Freelancing with a Disability: Will Potential Legislation Affect Your Business?

Published December 3, 2020

Freelancing has become one of the nation’s most common and preferred ways to work. Freelancing affords people the right to have a flexible schedule, work on their terms, and choose the jobs they want to do. For one-in-five freelancers who can’t work a traditional job because of health issues or disability, this type of work isn’t just a luxury — it can be a necessary way of life.

More and more people with disabilities are becoming self-employed by building a business as a freelancer, and their numbers are higher than self-employed people without disabilities according to the Bureau of Labor Statistics (PDF). Some people with disabilities need flexibility in scheduling and working style, and that’s precisely what freelancing awards them.

With about 36% of the U.S. workforce made up of freelancers, it’s clear that businesses small and large are keen on utilizing these professionals. Not only can businesses find dedicated experts for specific tasks, but they can also save overhead costs. Hiring freelancers with disabilities gives companies the ability to create a diverse workforce while ensuring worker flexibility and independence.

Potential laws affecting freelancers across the United States

There are currently a few threats to freelancers in the form of potential legislation making its way through the federal government. Introduced in 2019, the Protecting the Right to Organize Act (PRO Act) is one that seeks to redefine every independent contractor — what freelancers technically are — as an employee unless they can prove they aren’t. The criteria a freelancer would need to meet is strict, noting:

  • A: They’re entirely free from control and direction from the companies they work with.
  • B: The services they provide are not related to the primary course of business of the companies they work with.
  • C: They’re engaged in an independently established business or trade in which they perform their service regularly.

More recently introduced is the Worker Flexibility and Small Business Protection Act. This piece of legislation includes the same "ABC" test as the PRO Act, but it adds additional language to ensure that businesses using independent contractors are held accountable if they misclassify their workers as independent contractors when they should be employees under the law.

How this legislation could affect business owners

Many businesses encourage working with freelancers with disabilities who work at a pace and schedule that meets their needs. If your business is one of them, your company could get in legal trouble should these pieces of proposed legislation make their way into federal law and your freelancers don’t meet the criteria of the ABC test.

Since the start of 2020, Californian freelancers have seen the breadth of what these laws can do with the passing of California Assembly Bill 5 (AB5). AB5 includes the ABC test that lawmakers are trying to push federally. As a result, many freelancers in California are no longer able to work their freelance jobs, including those with disabilities who rely on freelancing for their primary income.

The "B" part of this legislation is what many freelancers could find challenging to meet. If, for example, you hire a freelancer to provide translation services for one or two clients for your translation business, that freelancer could be working within your usual course of business.

Should either of these proposed pieces of legislation or similar ones become law, some businesses may need to comply in one of the following ways:

  • Discontinuing work with freelancers who don’t meet each piece of the ABC test
  • Changing the ways that they work with freelancers to ensure they do meet each piece of the ABC test
  • Reclassifying freelancers as employees

The latter could, of course, have the most profound effect on some freelancers with disabilities. Suppose your company does choose to reclassify freelancers as employees. In that case, it’s critical to make sure you don't discriminate against them, even unintentionally. Offering scheduling flexibility and paid time off can be a good start for some, but reasonable accommodations differ from person to person. Brushing up on the Americans with Disabilities Act (ADA) requirements can help you ensure that each person on your team has equal and fair working rights.