12.4 Community-Based Work Sites

Community-based work sites will be developed to provide situational assessments and job skill training in realistic work settings. Situational assessments may be used as a vocational evaluation tool to provide trial work experiences when initial or ongoing eligibility is in question and as supplemental evaluations for individuals receiving supported employment services. When necessary to develop realistic work settings in the community, an employer may be paid for use of the work site provided that the following conditions are met:

• The individual's work performance provides no net benefit to an employer.

• No other service(s) is being provided to the individual by the employer.

• The work experience is in an integrated employment setting.

Whenever an employment relationship exists, an employer shall be held responsible by the U.S. Department of Labor to fully comply with all applicable sections of the Fair Labor Standards Act (FLSA). This means that whenever DVR Counselors arrange for a situational assessment, a work adjustment training program, job coaching, or other vocational training program in a real work setting, the employer is required to compensate the individual unless all of the following criteria for a non-employment relationship under the FLSA are met. These requirements can help DVR Counselors and individuals with disabilities structure assessments and training programs with employers who do not wish to consider the individual to be an employee:

1. The assessment and/or training is for the benefit of the individual with a disability and not the employer, and is a clearly defined component of the individual's vocational rehabilitation assessment and/or Individualized Plan for Employment.

2. The individual with a disability does not displace any regular employee, relieve an existing employee of assigned duties, result in a reduction of hours for an existing employee, or fill a vacancy.

3. The individual with a disability is under continued and direct supervision by vocational rehabilitation service providers and/or employees of the business.

4. The activities of the individual with a disability, even if solely performing duties not ordinarily performed by existing employees, do not result in an immediate advantage to the business or the advantage is clearly offset by the burden to the employer from training and supervision provided.

5. The individual with a disability is not entitled to a job at the end of the assessment and/or training period.

6. The individual with a disability voluntarily participates in the assessment or training program with the clear understanding that their participation does not entitle them to wages or other employee benefits.

In addition, the U.S. Department of Labor considers the length of time of the assessment or training component as part of its determination about whether or not an employment relationship exists. Although the existence of an employment relationship will not be determined exclusively on the basis of the number of hours, as general rule non-employment assessments and training programs are expected to comply with the following limitations:

Payment to an employer for providing a work site for situational assessment shall not exceed two months at the weekly or monthly rate defined in the DVR Fee Schedule.

Payments made to an employer for the provision of job skill training, including on-the-job training, require that the employer has the necessary expertise, credentials, and formal training program(s) required to meet the individual’s skill development needs. DVR shall not pay an employer for on-the-job training following payment for job skill training for the same individual. DVR shall not make payments to an employer within the marijuana or psilocybin industry.

An employer shall not be paid for both the use of a work site and as a service provider. Payment as a service provider requires that the employer meet the same standards and expectations as would be required of any other provider.

On-the-job training is an opportunity for individuals to experience employment opportunities with the clear expectation that employment in the same or a similar job for the employer shall continue if successful. Employers shall compensate the individual at the employer's usual and customary wages for the required skill level and type of position into which the individual is placed. The employer may be reimbursed a percentage of the individual’s wage according to the DVR Fee Schedule. An OJT Provider Agreement is required. On-the-job training is normally limited to three months.