Federal contractors must invite job applicants and employees to voluntarily self-identify as individuals with disabilities using a form that was recently released by the Office of Federal Contract Compliance Programs (OFCCP). Effective March 24, 2014, federal contractors must begin using the new form unless they have an affirmative action plan (AAP) in place on that date. In that case, they may delay their compliance until the start of their next plan cycle.

Under the Final Rule announced by the OFCCP last fall, a federal contractor is required to invite an applicant to voluntarily identify whether he or she is an individual with a disability. This invitation must be provided to each applicant when the individual applies or is considered for employment. The invitation may be included with the application materials for a position, but must be retained separate from the application. Federal contractors are also required to invite applicants to identify their gender, race/ethnic and veteran status, although the requirements for capturing that information are less prescriptive.

The contractor must invite each of its employees to voluntarily inform the contractor whether the employee believes that he or she is an individual with a disability. The invitation must be extended in the first year the contractor becomes subject to the requirements of the new disability rules and every five years thereafter. During the intervening years between these invitations, the contractor must remind their employees that they may voluntarily update their disability status.

The OFCCP mandates that applicants and employees self-identify using the Voluntary Self-Identification of Disability form available on its Web site (http://www.dol.gov/ofccp/regs/compliance/sec503/Voluntary_Self-Identification_of_Disability_CC-305_SD_Edit1.24.14.pdf). Contractors, however, may develop an electronic form used to invite self-identification with very specific requirements. The electronic version must:

• display the OMB number and expiration date
• contain the text of the form without alteration
• use a sans-serif font, such as Calibri or Arial, and
• use at least 11-pitch for font size.

The OFCCP states: “[t]hough it may seem that specifying the size and type of font is unnecessary, OFCCP is doing so to ensure the consistency of appearance, ease of reading, and accessibility of the form. By using the OMB number and date, job applicants and employees know that the form is an officially approved government form.”

Contractors are directed to keep all information on self-identification confidential, and a data analysis file separate from the application for its use in analyzing its affirmative action efforts. According to the U.S. Equal Employment Opportunity Commission, the OFCCP’s requirement that contractors invite applicants to self-identify as individuals with disabilities at the pre-offer stage is not a violation of the Americans with Disabilities Act if the employer clearly stated that the information will be used solely in connection with the contractor’s affirmative action obligations, that the information will be kept confidential and used only in accordance with the Americans with Disabilities Act, and that an applicant’s/employee’s refusal to provide such information will not subject the applicant to any adverse treatment.

With the final version of the disability form now published, federal contractors should begin the process of updating their procedures to gather the required information. Pepper lawyers are available to assist you in complying with the new regulations.