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OFCCP Sends Disability, Veterans Rules to OMB

By Allen Smith  8/7/2013
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Long-awaited final rules for federal contractors on recruiting veterans and people with disabilities have been sent to the Office of Management and Budget for a final review and approval. Typically, it takes the OMB 30 to 90 days to review a rule.

The most controversial aspect of the disability rule—sent by the Office of Federal Contract Compliance Programs (OFCCP) on July 30, 2013—is the goal of having people with disabilities make up 7 percent of those hired in every affirmative action plan job group.

That goal would be problematic for several reasons, Alissa Horvitz, an attorney at Littler Mendelson in Washington, D.C., said in an Aug. 6 interview.

First, employers must rely on applicants to self-identify as having a disability. Because of the stigma and potential discrimination based on disability—especially psychiatric disabilities—some people in this category may choose not to self-identify.

Then there’s the matter of Americans with Disabilities Act (ADA) rules prohibiting companies from asking about disabilities before extending a job offer. The Equal Employment Opportunity Commission “is still adamant that employers not ask about disability prior to hire,” Horvitz explained.

The 7 percent requirement for every job group also seems unwieldy and unmanageable, she added. Plus, it may be problematic in some industries. Do we really want 7 percent of pilots to have a disability? she asked. And there is a goal that 2 percent of people hired have severe disabilities. The rule may be particularly difficult if a job group has just a handful of people, say, only three mechanics.

 “I don’t see the purpose of a percentage goal,” Horvitz said. Federal contractors have been hearing the OFCCP’s message about meaningful outreach to people with disabilities and veterans and have been focusing their attention on this issue, as it has increasingly become the focus of agency audits, she observed.

Good-Faith Effort

It’s not enough to send a form letter to organizations working with people with disabilities or to veterans once a year to try to recruit them. A good-faith effort to recruit from these groups requires more.

But some contractors are in locations where people with disabilities have few networks, and/or are in remote regions where outreach resources aren’t available, Horvitz explained.

Then there’s the requirement of having to consider a person with a disability for any job for which he or she is qualified. This will be difficult for contractors to implement, Horvitz predicted, since many of them have “very siloed recruiters.” For example, there are recruiters who recruit just for nursing jobs, so they wouldn’t know if a physician’s staff or radiology has an opening. And non-nursing recruiters typically wouldn’t be aware of what nursing positions are available. This requirement might be feasible for a small employer, but it is “very daunting for a large employer,” Horvitz said.

The Society for Human Resource Management noted these and other concerns in comments it filed last year on the OFCCP’s proposed rule.

Veterans Reg

As for the veterans rule, there are brand-new data-collection requirements. An employer has to know where a referral comes from. It remains to be seen how onerous this new tracking requirement will be. But there is “concern the OFCCP will analyze under disparate impact and disparate treatment for veterans,” just as it uses these theories in applicant flow by race and gender, Horvitz said.

For now, federal contractors should focus on building better relationships with organizations that represent veterans and people with disabilities, even though some of these groups lost their funding during the Great Recession.

“No doubt, ODEP [the Office of Disability Employment Policy] would be happy to help any employer hire individuals with disabilities,” Horvitz said.

Other highlights of the veterans regs include:

       Establishment of targeted outreach to veterans groups.

       Preoffer solicitation of veteran status and source of referral.

       Data tracking and metrics to identify whether outreach is successful.

       Process to disposition or explain the nonselection of qualified veterans.

       Obligation to consider veterans for opportunities that they did not apply for.

       41 CFR, Section 60-300.44(f) and (g), on external and internal dissemination of policy: not permissive; mandatory.

       Five-year record retention.

Extra Time to Comply?

Federal contractors may need more time to comply with the new rules. Horvitz recalled that the Internet-application rule was issued in October 2005 and was originally supposed to take effect in February 2006, but the OFCCP delayed enforcement until May.

“That was a long time to get up-to-speed,” she observed. “It would be nice if OFCCP gives contractors time to get into compliance before it enforces” the two new rules, rather than just 60 days from the date the rule winds up being finalized and published in the Federal Register.

The final version of the rules has not yet been released to the public, and it’s not known what changes, if any, have been made because of comments on the proposed rules.

Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.

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