On January 27, 2012, the Office of Federal Contract Compliance Programs (“OFCCP”) rejected requests from the contractor community to provide additional time for comments on its proposed regulations under Section 503 of the Rehabilitation Act of 1973 (“Rehabilitation Act”) that would impose fundamental changes in federal contractors’ obligations involving persons with disabilities. On December 9, 2011, the OFCCP issued a proposed rule that would amend the Rehabilitation Act. A summary of the proposed rule is provided below.
Under the proposed rule, interested parties were given sixty days, until February 7, 2012, to submit comments. Given the potential drastic changes the proposed rule contemplates, the federal contractor community immediately requested additional time to assess the proposed rule so that it could provide appropriate and complete comments. OFCCP, however, rejected this simple request, which may indicate that it plans to finalize the regulations shortly after the comment period expires with little to any changes. In addition, because this is an election year, OFCCP’s current regime will certainly push to have this proposed rule finalized before the election in case there is change in administration after the election.
Summary of Proposed Rule
According to a press release issued by OFCCP in late December, “[t]his proposed rule represents one of the most significant advances in protecting the civil rights of workers with disabilities since the passage of the Americans with Disabilities Act.”
The proposed rule provides detailed specific actions federal contractors and subcontractors must undertake in the areas of recruitment, training, record keeping and policy dissemination. Most significantly, the proposed rule would require “federal contractors to set a hiring goal of having 7 percent of their workforces be people with disabilities.”
In June 2010, the OFCCP issued an advanced notice of public rulemaking (“ANPRM”) “seeking input from the public on ways to strengthen its regulations requiring federal contractors to take affirmative action to employ and advance in employment qualified individuals with disabilities.” 127 comments were submitted in response to the ANPRM. After reviewing these comments, the OFCCP proposed the following significant changes to the Rehabilitation Act:
- Recruitment: Contractors would be required to list their job openings with local employment delivery services and enter linkage agreements (which must be maintained by the contractor for five years) with certain employment sources for individuals with disabilities.
- Invitation to Self-Identify: Under the proposed rule, contractors would be required to invite all applicants to voluntarily self-identify (using language prescribed by the OFCCP) as individuals with disabilities at the time when the applicant applies or is considered for employment and again at the post-offer stage.
- Annual Workforce Survey: Contractors would be required to conduct an annual survey of their workforce, using the language prescribed by the OFCCP, where they invite employees to inform them in an “anonymous manner” whether they believe themselves to be an individual with a disability.
- Affirmative Action Data/Calculations: Contractors would be obligated to revise their data and reporting collection methods for affirmative action plans by having to document and update annually the following calculations:
- Referral data, which includes the total number of referrals from applicable employment service delivery systems and from groups and organizations with which the contractor establishes linkage agreements;
- Applicant data, which includes the total number of applicants for employment, the number of applicants who are known to be individuals with disabilities, and the applicant ratio of known applicants with disabilities to total applicants;
- Hiring data, which includes the total number of job openings, the number of jobs filled, the number of known individuals with disabilities hired, and the hiring ratio comparing the number of hires with known disabilities to total hires;
- The total number of job openings;
- The total number of jobs filled; and
- The job fill ratio, which is the comparison of the total job openings to the total job openings filled.
- Dissemination of Policy and Training: Contractors would be required to provide and discuss their affirmative action policies at employee orientation and training programs for all employees, and they would be required to train all personnel involved in recruitment, hiring, termination, and other processes related to employing and advancing individuals with disabilities.
- Utilization Analysis: Contractors would be required to measure annually the incumbency of individuals with disabilities in their job groups against the 7% goal that OFCCP has established and must establish a goal and undertake affirmative efforts to reach that goal if the rate of individuals with disabilities is less than the utilization goal.
- New Accommodation Procedures: Contractors would be required to develop and implement written procedures with specified minimum provisions for processing requests for reasonable accommodations, which must be included as part of the contractors’ affirmative action program.
- Recordkeeping: Contractors would also be required to track and maintain additional records for five years, including records relating to training programs and promotional opportunities for which applicants and employees with disabilities are considered.