February 7 marks the end of the public comment period on the Office of Federal Contract Compliance Programs’ (OFCCP) proposed rule that would set a goal for federal contractors to have seven percent of their workforce be made up of people with disabilities.
With the calendar nearing the comment deadline, it’s time for employers with federal contracts to learn what the rule may mean to them. Kathleen J. Raynsford of Fortney & Scott, LLC, in Washington, D.C., outlined the meaning of the proposed regulation in the January issue of Federal Employment Law Insider.
Here are highlights of what the proposed rule would require of contractors, according to Raynsford:
- voluntary self-identification of disability status both pre- and post-offer when an individual becomes an applicant;
- an annual survey of the current workforce to determine disability status through voluntary self-identification;
- priority consideration in recruitment and hiring for individuals with disabilities;
- a standard quantitative affirmative action goal of seven percent for individuals with disabilities, with a “sub-goal option” of two percent for targeted severe disabilities — deemed “aspirational” by OFCCP Director Patricia Shiu — and a requirement that contractors conduct a utilization analysis based on disability by establishment and job group; and
- specific requirements for a reasonable accommodations process, including mandated timelines and required steps.
New proposed data-reporting obligations include:
- tracking the number of job openings, number of jobs filled, and applicants’ disability status (the “job fill ratio”);
- comparing the number of applicants who self-identify as individuals with disabilities to total applicants;
- tracking the number of new hires who are individuals with disabilities as compared to total hires;
- conducting an annual documented review of physical and mental job qualifications and maintaining records of the review;
- annually reporting applicant flow and workforce data by EEO-11 category with counts for individuals with disabilities and totals, regardless of whether the contractor is audited by the OFCCP;
- recording “current plus two” years of data and analysis on outreach efforts targeted at individuals with disabilities (this data would be reviewed by the OFCCP during a compliance review); and
- following a five-year record-keeping requirement.
What’s the bottom line for federal contractors and subcontractors? Raynsford calls the proposal “extremely broad in scope,” and if it’s finalized, the changes will have “a significant impact.” In addition, she says, “testing, technological processes, medical examinations, training, and dissemination of policies are just some of the requirements that are also part of the proposed regulatory changes.”
Jonathan R. Mook, a partner with DiMuroGinsberg PC in Alexandria, Virginia, also has weighed in on the proposed changes. In the January issue of Virginia Employment Law Letter, he wrote that the proposed changes “make clear that the federal agency has become serious in requiring federal contractors to hire the disabled.”
The agency can be expected to “come down hard in compliance reviews against those contractors who, in the past, may have given only lip service to hiring persons with disabilities,” Mook says.
Mook also reminds employers that the agency will consider the comments it receives after the comment period ends, so it may be some time before a final regulation is issued.