The Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”) has issued a proposed rule that would require federal contractors to set a hiring goal that 7 percent of their workforces be composed of individuals with disabilities. 

The proposed rule is scheduled for publication in the Federal Register on December 9, 2011.  This publication triggers a 60-day public comment period on the rule, ending on February 7, 2012.

The proposed rule makes significant changes to federal contractors’ affirmative action requirements related to disabled applicants and employees and the process through which applicants are invited to voluntarily self-identify as individuals with disabilities.  Due to those substantial changes, federal contractors will be required to perform more work to remain compliant under the proposed rule.

Generally, the proposal would require federal contractors, who constitute about 25 percent of all U.S. employers, to amplify recruitment, training and recordkeeping, and disseminate policies to promote workplace equality for individuals with disabilities.  For the first time, federal contractors would be required to establish linkage agreements with agencies that support disabled workers and list job openings to increase their pools of qualified applicants.

The OFCCP’s proposal would revise the definitions of “disability,” “major life activities,” “substantially limits,” and other statutory terms under Section 503 of the Rehabilitation Act to conform with the ADA Amendments Act and the Equal Employment Opportunity Commission’s final regulations implementing those amendments. 

Voluntary Self-Identification of Disabled Persons
Under the OFCCP’s proposal, contractors would be required to invite all job applicants to “voluntarily self-identify” as persons with disabilities whenever an individual applies for or is considered for employment. Contractors also would have to survey their current employees annually in order to give employees an opportunity to voluntarily self-identify, anonymously if they prefer, as persons with disabilities.

The OFCCP will prescribe the language and manner of the proposed invitation.  The invitation would only ask for self-identification as to the existence of a “disability” and not inquire into the type of disability or the nature or severity of the person’s limitations.

Annual Self-Assessments by Contractors
The OFCCP’s proposal would require contractors to review their personnel processes at least annually to ensure that their affirmative action plan (AAP) obligations are being met. The proposed rule mandates specific steps that the contractor must take during the review, such as providing an explanation for rejecting an individual with a disability for a job vacancy or training program and describing the reasonable accommodations the contractor considered.  The proposal also requires any contractor who is obligated to develop an AAP to develop and implement written procedures for processing requests for reasonable accommodation and disseminate those procedures to all employees.

Further, the proposal would require contractors 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. Contractors would have to enter into linkage agreements with other listed organizations as well in an effort to recruit and train persons with disabilities.

Finally, the proposed rule would require contractors annually to review and document their outreach and recruitment efforts to evaluate their effectiveness in identifying and recruiting qualified individuals with disabilities.  The rule would also require contractors to document and update annually their referral, applicant, and hiring data to determine the ratios of known persons with disabilities who were referred, applied for jobs, or were hired within the preceding year compared with the contractors’ overall numbers.

The attorneys at Taft will keep you posted of new developments regarding this proposed rule and are available to help you with questions or concerns you may have.

Comments on the OFCCP’s proposed rule may be submitted online here.  The complete text of the proposed rule may be accessed online here.