The OFCCP has proposed some revisions to Section 503 of the Rehabilitation Act, and some experts are calling these proposed revisions "game changers." One of the proposed changes would establish a goal of 7% workforce utilization for individuals with disabilities.
According to Hilda Solis, the proposed rule "represents one of the most significant advances in protecting the civil rights of workers with disabilities since the passage of the Americans with Disabilities Act."
OFCCP Director Patricia Shiu stated "for nearly 40 years, the rules have said the contractors simply need to make a 'good faith effort' to recruit and hire people with disabilities. Clearly, that is not working. Our proposal would define specific goals, require real accountability, and provide the clearest possible guidance for employers seeking to comply with the law."
Employers should note that the definition of "disability" was greatly expanded under the ADA Amendments Act of 2008. Traditionally, an individual was considered disabled if he was physically disabled, visually impaired, etc. Under the ADAAA, a variety of medical conditions like HIV, cancer, diabetes, epilepsy, and bipolar disorder are considered disabilities. The ADAAA expands the definition of "disability" to include major bodily functions, such as functions of the immune system, normal cell growth, and brain, neurological and endocrine functions.
Highlights of the proposed rule as it relates to individuals with disabilities are as follows:
Utilization Goals: establish a national utilization goal of 7% for individuals with disabilities
OFCCP suggests that federal contractors would be required to set a hiring goal of having 7% of their employees in each job group be employees with disabilities. According to the Agency, this goal is derived primarily from disability data collected through the American Community Survey administered by the U.S Census Bureau.
According to OFCCP, the utilization goal is not a hiring quota, but an equal employment opportunity objective. The agency believes that mandating an "aspirational" goal is the best way to create accountability within the contractor community, and is soliciting feedback on the 7% goal, as well as a utilization range between 4% and 10%.
OFCCP is also considering a "sub-goal" of two percent (2%) for individuals with severe or "targeted" disabilities, such as total deafness, blindness, and missing extermities.
Data Collection and Recordkeeping: improve collection of data on employment of individuals with disabilities
OFCCP believes that new data collection requirements would assist in determining the availability of individuals with a disability, as well as the effectiveness of the contractor's outreach efforts. The additional data collected includes:
- Number of referrals of individuals with a disability received from state employment services;
- Number of referrals of individuals with a disability received from other entities with which the contractor has a linkage agreement;
- Number of applicants who self-identified as an individual with a disability or who are otherwise known to be an individual with a disability;
- Total number of job openings and total number of jobs filled;
- Ratio of jobs filled to job openings;
- Total number of applicants for all jobs;
- Ratio of applicants with a disability to all applicants;
- Number of applicants with a disability hired;
- Total number of applicants hired;
- Ratio of individuals with a disability hired to all individuals hired.
Accommodation Requests: require contractors to develop and implement written procedures for processing requests for reasonable accommodations
Under the proposed rule, contractors would be required to develop and implement written procedures for processing requests for reasonable accommodations. These procedures, which would be included in the affirmative action plan, would outline the following:
- Name and contact information of the official responsible for policy implementation and the individual to whom the accommodation request should be made;
- Statement indicating that requests for accommodation may be oral or written and can be made by an applicant, an employee, or by a third party on someone else's behalf;
- If the need for an accommodation is recurring (such as for a sign language interpreter), the individual does not have to make repeated requests each time the accommodation is needed;
- Applicants must be made aware of the procedures and may request an accommodation to complete the application process;
- Contractors must provide written confirmation of receipt of a request for an accommodation, and such receipt must include the date the request was received and be signed by the authorized decision-maker;
- Requests for accommodation must be processed "as expeditiously as possible";
- A description of the steps the contractor takes when processing a reasonable accommodation request, including the process by which the contractor renders a final decision;
- An explanation regarding when medical documentation may be requested by the contractor;
- Any denial of a reasonable accommodation must be provided in writing and include the reason and be dated and signed by the authorized decision-maker. The denial must include a statement of the requester's right to file a discrimination complaint with the OFCCP;
- A statement indicating that all requests for accommodation and related documentation shall be treated confidentially;
- Training must be provided to supervisors and managers responsible for implementing the reasonable accommodation procedures on an annual basis, as well as whenever significant changes are made to the contractor's reasonable accommodation procedures.
Outreach: require contractors to engage in a minimum of three specific types of outreach and recruitment efforts to recruit individuals with disabilities
Under the proposed rule, contractors would be required to do the following:
- List all job openings with the nearest Employment One-Stop Career Center;
- Enter into a linkage agreement with the nearest State Vocational Rehabilitation Agency or local organization listed in the Social Security Administration's Ticket to Work Employment Network Directory;
- Enter into a linkage agreement with at least one of several agencies such as local disability groups, Employer Assistance and Resource Network (EARN), etc., for recruiting and developing training opportunities;
- Consult the Employer Resources section of the National Resource Directory, a partnership and online collaboration among the Departments of Labor, Defense, and Veterans Affairs, and establish a linkage agreement with at least one of the disabled veterans' service organizations listed.
You can read the proposed rule at www.regulations.gov.