OFCCP PUBLISHES NEW DISABILITY-RELATED REGULATIONS: "ASPIRATIONAL GOALS" FOR HIRING DISABLED ADDED TO AFFIRMATIVE ACTION PLANS

The U.S. Department of Labor has announced two final rules that will add to the already substantial reporting requirements imposed on federal contractors by the Office of Federal Contract Compliance Programs (OFCCP). These rules will be effective 180 days from the date of publication in the Federal Register. OFCCP enforces Executive Order 11246, which has required companies that do $10,000 or more of business with the U.S. Government to submit detailed affirmative action plans (AAPs) documenting their efforts to employ minorities and women (and subjects them to scrutiny and potential liability if their efforts are found wanting). The new regulations adds new requirements to the Affirmative Action Plans (AAP) for disabled veterans and individuals with disabilities.

Starting in the spring of 2014, covered employers will be subject to the "aspirational goal" of having 7% of their workforce composed of persons with disabilities, and 8% of disabled veterans. One set of rules updates requirements under the Vietnam Era Veterans' Readjustment Assistance Act of 1974 (VEVRA); the other updates those under Section 503 of the Rehabilitation Act of 1973.

The VEVRA rule provides contractors with a "quantifiable metric" (in effect, an informal quota) to measure their success in recruiting and employing veterans by requiring contractors to annually adopt a benchmark either based on the national percentage of veterans in the workforce (currently 8%), or their own benchmark based on the best available data. The rule imposes accountability and record-keeping requirements, as well as job listing and subcontract requirements to facilitate compliance.

The Section 503 rule similarly introduces a hiring "goal" for federal contractors and subcontractors that 7 % of each job group in their workforce be qualified individuals with disabilities. The rule also details specific actions contractors must take in the areas of recruitment, training, record keeping and policy dissemination - similar to those that have long been required to promote hiring and retention of women and minorities.

The shift in emphasis from the ability to do the work to status - "disability-hood" - runs counter to the theme of the Americans with Disabilities Act (ADA), which was enacted to prohibit employers from discriminating against disabled workers who can perform the essential functions of their job with or without reasonable accommodation. But it is consistent with recent regulations proposed by the Equal Employment Opportunity Commission (EEOC) which encourage disabled workers to "self-identify" and be counted towards utilization goals.

What does this mean for federal contractors? More paperwork, certainly: the new regs will add chapters to existing AAPs. Applicants will have an incentive to broadcast less-than-obvious disabilities, in the hope that their status will make them a more attractive hire. Employers will have an incentive to scour their current workforce to "out" the disabled to meet the metrics (though they will have to tread carefully to avoid running afoul of the ADA). And, of course, everyone can expect more litigation.