Chapter 16: Is It Reasonable Under the ADA to Modify Work Requirements and Sanctions for People with Disabilities Who are Unable to Work?

      A. Discrimination in Work Requirements and Sanctions

      State work requirements, and sanctions for non-compliance with those requirements, may have a disparate impact on people with disabilities for a multitude of reasons that are related to their disabilities. Some possible causes of disparate impact, and the viability of ADA challenges to this disparate impact, are discussed below.

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      (i) Narrow State Definitions of Work

      Under PRWORA, states have broad discretion to define “work” for the purpose of meeting the state’s own 24 month (or shorter) work requirement.[908]  If the state uses a broad definition of work, the definition may cause little problem for people with disabilities.  If the state defines work narrowly, people with disabilities may be less likely to be able to fulfill work requirements and therefore less likely to continue receiving benefits.  If the state uses a narrow definition, work participation may be an eligibility requirement that screens out or tends to screen out people with disabilities from qualifying for continued benefits.[909] A discrimination claim made on this basis would be strengthened if reasonable modifications or support services were not provided to people with disabilities who needed them at work activities.  The nature of any exceptions to work requirements[910] are also relevant to this type of argument. If a TANF program also has broad exceptions to work requirements for people with disabilities, the harm caused by narrow definitions of work is obviously reduced.

      The question of whether a narrow state definition of work can be successfully challenged under a disparate impact theory depends a number of factors.  One factor is how the court measures disparate impact.  If many people without disabilities are unable to satisfy state work requirements and a court compares everyone who can satisfy work requirements with everyone who cannot, a disparate impact on people with disabilities may be difficult to prove.  If a court looks only at the impact on people with disabilities and focuses on the disability-related impact to those individuals, there would obviously be a greater chance of success.  Courts have used both approaches in ADA and Section 504 cases.[911]  As state definitions of work under state work requirements do not affect initial access to benefits, but continued access after state work requirement applies, this is not the type of ADA claim where a court is likely to ignore comparison groups in conducting disparate impact analysis.[912]

If disparate impact can be proven, it should not be a fundamental alteration to change the state definition of work.  PRWORA gives states sufficient discretion to define work as they choose, so states have the right to define work to include treatment for substance abuse problems or participation in other services needed by people with disabilities, particularly where those services will help people with disabilities to be able to participate in other work activities in the future.  Some states have taken this approach. [913]

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     (ii) Narrow Exceptions to Work Requirements

      TANF programs may provide some exceptions to work requirements, but not make exceptions for people with disabilities, or make exceptions for only some individuals with disabilities.  Where a program has exceptions for only some people with disabilities but not others, there may be an argument that the state is discriminating between disabilities, or on the basis of severity of disability.[914] The strength of this type of claim will depend on the way in which the state has defined those eligible and ineligible for the disability exception.  Exceptions that refer to particular disabilities are probably rare, but should be the easiest to challenge.[915]  Exceptions that refer to the degree of functional limitation may have a disparate impact on the basis of severity of disability but would be extremely difficult to challenge.  In most claims of discrimination based on severity of disability that courts have allowed to go forward, less favorable treatment was given to individuals with more severe disabilities.[916]  Indeed, that is how discrimination on the basis of severity usually occurs, because agencies often prefer not to serve people they perceive as having greater needs.  In TANF programs, exceptions to work requirements are more likely to apply to people with more severe disabilities and exclude those with less severe ones.  Many courts will view this as reasonable on the theory that those with severe disabilities are probably less likely than those with mild or moderate disabilities to be able to work.

      TANF programs may argue that modifying work requirements for people with disabilities would be a fundamental alteration because the ability to engage in work is an essential eligibility requirement for receiving TANF benefits, and individuals who cannot satisfy this requirement are not “qualified” individuals” under the TANF program.[917]  In one case challenging an AFDC waiver program that reduced benefits to those unable to work, a federal district court adopted this approach.[918]  In response, advocates can point out that TANF programs are already making exceptions to work requirements for others.  PRWORA requires states to make some exceptions to work requirements, namely, for single caretakers of children under six without available child care.[919] This undercuts the argument that making exceptions to work requirements is by definition a fundamental alteration.

