[Federal Register Volume 76, Number 237 (Friday, December 9, 2011)]
[Proposed Rules]
[Pages 77056-77105]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-31371]
[[Page 77055]]
Vol. 76
Friday,
No. 237
December 9, 2011
Part II
Department of Labor
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Office of Federal Contract Compliance Programs
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41 CFR Part 60-741
Affirmative Action and Non-discrimination Obligations of Contractors
and Subcontractors Regarding Individuals With Disabilities; Proposed
Rule
Federal Register / Vol. 76 , No. 237 / Friday, December 9, 2011 /
Proposed Rules
[[Page 77056]]
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DEPARTMENT OF LABOR
Office of Federal Contract Compliance Programs
41 CFR Part 60-741
RIN 1250-AA02
Affirmative Action and Nondiscrimination Obligations of
Contractors and Subcontractors Regarding Individuals With Disabilities
AGENCY: Office of Federal Contract Compliance Programs, Labor.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Office of Federal Contract Compliance Programs (OFCCP) is
proposing to revise the regulations implementing the non-discrimination
and affirmative action regulations of section 503 of the Rehabilitation
Act of 1973, as amended. Section 503 prohibits discrimination by
covered Federal contractors and subcontractors against individuals on
the basis of disability, and requires affirmative action on behalf of
qualified individuals with disabilities. The proposed regulations would
strengthen the affirmative action provisions, detailing specific
actions a contractor must take to satisfy its obligations. They would
also increase the contractor's data collection obligations, and
establish a utilization goal for individuals with disabilities to
assist in measuring the effectiveness of the contractor's affirmative
action efforts. Revision of the non-discrimination provisions to
implement changes necessitated by the passage of the ADA Amendments Act
(ADAAA) of 2008 is also proposed.
DATES: To be assured of consideration, comments must be received on or
before February 7, 2012.
ADDRESSES: You may submit comments, identified by RIN number 1250-AA02,
by any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Fax: (202) 693-1304 (for comments of six pages or less).
Mail: Debra A. Carr, Director, Division of Policy,
Planning, and Program Development, Office of Federal Contract
Compliance Programs, Room C-3325, 200 Constitution Avenue NW.,
Washington, DC 20210.
Receipt of submissions will not be acknowledged; however, the
sender may request confirmation that a submission has been received by
telephoning OFCCP at (202) 693-0103 (voice) or (202) 693-1337 (TTY)
(these are not toll-free numbers).
All comments received, including any personal information provided,
will be available for public inspection during normal business hours at
Room C-3325, 200 Constitution Avenue NW., Washington, DC 20210, or via
the Internet at http://www.regulations.gov. Upon request, individuals
who require assistance to review comments will be provided with
appropriate aids such as readers or print magnifiers. Copies of this
Notice of Proposed Rulemaking (NPRM) will be made available in the
following formats: Large print, electronic file on computer disk, and
audiotape. To schedule an appointment to review the comments and/or to
obtain this NPRM in an alternate format, please contact OFCCP at the
telephone numbers or address listed above.
FOR FURTHER INFORMATION CONTACT: Debra A. Carr, Director, Division of
Policy, Planning, and Program Development, Office of Federal Contract
Compliance Programs, 200 Constitution Avenue NW., Room C-3325,
Washington, DC 20210. Telephone: (202) 693-0103 (voice) or (202) 693-
1337 (TTY).
SUPPLEMENTARY INFORMATION:
Background
Enacted in 1973, the purpose of section 503 of the Rehabilitation
Act (section 503), as amended, is twofold. First, section 503 prohibits
employment discrimination on the basis of disability by Federal
government contractors and subcontractors. Second, it requires each
covered Federal government contractor and subcontractor to take
affirmative action to employ and advance in employment qualified
individuals with disabilities.
The nondiscrimination requirements and general affirmative action
requirements of section 503 apply to all Government contractors with
contracts or subcontracts in excess of $10,000 for the purchase, sale,
or use of personal property or nonpersonal services (including
construction). See 41 CFR 60-741.4. The requirement to prepare and
maintain an affirmative action program, the specific obligations of
which are described at 41 CFR 60-741.44, apply to those contractors
that have a contract or subcontract of $50,000 or more and 50 or more
employees. In the section 503 context, with the awarding of a Federal
contract comes a number of responsibilities, including compliance with
the section 503 anti-discrimination and anti-retaliation provisions,
meaningful and effective efforts to recruit and employ individuals with
disabilities, creation and enforcement of personnel policies that
support its affirmative action obligations, maintenance of accurate
records on its affirmative action efforts, and OFCCP access to these
records upon request. Failure to abide by these responsibilities may
result in various sanctions, from withholding progress payments up to
and including termination of contracts and debarment from receiving
future contracts.
The framework articulating a contractor's responsibilities with
respect to affirmative action, recruitment, and placement has been in
place since the 1970's. However, both the unemployment rate of working
age individuals with disabilities and the percentage of working age
individuals with disabilities that are not in the labor force remain
significantly higher than for those without disabilities. Recent data
from the U.S. Department of Labor's Bureau of Labor Statistics (BLS)
indicates that just 21.8% of working age people with certain functional
disabilities were in the labor force in 2010, compared with 70.1% of
working age individuals without such disabilities; while the
unemployment rate for working age individuals with these disabilities
was 14.8%, compared with an unemployment rate of 9.4% for working age
individuals without such disabilities. See Table A. Employment status
of the civilian noninstitutional population by disability status and
age, 2009 and 2010 annual averages, available online at http://www.bls.gov/news.release/disabl.a.htm.
