Collection of Self-Identified Disability and Veteran Status: When to Start

New OFCCP regulations to Improve Job Opportunities for Protected Veterans and Improve Job Opportunities for Individuals with Disabilities were published in the Federal Register on September 24, 2013, setting the effective date for March 24, 2014. With the publication of the regulations, OFCCP will be providing language to be used verbatim in solicitations of applicant disability and veteran status. Even though this language will be made available prior to the effective date of the regulations, federal contractors should consider not collecting self-identification of disability and veteran status until the effective date. Soliciting such pre-offer information prior to this time exposes contractors to the risk of violating the Americans with Disabilities Act (ADA). Only compliance required by a federal regulatory item can trump the ADA. OFCCP has stated that after the regulations have become effective, contractors are no longer at such risk because the new regulations will supersede the ADA in collection of this information for EEO purposes.

Interestingly, Peggy Mastroianni of the EEOC signed a letter dated August 8, 2013 verifying the position that to collect pre-offer disability information is not in violation of the ADA. Specifically stating that the ADA regulations “provide that no employer is liable for a violation of Title I of the ADA for an action that it is required to take by another federal statute or regulation.” Prior to this, Ms. Mastroianni signed a letter in 1996 that claimed the position that collecting pre-offer information related to disability would be in clear violation of the conditions laid out by the ADA. Such a stark difference in the EEOC representative's position is surprising and makes clear that contractors should very carefully consider when and how they solicit such sensitive information. OFCCP language should be utilized without exception, and timing of solicitations for disability and veteran status should be weighed within the timeframe set by the regulations themselves.

It is important to note that once the regulations are effective as of March 24, 2014, contractors may begin soliciting disability and veteran status; however, the required date for compliance will vary dependent on the contractor’s Affirmative Action Plan date. For further information on effective date versus compliance date, please read our blog post Section 503 & VEVRAA: Regulatory Effective Date vs. Compliance Effective Date.

by Jana Garman, M.A., Associate Consultant and David Cohen, President, DCI Consulting Group

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