      Advocates need to exercise caution in making this type of argument because the fact that a program makes exceptions for others does not, alone, mean that it is not a fundamental alteration to make the same exception for people with disabilities.  This is particularly true when an existing exception, like TANF’s exception to work requirements for single caretakers of young children, was created and in fact required by Congress, which demonstrated no similar intention to require states to make other specified exceptions to this requirement.[920]  This type of argument is stronger when it is based on exceptions to program rules in state statutes, regulations, or best of all, less formal policies and practices.  The question of whether work is an essential eligibility requirement for receiving benefits will also depend on how states structure their work and benefits programs, whether they are considered to be one program or two,[921] and how state statutes and plans describe program purposes.[922]

      Advocates can also argue that the purpose of work requirements and sanctions will not be fundamentally altered if they are modified for individuals unable to comply because of disability.  Any motivating purpose served by work requirements and sanctions will simply not motivate someone who is unable to comply with requirements as the result of a disability.[923]

      Significantly, many states have exempted at least some individuals with disabilities from work requirements.  Eighteen states have chosen to use JOBS participation policies and exempt individuals who meet the JOBS definition of disability.[924]  Seventeen states require broader participation than JOBS did[925] but still have some exceptions for people with disabilities.[926]  California, for example, exempts from work requirements recipients who provide medical proof of a disability that will last at least 30 days and that “significantly impairs the recipient’s ability to be regularly employed or participate in welfare-to-work activities, provided that the individual is actively seeking appropriate medical treatment.”[927]  Michigan defines “good cause for non-compliance with employment and training requirements” to include temporary debilitating illness or injury of the individual or family member where the applicant or recipient is needed to care for the family member.[928]  Though fundamental alteration and undue burdens must be analyzed separately for each state’s TANF program, the fact that so many states are exempting at least some individuals with disabilities suggests that would not be a fundamental alteration or undue burden them to do so.

      A state may try to argue that it will not be able to meet required participation rates if it exempts people with disabilities from work requirements, but this argument is extremely weak.  States have the ability to exclude people from being counted towards these rates by providing them with services from separate state funds.[929] In any event, the highest participation rate applicable to families with a disabled adult is 50 percent,[930] which makes it easier for states to meet participation rates while exempting people with disabilities from work requirements.

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      (iii) TANF Program Non-Compliance with the ADA Prior to Imposing Sanctions

       TANF programs may fail to comply with the ADA in any number of ways, by conducting inadequate disability assessments, placing individuals in programs that are inappropriate for their needs, or failing to make reasonable modifications in education and training programs.  If individuals with disabilities are sanctioned for non-compliance with work requirements when a cause or contributing factor to the non-compliance was an ADA violation by the TANF program, an argument can be made that using compliance with work requirements as a criterion for receiving continued benefits has a discriminatory effect on people with disabilities.[931]  It compounds earlier discrimination and punishes individuals for the TANF program’s failure to comply with the ADA when non-compliance was not only no fault of their own, but was caused by unlawful action by the TANF program.

      One potential difficulty with this type of argument is that it may be difficult to prove a class-wide disparate impact on people with disabilities from the failure of TANF programs to provide support services such as child care, transportation, and education and training activities that people without disabilities often need as well. When, however, there is evidence that the service or support that was needed for particular individuals because of a disability, advocates can make individual discrimination claims. The less clear it is that programs and services were needed because of disability, the more the argument begins to look like Alexander v. Choate,[932] because if people with disabilities need the same support services as others for the same reasons, any disparate impact on people with disabilities from failing to receive those services probably comes from the fact that people with disabilities are more likely to need a particular service, or more likely to need it in greater amounts than others.  As described in Chapter 7, this is one of the most difficult types of disparate impact claims to make.