A substantial disparity in the employment rate of individuals with
disabilities continues to persist despite years of technological
advancements that have made it possible to apply for and perform many
jobs from remote locations, and to read, write, and communicate in an
abundance of alternative ways. Strengthening the implementing
regulations of section 503, whose stated purpose ``requires Government
contractors and subcontractors to take affirmative action to employ and
advance in employment qualified individuals with disabilities,'' will
be an important means by which the government can address the issue of
employment for individuals with disabilities.
Prior to publishing this NPRM, OFCCP conducted multiple town hall
meetings, webinars, and listening sessions with individuals from the
contractor community, state employment services, disability
organizations, and other interested parties to understand those
features of the section 503 regulations that work well, those that can
be improved, and possible new requirements that could
[[Page 77057]]
help to effectuate the overall goal of increasing the employment
opportunities for individuals with disabilities with Federal
contractors. In addition, OFCCP also published an Advance Notice of
Proposed Rulemaking (ANPRM) on July 23, 2010, 75 Federal Register (FR)
43116, requesting public comment on specific inquiries regarding
potential ways to strengthen the section 503 affirmative action
regulations. The comment period ended September 21, 2010, and all
comments received have been reviewed and given due consideration.
A total of 127 comments were received and are available for review
at the Federal eRulemaking Portal at http://www.regulations.gov.
Comments were received from trade and professional associations;
disability and veteran advocacy organizations; employers; federal,
state, and local government agencies; representatives of schools and
organizations that provide education and/or vocational training; and
from several private citizens. These written comments were generally
reflective of the comments, suggestions and opinions expressed during
the town hall meetings, webinars, and listening sessions, and are
summarized briefly below.
47 of the comments received were non-substantive in nature. These
commenters provided only generic responses indicating general support
or opposition to strengthening the affirmative action regulations and/
or to concepts such as the use of hiring goals or voluntary self-
identification as an individual with a disability, or addressed issues
unrelated to the ANPRM. 80 commenters provided substantive responses to
at least some of the ANPRM questions. 51 of these were from the
disability/advocacy perspective and 24 were from the contractor
community. By and large, the contractor community argued that changes
to the affirmative action regulations were not needed, while disability
and employment service organizations and agencies requested that OFCCP
strengthen the existing affirmative action requirements and consider
additional requirements.
Among the most significant inquiries in the ANPRM were two
questions regarding the utility of establishing hiring goals for
individuals with disabilities similar to the requirements for
minorities and women contained in the implementing regulations for
Executive Order 11246, and the data source(s) from which such goals
could be derived.\1\ A third inquiry in the ANPRM asked about
contractors' experiences with the disability employment goals programs
of State or local governments.\2\ 57 commenters addressed this issue.
Of these, 37 said that hiring goals ``like those for race and gender''
should be established. These commenters asserted that quantitative and
measurable analyses similar to those for minorities and women were
needed to make affirmative action for individuals with disabilities
``more than a paperwork exercise.'' Almost all of these commenters
referenced the U.S. Census Bureau's American Community Survey (ACS) \3\
data as the best available source of data about the number of persons
with certain types of disabilities in the US. However, these commenters
did not offer workable recommendations as to how OFCCP or contractors
could use the data for the establishment of goal percentages.
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\1\ Specifically, the ANPRM asked: ``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?'' and ``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.''
\2\ This question asked: ``What experience have Federal
contractors had with respect to disability employment goals programs
voluntarily undertaken or required by state, local or foreign
governments?''
\3\ The American Community Survey conducted by the U.S. Census
Bureau inquires about an array of demographic information, including
several questions intended to ascertain the existence of certain
functional disabilities, focusing on serious aural, visual,
intellectual, developmental and mobility impairment.
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Five of these 37 commenters also responded to the inquiry regarding
State or local government goal programs. These commenters all
referenced California's State workforce affirmative action program as
an example of an affirmative action success story. According to the
commenters, the California program requires that State agencies submit
annual affirmative action plans that include specific ``targets and
timetables'' for the employment of individuals with disabilities, based
on their availability in the State's working age population. Agencies'
workforce composition and upward mobility of individuals with
disabilities is monitored by the State Personnel Board, and annual
reports are required to be submitted to the Governor and State
legislature. As a result of these affirmative action efforts, the
commenters stated, individuals with disabilities comprised 9.3% of the
State government workforce in 2009.\4\ Though informative, it should be
noted that the commenters provided few details about the design or
operation of the California State program, and that, consequently, it
is unclear whether the California program represents an appropriate
goals model for federal contractors.\5\
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\4\ The commenters cite the Annual Census of Employees in the
State Civil Service 2008-2009, California State Personnel Board,
February 2010 for this statistic. See http://www.spb.ca.gov/WorkArea/showcontent.aspx?id=5634.
\5\ For example, no details were provided with regard to the
basis of the availability data used in the program, the method(s)
used in setting the ``targets and timetables,'' the program's
enforcement mechanism(s), if any, and/or the rate of State agencies'
compliance with the program.
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The remaining 20 commenters, mostly contractors or contractor
representatives, opposed the use of hiring goals in the section 503
context, asserting primarily that available disability data (including
ACS data) is not sufficiently comprehensive or robust to be used for
this purpose. See the Preamble to section 60-741.46 for further
discussion regarding disability data sources.
