Viewpoint: Putting Autism to Work

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In recent years, targeted employment and retention efforts for adults with autism and other neurodiverse conditions have gained significant momentum. The Autism at Work initiative is expanding: the original group of firms including SAP, Microsoft, EY Consulting, JP Morgan Chase, Ford and DXC Technologies have been joined by other major employers. Just as importantly, beyond Autism at Work, hundreds of other initiatives are emerging at such firms as Salesforce, VMware, Chevron, Cintas and MITRE Corporation, to name a few.

Among the forces driving this growth are demographics and the involvement of family members. Just among youth with a diagnosis of autism, 750,000 to 1 million are projected to turn 18 over the next decade. Family members of these youth and others with neurodiverse conditions are advocating within firms and their communities for targeted hiring initiatives. Another big factor is that some early-adopters, such as those mentioned above, are discovering that neurodiversity can be a competitive advantage, as employees with autism spectrum disorder (ASD) often prove as or more intelligent, focused and productive than "neurotypical" workers. Additionally, because they are wired differently, they bring new perspectives to a company's efforts to create value.

In spite of these advantages, an estimated 70 percent of people on the autism spectrum worldwide are still unemployed or underemployed. But the dearth of talent and skilled labor in tech, manufacturing and engineering is leading companies to rethink their hiring strategies and ways they might accommodate a neurodiverse population.

In thinking about targeted autism hiring going forward, CEOs can draw on the lessons from the past few years, along with key legal issues the human resources and in-house legal staff need to address from the start.

Lessons from Recent Targeted Autism (Neurodiversity) Programs

Several fine program employer manuals have been developed recently by workforce intermediaries that have emerged to help employers in structuring targeted autism programs. Autism Speaks, the well-regarded national group, has developed an employer manual, "Disability Employment and Inclusion: Your Guide to Success." Similarly, the Autism at Work consortium with the University of Washington has produced an "Autism at Work Playbook," and employer manuals have been developed by the Global Impact Sourcing Coalition ("Impact Sourcing in Action: Autism Empowerment Kit" and "Neurodiversity at Work" guide prepared by Uptimize.)

Most recently, the Meristem program in Sacramento—an innovative transition program for young adults with autism—in 2020 released its "TAP Autism—Breaking Barriers for Autism in the Workplace." It is an employer manual drawing heavily on the perspective of adults with autism and their voices.

These manuals differ in emphasis, but they generally highlight four main components of effective programs:

• A recruitment process targeting workers with autism or other neurodiverse conditions.
• A distinct hiring process, often done in collaboration with an agency specializing in neurodiverse employment.
• Supportive services and job coaching.
• Buy-in from constituencies within the company, and neurodiversity education and related information available for managers.

Key Legal Issues in Implementing an Autism Program

The experience of recent autism employment programs also shows the legal issues that are likely to arise, which are best addressed at an early stage of planning. The workforce intermediaries noted above report that employers are raising questions in four major areas focused on compliance with the Americans with Disabilities Act (ADA). I asked Linda Hollinshead, a partner in the Employment, Labor, Immigration and Benefits Practice Group at Duane Morris LLP and ADA attorney, to provide guidance on these questions.

Her main theme is that employers can undertake an affirmative neurodiversity employment initiative, but must do so with knowledge of legal guidelines of the ADA, other major disability-related legislation and case law, and balancing various business goals. Below is a summary of this guidance:

Does a targeted hiring and recruitment process violate the ADA or other disability employment laws?

The ADA prohibits unlawful discrimination at all stages of the hiring process, including the intake of applicants, the job application process, determining whom to interview and relevant questions for candidates, and what constitutes appropriate qualifications for a position. However, the ADA does not make it unlawful to discriminate against an individual because he or she does not have a disability and does not prohibit a distinct hiring process for workers with autism or other defined neurological conditions.

If program participation requires disclosure of an applicant's medical condition for participation, does this violate the ADA?

Voluntary disclosure is permissible, as in a targeted program. Under ADA, an employer may not inquire as to an applicant's medical condition prior to making a conditional job offer. After a job offer has been made, but prior to commencing employment, the ADA permits employers to make a disability-related inquiry, so long as the employer does so for all individuals entering the job category.

Upon hiring someone, an employer must maintain the confidentiality of all disclosure information, sharing it only with those on a "need to know" basis, such as managers who are involved in implementing any agreed-upon reasonable accommodations.

If an employer provides job coaches or mentors for participants in an autism employment program, does the employer need to provide job coaches for all employees?

The employer is not required to provide job coaches or mentors to all employees. The determination of what services are to be provided is on an individual basis.

The ADA requires employers to provide "reasonable accommodations" to qualified disabled employees that do not constitute an undue hardship. What constitutes a reasonable accommodation will vary for each employee based on an individualized assessment. These requirements apply to all disabled employees and are independent of any targeted program.

There is no general requirement under the ADA to provide all employees with similar supports simply because they are provided to individuals within a targeted program. However, where, through an individualized, interactive process between the employers, the employees and his/her healthcare provider, a particular support service has been identified as a necessary and reasonable accommodation for a disabled employee outside of a targeted program, the employer must provide it, absent an undue hardship.

Progressive discipline: Are there different limits on the flexibility of the employer to discipline and even terminate the employment of a participant in a targeted program?

Participating in a targeted program does not exempt an employee from the requirements of all employees. Nor is an employer prevented from disciplining an employee who is in a targeted program or terminating the employment of this employee.

In general, under the ADA, an employer may maintain performance standards for individuals with disabilities. The employer may require job related and necessary conduct standards and can discipline individuals for violating these standards, even where the conduct is related to a disability. These principles apply equally to disabled employees, whether or not they are participants in a targeted neurodiversity program.

The key to lawfully managing performance and conduct standards with respect to disabled employees is being consistent with the enforcement of such standards. In investigating issues of performance or misconduct, an employer must also take steps to ensure that an employee receives appropriate accommodations to effectively participate in the investigation.

An effective autism and neurodiversity employment program can benefit not only its participants, but the broader workforce, especially in institutionalizing best practices for retention. The experiences of the current programs by major employers provide guidance for effective implementation.

Michael S. Bernick, special counsel at Duane Morris LLP, practices in the area of employment and labor law. He advises employers on issues related to employer taxes, unemployment insurance and disability insurance.

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