      One possible remedy for the failure of a TANF program to comply with the ADA is for the TANF program to provide additional cash benefits beyond the state’s benefit limit.  Where program participants’ inability to be able to work was the result of an ADA violation in the TANF program, remedying prior discrimination by extending benefits would not be a fundamental alteration because it is not a program change, but a corrective measure for prior violations of law by the TANF program.  Most states already have mechanisms to extend benefits, by providing extensions, and exemptions from time limits, which “stop the clock” entirely or for a limited period of time, so that particular months of benefits do not count towards the time limit. According to HHS, most state TANF programs exempt months in which an individual was physically or mentally disabled or caring for a family member with a disability, and some states extend benefits past the time limit for a fixed or unlimited period of time in a variety of circumstances.[933]  PRWORA requires states to exempt months in which an individual was a minor and not the head of a household, and for a few other reasons, [934] so states should have a mechanism in place to make eligibility determinations for exemptions from time limits. 

      Another way to remedy the discriminatory effect of sanctions when non-compliance with work requirements is the result of the TANF program’s failure to comply with the ADA is to investigate the reasons for non-compliance or give recipients an opportunity to explain the reasons for non-compliance before sanctions are imposed and attempt to address them. A strong argument can be made that investigating the reason for non-compliance with work requirements is a reasonable modification under the ADA.[935]  Some TANF programs do investigate before imposing sanctions and a number have conciliation processes that provide recipients an opportunity to explain their non-compliance so that misunderstandings can be resolved or so that steps can be taken to address the reasons for non-compliance.[936]  Of course, to fully rectify the discrimination, benefits would need to continue during the investigation period and during attempts to address the cause of non-compliance.

      States may argue that investigating the cause of sanctions is administratively burdensome and requires substantial additional work by staff.  However PRWORA requires TANF programs to grant exceptions to sanctions when lack of available child care is the cause of non-compliance with work requirements,[937] so programs already have a process in place to make individualized determinations about whether individuals qualify for exceptions.  In addition, some states have adopted other exceptions to sanctions for non-compliance with work requirements, such as discrimination by an employer, hazardous working conditions, and other reasons that require fact-specific determinations.[938]  The additional burden required by investigating disability-related reasons should not be that great.

      If advocates intend to urge TANF programs to investigate the reasons for non-compliance, one issue that should be considered in advance is whose non-compliance the TANF program should investigate. Given the high percentage of people with disabilities in the TANF program, including undiagnosed and hidden disabilities, a strong argument can be made that in order to avoid discriminating on the basis of disability, programs must investigate the reasons for all non-compliance, to avoid imposing any sanctions that may be related to the failure of the TANF program to provide reasonable modifications for people with disabilities or fulfill its other obligations under the ADA.  In response, TANF programs may argue that the ADA requires only that they investigate non-compliance of individuals they know or have a good reason to believe have disabilities.  Because disability screening and assessment is inadequate in so many programs, restricting the investigation to these individuals will exclude many people with disabilities who may be in danger of being sanctioned for disability-related reasons.  Moreover, as one possible type of earlier ADA violation is the failure to appropriately screen and assess disabilities or discrimination in the screening and assessment process, investigating only those individuals who were previously identified as having disabilities runs a high risk of perpetuating the very discrimination the investigation is intended to prevent.  Thus advocates have a strong argument that whenever there is evidence of a systemic failure to adequately screen and assess disabilities, provide appropriate job and training placements, provide reasonable modifications or of other ADA violations, in order to avoid further discrimination, TANF programs have an obligation under the ADA to contact individuals who are non-compliant with program requirements and who are at risk of being sanctioned to determine the reason for non-compliance and provide necessary services to make compliance possible.  When individuals have been offered adequate disability screening and assessment and have refused to be screened or assessed, it may be more difficult to make a legal argument that programs have the obligation under the ADA to investigate disability-related non-compliance of these individuals.  

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      (iv) Discrimination in the Design and Administration of Sanctions         

      Sanction policies and procedures may have a disparate impact on people with disabilities if programs define the PRWORA “good cause and other exceptions as the State may establish”[939] language in such a way that it does not include good cause for disability-based reasons.  The question of whether this disparate impact is actionable discrimination will depend on who is eligible for exceptions to sanctions and which comparison group, if any, is used by a court to measure disparate impact.

