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February 24, 2012

Overview of OFCCP’s Proposed

Regulation Regarding Individuals

with Disabilities

Candee J Chambers, SPHR, CAAP

Mgr, AAP/EEO Compliance



2

Background

• “One of the most significant advances in protecting the

civil rights of workers with disabilities since the

passage of the Americans with Disabilities Act.”

- Secretary of Labor Hilda Solis

• “For nearly 40 years, the rules have said that

contractors simply need to make a „good faith‟ effort to

recruit and hire people with disabilities. Clearly, that‟s

not working.”- OFCCP Director Patricia Shiu

• “Sea change” in OFCCP‟s enforcement.

- OFCCP Director Patricia Shiu



3

Hiring/Utilization Goal

• Would mandate a 7% goal for disabled individuals in each job group in

the Contractor‟s workplace

– “Should be attainable by complying with all aspects of affirmative

action requirements”

• Must use the same job groups established for race and gender analyses

• Must develop action-oriented programs to attain the goal

• If goal is not met in one or more job groups, contractors could be subject

to enforcement penalties and possible debarment

• Requires annual utilization analysis to evaluate the number of disabled

individuals in each job group

• OFCCP also considering a sub-goal of two percent for individuals with

certain particularly severe disabilities, including: Total deafness,

blindness, missing extremities (hand, foot, arm or leg), partial paralysis,

complete paralysis, epilepsy, severe intellectual disability, psychiatric

disability, and dwarfism



4

Invitations to Self-Identify as Disabled

• PRE-OFFER: Must provide to each applicant an OFCCP

prescribed invitation that is separable or detachable from the

application

– Question of consistency with the ADAAA

– “In making hiring decisions, contractors shall consider applicants who

are known to have disabilities for all available positions for which they

may be qualified when the position(s) applied for is unavailable.”

• POST-OFFER: Any time after offer but before employment

begins, must provide to each applicant an OFCCP prescribed

invitation to self-identify in an anonymous manner

• EXISTING EMPLOYEES: Must annually provide each employee

an OFCCP prescribed invitation to self-identify in an anonymous

manner

• Must keep all information confidential and in a separate „data

analysis‟ file



5

Outreach and Recruitment, Including Job Listings

• Contractors required to engage in a minimum number of outreach and

recruitment efforts, including:

– Listing of all employment opportunities, with limited exceptions, with the

nearest One-Stop Career Center

– Required linkage agreements and ongoing relationships with local

Vocational Rehabilitative Services Agency or a local organization listed in

the Social Security Administration‟s Ticket to Work Employment Network

Directory

– Required linkage agreement with at least one of several groups for

purposes of recruitment and development of training opportunities,

including, Employer Assistance and Resource Network (EARN); nearest

Department of Veterans Affairs Regional Offices; local disability groups,

organizations, or Centers for Independent Living

– Required to consult the Employer Resources section of the National

Resource Directory, a partnership and online collaboration between DOL,

Department of Defense and Veterans Affairs



6

Outreach and Recruitment, Including Job Listings,

con’t.

• On an annual basis, contractors are required to review and document

its outreach and recruitment efforts and evaluate their effectiveness

– Contractor must keep track of individuals with disabilities who were referrals

from state employment services, applied for positions, and were hired for

the current year and two previous years in self evaluation

– OFCCP is considering whether contractors must provide the data to the

agency annually

– If contractor determines efforts are not effective, contractor is required to

identify and implement one or more alternative efforts in proposed

regulations

• Contractors are also required to document its linkage agreements and

activities and retain these documents for five years.



7

Reasonable Accommodation Requirements

• Although a contractor‟s obligation to consider and make

reasonable accommodations is covered under the ADA and

EEOC‟s regulations, the requirement to develop a specific

implementation plan is exclusive to the OFCCP

• Must develop and implement written procedures for

processing reasonable accommodation requests

• Specific requirements of the reasonable accommodation

procedures may vary depending upon the size, structure,

and resources of the contractor



8

Reasonable Accommodation Requirements, con’t.

• Required Elements:

– Must describe steps for processing requests, including the process for

rendering a final determination

– Must process requests as expeditiously as possible, but no longer than 10

business days when supporting medical documentation is not needed, and

no longer than 30 days when supporting medical documentation or special

equipment is needed

– Requests may be either oral or written

– Written confirmation of receipt of request must be provided by either letter

or email

– Any denial or refusal must be provided in writing and include:

• The reason for the denial

• A statement of the requestor‟s right to file a discrimination complaint with

OFCCP; and

• Information about any internal appeals or reconsideration process the contractor

may have



9

Reasonable Accommodation Requirements, con’t.

