OFCCP Proposed Rule Seeks To Increase Disability Hiring
December 12, 2011
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 by email at lpetersen@lindner-marsack.com or
khanson@lindner-marsack.com, or any other attorney you have been
working with here at Lindner & Marsack, S.C.
Lindner & Marsack, S.C. has represented management exclusively in all
facets of labor, employment, and employee benefits law since 1908. Call
us at (414) 273-3910, or visit our website, www.lindner-marsack.com, to
learn more about our firm and its experienced and innovative attorneys.
