Over a year after the Office of Federal Contract Compliance Programs (OFCCP) announced its intention to do so, the agency has finally issued its proposed rule to amend the nondiscrimination and affirmative action requirements regarding individuals with disabilities for federal contractors and subcontractors (Section 503 of the Rehabilitation Act of 1973).
OFCCP’s Notice of Proposed Rulemaking, published in the Federal Register on December 9, 2011, followed up an earlier advance notice of proposed rulemaking (NPRM), published in July 2010. The changes contained in the proposed rule would alter the way in which federal contractors and subcontractors would be required to act with regard to recruiting and training disabled individuals, as well as compliance with recordkeeping and policy requirements.
Under the proposed rules, covered contractors would be required to take affirmative action measures for disabled individuals similar to those required for women and minorities.
The changes proposed in the NPRM, discussed in more detail below, include:
- Introducing a utilization goal of 7 percent for individuals with disabilities;
- Increasing and altering data collection requirements for individuals with disabilities;
- Requiring contractors to invite individuals with a disability to voluntarily self-identify at the preoffer and postoffer stages;
- Requiring that contractors conduct regular anonymous surveys of their employees to provide an opportunity to self-identify for
- those who do not wish to do so during the hiring process;
- Changing how OFCCP compliance officers conduct evaluations of contractors; and
- Providing for electronic posting of employee rights and contractor obligations.
Goals, Not Quotas
The NPRM proposes a “utilization goal” of 7 percent for the employment of individuals with disabilities in each job group of the contractor’s workforce. In lieu of a single national utilization goal, OFCCP proposes a 4 percent to 10 percent “utilization range.”
OFCCP says that the proposed goal is derived primarily from disability data collected as part of the Census Bureau’s American Community Survey (www.census.gov/acs/www), and is neither a quota nor a hiring ceiling. OFCCP assures contractors that failure to attain the goal does not constitute a violation of Section 503 or OFCCP’s regulations.
Rather, says OFCCP, the goal will provide both contractors and OFCCP with a “quantifiable measure for assessing success in recruiting and employing individuals with disabilities.” This assurance has been met with some skepticism in the contracting community.
Data Collection Changes
The NPRM recommends that contractors collect, maintain, and update several measurements and comparisons related to individuals with disabilities, including the:
- Number of individuals with disabilities referred to them by the employment service delivery system(s) and by groups and organizations with which the contractor has a linkage agreement;
- Number of individuals with disabilities who applied for positions with the contractor and the “applicant ratio” of known applicants with disabilities to total applicants;
- The total number of job openings, the number of jobs filled, the number of known individuals with disabilities hired, and the “hiring ratio” of hires with known disabilities to total hires; and
- The total number of job openings, the number of jobs that are filled, and the “job fill ratio” of job openings to job openings filled.
These proposed changes have been criticized as creating a substantial increase in the burden of data collection and recordkeeping. Critics of the proposed rule have deemed it an impossible burden, sure to require additional manpower and expense for contractors and subcontractors to be in compliance.
Disability Identification and Accommodation
The NPRM proposes requiring the contractor to invite applicants to voluntarily self-identify as an individual with a disability at both the preoffer and postoffer stages of the hiring process.
In addition, the NPRM proposes requiring that contractors develop and implement specific written procedures for processing requests for reasonable accommodation, and details the minimum elements the procedures must include. Contractors would be required to document training programs and promotional opportunities for disabled applicants and employees, as well as prepare a statement and description of any accommodation considered and any reason the contractor rejects an individual with disability for employment, promotion, or training.
The NPRM would also require contractors to make a record describing any accommodation that makes possible the selection of an individual with a disability for hire, promotion, or training.
OFCCP believes that the written procedures will assist the contractor in consistently satisfying its reasonable accommodation obligation “by serving as a ‘blueprint’ for the prompt handling of reasonable accommodation requests.” However, opponents believe that the proposed requirements will be burdensome and potentially very costly for contractors.
OFCCP also proposes that employers conduct an annual survey to assist employees in self-identifying as disabled. The annual survey is necessary, says OFCCP, because an employee may become disabled at any time or “may feel more comfortable self-identifying once he or she has been employed for some time.”
An anonymous annual survey will likely increase the employee response rate and, says OFCCP, provide “the most accurate data possible to assist contractors and [to help] OFCCP evaluate and refine the contractor’s affirmative action efforts.”
Changes to Compliance Evaluations
The NPRM proposes permitting that OFCCP review contractor records for compliance checks and focused reviews either on-site or off-site, at OFCCP’s discretion.
This, says OFCCP, will improve the agency’s efficiency in conducting compliance evaluations. The NPRM also proposes a new procedure for the conduct of preaward compliance evaluations. This proposal will bring Section 503 into alignment with the preaward compliance evaluation procedures contained in the Executive Order (EO) 11246 regulations.
Notice and Job Postings
The NPRM would require that contractors issue notices of worker rights under Section 503 of the Rehabilitation Act in accessible formats for those working off-site (i.e., electronically accessible postings) as well as for those with visual impairments. In addition, contractors would be required to disseminate their affirmative action policies in their internal policy manuals and discuss their policies at employee orientation and training programs.
The NPRM also proposes a mandatory job-listing requirement for Section 503 virtually identical to the requirement in the regulations implementing Section 4212 of the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA). Under this proposal, contractors would be required to list all job openings, with limited exceptions, with the nearest One-Stop Career Center.
Current regulations only suggest a number of outreach and recruitment efforts that contractors can undertake to increase employment opportunities for individuals with disabilities. In contrast, the NPRM proposes requiring contractors to engage in a minimum of three specified types of outreach and recruitment “linkage” efforts, including enlisting the assistance and support of either the State Vocational Rehabilitation Service Agency (SVRA) or a local Employment Network (EN) organization listed in the Social Security Administration’s Ticket to Work EN Directory.
The NPRM also suggests requiring contractors to annually review their outreach and recruitment efforts and evaluate their effectiveness. A list of optional outreach and recruitment measures is also included in the NPRM.
Public comments on the rule were due to OFCCP by February 21, 2012. In a recent webinar discussing the proposed rule, agency officials indicated that it was their intention to have the final rule published by the end of 2012.