       Sanction policies may also discriminate by failing to create a meaningful opportunity for people with disabilities to challenge sanctions.  Sanction notices may be incomprehensible to people with learning disabilities, psychiatric disabilities, and mild mental retardation.[940]  TANF programs may require numerous appearances at welfare centers to challenge sanctions, which has a disparate impact on people with disabilities who lack accessible transportation, have conflicting medical appointments for disabilities or are unable to make numerous trips to welfare centers for disability-related reasons.   Sanction procedures may discriminate for any number of reasons if people with serious impairments have difficulty using the procedures and assistance is not provided or modifications are not made to make it possible for people with disabilities to access them.

      There are a number of ways to remedy the discriminatory impact of sanction procedures, including simplifying sanction notices to improve readability, simplifying procedures for avoiding or challenging sanctions, providing additional and comprehensible information to participants about sanctions, and removing other disability-related barriers such as physical and communication barriers.[941]

      Emerging data indicates that families with multiple barriers to employment, including disabilities, are being sanctioned at an extremely high rate.  A Utah study found that three-quarters of all sanctioned families had at least three barriers to employment, most commonly a health, medical or mental health problem.  In Minnesota, sanctioned families were four times as likely to report a family health problem and twice as likely to report a mental health problem as other program participants.  In Connecticut, sanctioned families had a significantly higher incidence substance abuse, health or mental health problems.[942]  Whether these sanctions are the result of inability to understand or comply with procedural requirements necessary to avoid sanctions or difficulty in complying with other program requirements is not clear.   One study, from Delaware, found that sanctioned individuals were more likely than others to have difficulty understanding TANF rules and the consequences of not participating in work or other program requirements.[943]  These studies strongly suggest that either prior non-compliance with the ADA by TANF programs or confusing and inaccessible procedures for challenging sanctions, or both, are a widespread problem, and they provide support for ADA challenges to discriminatory sanction procedures. 

      Advocates can argue that the purpose of work requirements and sanctions will not be fundamentally altered if they are modified for those unable to comply with them because of disability.  If one purpose of sanctions is to motivate individuals to comply with work requirements, this purpose will not motivate someone who is unable to work because of a disability or because of lack of supports needed for a disability. [944]

      TANF programs may argue that withholding sanctions from those who do not comply with work requirements is an undue burden because states risk federal penalties for failing to sanction non-compliant individuals.  However, if a TANF program chooses to define “good cause and other exceptions as the State may establish” in a way that leaves people with disabilities in a worse position than those without disabilities, that should not justify an argument that it would be a fundamental alteration to make exceptions for disability-related reasons.  States have the power to define exceptions to sanctions, and so they have the capacity to avoid penalties from failing to impose sanctions in accordance with their policies.

      States have taken a number of approaches to soften the harsh impact of sanctions.  Some use escalating sanctions, in which a family loses only some of its cash benefits initially and is subject to “full family” sanctions only after repeated instances or continuing non-compliance with work requirements. Others have a conciliation process available to clients to make sure that the individual understands program requirements, and to identify the reasons for non-participation and address them where appropriate, before sanctions are imposed.  Others still use outside parties to review cases and check with families to ensure they understand program procedures and give them an opportunity to comply before sanctions are imposed.  And at least one state provides non-cash safety net assistance to families who have been sanctioned and continues to work with these families even after sanctions are imposed to achieve compliance.[945]

      A number of arguments can be made that modifying sanctions policies is not a fundamental alteration.  Modifying sanctions does not change the substance or nature of the TANF benefits nor does it undercut TANF purposes, when non-compliance with work requirements was caused by disability because sanctions will not serve to motivate people to work or comply with other program requirements if they are unable to do so.[946]  The preamble to the TANF regulations make clear that states can be penalized for imposing sanctions when they should not have done so,[947] suggesting that withholding sanctions under some purposes is consistent with TANF purposes.  PRWORA has an exception for state penalties for failure to comply with overall work participation rates for “reasonable cause.”[948]  Unfortunately, the definition of “reasonable cause” in the TANF regulations does not include accommodating people with disabilities.[949]  Nevertheless, states may be able to request an exception to penalties from HHS where sanctions have been withheld on this basis, and advocates may want to take the position that states should not be permitted to make an undue burden argument until they have sought such an exception from HHS.[950]  In addition, states reduce their required work participation rates by reducing welfare caseloads,[951] which in turn reduces the risk of having to face penalties.