Another significant issue posed in the ANPRM was whether inviting
applicants to self-identify as individuals with disabilities prior to
receiving a job offer would enhance the contractor's ability to monitor
the impact of their hiring practices and measure the effectiveness of
their affirmative action efforts. 55 commenters addressed this
question. Of these, 37 commenters said voluntary pre-offer self-
identification of disability would have a positive effect on the
employment of individuals with disabilities. Several commenters
recommended that the contractor be required to invite voluntary self-
identification at both the pre- and post-offer employment process
stages to alleviate concerns that information about a hidden disability
might be improperly used if provided before an employment offer was
made. A few commenters recommended that individuals with disabilities
be offered the additional option of self-identifying ``for
recordkeeping purposes only,'' rather than for purposes of receiving
affirmative action. The remaining 19 commenters were against the idea
of pre-offer self-identification for various reasons, including 3
commenters who erroneously asserted that it would violate the Americans
with Disabilities Act (ADA) of 1990. See the Preamble to section 60-742
for a discussion of the permissibility under the ADA of disability-
related inquiries in furtherance of an affirmative action obligation.
[[Page 77058]]
Support was also expressed among a significant number of commenters
for strengthening the implementing regulations regarding contractors'
use of linkage agreements \6\ with recruitment and/or training sources,
and for adding a mandatory job listing requirement similar to the one
in the Vietnam Era Veterans' Readjustment Assistance Act of 1974, as
amended.
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\6\ See section 741.2(m) for a definition of ``linkage
agreement.''
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This NPRM proposes several major changes to part 60-741. Many of
these changes were informed and significantly shaped by the comments
received on the ANPRM, and by the information we received at the town
hall meetings, listening sessions, and in webinars. In addition to
changes to the regulations implementing section 503's affirmative
action requirements, changes necessitated by the passage of the ADA
Amendments Act (ADAAA) of 2008 and the subsequent amendment by the
Equal Employment Opportunity Commission (EEOC) of their implementing
regulations at 29 CFR part 1630, have also been made to the rule's
definitions and nondiscrimination provisions. The ADAAA amends section
503 to the same extent as it amends the ADA, and became effective on
January, 1, 2009. It is, therefore, OFCCP's intention that these
changes will have the same meaning as set forth in the ADAAA, and in
the revised EEOC regulations published at 76 FR 16978 (March 25, 2011).
The detailed Section-by-Section Analysis below identifies and
discusses all proposed changes in each section. Due to the extensive
proposed revisions to the section 503 regulations, part 60-741 will be
republished in its entirety in this NPRM for ease of reference.
However, the Department will only accept comments on the proposed
revisions of the regulations detailed herein.
Section-by-Section Analysis
41 CFR Part 60-741
Subpart A--Preliminary Matters, Equal Opportunity Clause
Section 60-741.1 Purpose, Applicability, and Construction
We propose a few minor changes to this section. Paragraph (a) of
Sec. 60-741.1 of the current rule sets forth the scope of section 503
and the purpose of its implementing regulations. Existing paragraph (a)
discusses the contractor's affirmative action obligations but does not
mention the other primary element of section 503--the prohibition of
discrimination in employment against individuals with disabilities.
Accordingly, the proposed rule adds language to the first sentence of
paragraph (a) including this important element.
Next, the proposal modifies the citation in paragraph (c) to the
``Americans With Disabilities Act of 1990'' (ADA) to reflect its recent
amendment by the ADA Amendments Act of 2008.
Finally, in accordance with changes in the ADAAA, the proposed rule
adds a new paragraph (c)(2), and renumbers the existing paragraph
(c)(2) as (c)(3). New paragraph (c)(2) reflects the ADAAA's
affirmation, in section 6(a)(1), that nothing in the statute ``alters
the standards for determining eligibility for benefits'' under State
worker's compensation law or under State and Federal disability benefit
programs.
Section 60-741.2 Definitions
The proposed rule incorporates the vast majority of the existing
definitions contained in existing Sec. 60-741.2 without change.
However, OFCCP proposes several changes to the substance and structure
of this section, as set forth below.
With regard to the structure of this section, the current rule
lists the definitions in order of subject matter. However, for those
who are unfamiliar with the regulations, this ordering makes it
difficult to locate specific terms within the section. For the most
part, the proposed rule reorders the defined terms in alphabetical
order. A few terms that are typically used in connection with specific
definitions are defined as subparagraphs of those definitions. So, for
example, definitions of the terms ``contracting agency'' and
``modification'' are found within the definition of ``Government
contract.'' This modified structure is proposed for ease of reference,
and to allow individuals to continue to cite to specific definitions.
However, because of this reordering, the citation to specific terms may
be different in the proposed rule than it is currently. For instance,
the term ``contract,'' which is Sec. 60-741.2(h) in the current
regulations, is Sec. 60-741.2(c) in the proposed regulation.
With regard to substantive changes, the proposed rule makes several
revisions that relate to the definition of ``disability'' and its
component parts as a result of the passage of the ADAAA, which became
effective on January 1, 2009, and which amends both the ADA and section
503. As noted previously, it is OFCCP's intention that these terms will
have the same meaning as set forth in the ADAAA, and as implemented by
the EEOC in its revised regulations.
