OFCCP Releases Proposed Revisions to Disability Regulations

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On Friday, December 9, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) released proposed revisions to the affirmative action regulations regarding individuals with disabilities. These proposed revisions represent a foundational change in the formal expectations that OFCCP has regarding the efforts federal contractors and subcontractors make on behalf of individuals with disabilities. OFCCP has shown a significantly increased focus on disability issues in affirmative action compliance reviews conducted during 2011. The proposed revisions represent a further intensification in the agency’s focus.

Highlights of the proposed revisions include the following:
  • Federal contractors and subcontractors would have a goal to ensure that 7% of the persons in all affirmative action job groups are individuals with disabilities.
  • Federal contractors and subcontractors would be required to establish linkage agreements with the local state employment service and at least three other organizations that work with individuals with disabilities seeking employment opportunities.
  • Federal contractors and subcontractors would be required to survey applicants about disability status at both the pre-offer and post-offer stage of the selection process. This is the first time any federal agency has asked companies to do a pre-offer survey of applicants for disability status.
  • Federal contractors and subcontractors would be required to conduct an annual survey of the entire workforce to gather information on disability status.
  • Federal contractors and subcontractors would be required to keep FIVE years of data on the number of individuals with disabilities who apply for positions, who are hired into positions, and various other actions. The only other five-year time frame for record retention is found in OFCCP’s proposed revisions to its veterans regulations.
  • Federal contractors and subcontractors would be required to keep extensive records of personnel actions such as promotion and training involving employees with disabilities.
  • Federal contractors and subcontractors would be required to keep detailed records of reasonable accommodations offered to both applicants and employees.
The proposed revisions have many direct parallels to OFCCP’s proposed revisions to its regulations regarding veterans that were released in April of 2011. While the veterans regulations have not been released in final form, the agency’s willingness to release new regulations so closely paralleling the veterans regulations suggests that most of OFCCP’s April proposals are likely to be adopted.

There are several key points to remember regarding the proposed revisions to the regulations for individuals with disabilities:
  • These revisions are proposed. They are NOT yet in final form. You can influence what will happen to these regulations by providing comments to OFCCP before February 8, 2012 at the website noted below.
  • OFCCP is already actively enforcing some of the ideas in the proposed revisions. For example, OFCCP is currently asking for formal lists of accommodations provided to individuals with disabilities during affirmative action compliance reviews.
  • Be wary of publications that declare “Make all of these changes immediately!” OFCCP will unquestionably continue to focus on issues concerning individuals with disabilities during the coming year, but there are some parts of the proposed revisions that may not be adopted in the final version of the regulations.
  • It is worth considering what these proposals would mean for your organization. While it will be at least a year before any new regulations concerning individuals with disabilities come into effect, it makes sense to do some investigation to determine what these changes might mean for your organization.
Did You Know…that the definition of disability is very extensive? Both under OFCCP’s regulations and the regulations regarding the Americans with Disabilities Act, there are many employees who qualify as an individual with a disability. One of the issues associated with OFCCP’s regulations is that individuals with disabilities are reluctant to identify themselves as disabled. Because of this lack of self-identification, organizations that have made efforts to employ individuals with disabilities may have little to show for these efforts.

If you want to read the proposed revisions to the regulations for individuals with disabilities, they can be found here. For more information on OFCCP’s current approach to issues concerning persons with disabilities or the proposed revisions, feel free to contact me at wosterndorf@hranalytical.com.