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     (v) Discrimination at Work Activities

      People with disabilities may be unable to work at assigned work activities because they have not been provided with reasonable modifications for their disabilities at these activities.  Some states have exceptions to requirements that TANF recipients must accept and keep jobs where employers discriminate on some basis,[952] where work conditions are generally unsafe[953] or are unsafe for particular individuals given their particular medical conditions.[954]  Nevertheless, even when exceptions exist, they may not always be granted to people with disabilities when appropriate.

      If people with disabilities have been denied reasonable modifications of work activities and are sanctioned as a result, the TANF program is discriminating against people with disabilities by basing eligibility for continued benefits on discriminatory criteria.[955]  This is true whether the work activity is operated by the TANF program, another public entity, or a private organization.  All are prohibited from discrimination on the basis of disability and are all required to make reasonable modifications or accommodations to people with disabilities.[956] The failure to do so is discriminatory, and it compounds this discrimination to base benefits decisions on the effects of non-compliance.  Modifying sanctions is only one means of preventing or remedying this discrimination, however; TANF programs could also provide the needed modifications.                 

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     (vi) Disability-Related Conduct    

      People with disabilities may engage in conduct that is symptomatic of their disabilities, which results in non-compliance with work requirements.  For example, some individuals with psychiatric disabilities may attend work or education and training programs on an irregular basis during an acute phase of their disability.  If people with disabilities are sanctioned as a result of such non-compliance, an argument can be made that the work requirements are “criteria and methods of administration” that have a discriminatory effect on access to TANF benefits[957] that distinguish  “between those whose coverage will be reduced and those whose coverage will not be on the basis of [a] test, judgment or trait that the handicapped as a class are less capable of meeting.”[958]  A discrimination claim may also be framed as a failure to provide reasonable modifications when necessary to avoid discrimination.[959] Modifications could consist of flexible work and program policies, investigating the reasons for non-compliance with program requirements and attempting to rectify the problem prior to taking adverse action,[960] working one-on-one with individuals to make sure they understand program requirements or other modifications.  

      It is unclear under existing case law whether Title II prohibits state and local government programs from taking adverse action against people with disabilities who do not comply with program requirements because of behavior that is symptomatic of their disabilities.  It may be possible to analogize to case law on related issues, such as case law under the Federal Fair Housing Amendments Act,[961] although EEOC Guidance on Title I of the ADA rejects a similar approach in the ADA employment context.[962]  The key ADA issues are whether regular attendance or other work requirements are essential eligibility requirements, and whether individuals who cannot comply with them are “qualified individuals.”[963]  Because some individuals in the TANF program are not merely employees of the employer in a work activity, but also participants in the TANF program, it may be possible to argue that even if they are not qualified for a particular job, they are “qualified individuals” under the TANF program. To a large extent this will depend on how work participation and benefits are conceptualized in state legislation and other materials, and whether there is an obligation on the part of the program to help people find appropriate jobs.

      It may also be possible to argue that where non-compliance with work requirements occurs for disability-related reasons, sanctions should not apply because the individual did not “refuse” to engage in work at all, but simply was not able to comply.[964] Depending upon the state enabling legislation and regulations, there may be no authority under state law to sanction an individual who is unable to comply with work requirements because of a disability. Some states do make a distinction between “refusal” to work and “failure” to do so, and sanction only the former, or neither, in some circumstances.[965]

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     (vii) Inability to Work Because of Disabilities

