OFCCP Proposed Rule Affects Affirmative Action Plans for Employees with Disabilities

On December 9, 2011, the Office of Federal Contract Compliance Programs (“OFCCP”) issued a proposed rule that would change the regulations applicable to Section 503 of the Rehabilitation Act of 1973, which requires federal contractors to take affirmative action to hire, retain, and promote qualified individuals with disabilities. According to the Department of Labor’s press release, “[t]he proposed regulatory changes detail specific actions contractors must take in the areas of recruitment, training, record keeping and policy dissemination — similar to those that have long been required to promote workplace equality for women and minorities. In addition, the rule would clarify OFCCP’s expectations for contractors by providing specific guidance on how to comply with the law.”

Highlights of the proposed rule include:

• Goals: Establish, for the first time, a single, national utilization goal for individuals with disabilities. Federal contractors and subcontractors would be required to set a hiring goal of having 7 percent of their employees be workers with disabilities in each job group of the contractors’ workforce.
• Data Collection: Improve collection of data on employment of people with disabilities by modifying the invitation for workers to self-identify by requiring that contractors invite all applicants to voluntarily self-identify as an “individual with a disability” at the pre-offer stage of the hiring process. Contractors also will be required to invite post-offer voluntary self-identification and to survey all employees annually in order to invite their self-identification in an anonymous manner.
• Record-Keeping: Require that contractors maintain records on the number of individuals with disabilities applying for positions and the number of individuals with disabilities hired.
• Accommodation Requests: Require, for the first time, that contractors develop and implement written procedures for processing requests for reasonable accommodation.
• Outreach: Require that contractors engage in a minimum of three specific types of outreach and recruitment efforts to recruit individuals with disabilities.
• Job Listings: Require that contractors list job openings with One-Stop Career Centers or other appropriate employment delivery systems.
• Annual Reviews: Require previously recommended steps contractors must take to review their personnel processes, as well as their physical and mental job qualifications.
• ADAAA Updates: Incorporate updates made necessary by the ADA Amendments Act (ADAAA) of 2008.

The comment period on the proposed rule ends on February 7, 2012, and a final rule should be published in the fall of 2012.