Can Federal Contractors Still Collect Disability Status Data?

BLOG OVERVIEW: DOL's new Section 503 rule rescinds the requirement to invite applicants and employees to self-identify, concluding that pre-offer disability inquiries conflict with the ADA, but stops short of prohibiting the practice, telling contractors to apply their own legal and business judgment. EEOC guidance still permits voluntary self-identification for affirmative-action purposes, and the federal government continues collecting the same data through Schedule A and the SF-256. Contractors weighing purpose, timing, and confidentiality safeguards should document their reasoning.

The Department of Labor's (DOL) new Section 503 of the Rehabilitation Act (Section 503) regulations roll back a requirement that federal contractors invite applicants and employees to voluntarily self-identify as individuals with disabilities, effective September 21, 2026.

At first glance, this change might seem straightforward; the Office of Federal Contract Compliance Programs (OFCCP) no longer requires federal contractors to collect disability status information. However, the Final Rule raises a much more complicated, and important, question: Can a federal contractor still collect disability status information pre-offer, in a voluntary and confidential manner, to evaluate equal employment opportunity, identify potential employment barriers, or undertake lawful affirmative action for individuals with disabilities?

The answer is less clear than one might expect.

DOL has concluded that the former Section 503 obligation to solicit a candidate's self-disclosed disability status at the pre-offer stage conflicts with the Americans with Disabilities Act (ADA). At the same time, DOL expressly states that its new rule does not prohibit contractors from using business and legal judgment to continue soliciting disability status if they determine that such a practice complies with the ADA^[1].

Are you confused yet?

DOL draws the same line on utilization analyses. Although the Final Rule rescinds the mandatory 7% utilization goal itself, a footnote to the preamble makes clear that DOL is not telling contractors to stop measuring their own workforce: “At their own discretion, contractors remain free to conduct utilization analyses. In doing so, contractors should ensure they are acting in accordance with all applicable laws and regulations, including the ADA.” DOL repeats essentially the same point later in the preamble’s discussion of alternatives to the utilization goal, making message throughout the Final Rule consistent. OFCCP is eliminating the mandate, not the option.

Complicating matters further, longstanding and existing guidance from the Equal Employment Opportunity Commission (EEOC) continues to state that employers may invite applicants and employees to voluntarily self-identify as individuals with disabilities for legitimate affirmative-action purposes.

The result is an unusual situation in which two federal agencies currently have different guidelines and interpretations of an ADA provision.

What is Changing Under the New Section 503 Regulations?

For more than a decade, the OFCCP’s Section 503 regulations required covered federal contractors to invite applicants and employees to voluntarily self-identify as individuals with disabilities. Contractors were previously required to solicit this information both before an offer of employment and after an offer, as well as to periodically invite existing employees to self-identify.

That requirement will no longer be in effect after September 21, 2026. Importantly, DOL did not say that contractors are prohibited from collecting disability information. Instead, DOL expressly states:

“DOL is not prohibiting contractors from exercising their own legal and business judgment about making disability inquiries consistent with the ADA and its implementing regulations. Instead, DOL simply no longer requires that contractors do so as part of their affirmative action or other obligations under Section 503.”

DOL makes the point again when discussing information collection:

“If a contractor, in exercising its own legal and business judgment, believes there is a legal basis on which it is permitted to collect certain information under the ADA and its implementing regulations, then this final rule does not prohibit the contractor from doing so.”

That distinction is critical. OFCCP has moved from requiring disability self-identification to leaving the decision to the contractor, subject to the ADA. But determining what the ADA permits is where things become complicated.

DOL Now Says the Former Pre-Offer Requirement Conflicted With the ADA

The ADA generally prohibits disability-related inquiries before a conditional employment offer. Under 42 U.S.C. § 12112(d)(2)(A), a covered employer generally may not make inquiries of an applicant about whether the applicant is an individual with a disability or about the nature or severity of a disability.

DOL now takes a strict textual view of that provision. According to the Final Rule, the ADA's prohibition is categorical and contains no express exception for affirmative-action inquiries. DOL also rejects the argument that making the applicant's response voluntary necessarily solves the problem because, according to DOL, the ADA regulates the employer's inquiry, not whether the applicant is required to answer it. In other words, a voluntary response does not necessarily make the employer's question lawful.

Disconnect Between DOL and EEOC Guidance

EEOC, the federal agency principally responsible for administering and enforcing Title I of the ADA, has long interpreted the ADA to permit employers to invite applicants to voluntarily self-identify as individuals with disabilities for legitimate affirmative-action purposes. In fact, its own pre-employment guidance states that an employer may invite applicants to voluntarily self-identify when the employer is undertaking affirmative action because federal, state, or local law requires affirmative action for individuals with disabilities, or when the employer voluntarily uses the information to benefit individuals with disabilities.

EEOC requires important safeguards in this process, which include:

• Disclosure must be voluntary
• Information must be confidential
• Refusing to disclose cannot result in adverse treatment
• Information must be used only in accordance with the ADA
• Self-identification information should be kept separate from the application and employment decision-making process

However, even with these safeguards, DOL's new position and EEOC's longstanding interpretation are difficult to reconcile.

