Contractors: ‘Uncle Sam’ Wants You…Not to Discriminate on the Basis of Disability

The Office of Federal Contract Compliance Programs (OFCCP), the arm of the U.S. DOL charged with Executive Order 11246’s affirmative action and equal employment opportunity requirements, has proposed significant changes to the regulations implementing Section 503 of the Rehabilitation Act, which prohibits discrimination on the basis of disability.  The changes would impose increased obligations in the areas of recruitment and training of individuals with disabilities, record keeping and disseminating affirmative action policies.  The public comment period recently closed, and while no implementation date is set, the new regulations are expected to take effect later this year. Perhaps most significant is the proposed requirement that federal contractors and subcontractors set a hiring goal of 7% of the workforce to be comprised of individuals with disabilities (the OFCCP suggested a 7% utilization goal but sought comments on a range between 4 % and 10%).  Additionally, the OFCCP is considering a "Sub-Goal Option" of 2% for individuals with severe “targeted” disabilities such as total deafness, blindness, missing extremities, partial paralysis, complete paralysis, epilepsy, severe intellectual disability, psychiatric disability and dwarfism.  Critically, OFCCP has stressed that the utilization goal places less focus on employers’ good faith efforts and more focus on outcome.  The proposed regulations impose many additional requirements on covered contractors.  For example, under the current regulations contractors must make reasonable accommodations for disabled applicants and employees unless such accommodations pose an undue hardship.  The new regulations require that in the event of an undue hardship based on cost, contractors must give applicants the option to finance the portion of the cost that constitutes the undue hardship.  Also, while the current regulations require only a periodic review of personnel processes to support affirmative action, the proposed regulations require an annual review and mandatory documentation of all job qualification standards to ensure they are job-related and consistent with business necessity. The proposed regulations are currently under review within the DOL, whose regulatory agenda gives no hint as to when we may see the rules in final form.  The proposed regulations can be found at: http://www.gpo.gov/fdsys/search/pagedetails.action?granuleId=2011-31371&packageId=FR-2011-12-09&acCode=FR If you have any questions or for further information about any OFCCP or affirmative action developments, please contact Patrick W McGovern, Esq, pmcgovern@genovaburns.com or Douglas J. Klein, Esq., dklein@genovaburns.com, in the Labor Law Practice Group.