The proposed section 503 rule replaces the term ``individual with a
disability'' with the ADAAA term ``disability.'' The ADAAA definition
of ``disability'' retains the three prongs of the definition of
``individual with a disability'' in the current regulation, but
clarifies that the assessment of whether a disability exists is to be
made ``with respect to an individual.'' The proposed rule incorporates
this change in paragraph (g)(1). The term ``individual with a
disability'' will be retained in alphabetical order as paragraph (l) in
the proposed rule for the convenience of those not yet accustomed to
the new terminology. However, proposed paragraph (l) does not contain a
definition, but directs readers to refer to the new definition of
``disability'' in paragraph (g).
New paragraphs (g)(2), (g)(3) and (g)(4) incorporate additional
ADAAA requirements regarding the assessment of when an impairment
constitutes a ``disability.'' These requirements are crucial to ensure
that ``the broad scope of protection'' Congress intended for
``disability'' to provide is not unduly ``narrowed'' by administrative
or court rulings. See ADAAA at section 2. Proposed paragraph (g)(2)
provides that the definition of ``disability'' must be ``construed in
favor of broad coverage of individuals, to the maximum extent permitted
by law,'' and that therefore extensive analysis should not be needed in
order to determine whether an individual has a disability. New
paragraph (g)(3) incorporates the ADAAA's affirmation that ``an
impairment that substantially limits one major life activity need not
limit other major life activities in order to be considered a
disability;'' while new paragraph (g)(4) reflects the ADAAA's
requirement that ``an impairment that is episodic or in remission is a
disability if it would substantially limit a major life activity when
active.''
New paragraphs (g)(5) and (g)(6) are added for the convenience of
persons using the rule. A cross-reference alerting the reader that the
terms ``major life activities,'' ``physical or mental impairment,''
``record of such impairment,'' ``regarded as having such an
impairment,'' and ``substantially limits'' are separately defined in
Sec. 60-741.2 appears in (g)(5). A cross reference informing readers
that exceptions to the definition of ``disability'' are contained in
Sec. 60-741.3 of the rule is added as paragraph (g)(6).
The proposed rule incorporates the ADAAA's revision of the
definition of ``major life activities'' in paragraph (n).
[[Page 77059]]
The ADAAA adds several items to the list of examples of major life
activities contained in the current regulation. In addition, the ADAAA
clarifies that the term ``major life activities'' includes ``major
bodily functions'' and enumerates several examples of functions that
would constitute ``major bodily functions.'' EEOC's implementing
regulations include additional examples of major life activities and
major bodily functions. All of these examples are contained in the
proposed rule in paragraphs (n)(1) and (2).
In new paragraph (n)(3), the proposed rule states that the term
``major'' must not be interpreted to create a demanding standard when
determining other examples of major life activities, and cautions that
such an assessment is not to be determined by reference to whether the
life activity is of ``central importance to daily life.'' See ADAAA
section 2(b)(4).
New paragraph (o) adds a definition of ``mitigating measures''
that, as prescribed in section 3 of the ADAAA, consists of a non-
exhaustive list of examples of mitigating measures. The ADAAA also
prescribes definitions of the mitigating measures of ``ordinary
eyeglasses or contact lenses,'' ``low-vision devices,'' and ``auxiliary
aids and services,'' and these definitions are likewise included in
this paragraph of the proposed rule. Consistent with the EEOC's
recently issued implementing regulations, the proposed regulation also
adds ``psychotherapy, behavioral therapy, or physical therapy'' to the
non-exhaustive list of mitigating measures in paragraph (o)(1)(v).
The ADAAA replaces the term ``qualified individual with a
disability'' with the term ``qualified individual.'' The definition of
this new term omits the words ``with a disability,'' thus emphasizing
that the assessment of whether a person is qualified for a job is
distinct from the assessment of whether the person has a disability,
but is otherwise unchanged from the definition in the Americans with
Disabilities Act as originally enacted. The proposed rule reflects this
statutory change in the definition of ``qualified individual'' in
paragraph (s) by deleting the words ``with a disability'' that are in
the current regulation.
Proposed paragraph (t) makes two changes to the definition of
``reasonable accommodation'' currently found at Sec. 60-741.2(v).
First, it revises footnote 2 in the current rule to emphasize that
before providing a reasonable accommodation the contractor is advised
to verify with the individual with a disability that the accommodation
it plans to provide will effectively meet the individual's needs.
Second, it adds a new paragraph (4) to reflect the ADAAA's
clarification that individuals who only satisfy the ``regarded as''
part of the definition of ``disability'' are not entitled to receive
reasonable accommodation. See ADAAA at sec. 6(a)(1)(h).
A clarification has been added to the definition of ``record of
such an impairment'' in proposed paragraph (u). It explains that an
individual satisfies the record of prong of ``disability'' if the
individual has ``a history'' of a substantially limiting impairment
``when compared to most people in the general population,'' or has been
misclassified as having had such an impairment.
The ADAAA also significantly redefines and simplifies the
``regarded as'' part of the definition of ``disability.'' Under the new
definition of ``regarded as having such an impairment,'' in proposed
paragraph (w)(1), an individual satisfies the ``regarded as'' prong of
the definition of ``disability'' if ``the individual establishes that
he or she has been subjected to an action prohibited under subpart B
(Discrimination Prohibited) of these regulations because of an actual
or perceived physical or mental impairment, whether or not the
impairment substantially limits or is perceived to substantially limit
a major life activity.'' Such prohibited actions include, but are not
limited to, refusal to hire, demotion, placement on involuntary leave,
termination, exclusion for failure to meet a qualification standard,
harassment, or denial of any other term, condition, or privilege of
employment.
