Major Changes Proposed for Affirmative Action Plans Covering Individuals with Disabilities

January 9, 2012

By: Larry P. Malfitano

The U.S. Department of Labor, Office of Federal Contract Compliance Programs ("OFCCP"), recently issued a proposal to revise 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.  The proposed changes, if implemented, will substantially increase the obligations imposed on Federal contractors with respect to individuals with disabilities.

The OFCCP proposal includes the following requirements:

1. Contractors will need to annually survey their employees, providing an opportunity for each employee who is, or subsequently becomes, an individual with a disability to voluntarily self-identify in an anonymous manner.  In addition, contractors will be required to invite applicants to self-identify as individuals with disabilities at both the pre- and post-offer stages, using OFCCP mandated language.
2. Contractors will be required to document and maintain data on ratio of jobs filled to openings, ratio of applicants with disabilities to all applicants, total number of applicants hired, and ratio of individuals with disabilities hired to all hires.
3. Contractors will be required to engage in mandatory outreach/recruitment efforts that involve listing all employment opportunities (with limited exceptions) with the local employment delivery service, similar to the current obligations under the Vietnam Era Veterans' Readjustment Assistance Act.  Additional required outreach efforts will also be required, including entering into a minimum of three linkage agreements with specific types of outreach sources.  In addition, an annual review and documentation of these recruitment efforts will be required to determine effectiveness in identifying and recruiting qualified individuals with disabilities.
4. Contractors will be required to establish a utilization goal for individuals with disabilities and set hiring goals for each Job Group in the workforce.  OFCCP proposed a utilization goal of 7%.  However, OFCCP is inviting public comments on the use of a 7% goal and appears willing to consider a goal ranging between 4% and 10%.
5. Contractors will be required to implement written reasonable accommodation procedures and include the written procedures in their Affirmative Action Plans.
6. Contractors will be required to annually review and document their personnel processes, as well as physical and mental job qualifications, instead of doing so periodically.
7. Contractors will be obligated to retain outreach documentation and data collection for five years.

Comments on the proposed rule from interested parties may be submitted to the OFCCP on or before February 7, 2012.  OFCCP anticipates a final rule will be published around Fall of 2012.