On Dec. 9, 2011, the Office of Federal Contract Compliance Programs (OFCCP) issued its proposed rule to revise regulations under Section 503 of the Rehabilitation Act on implementing affirmative action and nondiscrimination obligations to contractors and subcontractors, and to evaluate the affirmative action provisions.
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. If implemented, construction employers would be required to complete additional statistical analysis on their workforce, regardless of where projects are located or how long such projects last. Given the unique seasonal and often transitory nature of the industry, this would place a significant burden on construction contractors.
While AGC agrees that individuals with disabilities must not be discriminated against, AGC’s Sept. 21, 2010 comments to OFCCP’s then Advanced Notice of Proposed Rulemaking, addressed the belief that OFCCP’s contemplated broad affirmative action requirement for the recruitment of individuals with disabilities may be difficult to achieve or possibly counterproductive in the construction industry. AGC noted that record unemployment in construction, the unique nature of the construction industry, and the undue burden the additional recordkeeping would place on construction employers may make the new requirements difficult to achieve. AGC urged the OFCCP to exempt the construction industry from the requirements of this proposed rule, or at a minimum, continue to leave the decision to hire to construction employers, stressing that those decisions should be made on a case-by-case basis based on the candidate’s ability to perform the essential functions of a particular job safely, with or without a reasonable accommodation.
Under the proposed rule, federal contractors and subcontractors would be required to set a hiring goal of 7% of their employees, in each job group, to be workers with disabilities. OFCCP is also considering a sub-goal of 2% for individuals with severe disabilities such as total deafness, blindness, or missing extremities. There are, however, pardons that may be requested when the individual poses a “direct threat” to the health or safety of himself or other individuals. In addition, covered contractors will be required to give applicants the opportunity to voluntarily self-identify as individuals with disabilities, using language drafted by OFCCP, during the application process, after an offer is received but before employment begins, and annually for all employees. While the proposed rule incorporates the expanded definition of “disability” as adopted by the Americans with Disabilities Act Amendments Act, as well as additional requirements regarding the assessment of when an impairment constitutes a disability, which covers a much broader range of individuals. As a result, employers will have a larger group of qualified individuals with disabilities from which to choose. The challenge will be getting the individual to voluntarily certify that he or she has a disability in the first place.
With regard to recordkeeping requirements, OFCCP is proposing to increase the record retention period of covered contractors from two to five years. The data collection and annual data that contractors would be required to maintain would also increase significantly. The additional data includes:
- Total number of referrals from approved employment delivery organizations such as One-Stop Career Centers as well as organizations with which the contractor has a linkage agreement;
- Total number of applicants for employment;
- Number of applicants who are known to be individuals with disabilities;
- Ratio of known applicants with disabilities to total applicants;
- Total number of job openings;
- Total number of jobs filled;
- Number of known individuals with disabilities hired;
- Ratio of hires with known disabilities to total hires; and
- Ratio of job openings to job openings filled.
- Review outreach and recruitment activities annually to evaluate their effectiveness in identifying and recruiting qualified individuals with disabilities;
- Incorporate affirmative action plans into policy manuals and discuss the program in orientation and management training programs;
- Develop internal procedures to further inform employees about the affirmative action plan;
- Develop extensive specified written procedures for processing requests for reasonable accommodation;
- Annually review and revise physical and mental job qualification standards; and
- Annually evaluate compliance with utilization goals.