In paragraph (w)(2) the proposed rule explains that an individual
satisfies the regarded as prong any time a contractor takes a
prohibited action against the individual because of an actual or
perceived impairment, even if the contractor asserts or ultimately
establishes a defense for its challenged action. In paragraph (w)(3)
the proposed rule clarifies that the establishment that an individual
is regarded as having a disability is distinct from the establishment
of liability for unlawful discrimination in violation of this part.
Such liability is established only when the individual ``proves that a
contractor discriminated on the basis of disability.''
The ADAAA excludes from the ``regarded as'' prong of ``disability''
impairments that are ``transitory and minor,'' and defines a
``transitory'' impairment as one that ``has an actual or expected
duration of six months or less.'' Proposed paragraph (w)(4)
incorporates this exclusion. The proposed rule also makes clear that it
is incumbent upon the contractor to demonstrate that an impairment is
both transitory and minor for it to be excluded from coverage under the
regarded as prong of ``disability.'' Whether the contractor has
succeeded in demonstrating that a particular impairment is transitory
and minor will be determined objectively. A contractor's subjective
belief that the impairment was transitory and minor is not sufficient
to defeat an individual's coverage under the regarded as prong.
The definition of ``substantially limits'' at Sec. 60-741.2(q) of
the current rule is also significantly revised in accordance with the
ADAAA, and to ensure that it is consistent with the EEOC's implementing
regulations. As revised in paragraph (aa), the proposed regulation sets
forth rules of construction that must be applied when determining
whether an impairment substantially limits a major life activity, but
in contrast to the current regulation, does not specify a substantially
limits standard. This new approach is in keeping with the ADAAA's
rejection of the current regulatory definition of ``substantially
limits'' as ``significantly restricted'' as setting too high a
standard, and with the statute's mandate to interpret ``substantially
limits'' ``consistently with the findings and purposes'' of the ADAAA.
See ADAAA sections 2 and 3.
Paragraph (aa)(1) states that the term ``substantially limits''
must be construed broadly in favor of expansive coverage, to the
maximum extent permitted by law, and is not meant to be a demanding
standard requiring extensive analysis. An impairment need not
``prevent'' or ``significantly or severely restrict'' the individual
from performing a major life activity to be considered substantially
limiting. Rather, an impairment is substantially limiting if it
substantially limits the ability to perform a major life activity
``compared to most people in the general population.'' In making this
comparison, it may be useful, in appropriate cases, to consider the
condition under which the individual performs the major life activity,
the manner in which the individual performs the major life activity,
and/or the duration of time it takes the individual to perform the
major life activity. This comparison, though, usually will not require
scientific, medical, or statistical analysis. So, for example,
scientific, medical, or statistical analysis would not be needed to
determine that an individual who, because of an impairment, could only
[[Page 77060]]
stand for five minutes at a time is substantially limited in the major
life activity of standing, as most people can stand for a significant
longer period of time.
In paragraph (aa)(2), the proposed regulation explains that whether
an individual's impairment substantially limits a major life activity
is not relevant to a determination of whether the individual is
regarded as having a disability within the meaning of Sec. 60-
741.2(g)(1)(iii).
The ADAAA's express prohibition of the consideration of ``the
ameliorative effects of mitigating measures'' when determining whether
an impairment ``substantially limits a major life activity'' is
incorporated into paragraph (aa)(3). The exception to this
prohibition--the ADAAA's mandate that the ameliorative effects of
``ordinary eyeglasses or contact lenses shall be considered'' when
determining whether an impairment substantially limits a major life
activity--is encompassed in proposed (aa)(3)(i). Proposed paragraph
(aa)(3)(ii) addresses the non-ameliorative effects of mitigating
measures, such as negative side effects from medication, and provides
that such detrimental effects may be considered when assessing whether
an individual's impairment is substantially limiting.
In paragraph (aa)(4) the proposed regulation emphasizes that the
focus of a ``substantially limits'' determination is not on the
outcomes that an individual can achieve, but on whether a major life
activity is substantially limited. Thus, for example, someone with a
learning disability may be substantially limited in the major life
activity of learning because of the additional time or effort required
for the individual to read, write or learn, even though the individual
has achieved a high level of academic success.
The proposed regulation notes, in paragraph (aa)(5), that the
principles set forth in this section are intended to provide for
generous coverage of the law by means of an analytical framework that
is predictable, consistent, and workable for all individuals and
contractors. Accordingly, the individualized assessment of some types
of impairments will, ``in virtually all cases,'' result in a factual
determination that the individual has either a substantially limiting
impairment (actual disability) or a history of a substantially limiting
impairment (record of disability). With respect to such an impairment,
the necessary individualized assessment of an individual should be
particularly simple and straightforward. Proposed paragraph (aa)(5)
includes several examples of such impairments, including deafness,
blindness, epilepsy, cancer and HIV, along with the major life activity
they most typically substantially limit. It should also be noted that,
consistent with the revised EEOC ADAAA implementing regulations, the
discussion of the major life activity of working that appears in the
current regulation at Sec. 60-741.2(q)(3) has been removed from the
text of the proposed regulation. No other major life activity receives
special attention in the regulation. Moreover, in light of the expanded
definition of disability pursuant to the ADAAA, this major life
activity will seldom be used, since impairments that substantially
limit an individual's ability to work usually will substantially limit
one or more other major life activities. In those rare cases where an
individual needs to demonstrate a substantial limitation in working,
the individual can continue to do so by showing that an impairment
substantially limits his or her ability to perform a class of jobs, or
a broad range of jobs in various classes, as compared to most people
having comparable training, skills, and abilities.