Pre-offer and post-offer disability inquiries are not legally identical. Under 42 U.S.C. § 12112(d)(3), the ADA expressly permits much broader disability-related inquiries after a conditional offer, subject to statutory conditions and confidentiality protections.

Accordingly, the strongest statutory objection identified by DOL concerns pre-offer disability inquiries. Contractors may therefore reach different conclusions about pre-offer applicant self-identification, post-offer self-identification, and voluntary self-identification by existing employees.

The table below outlines each of these distinctions within DOL and EEOC’s frameworks.

Don't Forget 42 U.S.C. § 12201(b)

42 U.S.C. § 12201(b) is part of Title V of the ADA and is captioned “Relationship to other laws.” It provides that the ADA should not be construed to invalidate or limit the remedies, rights, and procedures of federal, state, or local laws that provide greater or equal protection for the rights of individuals with disabilities. In other words, Section 503 of the Rehabilitation Act does in fact provide for greater protection and benefits for the rights of individuals with disabilities.

That provision is relevant when considering the relationship between the ADA and Section 503. The ADA was not enacted in isolation; Congress expressly contemplated its interaction with other disability-rights laws.

The Federal Government’s Own Practice: OPM, Schedule A, and the SF-256

While OFCCP was concluding that inviting federal contractors’ applicants to self-identify as individuals with disabilities before a conditional offer conflicts with the ADA, another part of the federal government has continued to do exactly that as an employer, not just a regulator.

When an individual applies for a federal position through USAJOBS, the applicant may identify for the Schedule A hiring authority for individuals with disabilities, a hiring path that calls for the applicant to disclose a qualifying disability at the application stage, before any conditional offer is made. Separately, the U.S. Office of Personnel Management’s (OPM) Standard Form 256 (SF-256), “Self-Identification of Disability,” invites federal applicants and employees, government-wide, to voluntarily disclose whether they have a disability, including a “targeted disability,” for data-collection, hiring-goal-tracking, and accommodation purposes.

This is not a legacy practice awaiting phase-out. As of today, OPM’s information collection request governing the SF-256 remains active and has been reauthorized by OMB. The federal government continues to solicit disability status information from job applicants and employees on a government-wide basis.

The federal government’s obligation to collect this information rests on a different statutory hook than Section 503. Federal agencies’ disability affirmative-action and nondiscrimination duties arise under Section 501 of the Rehabilitation Act, 29 U.S.C. § 791, rather than Section 503, which applies to federal contractors. But the two provisions are structural cousins: Section 501, like Section 503, expressly incorporates the standards of Title I of the ADA to determine whether a federal agency’s employment practices are discriminatory. If DOL’s reading of the ADA’s pre-offer inquiry bar is correct (i.e., that it is categorical, contains no affirmative-action exception, and is not satisfied merely because a disclosure is voluntary), the same statutory logic would appear to reach the federal government’s own Schedule A and SF-256 practices just as readily as it reaches Section 503.

None of this resolves the underlying ADA question for federal contractors. Section 501 and Section 503 are separate statutes with separate implementing regulations, administered by different agencies (EEOC oversees Section 501 compliance for federal agencies, while OFCCP oversees Section 503 compliance for contractors), and neither the SF-256 nor the Schedule A self-identification process has been tested in litigation under DOL’s new rationale. The continued, government-wide use of a nearly identical practice illustrates that OFCCP’s position is not self-evidently compelled by the ADA’s text, and it reinforces why EEOC’s longstanding guidance as discussed above has never treated affirmative-action self-identification as categorically unlawful.

Who Is Harmed by a Properly Designed Voluntary Self-ID Program?

The ADA differs from statutes such as Title VII of the Civil Rights Act, which protects individuals against discrimination based on categories into which every individual falls, such as race, color, religion, sex, or national origin. The ADA's core employment protections, by contrast, generally run against discrimination against a qualified individual on the basis of disability, together with separate protections for association with an individual with a disability and distinct statutory restrictions on disability-related inquiries. For that reason, it would be too broad to say that an individual without a disability could never challenge an unlawful disability inquiry. The ADA's inquiry provisions can operate independently from a traditional claim that an employer discriminated against an individual because of an actual disability.

But that still leaves an important practical question: What is the actual employment harm when an employer merely invites applicants to volunteer their disability status, does so for a legitimate affirmative-action or equal-employment-opportunity purpose, and completely walls the information off from employment decision-makers?

Consider the Employer's Defense

Suppose an applicant with a disability challenges an employer's voluntary pre-offer self-identification process. The employer's explanation could be straightforward:

We collected the information as part of our continuing Section 503 affirmative-action efforts to identify potential barriers to employment and ensure that individuals with disabilities were receiving equal employment opportunities. We relied on EEOC's published ADA guidance permitting voluntary disability self-identification for affirmative-action purposes. Participation was voluntary, refusal had no consequences, and the information was maintained confidentially and separately from the employment selection process.