• Must identify to whom an employee or third party must submit an

accommodation request

• Must disseminate the reasonable accommodation procedures to all employees

by inclusion in an employee handbook and/or by email or electronic posting,

including those who work off-site

• Must inform all applicants, including those using the contractor‟s online or other

electronic application systems, of the reasonable accommodation procedures

regarding the application process

• Must give all applicants contact information for contractor staff able to assist the

applicant, or their representative, in making a request for accommodation

• Must provide annual training for supervisors and managers regarding the

implementation of reasonable accommodation procedures



10

Priority Hiring Program for People with Disabilities

• Priority Consideration– Contractors to voluntarily develop and implement programs to provide

priority consideration to individuals with disabilities in recruitment and in

hiring

• Contractor will include a description in its AAP– Examples of possible programs include:

• Assigning weighted value or additional points for job applicants who self-identify

as disabled

• Developing job training program focused on needs of individuals with specific

types of disabilities‟

• Using linkage agreements to recruit program trainees

• OFCCP cautions contractors not to use programs to

segregate disabled individuals



11

Affirmative Action Obligations

• Must ensure electronic or online job application systems are compatible

with assistive technology commonly used by people with disabilities

• Must annually review and document the outreach and recruitment

efforts to evaluate their effectiveness in identifying and recruiting

qualified individuals with disabilities

• “The Contractor‟s conclusion as to the effectiveness of its outreach

efforts shall be reasonable as determined by OFCCP in light of these

regulations.”

• Must train all personnel involved in recruiting, screening, selecting,

promoting, and disciplining employees on the benefits of employing

disabled individuals, having appropriate sensitivity toward disabled

applicants and employees, and the legal obligations of the contractor



12

Administrative Requirements

• Must annually review all physical and mental job qualification standards and

document the methods used and any actions taken in response

• In each case where a disabled applicant or employee is either selected or

rejected for employment, promotion or training, contractors must prepare a

statement of the reason and a description of any accommodation considered

• Must be able to identify each vacancy and training program for which each

disabled applicant was considered

• Must create contemporaneous records documenting the specific subject

matter(s) covered in the training, who conducted the training, who received the

training, and when the training took place

• Must create and retain a contemporaneous statement of reasons supporting the

belief that a direct threat exists for a disabled individual



13

Paperwork Requirements

• Must document and maintain the following computations or comparisons

pertaining to applicants and hires on an annual basis:

– Number of referrals of disabled individuals from employment service delivery systems

– Number of referrals of disabled individuals received from other entities, groups, or

organizations the contractor has linkage agreements with

– Number of applicants who self-identified, or who are otherwise known to be disabled

– Total number of job openings, total number of jobs filled, and the ratio of jobs filled to

job openings

– Total number of applicants for all jobs

– Ratio of disabled applicants to all applicants

– Number of disabled applicants hired

– Total number of applicants hired; and

– Ratio of disabled individuals hired to all hires



14

Annual Report Required of All Contractors

• Contractors would be required to provide the OFCCP with an annual

report containing these measurements and also the percentage of

applicants, new hires, and total workforce for each EEO-1 category,

regardless of whether the contractor has been selected for a

compliance evaluation

• Requirement would add another annual report (in addition to the EEO-1

and the Vets-100 or 100A) to the contractor‟s reporting obligations

• Apparent principal purpose seems to make the OFCCP‟s job easier in

determining which contractors to audit, i.e., lower percentage of people

with disabilities reported compared to workforce would result in great

chance of selection for audit



15

Enforcement

• Proposal‟s 7% benchmark combined with applicant and hiring ratios and

substantial documentation requirements makes it difficult to comply in each

required area

• OFCCP may establish benchmarks for a contractor‟s outreach, recruitment,

hiring, or other employment activities in any conciliation agreement

– The purpose of such benchmarks is to create a quantifiable method by which the

contractor‟s progress in correcting identified violations and/or deficiencies can be

measured

• OFCCP may extend the temporal scope of the desk audit beyond that set forth

in the scheduling letter if OFCCP deems it necessary

• Contractors are to produce requested records in format selected by the OFCCP

• Pre-award compliance evaluations for contracts of $10 million or more –

contractor must be found to be in compliance with Section 503 and the OFCCP

may provide findings to the awarding agency



16

Particular Issues and Challenges

• What happens if the contractor does not meet the 7% goal?

– Will prompt a close examination of all elements of employer‟s recruiting and hiring

practices

– Will lead to conciliation agreements that impose numerical goals

– In other words: Failure to meet the goal is not a violation, per se, but would likely be

viewed as an indicator of other violations, triggering closer scrutiny and enforcement

actions

• Legal Basis for the Goal

– No authority in the statutory language of Section 503 for numerical goals

– Meant to establish a benchmark, not a “quota”

– Quotas have been explicitly rejected as a component of Affirmative Action

• Statistical Basis for the Goal

– 7% goal reflects 5.7% of workforce with “disability” plus presumed 1.7% “discouraged

workers” (i.e., disabled but discouraged from seeking work)

– No basis for 2% “severely disabled” goal

– Census uses different definition of “disability” than the Americans with Disabilities Act

– 7% goal does not account for differences in local labor forces or job groups



17

Impact on Workforce and Talent Management

• New hiring in each job group must meet the 7% and 2% benchmark

each year

– What if there is an insufficient pool of available workers with disabilities within a job

group?

