195 Farmington Avenue Suite 306 Farmington, CT 06032 (860) 674-1370 (phone) (860) 404-5127 (fax) www.advocacyforpatients.org patient_advocate@sbcglobal.

net

January 20, 2012 VIA RULEMAKING PORTAL Debra A. Carr, Director, Division of Policy, Planning, and Program Development, Office of Federal Contract Compliance Programs, Room C3325, 200 Constitution Avenue NW., Washington, DC 20210 Dear Ms. Carr: Thank you for this opportunity to comment on proposed rule implementing Section 503 of the Rehabilitation Act. Advocacy for Patients with Chronic Illness, Inc. is a 501(c)(3) non-profit organization that provides free information, advice and advocacy services to patients with chronic illnesses nationwide, many of whom meet the definition of disability both the ADA and Section 503 of the Rehabilitation Act. Many of these individuals are looking for assistance in obtaining workplace accommodations; some have been fired from their jobs due to disability-related issues; some cannot find jobs because they have disabilities and will need accommodations. In light of the very large number of federal contractors and subcontractors subject to section 503, we submit these brief comments on their behalf. In general, we agree with the Departments conclusion that hiring goals must be established. As the Department notes in the preamble to the proposed rule, too many people with disabilities are unemployed and underemployed. Indeed, our anecdotal experience tells us that, during the recession, people with disabilities have fared particularly poorly; it certainly appears that, when employers decide to lay off employees, people who have taken leave under the Family & Medical Leave Act, or who have requested and/or received accommodations under the ADA, are the first to go. Specifically, we do have some concern about the new provisions permitting contractors and subcontractors to invite applicants and employees to self-identify as disabled. First, many employees do not know the definition of disability under Section 503. Thus, we would suggest that the Department require the invitation to self-identify to be accompanied by a statement of the definition of disability under

Ms. Debra A. Carr January 23, 2012 Page 2 of 3 the law. In this way, people with invisible chronic illnesses that meet the definition of disability under Section 503 will have a meaningful opportunity to self-identify. The language at 76 Fed. Reg. 77063 would satisfy this concern. Second, the rule directs contractors and subcontractors to extend an invitation to self-identify annually, in part so that individuals who chose not to selfidentify before or when they were hired to self-identify at a later time. Our concern is that employees will be afraid to self-identify later if they failed to do so at an earlier time; they may be concerned that they can be punished for failing to selfidentify at an earlier time. We would suggest that the annual invitation to selfidentify be accompanied by a statement that the employee cannot be disciplined for not self-identifying at the earliest possible moment. Third, we would suggest that applicants and employees be notified in each invitation to self-identify that they will have later opportunities to self-identify. In addition, all invitations to self-identify should be accompanied by language like that at 76 Fed. Reg. 77063, indicating that there will be no penalty attached to selfidentifying; however, the language also should indicate that there will be no penalty attached to not self-identifying. Next, the Department seeks comments on whether to require a written annual report of affirmative action efforts. 76 Fed. Reg. 77067. We agree that such reports should be required. OFCCP may not have reliable data on contractors and subcontractors affirmative action efforts without it. With respect to reasonable accommodation procedures, we support the adoption of plans and procedures, including easily accessed information on the person(s) within the company who will be responsible for fielding reasonable accommodation requests. One thing that we have noted as a problem, and, thus, that might help here is that employers and employees both too often believe that the request for reasonable accommodation gives rise to a yes or a no rather than to an interactive process of negotiation. It probably would be helpful if the Department were to require employers to explain the interactive nature of the process in describing the reasonable accommodation procedures. In addition, the Department does not address what is one of the most vexing problems in seeking accommodations by individuals with disabilities especially those that are hidden and that is the requirement that the applicant or employee be a qualified individual, i.e., a person who can perform the essential functions of the job. Too often, an employee will ask for an accommodation only to be told that they have just exposed their inability to perform an essential function of the job, which legally is ground for termination. For example, we had a government contractor employee who was a computer engineer who worked at home part of the time on a secure computer. He sought, as accommodation of his Crohns disease, permission to work at home at all times except when he was needed in the workplace. His doctor provided a medical excuse for this request. The employee was then fired because his employer contended that regular attendance was an essential function of the job and, thus, not only did the employee not have to be accommodated, but he could be fired. A system that encourages people with invisible chronic illnesses to self-identify and request a full range of accommodations should provide protections or at least information and warning to people who

Ms. Debra A. Carr January 23, 2012 Page 3 of 3 might, by requesting accommodations, expose their inability to perform the essential functions of their job as interpreted by their employer. We also are concerned about the possibility of a sub-goal that would give some disabilities preference over others. We are not convinced that people with disabilities on the list of so-called targeted/severe disabilities have a harder time getting and keeping employment than those with less evident disabilities. Whereas the law is clear with respect to these most evident disabilities, those with chronic illnesses and relatively invisible disabilities have a particularly difficult time even establishing that they have a disability under the law. Their lives may be no easier; their obstacles no less overwhelming; but they are not among those whom the government gives priority yet another obstacle they must overcome. While the issues confronting all people with disabilities are difficult with which to cope, we simply are not convinced that identifying a sub-goal related to people with more evident disabilities advances the overall cause of the disability rights community. Again, though, we applaud the Departments actions to ensure that Section 503 is applied according to both its terms and its intent, and we thank you for this opportunity to submit these brief, but, we hope, worthwhile comments on the proposed rule, which undoubtedly will advance the cause of realizing maximum employment for people with disabilities. Sincerely,

Jennifer C. Jaff, Esq.

Admitted to practice law in Connecticut, New York and the District of Columbia. Advocacy for Patients is a 501(c)(3) tax-exempt organization and does not charge patients for its services. Advocacy for Patients is funded by, among other sources, grants from foundations and companies that engage in health care-related advocacy, manufacturing, delivery and financing. A list of grantors will be furnished upon request.
*