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The fact that a worker has a disability in and of itself does not justify the
payment of a special minimum wage. The disability must also impair the
worker’s earning or productive capacity for the work being performed. The
regulations require that the employer maintain documentation regarding how the
disability impairs the worker’s productivity and earning capacity for the
job being performed.
A worker who has a disability for the job being performed is one whose earning
or productive capacity is impaired by a physical or mental disability,
including those relating to age or injury. Disabilities that may affect
productive capacity include blindness, mental illness, mental retardation,
cerebral palsy, alcoholism and drug addiction.
The impact that qualifying disabilities have on the individual productivity of a
worker, in terms of the quality and quantity of the work, can vary considerably
- even on a day to day basis. This is especially true for workers who perform a
variety of jobs as part of their employment. Employers wishing to pay special
minimum wages to workers with disabilities are required to document not only
that the worker has a disability, but how that disability impairs the worker's
productivity for each job for which a special minimum wage is to be paid.
The following, taken by themselves, are not considered to be disabilities for
purposes of paying special minimum wages: educational disabilities, chronic
unemployment, receipt of welfare benefits, nonattendance at school, juvenile
delinquency and correctional parole or probation. These conditions, however,
could meet the definition of a disability under the Fair Labor Standards Act
(FLSA) if they exist in conjunction with some other physical or mental
deficiency or injury.
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FLSA Section 14(c)
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