OFCCP Plans to Strengthen the Affirmative Action Obligations Related to Individuals with Disabilities

The Department of Labor's Office of Federal Contractor Compliance Programs (OFCCP) issued an Advanced Notice of Proposed Rulemaking (ANPRM) on July 23, 2010, soliciting comments about the agency's plans to strengthen regulations related to affirmative action for individuals with disabilities under the Rehabilitation Act.  The OFCCP notes that, according to the Bureau of Labor Statistics, the percentage of individuals with disabilities in the workforce in March 2010 was only 22.5, as compared to 70.2 percent of individuals who are not disabled.  The OFCCP clearly intends to impose additional requirements on federal contractors, the most significant of which may be the requirement to create job groups and compare the percentage of individuals with disabilities in each job group with the availability of individuals with disabilities within the contractor's recruitment area.  Contractors concerned about the potential changes have a unique opportunity to comment on such changes before the regulations are written.

Currently, employers that have a direct contract (including a construction contract) with the federal government or its agencies that is valued at $10,000 or more, or that have a subcontract of the same value required to complete a direct federal contract, are required to engage in affirmative action related to individuals with disabilities.  Such federal contractors (or subcontractors) with 50 or more employees and a contract of $50,000 or more are also required to create an affirmative action program containing certain required provisions.  The required provisions currently do not include a statistical analysis of the workforce to determine whether the workforce reflects the available workers in the recruitment area.  The preparation of a compliant plan is fairly straightforward and the obligations are very similar to the obligations most employers have under the Americans with Disabilities Act (with a few exceptions).

Based on the ANPRM, the nature of the affirmative action obligations under the Rehabilitation Act are likely to change.  The list of questions on which the OFCCP is soliciting comments is lengthy.  Some sample questions include:

• If OFCCP were to require Federal contractors to conduct utilization analyses and to establish hiring goals for individuals with disabilities, comparable to the analyses and establishment of goals required under the regulations implementing Executive Order 11246, what data should be examined in order to identify the appropriate availability pool of such individuals for employment?
• Would the establishment of placement goals for individuals with disabilities measurably increase their employment opportunities in the Federal contractor sector? Explain why or why not.
• What experience have Federal contractors had with respect to disability employment goals programs voluntarily undertaken or required by state, local or foreign governments?
• What specific employment practices have been verifiably effective in recruiting, hiring, advancing, and retaining individuals with disabilities?

Other questions revolve around the burden that additional requirements would place on small businesses, the benefit of partnering with community organizations, and making the application process more accessible.  Interested employers can find the full list in the ANPRM at http://www.regulations.gov/search/Regs/home.html#documentDetail?R=0900006480b1fd5a. One question notably missing from the list is how a required statistical analysis, or any other new requirement, would affect construction contractors.  Federal construction contractors are currently excluded from the detailed statistical analysis requirements under the affirmative action regulations related to women and minorities (although they are required to monitor their achievement of certain goals).  There is no indication in the ANPRM that such an exclusion is being considered in the regulations for individuals with disabilities.  If an exclusion is not provided, the additional statistical analysis would require a detailed analysis of a construction contractor's workforce, regardless of where projects are located or how long such projects last.  Given the nature of the industry, this would place a more significant burden on construction contractors than other service contractors. Any changes will not take effect until at least early- to mid-2011.  However, comments on the questions posed by the OFCCP and the potential changes are being taken for a short time period before the proposed regulations are written.  If you are interested in commenting on these potential changes, you should submit comments on or before September 21, 2010.  Comments may be submitted electronically (see http://www.regulations.gov/search/Regs/home.html#home and use RIN number 1250-AA02) or submitted directly to Barbara J. Bingham, Acting Director, Division of Policy, Planning, and Program Development, Office of Federal Contract Compliance Programs, Room N3422, 200 Constitution Avenue, N.W., Washington, D.C. 20210.  An opportunity to comment will also be available once the OFCCP issues the proposed regulation. Editor's note:  This article was written by guest author Tami Earnhart.  Ms. Earnhart is a partner in Ice Miller's Labor and Employment Group.  She represents employers in all aspects of employment and labor law, including discrimination and other litigation, claims filed with administrative agencies, audits by administrative agencies, and labor arbitrations.  She helps employers avoid employment disputes, when possible, and advises companies in making personnel decisions and creating policies in compliance with state and federal laws, including affirmative action policies and programs.  She is also a contributing author of AGC's Affirmative Action Manual for Construction and has served as a speaker in AGC audio conferences and webinars on employment law matters.