In addition to the revisions related to the definition of
``disability,'' the proposed rule makes revisions to several other
definitions in the section. First, the proposed rule replaces the term
``Deputy Assistant Secretary,'' found currently at Sec. 60-741.2(d),
with ``Director.'' The current rule defines ``Deputy Assistant
Secretary'' as ``the Deputy Assistant Secretary for Federal Contract
Compliance of the United States Department of Labor, or his or her
designee.'' As a result of the elimination of the Department's
Employment Standards Administration in November 2009, the head of OFCCP
now has the title of Director. See Secretary's Order 7-2009 (Nov. 6,
2009). Accordingly, the proposed rule reflects this change, which will
be made throughout part 60-741.
Lastly, in paragraph (m), the proposed rule adds a definition of
``linkage agreement,'' which is currently only described in the OFCCP
Federal Contract Compliance Manual (FCCM). We propose adding this
definition to the regulations for ease of reference and clarity to the
contractor community.
Section 60-741.3 Exceptions to the Definitions of ``Disability'' and
``Qualified Individual''
This section addresses exceptions to the key definitions of
``disability'' and ``qualified individual.'' The proposed rule modifies
this section by changing the terms ``individual with a disability'' and
``qualified individual with a disability'' in the section title, as
well as throughout the section, to ``disability'' and ``qualified
individual,'' respectively, in accordance with the ADAAA.
Section 60-741.4 Coverage and Waivers
The proposed rule replaces the term ``Deputy Assistant Secretary,''
found in paragraphs (b)(1) and (b)(2) of this section, with the term
``Director,'' for the reasons set forth in the discussion of Sec. 60-
741.2. The proposal also removes the text of paragraph (a)(2) as the
``contract work only'' exception applied to ``employment decisions and
practices occurring before October 29, 1992'' and has now expired.
Paragraphs (3), (4) and (5) are, accordingly, renumbered as paragraphs
(2), (3) and (4).
Section 60-741.5 Equal Opportunity Clause
Paragraph (a) contains the equal opportunity (EO) clause that must
be included in all covered Government contracts and subcontracts. The
proposed rule makes several substantive changes to the text of the
mandated clause.
In paragraph 1 of the EO clause, the phrase ``to employ, advance in
employment and otherwise treat qualified individuals with disabilities
without discrimination based on their physical or mental disability''
is modified to read ``to employ and advance in employment individuals
with disabilities, and to treat qualified individuals without
discrimination on the basis of their physical or mental disability.''
This formulation more closely mirrors the language and intent of the
ADAAA.
In paragraph 4, we propose two revisions. First, the proposed
regulation revises the parenthetical at the end of the third sentence
of this paragraph to replace the outdated suggestion of ``hav[ing] the
notice read to a visually disabled individual'' as an accommodation
with the suggestion to provide Braille, large print, or other versions
that allow persons with disabilities to read the notice themselves. The
proposed regulation also adds the following sentences to the end of
proposed paragraph 4 of the EO clause:
With respect to employees who do not work at a physical location
of the contractor, a contractor will satisfy its posting obligations
by posting such notices in an electronic format, provided that the
contractor provides computers that can access the electronic posting
to such employees, or the contractor has actual knowledge that such
employees otherwise
[[Page 77061]]
are able to access the electronically posted notices. Electronic
notices for employees must be posted in a conspicuous location and
format on the company's intranet or sent by electronic mail to
employees. An electronic posting must be used by the contractor to
notify job applicants of their rights if the contractor utilizes an
electronic application process. Such electronic applicant notice
must be conspicuously stored with, or as part of, the electronic
application.
The addition of these sentences is in response to the increased use
of telecommuting and other work arrangements that do not include a
physical office setting, as well as internet-based application
processes in which applicants never enter a contractor's physical
office. These revisions therefore would permit equivalent access to the
required notices for these employees and applicants.
For paragraph 5, which refers to the contractor's obligation to
notify labor organizations or other workers' representatives about its
obligations under section 503, we propose adding language clarifying
that these obligations include non-discrimination, in addition to
affirmative action. The current paragraph 5 does not specifically
mention contractors' non-discrimination obligations.
The proposed rule also adds a new paragraph 7 to the EO clause that
requires the contractor to state and thereby affirm in solicitations
and advertisements that it is an equal employment opportunity employer
of individuals with disabilities protected under section 503. A
comparable clause exists in the equal opportunity clause of the
Executive Order 11246 regulations, see 41 CFR 60-1.4(a)(2), describing
the protected classes under that Order. This proposed addition would
ensure consistency between the regulations and aid in communicating the
contractor's EEO responsibilities to job seekers.
In addition to modifying the text of the EO clause, the proposed
rule also amends paragraph (d) of this section to require that the
entire equal opportunity clause be included verbatim in Federal
contracts. OFCCP has found that contractors are not always aware of
their EO clause responsibilities. Subcontractors, in particular, are
frequently not informed of their EO responsibilities by the prime
contractor and are unaware of their obligations until they are selected
by OFCCP for a compliance evaluation. Requiring that the entire EO
clause be included verbatim in all covered Federal contracts, including
subcontracts, will help ensure that contractors (including
subcontractors) read and understand the language in this clause.