• Existing workforce in each job group must also meet these benchmarks,

regardless of percentages of new hires

– If employer has stable workforce with little or no hiring, how will it meet the goal?

– How will a contractor know how many existing employees have disabilities if the

annual survey is anonymous?

• Achievement of numerical goals would be based on number of

applicants and employees “self-identifying”

– Can the employer count an employee who clearly has a disability if the employee

fails to self-identify?

– Will individuals be afraid to self-identify for fear of being discriminated against?

– Will applicants misidentify disability status in the hopes of getting a preference?



18

Impact on Workforce and Talent Management,

con’t.

• Who is “Disabled?”

– Americans with Disabilities Act definition

• “Disability” means, with respect to an individual -

• “(1) A physical or mental impairment that substantially limits one or

more of the major life activities of such individual;

• (2) A record of such an impairment, or

• (3) Being regarded as having such an impairment.”

– Subject of considerable litigation, struggles by Congress, the courts,

employers and employees

– Proposed regulations meant to bring more consistency with the ADA

Amendments Act

• Do job seekers and current employees know how a „disability‟ is

defined?



19

On-Boarding Challenges

• Applicant tracking systems not configured for proposed

record-keeping requirements

• Must evaluate/track applicants for all “available” positions,

regardless of interest of qualifications

– Significant departure from current DOL Internet Applicant Rule

– Rule was introduced to help contractors manage flood of online

applications

• Anticipate costly changes to on-boarding processes,

software systems, recordkeeping



20

Congressional Challenges

• Letter written to Hilda Solis, Secretary of the DOL on January 27th from the US House of

Representatives, Committee on Education and the Workforce

• Questioned the legal authority under Section 503 permitting OFCCP to establish a

numerical hiring standard

– Concerned a hiring standard would, in effect, institute a quota, “…which has been

met with great scrutiny from the Supreme Court.”

• Requirement to ask job seekers to self-identify appears to conflict with statutory language

of the ADA, which prohibits employers from asking disability-related questions before an

offer of employment has been made

• Concerned about the potential burdens associated with the new paperwork and

recordkeeping requirements, in light of President Obama‟s comments related to,

“…sometimes, rules and regulations have gotten out of balance, placing unreasonable

burdens on business – burdens that have stifled innovation and have had a chilling effect

on growth and jobs”

• Requested a 90-day extension to the comment period, originally scheduled to end on

February 7th



21

Congressional Challenges, con’t.

• Solis‟ response required to Congress by February 10th, 2012

• Asked specifically, to:

– “Identify and explain OFCCP‟s statutory authority under Section 503 to establish a

numerical hiring standard.”

– “Identify and explain OFCCP‟s statutory authority to require contractors to ask job

applicants to self-identify as a qualified individual with a disability, given that the ADA

prohibits disability-related questions before an offer of employment has been made.”

– “Identify and explain the basis for OFCCP‟s assumption that job applicants and

contractors‟ current employees would understand the legal definition of „disability,‟ as

defined in the NPRM‟s prescribed self-identification notice.”

– “Under proposed section 60-741.44, OFCCP assumes contractors would spend 30

minutes per year to draft and provide written statements of reasons explaining the

circumstances for rejecting individuals with disabilities for vacancies and training

programs. Simple math would suggest the amount of time required would far exceed

this estimate. Explain how OFCCP determined the 30 minutes per year estimate.”

– “Under proposed section 60-741.44, OFCCP failed to consider the costs federal

contractors would incur…Explain why OFCCP failed to consider the costs of

contractors‟ compliance with these provisions…”



22

Latest Developments

• Comment period extended late on February 6th to February 21st

• Final rule must be published by November 23, 2012, in order to become

effective before January 20, 2013

• With this being an election year, what is the likelihood this proposed rule will

actually become a new regulation? The Obama Administration is fully

committed to its implementation…

• What preparations are your organizations making in case this does go into

effect?

• Are the time constraints and cost estimates in line with your organization‟s

expectations of being compliant with these proposed regulations? The OFCCP

estimates $473 per contractor establishment, or a total annual cost of $81.1

million…

• Are these new recordkeeping requirements just a pre-cursor of what is to come

with regard to all aspects of our AAP‟s?

regulation regarding individuals with disabilities · 2018-04-05 · • ofccp also considering a...

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