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?