Finally, the proposed rule replaces the term ``Deputy Assistant
Secretary,'' found in paragraphs (a)(4), (a)(6), and (f) of this
section, with the term ``Director,'' for the reasons set forth in the
discussion of Sec. 60-741.2.
Subpart B--Discrimination Prohibited
Section 60-741.21 Prohibitions
This section of the rule describes types of conduct that would
violate the non-discrimination requirements of section 503. The
proposed rule makes both minor and substantive changes.
First, the section's introductory sentence is numbered as (a), with
appropriate subsection renumbering so that the original paragraphs (a)
through (i) become paragraphs (1) through (9).
Next, paragraph (a)(1) of the proposed rule (Sec. 60-741.21(a) of
the current rule) is revised to mirror the language in section 5 of the
ADAAA by changing ``discriminate against a qualified individual with a
disability because of that individual's disability'' to ``discriminate
against a qualified individual on the basis of disability.''
The word ``qualified'' is deleted from the example in proposed
paragraph (a)(2), which currently provides, in Sec. 60-741.21(b), that
``the contractor may not segregate employees into separate work areas
or into separate lines of advancement on the basis of disability.'' As
modified, the example would more accurately reflect the prohibition's
requirement that a contractor not ``limit, segregate, or classify a job
applicant or employee in a way that adversely affects his or her
employment opportunities or status on the basis of disability.''
The proposed rule adds a new paragraph (iv) to paragraph (a)(6)
that clarifies, as provided in the ADAAA, that a contractor is ``not
required'' to provide reasonable accommodation to individuals who
``satisfy only the `regarded as having such an impairment' prong of the
definition of disability.'' However, contractors are not prohibited
from providing reasonable accommodation to individuals who are only
``regarded as'' having a disability, and may choose to do so if they
wish. The new paragraph also includes a cross-reference to the
definition of ``regarded as'' having a disability in proposed Sec. 60-
741.2(w).
A new paragraph (ii) is added to proposed paragraph (a)(7) to
incorporate the ADAAA's specific prohibition on the use of
qualification standards, employment tests, or other selection criteria
that are ``based on an individual's uncorrected vision'' unless the
standard, test, or other selection criteria, as used by the contractor,
``is shown to be job-related for the position in question and
consistent with business necessity.'' On its face, this provision
protects not only individuals with disabilities, but broadly prohibits
a contractor from using any ``individual's'' uncorrected vision as a
qualification standard unless the contractor can demonstrate that doing
so is justified by business necessity. Thus, the proposed regulation
states that an individual need not be an individual with a disability
in order to challenge a contractor's use of an uncorrected vision
standard, so long as the individual has been adversely affected by the
contractor's use of the challenged standard. The proposed rule also
renumbers the current paragraph (ii) as paragraph (iii).
A new sentence is added by the proposal to paragraph (a)(9), which
currently provides that a contractor may not reduce the compensation
provided to an individual with a disability because the individual
receives a disability-related pension or benefit from another source.
The new sentence clarifies that it would likewise be impermissible for
a contractor to reduce the amount of compensation it provides to an
individual with a disability because of the ``actual or anticipated
cost of a reasonable accommodation the individual needs or requests.''
Finally, the proposed rule adds a new subsection (b) to incorporate
the ADAAA's prohibition on claims of discrimination because of an
individual's lack of disability. The ADAAA expressly prohibits claims
that ``an individual without a disability was subject to discrimination
because of the lack of disability.'' ADAAA at sec. 6(a)(1)(g).
Section 60-741.22 Direct Threat Defense
The proposed rule changes the reference in the parenthetical at the
end of this section to ``Sec. 60-741.2(e),'' to reflect the new
designation of the definition of ``direct threat'' in the restructured
Definitions section, as discussed in Sec. 60-741.2, above.
Section 60-741.23 Medical Examinations and Inquiries
The proposed rule revises paragraph (b)(4) by adding a sentence at
the end of the paragraph clarifying that voluntary medical examinations
and activities need not be job-related and consistent with business
necessity. Paragraph (b)(5) is revised to delete the reference to
paragraph (b)(4). This revision is intended to clarify that contractors
may not use medical information obtained through voluntary medical
[[Page 77062]]
examinations and activities as the basis for an employment decision
such as a determination of fitness for duty.
Lastly, the proposed rule revises paragraph (d)(1)(iii) to add ``as
amended'' to the reference to the ``Americans with Disabilities Act.''
Section 60-741.25 Health Insurance, Life Insurance and Other Benefit
Plans
The proposed rule revises paragraph (d) by changing the current
rule's two references to ``qualified individual with a disability'' to
``individual with a disability.'' This paragraph ensures that
individuals will not be denied access to insurance or subjected to
different terms or conditions of insurance on the basis of disability,
if the disability does not impose increased risks. The ability to
perform essential functions, as specified in the definition of
``qualified individual'' in Sec. 60-741.2(s), is not relevant to these
insurance considerations. Accordingly, the proposed rule would
eliminate the term ``qualified'' from the paragraph's references to
``individual with a disability.''
