Statement of the Department of Justice on Application of the Integration Mandate of Title II of the Americans with Disabilities Act and Olmstead v. L.C. to State and Local Governments’ Employment Service Systems for Individuals with Disabilities

4. What evidence may a person with a disability rely on to establish that an integrated setting is appropriate for him or her?

A: A considerable body of professional research shows that people with significant disabilities can work in integrated employment settings.²⁴ Moreover, numerous states have adopted Employment First policies that instruct states’ disability service systems to prioritize supports in competitive integrated employment for individuals with disabilities.²⁵ Such policies frequently include the directive that state systems must be driven by the presumption that individuals with disabilities can work, and that not working should be the exception.²⁶ A person with a disability may rely upon a variety of evidence to establish that an integrated employment setting is appropriate. As the Department has previously stated, a reasonable, objective assessment by a public entity’s treating professional is one, but only one, such avenue.²⁷ For example, a vocational rehabilitation counselor or a state-funded caseworker may conduct a vocational assessment to identify individuals’ needs and the services and supports necessary for them to succeed in an integrated employment setting. A professional involved in the assessment should be knowledgeable about the range of supports and services available in integrated employment settings.²⁸

However, the ADA and its regulations do not require a person with a disability to have a medical or vocational rehabilitation professional determine that he or she is capable of competitive integrated employment. A person with a disability can also present his or her own independent evidence of the appropriateness of an integrated employment setting. Evidence of appropriateness of competitive integrated employment may include, but is not limited to: 1) people with similar needs are working in integrated settings with appropriate supports; 2) he or she has formerly worked in an integrated employment setting; or 3) he or she currently performs work in a sheltered workshop that demonstrates his or her capability to perform work in a competitive integrated employment setting with the appropriate services and supports. This evidence may come from a person’s employment service provider, from community-based organizations that provide supported employment services, from former employers, from family members and friends, or from any other relevant source. Limiting the evidence on which people with disabilities may rely would enable public entities to circumvent their Olmstead obligations by failing to require professionals to make recommendations regarding the ability of individuals to be served in more integrated settings.²⁹