Employing People with Disabilities: What Does New Proposed Rule Mean?

By Tammy Binford

Government statistics show that unemployment among people with disabilities is far higher than unemployment for people without disabilities. Year-end figures for 2011 are not yet available, but the Bureau of Labor Statistics (BLS) has figures revealing that the 2010 unemployment rate for people with disabilities was 14.8 percent. That’s more than one and a half times higher than the rate for people without disabilities, which was 9.4 percent.

What may be more startling than the unemployment rate is the number of people with disabilities who aren’t even in the labor force at all. According to data published in December by the BLS, 79.2 percent of working-age individuals with disabilities are outside the labor force, compared to 30.5 percent of those without disabilities.

Now the federal government is trying to take steps to narrow the employment gap between those with and without disabilities by proposing that federal contractors and subcontractors set a hiring goal of having seven percent of their workforces be made up of people with disabilities.

The U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) proposed the rule, which was published in the December 9 Federal Register, that would strengthen the affirmative action requirements established in Section 503 of the Rehabilitation Act of 1973.

The proposed rule details specific actions contractors would be required to take in the areas of recruitment, training, record keeping, and policy dissemination. The OFCCP is seeking comments on the proposed rule by February 7. (After this post was first published, the OFCCP pushed the deadline back to February 21. Read about it by clicking here.).

Here are some highlights of the rule from the OFCCP:

• Contractors would be required to set a goal of having seven percent of their employees be workers with disabilities in each job group of the contractors’ workforce. The OFCCP fact sheet on the proposed rule says the goal “is neither a quota, nor a restrictive hiring ceiling, and failure to attain the goal does not necessarily constitute a violation of Section 503 or OFCCP’s regulations.”
• Contractors would be required to invite all applicants to voluntarily self-identify as an “individual with a disability” at the pre-offer stage of the hiring process. Contractors also would be required to invite post-offer voluntary self-identification, and they would have to survey all employees annually in order to invite their self-identification in an anonymous manner.
• Contractors would be required to maintain records on the number of individuals with disabilities applying for positions and the number of individuals with disabilities hired.
• Contractors would be required to develop and implement written procedures for processing requests for reasonable accommodation.
• Contractors would be required to engage in a minimum of three specific types of outreach and recruitment efforts to recruit individuals with disabilities.
• Contractors would have to list job openings with One-Stop Career Centers or other appropriate employment delivery systems.
• Previously recommended steps related to reviews of personnel processes and physical and mental job qualifications would be required. Contractors would be required to conduct both of those self-reviews “annually,” rather than “periodically,” and they would have to document specific review actions and their results.
• The proposed rule would incorporate updates made necessary by the Americans with Disabilities Act Amendments Act and subsequent amendments to the Equal Employment Opportunity Commission’s regulations implementing the Americans with Disabilities Act.

“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,” said OFCCP Director Patricia A. Shiu. “Our proposal would define specific goals, require real accountability, and provide the clearest possible guidance for employers seeking to comply with the law. What gets measured gets done. And we’re in the business of getting things done.”