       The question of whether there are some TANF applicants and recipients with disabilities who cannot participate in work activities because of their disabilities is a controversial one among disability and welfare advocates. Some advocates believe that there are certain people with disabilities who are unable to participate in any of the qualifying work activities and therefore should be exempt from work requirements.  Others believe that everyone with a disability, including those with severe disabilities, can work if given the proper supports.  To some extent the dispute comes down to a timing issue.  Most likely everyone would agree that there are some people who cannot work for short periods of time during an acute phase of a medical or mental health condition.  The real dispute is whether there are individuals who cannot work for longer periods of time or indefinitely.  In part, this is a medical issue, but to some extent the issue is also political and strategic.  Some advocates are fearful of taking a position that will too readily lead to the exclusion of people with disabilities from the very programs that will enable them to become employed.  They fear that in turn may take the pressure off of TANF programs to make program modifications and develop programs that are appropriate for people with disabilities.[966]  However, most advocates agree that if a TANF program has inadequate disability screening and assessment or support services and reasonable modifications are not available for people with disabilities, exceptions to work requirements may be only viable alternative until these problems are remedied. 

      The question of whether there are people with disabilities in the TANF program who are unable to work depends largely on how a state TANF program defines “work activities,” and what kinds of services and supports are provided for these activities.  Indeed, the question of whether there are people with disabilities who are unable to work even when a TANF program defines work broadly and provides reasonable modifications is largely academic, as it is unlikely that many TANF programs meet this description. Given Title II’s unwavering preference for integrated programs,[967] the ADA requires that TANF programs to attempt to make it possible for people with disabilities to satisfy work requirements by broadening definitions of work and providing appropriate assessment, placement, and supports, rather than simply making exceptions to work requirements for these individuals.

      However, assuming there are at least some individuals who are unable to participate in available work activities, denying benefits to these individuals because they are unable to work would obviously have a disparate impact on people with disabilities. Moreover, there would be a direct causal link between a disability and the denial or termination of benefits.  However, this does not necessarily mean that there is a strong ADA claim.  The strength of this type of claim depends in part on the type of comparison that is made. A court might consider the impact of work requirements only on people with disabilities who are unable to work; the impact on all people with disabilities (many of whom are able to work, and some of whom cannot); or the comparative impact on everyone eligible for exceptions to work requirements and everyone who is not eligible for these exceptions.  Disparate impact may not be visible if a court applies either of the last two approaches because there may be many people who are unable to work for reasons other than disability who are not eligible for exceptions to work requirements, and people with disabilities who are eligible for exceptions on some other basis.[968]  Program purpose and design will also be critical in this type of ADA claim.  States may be able to argue that work is an essential eligibility requirement of the program, and that people who are unable to work are therefore not “qualified individuals” who are protected under the ADA,[969] or that it would be a fundamental alteration to modify this essential program requirement.[970] Given that most states have some exemptions of work requirements for individuals who are unable to work because of disability or caring for a disabled relative for at least some period of time,[971] it might be difficult for states to prevail on such an argument.

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      (viii) Is there an Argument that the 24 Month (Or Shorter) Work Requirement Has a Disparate Impact on People with Disabilities?

      PRWORA requires parents and caretakers in the TANF program be engaged in work once the state determines they are ready to do so or within 24 months of receiving assistance, whichever is sooner.[972]  Twenty-three states have adopted the 24-month requirement (or sooner if the individual is able to work); 20 states have an immediate work requirement, and eight states have other deadlines.[973]  Particularly in states where work requirements take effect immediately or after only a short period of time, some people with disabilities may be disadvantaged because they will need more time than has been provided to prepare for work, and thus will be less ready to work when the work deadline arrives. 

      It will be very difficult to bring a successful ADA claim challenging the time frame within which state work requirements take effect.  First, it may not be possible to prove that these requirements have a disparate impact on people with disabilities, because many people without disabilities also need additional time before they are ready to work. Second, even if it were possible to demonstrate a disparate impact, if the same time limit applies to everyone in the state’s TANF program, any disparate impact would stem from the fact that some people need more time than others to be ready to work, not from disparities in the work deadline itself.  The discrimination argument would be difficult to distinguish from Alexander v. Choate.[974]