That would not necessarily eliminate a claim that the inquiry itself violated § 12112(d). That is precisely where DOL’s and EEOC's interpretations now create uncertainty. But it could be powerful evidence against a separate allegation that the employer used disability status to discriminate against the applicant.

The Confidentiality Firewall May Be the Most Important Protection

An employer can structure its system so that no person involved in hiring, promotion, compensation, termination, or other individual employment decisions has access to disability self-identification information. Doing so creates an important evidentiary safeguard. If an unsuccessful applicant later alleges that the employer rejected the applicant because of disability, the employer may be able to demonstrate that the individuals who made the hiring decision did not know the applicant's self-identified disability status.

While this does not answer whether asking the question was permissible in the first place, it substantially changes the analysis of whether the information could have been used to make a discriminatory decision. There is a major difference between collecting protected information for statistical or affirmative-action purposes and handing that information to the managers making individual employment decisions.

The Remedies Question

An individual who establishes actionable employment discrimination may potentially recover back pay and other equitable relief, attorneys' fees, and, in appropriate intentional-discrimination cases, compensatory and punitive damages subject to statutory caps.

However, Title I of the ADA is not a simple civil-fine regime that automatically assesses a penalty merely because an employer asked an impermissible question. That exposure should be distinguished from the far more serious allegation that an employer actually used disability information to discriminate against an individual.

What Should Federal Contractors Do Next?

The new rule does not necessarily mean that every contractor must stop collecting disability information, but contractors can no longer rely on the simple explanation that OFCCP requires the collection.

Instead, DOL has expressly placed the decision in the hands of contractors, telling them to exercise their own “legal and business judgment” about whether disability inquiries are permissible under the ADA and its implementing regulations. Here are some considerations for federal contractors that still must comply with the affirmative action provisions in Section 503:

• Identify and document the legitimate purpose for the collection, such as evaluating equal employment opportunity, identifying barriers, or supporting lawful affirmative-action efforts.
• Analyze the stage at which the information is collected. Pre-offer, post-offer, and employee inquiries are governed by different ADA provisions.
• Ensure participation is genuinely voluntary and that declining to answer has no adverse consequence.
• Maintain the information confidentially and separately from ordinary employment records.
• Create a meaningful firewall so individual employment decision-makers do not have access to disability self-identification information.

DCI clients that still desire to lawfully maintain disability self-identification data should work in partnership with their DCI consultant on a new form for data collection that aligns with the above principles.

So Where Does This Leave Contractors?

This is the paradox created by the new Section 503 rule. For more than a decade, OFCCP required federal contractors to ask applicants precisely the disability self-identification question that DOL now says should no longer be required because of its interpretation of the ADA.

However, DOL then expressly declined to prohibit contractors from continuing the practice and instead told contractors to exercise their own legal and business judgment while EEOC continues to have published guidance stating that voluntary affirmative-action self-identification is permissible.

That is hardly a clear directive that federal contractors must stop collecting disability information. Instead, it places the decision squarely on the contractor.

It is important to note that knowing whether discrimination is occurring often requires data, and having that data is not the same thing as using it to discriminate.

Given this uncertainty and the fact that the federal government’s own hiring practices do not reflect DOL’s new position, federal contractors should not treat this issue as settled in either direction. The right path forward is to discuss the available options directly with legal counsel and appropriate business partners (HR, compliance, and outreach or recruiting leadership), weigh the purpose, stage, and safeguards of any collection against the considerations outlined above, and make an informed, documented decision about whether and how to continue soliciting disability status going forward.

DCI will continue to monitor developments and disseminate information as necessary. 

Key Authorities

• 42 U.S.C. § 12112(d) — ADA restrictions on disability-related inquiries and medical examinations.
• 42 U.S.C. § 12201(b) — Title V, “Relationship to other laws.”
• Section 503 of the Rehabilitation Act — federal contractor affirmative-action obligations concerning individuals with disabilities.
• EEOC Enforcement Guidance on Preemployment Disability-Related Questions and Medical Examinations.
• DOL/OFCCP 2026 Final Rule revising the Section 503 regulations.
• Section 501 of the Rehabilitation Act, 29 U.S.C. § 791 — disability affirmative-action and nondiscrimination obligations for federal agencies as employers.
• OPM Standard Form 256, “Self-Identification of Disability,” and related OMB Information Collection Request (Reference No. 202403-3206-007CF).

[1] “If a contractor, in exercising its own legal and business judgment, believes there is a legal basis on which it is permitted to collect certain information under the ADA and its implementing regulations, then this final rule does not prohibit the contractor from doing so.” - https://www.federalregister.gov/documents/2026/08/21/2026-17115/modifications-to-the-regulations-implementing-section-503-of-the-rehabilitation-act-of-1973-as

[2] DOL is not prohibiting contractors from voluntarily exercising their own legal and business judgment about making disability status inquiries at the post-offer stage, if they believe such inquiries comply with the ADA and its implementing regulations. DOL is, however, no longer requiring that contractors conduct such inquiries as part of their affirmative action obligations under Section 503