Job Doc

Hiring a disabled employee

Attorney Alicia Ward provides advice

Ask the Job Doc. Boston.com

July 22, 2024

Q: If we are thinking about hiring someone with a disability, specifically on the autism spectrum, are there certain things we need to do to support their success in the workplace? Is this a good idea or we opening ourselves to potential problems?

A: Thanks for your question as employers sometimes struggle with working successfully with candidates or employees who have a disability. As you likely know, some disabilities are visible to the human eye, while others are not. I find that most employers are more confused by the disabilities which are not readily apparent.

To provide further detail, I consulted Alicia Ward, a labor, employment and higher education attorney at Hirsch Roberts Weinstein LLP, a Boston-based law firm. Ward shares that “the focus of whether to hire an individual with a disability, including someone on the autism spectrum, should be whether that person can meet the requirements of the job, including education, experience, skill set, or other criteria.” There is a federal law, the Americans with Disabilities Act (ADA) (applicable to employers with 15 or more employees) specifies that a qualified individual must be able to perform what the ADA refers to as “essential functions” of their specific role within the organization. Sometimes I explain an “essential function” as a “must have” job responsibility. The essential function should be a clear requirement of the role. An essential function for a librarian’s role might be reading, while for a shipping and receiving role it might be lifting 30-pound boxes. Employers should also evaluate whether an individual can perform the role with or with a reasonable accommodation to consider them qualified. As an example, if a person has a visual disability, the employer may offer to purchase a special screen which enlarges the font on their laptop.

Ward further counsels: “Legally speaking, bypassing neurodivergent folks in your applicant pool (and applicants with other disabilities) because of an actual or perceived disability runs afoul of the ADA. Practically speaking, bypassing neurodivergent folks in your applicant pool could result in a lost opportunity to hire neurodivergent talent that could add value to your organization. Folks with Autism Spectrum Disorder (ASD) may have limitations, the extent of which would vary––some individuals may or may not require accommodations to succeed in the position. That’s what the ADA is all about. The ADA process is well-trodden and there are resources available to support employers navigating obligations under the ADA.”

Though small employers are not technically required to comply with ADA, many states have requirements, such as Massachusetts, which are similar to ADA. Massachusetts law applies to employers with six or more employees. Ward and I both suggest that employers follow both state and federal law, regardless of their size.

There are resources available to employers to assist with navigating the ADA and accommodation process For example, the Department of Labor provides information on autism and has links to a range of resources. Ward and I commonly use another site, which is dedicated to accommodations. This free site is called the Job Accommodation Network (JAN). JAN suggests accommodations for a range of disabilities from ataxia to cancer, including ASD.

Employers are also required to engage in an “interactive dialogue,” which I sometimes refer to as a brainstorming meeting. This conversation should discuss possible options and solutions so that an individual and the employer can consider different accommodations. The goal of that meeting is to find solutions so that the person can successfully perform the essential functions of their job. JAN is a helpful resource and helps an employer consider options that they may not have discussed with the individual. Ward shares that it is important to note that employers may have to weigh different options, as a reasonable accommodation should not create an undue hardship for the business. The factors which contribute to the analysis of an undue hardship include the company size, resources as well as other factors. Ward and I both agree, if you overlook a qualified candidate, because of a concern about a disability, you are quite possibly limiting your talent pool. Every day, in almost every workplace, there are employees with disabilities who are working very successfully in their roles.