The same advocates for individuals with disabilities who criticize “institutional” living arrangements as too segregating are now taking aim at the day programs and employment opportunities offered by Misericordia and other facilities.

The advocates’ basic position is that on-campus developmental training programs, sheltered workshops and supported employment isolate individuals from the “community” and therefore violate the individuals’ right under the Americans with Disabilities Act to receive services in the least restrictive environment. These advocates believe that every individual with a developmental disability, without regard to severity, should be provided with “competitive integrated” employment. By this, they mean employment at or above the minimum wage with the same benefits as a non-disabled person and at a job in the community where they interact with non-disabled co-workers.

This effort is currently focusing on two issues (1) repeal of the specialized minimum wage for individuals with disabilities, and (2) requiring that competitive integrated employment be the first option for all disabled individuals (commonly referred to as “Employment First”).

1. Specialized Minimum Wage. Section 14(c) of the Fair Labor Standards Act (passed in 1938) permits employers to pay an individual with a disability a lower wage than his or her non-disabled counterpart, if it can be shown that the disabled individual is less productive. Thus, if the non-disabled employee is paid $9.00 per hour, but the disabled employee doing the same work is only one-third as productive as the non-disabled employee, the employer can pay the disabled employee $3.00 per hour. The advocates want to repeal Section 14(c) so that employers would be required to pay disabled employees the same as non-disabled employees regardless of any difference in productivity.

The purpose of Section 14(c) was to provide more employment opportunities for individuals with disabilities. The specialized minimum wage has been extremely successful. Hundreds of thousands of individuals with disabilities are currently employed at these specialized wages. We certainly agree that individuals with a disability should be paid the same as their non-disabled counterparts if they are equally capable of performing the required work. Better enforcement of Section 14(c)’s requirements would accomplish this. Total repeal of Section 14(c) would double or triple the cost of employing individuals with disabilities and will reduce employment opportunities.

Misericordia employs some of its residents under the specialized minimum wage in its bakery, coffee production and restaurant. If Misericordia is required to pay full minimum wage for these residents, the increased cost will require Misericordia to reduce the number of residents it employs and/or reduce the hours each resident is employed. These employment opportunities at Misericordia provide valuable training and experience to our family members and these jobs are potential stepping stones to employment in the community. It would be a great loss to our residents if Misericordia is forced to reduce these employment opportunities.

2. The “Employment First” Movement. Illinois, like other states, is in the process of deciding how to implement the concept of “employment first.” The advocates argue that all individuals with developmental disabilities, regardless of severity, first be given the opportunity for employment in the community at or above the minimum wage. Only if the individual fails to obtain or retain such employment, would he or she then be given the option for developmental training or sheltered or supported employment. We believe that such an approach would place significant and needless burdens on Misericordia and other facilities and would subject our family members to needless stress and risk of harm. We certainly agree that Misericordia’s higher functioning residents should be given the opportunity of community employment if that is their choice and the choice of their families. However, residents with more significant disabilities whose families prefer the option of on-campus developmental training should not first have to try and fail at community employment. Such a requirement would be a waste of resources and effort.

The basic problem with the advocates’ challenge to current employment practices is the same as the advocates’ approach to living arrangements. They believe one size fits all. There appears to be no recognition that there is a huge range of disabilities and no single approach will work for everyone. The other critical element that is missing from the advocates’ position is choice. At the end of the day, we should be able to choose for our loved ones the type of day programing or employment that is best for them. We know our family member, the advocates and the state don’t.

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