Skip to page content
Wage and Hour Division
Bookmark and Share

Wage and Hour Division (WHD)

previous   next

FOH Field Operations Handbook
arrowChapter 64 Employment of Workers with Disabilities at Special Minimum Wages under Section 14(c)
arrowSection 64a General

Section 64a01: Worker with a Disability

  • The term worker with a disability is defined in section 14(c)(1) as an individual "whose earning or productive capacity is impaired by age, physical or mental deficiency, or injury." Some examples of disabilities that may affect a worker's earning or productive capacity include blindness, mental illness, mental retardation, cerebral palsy, alcoholism, drug addiction and age. Age may be considered an impairment to earning or productive capacity only when the individual is at least 70 years old and age impairs his or her productivity for the work to be performed. The fact that a worker is over 70 years of age does not, in and of itself, constitute a disability under section 14(c).
  • A SMW may be paid only when an individual has a disability for the work he or she is employed to perform. While a disability may affect a worker's earning or productive capacity for one type of work, the same disability may have no impact on his or her ability to perform another kind of work. Only when a disability impairs the individual for the job to be performed may an employer pay a SMW.
    1. A worker may have a disability for one type of work but not be impaired for other types of employment. Some workers, after acquiring proper training and/or experience, successfully overcome disabilities in the workplace and should no longer be paid a SMW.
    2. The fact that a worker is a "client" or "consumer" of a facility specializing in rehabilitation, teaching independent living skills, and/or job training in and of itself does not make the worker a worker with a disability and eligible to be paid a SMW. The worker must still have a disability for the work he or she is employed to perform.
  • Vocational, social, cultural, or educational disabilities, standing alone, are not disabilities under section 14(c). Examples include chronic unemployment, receipt of welfare benefits, nonattendance at school, juvenile delinquency, and correctional parole or probation. However, these conditions could meet the section 14(c) definition of a disability if they exist in conjunction with some other physical/mental deficiency or injury (see Regulations 29 CFR Part 525.3(d)).
  • Alcoholism and drug addiction can also be disabilities that affect the earning or productive capacity of a worker (see Regulations 29 CFR Part 525.3(d)).
    1. When other documentation of alcoholism is not available, the Michigan Alcoholism Screening Test (MAST) will be sufficient to determine whether an individual is disabled for the work to be performed due to alcoholism. The MAST is a short survey of 25 "yes" or "no" questions designed to detect alcoholism. A score of 7 or higher, along with the worker's written admission of alcoholism, is considered sufficient substantiation that the individual is disabled due to alcoholism.
    2. Although the MAST can be administered in a short period of time by either a professional or nonprofessional, the INV should not administer the test. If documentation is needed to prove someone is disabled due to alcoholism, the INV should recommend that a representative of the employer administer the MAST.
    3. Employers should be advised that information about MAST, and the actual screening device, are available on the Internet. One such site is http://www.niaaa.nih.gov/publications/mast.htm.
  • A learning disability, under certain conditions, may be a disability that impairs the earning and/or productive capacity of workers.
    1. Unlike other disabilities, the terms "learning disability" or "learning disabled" (LD) do not have precise definitions. LD describes a number of learning or behavioral disabilities, ranging from mild to severe, which may manifest by various combinations of impairments in perception, conceptualization, language, memory, and control of attention, impulse, or motor function.
    2. An individual may be considered LD if either of the following situations exist:
      • The disorder has been diagnosed by a physician or a licensed or certified psychologist who is skilled in the diagnosis and treatment of such disorders;
      • the disorder results in a substantial impairment to employment; and there is a reasonable expectation on the part of the physician or psychiatrist that vocational rehabilitation services may enhance the employability of the individual.
      • OR The State vocational rehabilitation agency, or another qualified agency, has determined that the individual in question is substantially disabled for employment, and the individual has been treated as LD or had a history of receiving special education for the LD.
    3. If LD is listed as an individual's sole disability but the requirements mentioned in (2) above are not met, that individual may not be considered to have a disability under Regulations 29 CFR Part 525.3(d).
    4. Some difficulties that are indicative of an LD and may affect the productivity of the individuals include:
      1. needing to work longer hours to produce the same amount as their coworkers;
      2. needing to choose between being careless or being slow;
      3. making more frequent errors than coworkers;
      4. misunderstanding instructions from supervisor or comments from coworkers; and
      5. failing vocational training.
    5. Individuals with LD as the primary disability do not normally require long-term placement at SMW jobs in work centers. Consequently, WH recommends that work centers reevaluate and update the data used to justify employing LD workers at a SMW on an annual basis. The INV should review this documentation, as necessary, when making a determination that an employee has a disability for the work being performed.
    6. Some States are now automatically labeling as "learning disabled" those "Welfare-to-Work" participants who do not find private sector employment within a certain period of time, often six weeks. Some States are placing these individuals in work centers that pay SMWs. INVs should contact their Regional Section 14 Team Leader for guidance when encountering this situation.
  • Patient worker.
    1. A patient worker is a worker with a disability (as defined in Regulations 29 CFR Part 525.3(e)) who is receiving treatment or care from a hospital or institution that also provides residential care and is also employed by that same hospital or institution to do work in the facility. As with all workers with disabilities who are paid SMWs, the patient worker must have a disability that impairs the work he or she will actually be performing.
    2. The individual does not have to be a resident of the hospital or institution in order to meet the definition of a patient worker and receive a SMW. The individual may be an outpatient, but he or she must be receiving treatment from the hospital or institution.
previous   next