OFCCP Proposes Changes to Affirmative Action Obligations Regarding Individuals with Disabilities | Practical Law

OFCCP Proposes Changes to Affirmative Action Obligations Regarding Individuals with Disabilities | Practical Law

The Office of Federal Contract Compliance Programs (OFCCP) issued a proposed rule strengthening affirmative action obligations regarding individuals with disabilities for federal contractors and subcontractors covered by Section 503 of the Rehabilitation Act of 1973 (Section 503). The proposed rule incorporates the expanded definition of disability under the final regulations to the Americans with Disabilities Act Amendments Act of 2008 (ADAAA) and imposes new requirements relating to recruitment efforts, notice to employees, reasonable accommodation request procedures, data collection and recordkeeping.

OFCCP Proposes Changes to Affirmative Action Obligations Regarding Individuals with Disabilities

by PLC Labor & Employment
Published on 09 Dec 2011 • USA (National/Federal)
The Office of Federal Contract Compliance Programs (OFCCP) issued a proposed rule strengthening affirmative action obligations regarding individuals with disabilities for federal contractors and subcontractors covered by Section 503 of the Rehabilitation Act of 1973 (Section 503). The proposed rule incorporates the expanded definition of disability under the final regulations to the Americans with Disabilities Act Amendments Act of 2008 (ADAAA) and imposes new requirements relating to recruitment efforts, notice to employees, reasonable accommodation request procedures, data collection and recordkeeping.
On December 8, 2011, the Office of Federal Contract Compliance Programs (OFCCP) issued a proposed rule amending the affirmative action obligations of federal contractors and subcontractors covered by Section 503 of the Rehabilitation Act of 1973 (Section 503) (for information about covered contractors, see Practice Note, Affirmative Action: Overview: Scope of Coverage under Section 503). The proposed rule revises the regulations that implement Section 503 to:
  • Conform the definitions of key terms to those in the final regulations to the ADAAA.
  • Set a utilization goal of 7% of a covered contractor's workforce to be individuals with disabilities.
  • Strengthen the affirmative action requirements for individuals with disabilities.
  • Describe the specific obligations for covered contractors, including recruitment efforts, written procedures for processing requests for reasonable accommodation, data collection and recordkeeping.

Expanded Definition of Disability

Under Section 503, covered contractors must take affirmative action to employ and advance the employment of qualified individuals with disabilities. The proposed rule incorporates the expanded definition of disability under the final regulations to the ADAAA. For more information, see Disability Definition under the ADAAA Final Regulations Chart.

Recruitment Efforts and Affirmative Action Program Dissemination

The proposed rule outlines specific recruiting obligations for covered contractors, including:
  • A minimum number of outreach and recruitment efforts (for example, listing employment opportunities at the nearest Employment One-Stop Career Center and entering into linkage agreements with certain organizations to develop other recruitment and training opportunities).
  • Required annual self-assessments of recruitment efforts.
The proposed rule requires covered contractors to take certain steps to disseminate information, including:
  • Incorporating their affirmative action program (AAP) into their policy manual and discussing the program in orientation and management training programs.
  • Developing internal procedures to further inform employees about the AAP.
  • Identifying individuals responsible for the AAP on all internal and external communication about the program.
Covered contractors that are a party to a collective bargaining agreement must discuss the AAP with union officials and representatives. The proposed rule also updates the equal opportunity clause that must be included in all government contracts.
For more information about the current requirements under Section 503, see Practice Note, Affirmative Action: Overview: AAP Requirements under Section 503 and Posting and Notice Requirements under Section 503.

Written Procedures for Reasonable Accommodation

Under the proposed rule, covered contractors must develop written procedures for processing requests for reasonable accommodation. These procedures must be disseminated to all employees, including those who work off-site. These procedures must, among other things:
  • Include a description of the reasonable accommodation process.
  • Inform employees that requests may be made orally or in writing by an applicant, employee or a third party on behalf of another.
  • Limit the processing time to five to ten business days if no medical documents are needed.
  • Explain when medical certification may be requested.
  • Require any denial of a request for reasonable accommodation to be provided in writing.
  • Include contact information for the official responsible for the procedures.
Under the proposed rule, covered contractors must train their supervisors and management on these procedures annually and when any significant changes are made. For more information about the reasonable accommodation process, see Practice Notes, Disability Accommodation under the ADA and Interactive Process under the ADA.

Data Collection and Self-Identification Process

The proposed rule requires covered contractors to maintain several measurements and comparisons for individuals with disabilities who have:
  • Been referred by state employment services.
  • Applied for positions with the covered contractor.
  • Been hired by the covered contractor.
This data will be used by covered contractors to complete required self-assessments of the effectiveness of their AAP.
Under the new rule, covered contractors must give applicants and employees the opportunity to voluntarily self-identify as individuals with disabilities:
  • When applying for a position.
  • After an offer is received, but before employment begins.
  • Annually, for all employees.
The covered contractor and the OFCCP will use this data to further evaluate hiring practices relating to people with disabilities. For more information about the current requirements under Section 503, see Practice Note, Affirmative Action: Overview: Requirement to Permit Self-Identification under Section 503.

Recordkeeping and Annual Review Obligations

In addition to the required annual self-assessment, under the proposed rule, covered contractors must also annually evaluate:
  • Physical and mental qualification standards.
  • Compliance with utilization goals.
Covered contractors must document these reviews and other compliance efforts, and keep all related documents for five years. For more information about the current requirements under Section 503, see Practice Note, Affirmative Action: Overview: Recordkeeping Requirements under Section 503.

Comments

Comments will be accepted until February 7, 2012.