On January 22, 2014, the Office of Management and Budget (“OMB”) approved the Office of Federal Contract Compliance Program’s (“OFCCP’s”) new self-identification form for individuals with disabilities. According to OFCCP’s new regulations under Section 503 of the Rehabilitation Act (“Disability Regulations”), federal contractors and subcontractors will be required to use this new form to offer all applicants and employees an opportunity to self-identify as individuals with disabilities.
After receiving thoughtful comments from the contractor community, there were number of improvements that were made to proposed version. For example, the final form now includes a section for applicants to indicate that they do not have a disability and allows candidates to identify their name and the date the form was completed. Significantly, however, the form still asks individuals to disclose if they “ever had a disability.” This is problematic because this may increase the number of candidates who self-identify as disabled thereby (1) increasing the chance of there being statistically significant adverse impact on unselected applicants who self-identified as disabled; and (2) increasing contractors exposure to failure to hire claims under the “regarded as” prong of the ADA because employers will be on notice that these candidates are disabled.
Despite some of the lingering concerns with the form, contractors must prepare to put this in place by their first affirmative action plan cycle following the March 24, 2014 effective date of the Disability Regulations. Contractors will be required to use this exact form without modification, but they can create an electronically fillable copy of the form that displays the OMB number and expiration date, contains the text of the form without alteration, use a sans-serif font (such as Arial or Calibri), and at least 11-pitch font size (with the exception of the footnote and burden statement, which must be at least 10-pitch in size). Contractors will also be required to provide this form to applicants both pre and post-offer, and the form must be provided to employees at least once every five years.