Wage and Hour Division (WHD)
Section 64g00: Disabled for the Work to be Performed
- Before the INV can determine compliance, it must be determined whether the worker's disability(s) actually renders him or her to be disabled for the work being performed. If the disability does not affect his or her accomplishment of the specific tasks performed, the employee is due the full applicable section 6(a) minimum wage (see FOH 64a01). These determinations are made by observing the workers and by spot checking the disability records requested during the initial conference. The employer's records should include documentation that supports the nature of each worker's disability. Disabilities that are not visibly obvious must be supported by medical or psychiatric reports, or psychological tests.
- In some instances, the employer may not have records documenting a worker's disability because the employee was referred by another agency or facility, and the referral agency or facility, out of a concern for the worker's right to privacy, did not provide the employer with the records. In the case of such a referral, the employer is not required to maintain documents identifying the worker's disability. The referral agency, however, should maintain such documentation and provide it to the INV for inspection (see Regulations 29 CFR Part 525.16(a)).
- If the referral agency denies the INV access to records identifying a worker's disability, attempt to obtain the release of the documents by assuring the agency that Departmental policy prohibits the disclosure of disability information. Also explain that third-party attempts to gain access to disability information are exempt from disclosure under the Freedom of Information Act.
- If, for any reason, the referral agency still refuses to provide the INV with documentation identifying a disability, and the disability is not readily apparent, the employer will be given the opportunity to obtain and provide such documentation. If the employer fails to do so within a reasonable amount of time, generally no more than 30 days, the employer shall be advised that the payment of the SMW to those workers for whom documentation of the disabilities is not available constitutes a violation of Section 6 of the FLSA. The Regional Section 14 Team Leader and the Child Labor and Special Employment Team, NO/OEP shall be consulted immediately concerning the computation of back wages and the possible revocation of the employer's certificate.