On August 27, 2013, the United States Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”) issued its long-awaited final rule implementing Section 503 of the Rehabilitation Act of 1973. OFCCP first proposed changes to the affirmative action for workers with disabilities regulations more than 20 months ago. The agency received more than 400 comments in response to its proposal. The final rule does not adopt the proposed rule wholesale, as it has revised or omitted some of the more controversial of the draft’s provisions.
The draft provision drawing the most attention was the establishment of a national utilization goal of seven percent at the group level for workers with disabilities. OFCCP received more than 250 comments on this proposal alone. The final rules retain the seven percent utilization goal. However, they clarify that failure to meet the seven percent utilization goal is not a violation and will not lead to a fine, penalty or sanction. Instead, the rules set out a process for contractors who do not achieve the seven percent goal: Contractors must perform an analysis to determine whether any impediments to equal employment opportunity exist and if so, to correct them. If this analysis does not identify any systematic impediments, then the regulations do not require any further action.
Another controversial aspect of the new regulations is the requirement that federal contractors invite job applicants to self identify as individuals with disabilities. In addition, contractors will have to implement a process to provide the opportunity for existing employees to self-identify every five years. (The draft regulations had required annual self-identification opportunities.) OFCCP intends to provide contractors with the language to be used in the self-identification invitations.
OFCCP’s final regulations depart from the original proposal by not adopting the requirement for contractors to develop and implement written procedures for processing requests for reasonable accommodation. The final rules instead state that maintenance of written procedures is a best practice. They also contain guidance for those contractors who choose to establish written procedures.
The regulations do impose self-evaluation requirements on contractors. With respect to hiring, contractors must undertake annual reviews of their outreach and recruitment efforts over the previous 12 months to evaluate their effectiveness in identifying and recruiting qualified individuals with disabilities. The review must be documented and contain a description of the criteria used to evaluate the effectiveness of each effort and an evaluation and conclusion as to whether each effort was effective. If the contractor concludes the totality of its efforts were not effective in identifying and recruiting qualified individuals with disabilities, the contractor is to identify and implement specific actions that are listed in the regulations. Additionally, contractors must maintain the following hiring records for a three-year period: (1) the number of applicants who self-identified as individuals with disabilities or who are otherwise known to be individuals with disabilities; (2) the total number of job openings and total number of jobs filled; (3) the total number of applicants for all jobs; (4) the number of applicants with disabilities hired; and (5) the total number of applicants hired.
With respect to their existing workforce, contractors must undertake “periodic” reviews of their personnel processes to ensure that they “[p]rovide for careful, thorough, and systematic consideration of the job qualifications of applicants and employees with known disabilities for job vacancies filled either by hiring or promotion, and for all training opportunities offered or available.” A description of the review and any resulting modifications to personnel policies or processes must be documented and included in contractors’ Affirmative Action Plans (“AAP”).
The regulations become effective 180 days from the August 27, 2013 publication date (February 23, 2014). Contractors with existing AAPs may maintain their current plans without change through their duration, and begin compliance with the new requirements as of their next 12-month plan period.