OFCCP Releases Notice of Proposed Rulemaking on Affirmative Action and Nondiscrimination Obligations of Contractors and Subcontractors Regarding Individuals with Disabilities

By David Cohen, President, DCI Consulting Group

On December 8th, 2011 OFCCP released a long-awaited Notice of proposed rulemaking (NPRM) related to Section 503 of the Rehabilitation Act of 1973, which covers affirmative action and non-discrimination requirements for individuals with disabilities. The agency published a press release on the matter here (http://www.dol.gov/opa/media/press/ofccp/OFCCP20111614.htm) and summarized the NPRM as follows:

“The Office of Federal Contract Compliance Programs (OFCCP) is proposing to revise the regulations implementing the non-discrimination and affirmative action regulations of section 503 of the Rehabilitation Act of 1973, as amended. Section 503 prohibits discrimination by covered Federal contractors and subcontractors against individuals on the basis of disability, and requires affirmative action on behalf of qualified individuals with disabilities. The proposed regulations would strengthen the affirmative action provisions, detailing specific actions a contractor must take to satisfy its obligations. They would also increase the contractor’s data collection obligations, and establish a utilization goal for individuals with disabilities to assist in measuring the effectiveness of the contractor’s affirmative action efforts. Revision of the nondiscrimination provisions to implement changes necessitated by the passage of the ADA Amendments Act (ADAAA) of 2008 is also proposed.”

Federal contractors have 60 days to respond to the NPRM, which will be published in the Federal Register on December 9th. The NPRM is almost 200 pages long, and as such it will take the contractor community some time to review the document and consider its implications. Some important points to note in the NPRM include the following:

    • Applicants would be asked to voluntarily self-identify disability status pre-offer;


    • Employees would be asked to voluntarily self-identify disability status annually;


    • Contractors would have a standard quantitative affirmative action goal of 7% for individuals with disabilities, and would conduct utilization analysis by establishment and job group;


    • Contractors would have to report Section 503 results regardless of whether they have been selected for a compliance evaluation;


    • Contractors would be required to conduct new quantitative analyses for applicants, hires and workforce;


    • Contractors would be required to keep records for 5 years.


Stay tuned for an upcoming webinar on the topic from DCI Staff.

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