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Regulatory Developments

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On Feb. 21, 2012, SHRM and the College and University Professional Association for HR (CUPA-HR) filed joint comments to the Office of Federal Contract Compliance Programs (OFCCP) on its proposal to substantially change the way federal contractors design and implement affirmative action programs focused on disability hiring.

SHRM places a priority on developing educational materials and initiatives for HR professionals on hiring individuals with disabilities and has been a partner with DOL’s Office of Disability Employment Policy for this purpose since 2006. While we strongly support the goal of increasing employment among individuals with disabilities, the OFCCP’s proposed rule places numerous data collection and record-keeping requirements on federal contractors without any showing that these requirements will help employers increase their disability hiring.

To gain a better understanding of the proposed rule’s impact on HR, SHRM surveyed a subset of our members, receiving critical input from our special expertise panels and state and chapter legislative directors.

SHRM’s comments to OFCCP offer several suggested changes to improve the rule including:

  • Ensure Safe Harbor. The proposed rule requires employers to ask individuals to voluntarily self-identify whether or not they are disabled twice during the hiring process and on an annual basis thereafter. In addition to concerns we have about frequency of data collection, we are concerned about the legal exposure of such inquiries under the Americans with Disabilities Act (ADA) and request a safe harbor for employers to ensure they cannot be sued for alleged violations of the law by asking individuals whether or not they are disabled.
  • Remove 7% Goal. The proposed rule requires that employers meet a 7% utilization goal for individuals with disabilities in each affirmative action program job group. SHRM’s main concern is that the OFCCP has not cited any data to support its conclusion that 7% is a reasonable goal or that it even comes close to approximating the availability of individuals with disabilities who are actively seeking employment. If OFCCP will not drop the goal, SHRM suggests that the goal be 7% of hires organization-wide, not in each job group.
  • Do Not Formalize the Current Interactive Accommodation Process. The proposed rule also “formalizes” the accommodation request process by requiring that requests be confirmed in writing and responses be given within a specified time period. SHRM argues that these requirements are contrary to both the language and spirit of the ADA accommodation process and recommends they be removed.
  • Phase In the Implementation of the Rule. SHRM recommends that if OFCCP goes forward with the rule, its implementation should be phased in, allowing one year for employers to re-design their data collection systems and another year to collect the data that OFCCP seeks.

The proposed rule also contains several additional requirements of concern to SHRM including:

  • Required staff training that must include information on the benefits of employing individuals with disabilities, appropriate sensitivity, and legal responsibilities including reasonable accommodation;
  • Annual review of all physical and mental job qualifications including providing a written explanation as to why each requirement is related to the job;
  • Personnel logs to track reasons for rejecting individuals with disabilities for vacancies and training programs, and a description of considered accommodations.

To review a copy of the SHRM and CUPA-HR submittal, click HERE

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