      If discrimination could be demonstrated, however, it would be relatively easy to demonstrate that extending state work deadlines would not be a fundamental alteration if the state’s deadline is less than 24 months. Extending the deadline to 24 months for people with disabilities who are not ready to work before then would not conflict with PRWORA. It is far more difficult to argue that extending the deadline beyond 24 months would not be a fundamental alteration in states that have adopted a 24-month deadline, because 24 months is the maximum permitted by PRWORA.  In Howard v. Department of Public Welfare,[975] the court held that even though the rule in question was required by federal law and compliance with it a condition of receiving federal matching grants, the ADA and Section 504 required the state welfare program to modify the rule for individuals.  However, one difference between Howard and the 24 month TANF work requirement is that the 24 month requirement in PRWORA is not just a prohibition on the use of federal funds, but a requirement must be included in all TANF state plans and is not tied to any particular source of funding.

      Advocates can try to argue that because PRWORA contains an exception to the 24 month rule for single parents of children under the age of six without appropriate child care, it would not be a fundamental alteration to make exceptions for people with disabilities.  As noted elsewhere, the fact that programs already have an exception to the 24-month rule provides some support for the fact that Congress requires this exception probably makes this argument difficult.

      PRWORA has no specific penalties against states for failure to comply with the 24-month (or shorter) rule,[976] so the threat of penalties is not a legitimate reason for a TANF program to refuse to modify this rule. Though states may incur penalties for failing to satisfy PRWORA work participation rates, the relationship between state work deadlines and participation rates is indirect, and many other factors have at least as much effect on work participation rates.

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      (ix) Is there an Argument that Federal Work Participation Requirements Have A Discriminatory Impact?

       Although PRWORA defines “work activities” that qualify as “engaging in work” for federal work participation rates broadly, it places a lesser value on job readiness and job search, vocational educational activities, and secondary school participation.  It counts participation in these activities for only limited periods of time as work activities;[977] limits the percentage of individuals who engage in some of these activities who can count towards the state’s work participation rate;[978] and prohibits these activities from being the sole qualifying work activity in which an individual or family must engage.[979]  No other qualifying work activities are subject to these types of restrictions in PRWORA. 

      These restrictions could have a disparate impact on people with disabilities in several ways.  If people with disabilities are more likely to need job readiness, vocational education, or secondary school than others, one possible effect of these limitations is that people with disabilities who remain in these programs will have less opportunity to satisfy work requirements, and therefore will be more likely to be sanctioned.  In addition, if people with disabilities are more likely to need these activities than others, the fact that these activities qualify in lesser amounts means that people with disabilities needing to engage in these activities for employability will not have an equal opportunity suited to their needs.[980]  Further, the limits may cause a disparate impact on people with disabilities because, of all of the people who participate in these particular activities, people with disabilities may be more likely than others to need more of these activities than the amounts that count for federal work participation rates.  Though PRWORA does not prohibit TANF recipients from participating in these activities, because clients risk sanctions if they do not spend a minimum amount of time on “countable” activities, there is an obvious disincentive for people to do so.  Finally, these limits may have an indirect effect by influencing the nature of educational and vocational training programs that states fund and TANF programs offer to clients.

      Unfortunately, these arguments do not make strong ADA claims.  Given the high percentage of people in TANF programs with multiple barriers to employment, not all of which are disability-related,[981] it may be difficult to demonstrate that people with disabilities are affected by these limitations to a greater extent than others. In addition, PRWORA does not limit the amount of these services that are provided to TANF recipients.  It merely restricts the amount of these services that count towards federal work participation rates.  Therefore, to prove discrimination, it would probably be necessary to present evidence that the availability of these programs is affected by the fact that only limited amounts count toward federal work participation rates.  Finally, these limitations are imposed by PRWORA itself.  It is not clear that states could even be held responsible for these restrictions, as it is HHS that determines whether state work requirements have been met for the purpose of imposing penalties.  In any event, these distinctions were plainly intended by Congress.

