By: Laurie A. Petersen and Kristofor L. Hanson
On December 9, 2011, the Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”), published a Notice of Proposed Rulemaking, which if implemented, would impose significant changes on companies doing business with the federal government with respect to their hiring of persons with disabilities. The rule looks to set a hiring goal
for workers with disabilities’ proposed at 7% of federal contractors’ workforces’ and would establish for the first time, a single, national utilization goal for individuals with disabilities.
The proposed rule does not set 7% as a quota or a restrictive hiring ceiling. Nor does failure to achieve 7% hiring of persons with disabilities necessarily constitute a violation of Section 503 of the Rehabilitation Act of 1973, which the proposed rule seeks to amend. The OFCCP director stated that the focus of the rule will be on determining whether covered contractors are following required steps related to recruitment, notification of job openings, and accessible hiring procedures.
Under the rule the definitions of “disability,” “major life activities,” “substantially limits,” and other statutory terms within the existing Section 503 regulations to conform with the ADA Amendments Act (“ADAAA”) and the Equal Employment Opportunity Commission’s final regulations implementing that new law, which amended the Rehabilitation Act as well as the ADA.
The proposed rule makes substantive changes to a federal contractor’s responsibilities and the manner in which applicants are invited to voluntarily self-identify as individuals with disabilities during the hiring process. Contractors also shall invite employees to self-identify as disabled post-offer. The pre-offer self-identification process is designed to assist contractors and OFCCP in determining the number of individuals with disabilities who apply for jobs with contractors.
In addition, the proposed rule adds a new requirement that contractors annually survey their employees, providing an opportunity for each employee who is, or subsequently becomes, an individual with a disability to voluntarily self-identify as such in an anonymous manner, thereby
allowing those who have subsequently become disabled or who did not wish to self-identify during the hiring process to be counted. The purpose of the annual survey is to provide contractors and the OFCCP with a data collection tool to establish a baseline percentage of disabled employees and to better identify and monitor the contractor’s hiring and selection
practices with respect to individuals with disabilities. The OFCCP believes that assuring anonymity of employee response to the annual survey will likely increase the response rate, thus providing that the most accurate data possible is available to assist contractors and OFCCP. This data is designed to assist contractors and OFCCP in evaluating and refining
contractors’ affirmative action efforts. Surveying of employees may be accomplished by the contractor using a paper and/or electronic format, using the method(s) generally used by the contractor to communicate with employees regarding work-related matters. The OFCCP will provide suggested language for the self-identification inquiries and is seeking comments on the language prior to implementation.
Contractors would also have to annually review their personnel policies to assure that their affirmative action plan obligations are being met. Likewise, contractors would be required to annually review their outreach and recruitment efforts to evaluate their effectiveness in identifying and recruiting qualified individuals with disabilities, and to document the review. In addition, contractors would have to establish “linkage agreements” and “ongoing relationships” with state vocational rehabilitation agencies or local organizations listed in the Social Security
Administration’s Ticket to Work employment network directory.
Federal contractors would also be required for the first time to develop and implement written procedures for processing requests for reasonable accommodation under the rule. The purpose of developing these written procedures, according to the OFCCP, would be to assure that applicants and employees have clear instructions on how to request accommodations
and know the reason an accommodation request has been denied. In addition, the rule would assist federal contractors in assuring they are satisfying their reasonable accommodation requirements.
The significant changes in the proposed rule should be reviewed closely by all employers doing business with the federal government. Contractors should also review their current disability hiring and retention policies, as well as their reasonable accommodation guidelines, to assure that they are making proper efforts to accommodate individuals with disabilities, both
at the hiring phase and during active employment.
No implementation date has been set, but OFCCP is accepting comments on this Notice of Proposed Rulemaking through February 7, 2012. Comments, identified by RIN number 1250-AA02, may be submitted online at http://www.regulations.gov; by fax (if six pages or less) to (202) 693-1304; or by mail to: Debra A. Carr, Director, Division of Policy, Planning, and Program Development, Office of Federal Contractor Compliance Programs, Room C-3325, 200 Constitution Ave. NW, Washington, DC 20210.
If you have any questions about this material, please contact Laurie Petersen or Kris Hanson or any other attorney you have been working with here at Lindner & Marsack, S.C.