The Rehabilitation Act of 1973 forbids federal contractors and subcontractors from discriminating against people with disabilities in employment decisions, and requires federal contractors and subcontractors to take affirmative action to recruit, hire, promote, and retain people with disabilities. On August 27, 2013, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs announced a final rule making changes and updates to Rehabilitation Act regulations.
This final rule reinforces the affirmative action requirements of the regulations to improve employment opportunities for people with disabilities. Meeting the new 7% hiring goal would mean nearly 600,000 people with disabilities would be employed, including nearly 85,000 veterans with disabilities.
The final rule becomes effective on March 24, 2014. Contractors will have several requirements to meet:
- The Final Rule creates a nationwide goal for contractors to have 7% of their workforce be people with disabilities. For employers with 100 or fewer employees, the goal applies to their workforce as a whole. For employers with over 100 employees, the goal applies to each of their job groups. When contractors fail to meet this goal, the contractor must take steps to determine whether and where any barriers to equal employment exist, and take steps to correct them.
- Contractors will be required to document and annually update the number of people with disabilities applying for jobs and the number of people with disabilities they hire. This data will help contractors measure the effectiveness of their outreach and recruitment efforts. The data must be maintained for three years to be used to spot trends.
- Contractors will be required to invite applicants to self-identify as people with disabilities at both the pre-offer and post-offer phases of the application process. Also, every five years, contractors will be required to invite their employees to self-identify as people with disabilities. The U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) has created specific language to use for these invitations. (See Source And More Information below.)
- The pre-offer requirement may seem strange to employers, as the Title I of the Americans with Disabilities Act forbids employers from making disability-related inquiries before an employment offer. However, according to US Equal Employment Opportunity Commission regulations, employers are not liable for Title I violations if they are acting on the requirements of another federal statute or regulation (29 C.P.R.§ 1630.15(e)). Also, as complying with the new rule would allow applicants to self-identify as people with disabilities so they could benefit from potential affirmative action in hiring decisions, the contractors’ invitation would not violate Title I.
- Contractors will also be required to use specific language when incorporating the equal opportunity clause into a subcontract to alert subcontractors to their responsibilities as Federal contractors.
- The Final Rule clarifies that federal contractors must allow OFCCP to review documents related to a compliance check or focused review, either on-site or off-site, at OFCCP’s preference. Contractors, upon request, must inform OFCCP of all formats in which it maintains its records and provide them to OFCCP in whichever of those formats OFCCP requests.
- The Final Rule also updates the definition of “disability” and certain nondiscrimination provisions to bring them in line with the ADA Amendments Act (ADAAA) of 2008.
Sources And More Information:
- Final Rule: Section 503 of the Rehabilitation Act
- Frequently Asked Questions – Section 503 – Final Rule
- Voluntary Self-Identification of Disability Form (PDF)
- EEOC Opinion on the Invitation to Self-Identify (PDF)