities. Basically, if a person with a disability couldn’t make widgets as fast as the non-disabled guy, the company was allowed to pay him less. Sounds like that makes sense, right? Especially, in a country trying to recover from the Great Depression. It gets as many people jobs as possible. This was made permanent in the Fair Labor Standards Act of 1938. It is Section 14(c) and formally allows employers to pay wages below the federal minimum to employees who have disabilities.

That same year, the Wagner O’Day Act was passed requiring that all federal agencies purchase certain supplies and services from nonprofit agencies who employed people who are blind. Basically, the government HAD to buy the mops and brooms, made by blind people, in these non-profits. The program was expanded in 1971 to include people who have other significant disabilities and renamed the Javits-Wagner O’Day Act (JWOD). It was renamed again in 2006 as AbilityOne.

So, let me give you a little idea about how big this industry is. Currently, there are more than 600 of these non-profits who produce products and services under the AbilityOne Program and the Federal government MUST buy these products from them. More than mops and brooms, it is now pencils and paper, military uniforms, and beyond physical products, there are contracts for services like cleaning and cafeteria and commissary work.  In FY2015 alone, the Federal Government purchased more $3.2 billion of products and services.

The laws about disability employment start to intersect with the general perception that many of the AbilityOne non-profits use Section 14(c) in segregated work centers aka sheltered workshops. To qualify to an AbilityOne non-profit, at least 75% of the work must be done by people who are blind or have other significant disabilities. By using Section 14(c), the labor cost for these companies is significantly lower than comparable private companies who pay “regular rates” for labor.

I keep talking about AbilityOne and their non-profits and it seems kind of large and amorphous. To bring this down to reality and to an entity you might be familiar with – Goodwill Industries. Goodwill, you know, where you donate all your old clothes and children’s outgrown toys…they are an AbilityOne non-profit.

So now, let me get to the nitty-gritty details of the issue…and a third piece of legislation. The Workforce Innovation and Opportunities Act (WIOA), was signed into law in 2014. I won’t drown you in all the details but let me highlight a couple of “biggies.” WIOA updates the Rehabilitation Act of 1973. The part we are specifically interested in is where it oversees the vocational rehabilitation system which helps people with disabilities get the support and training they might need to get a job.

The new WIOA regulations require that vocational rehabilitation’s goal is to place people with disabilities in “competitive integrated employment”. Those are jobs that provide:

• competitive earnings,


• integrated location, and


• opportunities for advancement.

If a job fails to satisfy any one of these three components, the employment will not meet the definition of competitive integrated employment and will not be allowed under the VR program. As an FYI, WIOA also limited the use of subminimum wage.

In fact, according to the Maryland Department of Rehabilitation, the U.S Department of Education, Rehabilitation Services Administration (RSA), has determined that business settings established specifically for the purpose of employing individuals with disabilities are unlikely to meet the integrated settings requirement in the definition of competitive integrated employment (CIE). Remember those non-profits under AbilityOne? Let me quote:

“This includes positions that are funded through the operation of contracts under the Javits-Wagener-O’Day Act, known as AbilityOne, or State purchasing contracts, that require the hiring of a specific number of individuals with disabilities. Because RSA has determined that these set-aside jobs are not typically found in the competitive marketplace…”

“Similarly, groups, mobile work crews, or enclaves do not satisfy the integrated location component of competitive integrated employment when the employee’s day-to-day interactions with individuals without disabilities (excluding supervisors and service providers) are merely by chance and are not necessary for the performance of the job. This means an employee is not in integrated employment when interaction with individuals without disabilities occurs only when having a casual conversation unrelated to business, or when arriving, leaving, or taking a break at the same time as individuals without disabilities, or when receiving supervision or support.”

In essence, reading this language, I see it as “starving” these kinds of sheltered workshops and segregated settings of people. If vocational rehabilitation (VR) cannot count placement in those settings as a successful closure, fewer people with disabilities will go into those companies/non-profits.

CURRENT ACTIVITY AND CHANGES TO THE POLICY/PROGRAM

Okay, now knowing that, let’s look at what is happening in 2018 – the Workplace Choice and Flexibility for Individuals with Disabilities Act (HR 5658). The purpose of bill is to amend the Rehabilitation Act of 1973 to clarify the definition of competitive integrated employment.

Remember earlier, what I said? That WIOA created a definition in the Rehabilitation act for competitive integrated employment? It had to have three things:

• competitive earnings,


• integrated location, and


• opportunities for advancement.

HR 5658, goes directly to the Rehabilitation Act to change that definition. Section 7(5) to be exact. Ability Magazine has a great breakdown on their website where they compare the language of the current Rehab Act with the proposed and you can see the exact changes. I’ve included a link in the show notes. But let me try to sum up.

It specifically changes subpart B which talks about the employee with the disability’s interactions with others. The current version says that it only counts as integrated if they interact with other people who are not disabled. AND supervisors and others who are providing services to them do not count. The new language would basically say that just connecting with a non-disabled supervisor or someone whose job is to help them with their employment who is non-disabled is enough for it to count as integrated.

The bill also adds language to counter the objection I read earlier from Maryland’s Department of Rehabilitation. Maryland said that interactions that “are merely by chance and are not necessary for the performance of the job” did not make a workplace integrated. The new version includes social and interpersonal interactions with people who the disabled person may “come into contact with during the work day and across workplace settings” and specifically exempts interactions at the work unit level. It also adds a subpart D allowing contracts and subcontracts awarded pursuant as a part of AbilityOne (Chapter 85 of title 41) to count as Competitive Integrated Employment.

WHAT THIS MEANS FOR DISABILITY (Breakdown/Analysis)

What does changing the definition of “competitive integrated employment” mean to people with disabilities? The simplest answer here is that AbilityOne programs will now fall under the definition of “competitive integrated employment” and therefore would be considered legitimate placement for people with disabilities seeking work.

Many organizations representing people with disabilities have responded harshly. Their perspective is that the Rehabilitation Act was created to encourage the employment of people with disabilities more broadly and that his change, instead, makes it easier to funnel people with disabilities into these arguably more limited forms of employment.  From Kelly, Buckland, the Executive Director of the National Council on Independent Living. “It is dishonest to equate competitive, integrated, community employment with segregated, sub-minimum-wage work and it is a perversion to call the exploitation of disabled la