By: Dan Cohen – 3/27/14
For all of you Federal contractors and subcontractors who took notice of your new obligations to protected veterans in our March 17 post: “Federal Contractors Be Aware: VEVRAA Amendments Take Effect Later This Month,” your new obligations also extend to individuals with disabilities. Section 503 of the Rehabilitation Act prohibits discrimination on the basis of disability by Federal contractors and subcontractors. It also requires that covered contractors take affirmative action to employ and advance in employment qualified individuals with disabilities. Similar to its concerns about protected veterans, the DOL had expressed concern that the unemployment rate of the disabled remains too high. Consequently, the new revisions are designed to enhance contractor accountability for compliance and ultimately increase employment opportunities.
For those with existing Affirmative Action Plans, the immediate impact of the new regulations is minimal. But, once your AAP expires on and after March 24, 2014, you will be faced with a more time-consuming and costly update. Data collection, outreach and record-keeping obligations are nearly identical to those set forth in the VEVRAA Final Rule. Also, there is a nationwide 7% utilization goal, which is applied to each AAP job group annually, except for contractors/subcontractors with 100 or fewer employees who may apply the utilization goal to their entire workforce. Like with your existing AAP, failure to attain the goal is not a violation and will not result in penalties. For now, your new obligations are as follows:
Applicant Self-Identify Provisions – The Final Rule requires contractors/subcontractors to invite applicants to self-identify at the pre-offer and post-offer stage of the application process. Employees must be invited to self-identify in the first year the contractor/subcontractor is subject to the self-identification rule and every five years thereafter with at least one reminder in the intervening years. Unlike the self-identity form for protected veterans, which is a form that can be prepared by the contractor/subcontractor, the self-identify form for individuals with disabilities must be the DOL form which can be found at www.dol.gov/ofccp/regs/compliance/sec503.
New Definitions – The Final Rule revises definitions relating to “disability” including “major life activities,” “major bodily functions,” “regarded as” having a disability and “substantially limits” in accordance with the changes brought about by the ADAAA. Collectively, these new definitions lower the threshold for establishing a disability and more individuals will have protection. Most of us have been operating under the new definitions for some time so this should not require much in the way of changed methods or operation.
Notice to Applicants and Employees – The “EEO is the law” poster must be provided to applicants and employees. Where an internet application is used, the DOL permits contractors/subcontractors to link to the poster with a brief explanation. As of the date of this posting the “EEO is the law” poster had not been revised.
Subcontract Clause Requirement – “Incorporation by reference” clauses must be contained in government subcontracts and purchase orders. The DOL has recently clarified that Contractors may elect to combine the incorporation by reference language of VEVRAA and 503 as well as all Executive Order clauses and provides the following example:
This contractor and subcontractor shall abide by the requirements of 41 CFR §§ 60-1.4(a), 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, national origin, protected veteran status or disability.
Contractors may opt to keep the incorporation provisions separate because of the varying jurisdictional thresholds that apply (generally $100,000 for VEVRAA; $10,000 for Section 503/Executive Order 11246).
Job Solicitations and Advertisements – Contractors/subcontractors must state in their job solicitations and advertisements that they are an equal opportunity employer of potential veterans with disabilities. This statement can be combined with a similar statement for protected veterans under the VEVRAA Amendments so that it reads: “We are an Equal Opportunity Employer and all qualified candidates will receive consideration for employment without regard to their protected veteran, disabled or other protected status.”
The OFCCP has been working on these rules for years, and their implementation is sure to be the focus of compliance audits in the future. Take steps now to revise your notices, contract clauses, forms, and advertising taglines before OFCCP contacts you.