Be Prepared! New OFCCP Requirements
On January 22, 2014, the Office of Management and Budget (OMB) approved the Office of Federal Contract Compliance Programs (OFCCP) Voluntary Self-Identification of Disability form, which solicits disability information from job applicants and employees1. Section 503 of the Rehabilitation Act of 1973 (Section 503), as amended at 41 CFR Part 60-741, now requires that employers invite all job applicants pre-offer and post-offer to self-identify as an individual with a disability. In addition, Section 503 requires that contractors invite their entire workforce to self-identify as an individual with a disability within the first year that the contractor is subject to the Section 503 self-identification requirement. Recognizing that an individual can become disabled at any time, employees are allowed to update their information every five years. Contractors are thus required to remind their employees that they may voluntarily update their disability status at any time. The information collected from the self-identification form is intended to assist contractors in collecting disability data on applicants and employees in order to satisfy the new 7% utilization goal for recruiting and hiring individuals with disabilities.
The two-page self-identification form provides: (1) information explaining why the applicant or employee is being asked to complete the form; (2) nonexclusive examples of disabilities to help applicants and employees assess whether they have a disability; and (3) information about reasonable accommodation laws.
The individual completing the form may choose one of three options for self-identification:
- YES, I HAVE A DISABILITY (or previously had a disability)
- NO, I DON'T HAVE A DISABILITY
- I DON'T WISH TO ANSWER
The initial and final versions of the self-identification form have key differences. For example, the initial version did not include an option for the applicant or employee to affirmatively elect a non-disability status. Unlike the earlier version of the form, the final version allows contractors to solicit the name of the applicant or employee and the date. The form is a useful tool because contractors will be able to use this self-identifying information to analyze the percentage of individuals with disabilities in each job group to ensure compliance with Section 503. Notably, the self-identification form is not a reasonable accommodation request form. However, prior court decisions have found that employers should have known of an individual's need for a reasonable accommodation based on the employer's knowledge of a disability. Consequently, a contractor should consider whether it should engage in the reasonable accommodation interactive process once it has knowledge of an individual's disability, especially if the contractor believes that the individual may need an accommodation to address workplace performance or conduct problems.
Contractors are required to use the OFCCP's prescribed self-identification form without alteration. However, OFCCP has stated that contractors may create an electronically fillable copy of the form, provided that it meets certain requirements. When creating an electronic version of the form, contractors must ensure that the form displays the OMB number and expiration date, contains the text of the form without modification, uses a sans-serif font (such as Calibri or Arial), and uses at least 11-pitch font size (with the exception of the footnote and burden statement, which must be at least 10-pitch in size). In specifying the features of the electronic form, OFCCP hopes to ensure the consistency of appearance, ease of reading, and accessibility of the form.
Although contractors are not required to use the OFCCP disability self-identification form until the contractor's first Affirmative Action Program (AAP) is due following the Section 503 March 24, 2014 effective date, OFCCP strongly recommends that contractors begin using the form on March 24. Consequently, contractors should work with their information technology and human resources personnel to prepare a plan to integrate the form into their manual and online application processes.
Lastly, the nondiscrimination requirements of the revised Section 503 and the Vietnam Era Veterans' Readjustment Assistance Act (VEVRAA), 41 CFR Part 60-300, regarding affirmative action for protected veterans, go into effect on March 24. Contractors should be ready to comply with the following Section 503 and VEVRAA requirements on March 24 (subparts A, B, D, and E of the final rules):
- (1) Update the Equal Opportunity (EO) Clause in their subcontracts and purchase orders. Contractors are permitted to incorporate by reference the EO Clause, but must provide the EO Clause's citation and certain mandated language in bold text. See 41 C.F.R. § 60-741.5; id. § 60-300.5.
- (2) Update all job advertisements to state that the contractor is an equal employment opportunity employer of individuals with disabilities and protected veterans. Contractors may refer to those protected by Section 503 or VEVRAA by abbreviation, but such abbreviations must be commonly understood by those seeking employment. OFCCP has stated that the tagline should at a minimum state “disability” and “vet” so that the tagline will be clearly understood by jobseekers.
- (3) Conduct and document good faith outreach efforts towards individuals with disabilities and protected veterans.
- (4) Ensure reasonable accommodations for qualified applicants and employees with disabilities. See 41 C.F.R. § 60-741.21(a)(6); id. § 60-300.21(f).
OFCCP offers a multi-part training program on the new Section 503 and VEVRAA rules to assist contractors in understanding their AAP, outreach, and data collection obligations2. In addition, contractors should begin reviewing and revising their AAPs, employment and reasonable accommodation policies with counsel to ensure compliance with the new rules.
1The Voluntary Self-Identification of Disability Form CC-305 is available on OFCCP's website: http://www.dol.gov/ofccp/regs/compliance/sec503/SelfId_ Disability_CC_305_012214_JRF_QA_508c.pdf.
2See DOL Events Calendar at http://webapps.dol.gov/calendar/results.asp?location_lst=&agenc y_lst=23&event_title=&date=--&date_range.