Federal Contractor/Subcontractor Alert: New Affirmative Action Requirements Concerning Persons with Disabilities

by Snell & Wilmer
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If you are a federal contractor or subcontractor that has, or should have, an existing affirmative action plan (AAP), you need to be aware of the upcoming Office of Federal Contract Compliance’s (OFCCP) final rules that take effect March 24, 2014. The rules not only contain a hiring target of 7% for disabled individuals, but also require that covered contractors invite those seeking jobs to self-identify as disabled at the pre-offer and post-offer stage of the hiring process. Employers must also extend the same self-identification invitation to current employees during the first year the rule applies and every five years thereafter. The Equal Employment Opportunity Commission has already issued a statement indicating that seeking such information about disabilities at the pre-offer stage will not run afoul of the Americans with Disabilities Act. Because of the vast amount of information that will be collected about disabilities from all stages in the hiring and employment phases, it will be important for employers to ensure that all employees who have anything to do with the screening, hiring or continued employment decisions are well trained about the requirements of reasonable accommodation and are engaging in the interactive process with disabled individuals.

In addition to collecting information about the disability status of applicants and employees, covered contractors will also have to comply with several other data collection, evaluation and reporting requirements, some of which will undoubtedly require expensive and time consuming changes to human resource information systems, applicant tracking systems and even online application systems to ensure they comply with the new rules. The rules include not only new requirements for AAPs, such as providing schedules for reviewing all physical and mental job qualification standards in the company’s job descriptions, but also outline “best practices” that are strongly encouraged, such as having a written procedure for requesting reasonable accommodations in the workplace.

Employers may want to consider finalizing their 2014 AAPs prior to the March 24, 2014 date when the rules become effective.  For contractors with an AAP already in place on that date, the AAP requirements contained in the new rules will not go into effect until the beginning of the next plan year, thereby delaying for one year many of the changes. All federal contractors and subcontractors however should familiarize themselves with the new rules and requirements so they can begin making the necessary institutional changes to ensure timely compliance. The OFCCP is clearly putting a high priority on the hiring of disabled workers and with the new rules, the agency will be able to more clearly gauge how federal contractors are performing in this area.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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