The Department of Labor’s Office of Federal Contract Compliance Program’s new regulations regarding affirmative action for veterans and disabled persons take effect March 24. The rules will require major changes in the way federal contractors analyze and demonstrate their efforts to increase the percentages of disabled persons and veterans in various job groups. For the first time, OFCCP has set aspirational hiring and utilization goals for these categories, and eventually will begin enforcement efforts against contractors deemed not to have engaged in sufficient outreach efforts to these communities.
Under the new rules, employers must make changes to comply with the new requirements on the first plan anniversary date after March 24. For calendar year plans, this means that the changes will have to be incorporated by January 1, 2015. In order to comply with the new hiring and utilization goals, employers will be required to survey the existing workforce prior to making changes to the plan to give existing employees the opportunity to self-identify as disabled.
In January, OFCCP issued a self-identification form to be used for this purpose, and for ongoing use with job applicants. The form has received significant criticism from employers. The examples used on the form do not appear to be nearly as broad as the applicable definition of disability under the ADA Amendments Act. This means that many disabled persons could be led to believe that their conditions do not qualify as disabilities, resulting in an undercounting of employers’ actual disabled populations.
In order to develop the required job grouping information, the form provides space for the employees to identify themselves. Employers should strongly consider segregating this information from other personnel records, and even from human resource personnel who deal with regular performance and disciplinary matters. Employees that are subject to disciplinary action or discharge may very well contend that the employer was aware of some unidentified medical condition from the OFCCP form disclosures, and took disciplinary action based on the disclosures.
OFCCP has stated its intent not to take enforcement action against contractors during the early stages of implementation of the new rules. Federal contractors should determine their new compliance obligations, and begin planning the required changes to their plans, including giving themselves adequate time to survey their existing workforces.