      Advocates should address this issue through non-litigation advocacy. States have ample flexibility under PRWORA to design TANF programs to increase the likelihood that people with disabilities and others will be more likely to access education and training for longer periods of time. States have broad discretion to define work for the purpose of the state’s 24-month work requirement, and can do so in a way that includes education and training.[982]  States can also structure TANF programs so that months in which recipients are in education and training do not count towards the benefit time limits, by providing individuals receiving these services with state maintenance of effort funds.[983]  This will remove individuals receiving these services from federal work participation rates,[984] and consequently, states would not risk penalties when they design their programs in a manner that enables more TANF recipients to participate in education and training for larger periods of time.  States can also support education and training in less direct ways, by using federal or state funds for services and supports, such as work study, child care, and transportation benefits, for TANF recipients participating in education and training.  It can also use maintenance of effort funds to fund education and training activities.[985]

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      B. Sanctioning Families of Older Children Who Lack Child Care

      PRWORA prohibits TANF programs from sanctioning single-parent families with children under age six for failure to comply with work requirements where lack of available child care is the reason for non-compliance with work requirements.[986] It contains no similar protection for families with children over the age of six. When a child is over the age of six and has a disability, does the ADA limit a state’s ability to sanction the family when lack of child care is the reason for the non-compliance?                     

      Like many of the disability discrimination issues addressed in this Manual, it is more difficult to demonstrate that this policy discriminates against people with disabilities than it is to demonstrate that modifying the policy would not be a fundamental alteration or undue burden.

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     (i) Is the Failure to Exempt Families with Children with Disabilities Age Six or Older From Sanctions When Lack of Child Care is the Reason for Non-Compliance with Work Requirements Disability Discrimination?

      The failure to exempt families with children ages six and older who have disabilities without appropriate child care from sanctions is an age-based, not a disability-based, distinction.  As a result, it might be difficult to bring a facial challenge to a policy of exempting only families of younger children. Another problem with this type of challenge is that the exemption required by PRWORA applies only to single-parent families.  A state could argue that since it does not grant this type of exemption to any two-parent families, it can hardly be guilty of disparate impact discrimination against two-parent families with older disabled children. Thus any disparate impact challenge to this policy would have to be limited to single-parent families.  Presumably, however, these are the families that would be most in need of the exemption.  When a child’s disability is so severe that both parents need to remain at home to care for a child, a two-parent family would have a strong argument that they should be exempt from sanctions as a reasonable modification.

      Sanctioning families with children age six or older for non-compliance with work requirements when lack of child care was the reason for non-compliance with work requirements may have a disparate impact on families with children with disabilities because access to child care for older children with disabilities is far more limited than access to child care for older children without disabilities.  There is certainly evidence that child care for children with special needs is in short supply.[987]  However, given the increased demand for child care created by PRWORA and escalating federal work participation rates, there is, and will likely continue to be, a high unmet need for child care for all families in the coming years,[988] making class-wide disparate impact on families with older children with disabilities difficult to prove.  

      Discrimination might also exist if a TANF program (or other state or local government entity) operates child care programs for children six and older but operates none, or proportionally fewer, serving children with disabilities. This would constitute a failure to provide an equal opportunity to participate in child-care programs in violation of the ADA.  This type of claim would challenge access to services, not the age limit on the sanctions exception.

      As with many other potential ADA claims, even if discrimination can be proved, exemption for work requirements is not the only possible remedy for discrimination.  A TANF program or other public entity could remedy the discrimination by making available additional child care programs appropriate for children with disabilities over age six. 

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     (ii) Fundamental Alteration and Undue Burden

      Nothing in PRWORA prevents states from granting exemptions from sanctions to families with children over age six without appropriate child-care.  In fact, PRWORA gives states extremely broad discretion to define exceptions to sanctions, by allowing for “good cause or other exceptions as the State may establish.”[989]  Unlike Aughe v. Shalala [990] and Howard v. Department of Social Welfare,[991] in which a federal statute defined the class of people eligible for benefits in a manner that excluded some children with disabilities, here federal law gives maximum discretion to states to define exceptions.

Making an exception to sanctions for those who are unable to find appropriate child care for children with disabilities over age six would be consistent with PRWORA’s goal of providing care so that children can “be cared for in their own homes.”[992]  If the threat of sanctions creates a risk that caretakers of children with disabilities will send their children elsewhere to live, it would be consistent with PRWORA’s purpose to make an exception to sanctions.