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OFCCP Releases Notice of Proposed Rulemaking on Contractor Obligations Regarding Individuals With Disabilities

Published by on January 17, 2012

On December 9, 2011, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”) published a Notice of Proposed Rulemaking in the Federal Register. The proposed rule increases affirmative action requirements established in Section 503 of the Rehabilitation Act of 1973 which obligates federal contractors and subcontractors to ensure equal employment opportunities for […]

On December 9, 2011, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”) published a Notice of Proposed Rulemaking in the Federal Register. The proposed rule increases affirmative action requirements established in Section 503 of the Rehabilitation Act of 1973 which obligates federal contractors and subcontractors to ensure equal employment opportunities for qualified workers with disabilities. The proposed rule incorporates the ADAAA’s expanded definition of disability and imposing new requirements for contractors in the areas of recruitment, data retention and AAP dissemination. In addition, the rule clarifies OFCCP’s expectations for contractors by providing specific guidance on how to comply with the law.  More after the break.

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. The proposed rule also contains a proposed text of the voluntary self-identification invitations that contractors would use when asking an applicant or employee to identify as an individual with a disability. Contractors, under the proposed rule, would be required allow applicants and employees the opportunity to voluntarily self-identify as individuals with disabilities (1) when applying for a position, (2) after an offer is received, but before employment begins, and (3) annually for all employees.

The proposed rule sets a utilization goal of 7% of a covered contractor’s workforce to be individuals with disabilities. OFCCP seeks comment on a range of values between 4% and 10%. This includes the possible addition of a 2% sub-goal for individuals with certain particularly severe or targeted disabilities. OFCCP seeks comment on both the concept of using a sub-goal and on the disabilities that should be included in a sub-goal.

Additionally, the proposed rule outlines specific recruiting effort obligations for contractors, including a minimum number of outreach and recruitment efforts. Examples include linkage agreements with certain organizations to develop other recruitment and training opportunities and listing opportunities at certain government employment career centers. Contractors, under the proposed rule, will be required to conduct annual self-assessments of recruitment efforts and maintain data measurements on individuals with disabilities who applied and were hired.

Also, the proposed rule requires contractors to take certain steps to disseminate information. Incorporating their respective affirmative action program into their policy and discussing the AAP in orientation and management training program are proposed requirements. Contractors would be responsible for identifying individuals responsible for the AAP on all internal and external communication about the program.

Notably, under the proposed rule, covered contractors must develop written procedures for processing requests for reasonable accommodation and disseminate these procedures to all employees, including those who work off-site. The procedures would include, among other things:

  • 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 writing;
  • Include contact information for the employee responsible for the procedures;
  • Supervisors and management training on accommodation procedures annually and when any significant changes are made.

Comments on the proposed rules will be accepted by OFCCP until February 7, 2012. You may submit comments, identified by RIN number 1250-AA02, by any of the following methods:  Federal eRulemaking Portal: http://www.regulations.gov.

Fax: (202) 693-1304 (for comments of six pages or less).

Mail: Debra A. Carr, Director, Division of Policy, Planning, and Program Development, Office of Federal Contract Compliance Programs, Room C-3325, 200 Constitution Avenue NW., Washington, DC 20210.

A link to the Federal Register can be found here.

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