By Carol L. O’Riordan
In a recent post, we discussed a new U.S. Department of Labor rule that creates for the first time an aspirational goal of 7 percent of the federal contract and subcontract workforce for people with disabilities.
Under the new rule, contractors are required to initiate a voluntary self-identification program for job applicants and for their current employees in order to identify who has a disability. Applicants should be invited to self-identify as an individual with a disability before an offer of employment and after receipt of a job offer. Incumbent employees will be invited to self-identify on a regular basis. Self-identification data may be utilized to assess employment practices.
The rule also proposes specific language for use by prime contractors when incorporating the equal employment clause in their subcontracts. The language is intended to increase subcontractor awareness of and compliance with the revisions to the regulations.
The Director of the Office of Federal Contract Compliance Programs (OFCCP) is empowered to issue a waiver of the equal employment opportunity clause for individuals with disabilities for any federal contract, although he or she must find that special circumstances are applicable. These special circumstances may include a national security interest or requirement. Contractors may also request a waiver for their facilities that are separate, distinct, and not connected with the performance of a federal contract.
The new regulation additionally revises the definition of “disability” and nondiscrimination provisions of the regulations to comply with the ADA Amendments Act of 2008. It also includes guidelines for making reasonable accommodations for people with disabilities.
In order to make sure that a contractor is actually taking affirmative action to employ, advance in employment, and treat qualified people with disabilities without discrimination in all contexts, the OFCCP may initiate a review of contractor data and documents. Contractors must comply with OFCCP requests and permit the OFCCP to perform a compliance check or focused review, either on site or off site. A contractor’s failure to maintain or preserve records will be considered to be noncompliance with its obligations under the Rehabilitation Act and applicable regulations. The OFCCP may undertake enforcement action when warranted.
This is the second of two posts on this topic.