Subpart C--Affirmative Action Program
Section 60-741.40 General Purpose and Applicability of the Affirmative
Action Program Requirement
This section sets forth which contractors are required to maintain
an affirmative action program, and the general timing requirements for
its creation and submission to OFCCP. The proposed rule adds a new
paragraph (a) that sets forth a statement of purpose that articulates
OFCCP's general expectations for contractors' affirmative action
programs. An affirmative action program must be ``more than a paperwork
exercise.'' Rather, an affirmative action program is a management tool
that includes measurable objectives, quantitative analyses, and
internal auditing and reporting systems designed to measure the
contractor's progress toward achieving equal employment opportunity for
individuals with disabilities.
In light of the addition of new paragraph (a), the existing
paragraphs of this section have been renumbered and newly captioned in
the proposed regulation. However, except for one minor clarification,
the remainder of the text of Sec. 60-741.40 is unchanged. We propose a
minor clarification to paragraph (b)(3) of this section, which is
paragraph (c) in the current rule, specifying that the affirmative
action program shall be reviewed and updated annually ``by the official
designated by the contractor pursuant to Sec. 60-741.44(i).'' While
this is the intent of the existing language, the proposal clarifies
this intention and ensures that company officials who are knowledgeable
about the contractor's affirmative action activities and obligations
are reviewing the program.
Section 60-741.41 Availability of Affirmative Action Program
This section sets forth the manner by which contractors must make
their affirmative action programs available to employees for
inspection, including the location and hours during which the program
may be obtained. The proposed regulation adds a sentence at the end of
this section requiring that, in instances where contractors have
employees who do not work at the contractors' physical establishment,
the contractor shall inform these employees about the availability of
the affirmative action program by means other than a posting at its
establishment. This addition is proposed in light of the increased use
of telework and other flexible workplace arrangements.
Section 60-741.42 Invitation To Self-identify
The proposed revisions to this section make significant,
substantive changes to the contractor's responsibilities and the
process through which applicants are invited to voluntarily self-
identify as individuals with disabilities protected by section 503
during the hiring process. The proposed rule also adds a new
requirement that contractors annually survey their employees, providing
an opportunity for each employee who is, or subsequently becomes, an
individual with a disability to voluntarily self-identify as such in an
anonymous manner, thereby allowing those who have subsequently become
disabled or who did not wish to self-identify during the hiring process
to be counted.
These changes are proposed in order to collect important data
pertaining to the participation of individuals with disabilities in the
contractor's applicant pools and workforces. This will allow the
contractor and OFCCP to better identify and monitor the contractor's
hiring and selection practices with respect to individuals with
disabilities. Data related to the pre-offer stage will be particularly
helpful, as it will provide the contractor and OFCCP with valuable
information regarding the number of individuals with disabilities who
apply for jobs with contractors. This data will enable OFCCP and the
contractor to assess the effectiveness of the contractor's recruitment
efforts over time, and to refine and improve the contractor's
recruitment strategies, where necessary.
Proposed paragraph (a) of this section requires that the contractor
invite all applicants to voluntarily self-identify as individuals with
disabilities whenever the applicant applies for or is considered for
employment. The invitation may be included with the application
materials, but must be separable or detachable from the job
application.
The requirement to give applicants and employees the opportunity to
self-identify is consistent with the ADA's restrictions on pre-
employment disability-related inquiries. Although the ADA generally
prohibits inquiries about disability prior to an offer of employment,
it does not prohibit the collection of this information by a contractor
in furtherance of its section 503 affirmative action obligation to
employ and advance in employment qualified individuals with
disabilities. The EEOC's regulations implementing the ADA state that
the ADA ``does not invalidate or limit the remedies, rights, and
procedures of any Federal law * * * that provides greater or equal
protection for the rights of individuals with disabilities'' than does
the ADA. 29 CFR 1630.1(c)(2). Noting that Section 503 is such a Federal
law, EEOC states in the Appendix to its ADA implementing regulations
that: ``collecting information and inviting individuals to identify
themselves as individuals with disabilities as required to satisfy the
affirmative action requirements of section 503 of the Rehabilitation
Act is not restricted by [the ADA or EEOC's implementing
regulations].'' Appendix to 29 CFR 1630.14(a).
Proposed paragraph (a)(1) requires that the contractor invite
applicants to self-identify ``using the language and manner prescribed
by the Director and published on the OFCCP Web site.'' This will ensure
consistency in all pre-offer invitations that are made, and will
reassure applicants that the request is routine and executed pursuant
to obligations created by OFCCP. It will also minimize any burden to
contractors resulting from compliance with this responsibility, as they
will not be required to develop suitable self-identification
invitations individually. This, in turn, we believe, will facilitate
contractor compliance with this proposed section.
The inquiry that OFCCP will prescribe for contractors is a limited
one and will be narrowly tailored. To minimize privacy concerns and the
possibility of misuse of disability-
[[Page 77063]]
related information, we are proposing that the required invitation
would ask only for self-identification as to the existence of a
``disability,'' not asking about the general nature or type of
disability the individual has, or the nature or severity of any
limitations the individual has as a result of their disability. For
example, OFCCP might prescribe that the contractor invite applicants to
self-identify at the pre-offer stage using the following language:
1. This employer is a Government contractor or subcontractor
subject to section 503 of the Rehabilitation Act of 1973 (section
503), as amended, which requires Government contractors to take
affirmative action to employ and advance in employment qualified
individuals with disabilities. Regulations of the U.S. Department of
Labor's Office of Federal Contract Compliance Programs (OFCCP)
implementing section 503 require that Government contractors and
subcontractors ask job applicants to indicate whether or not they
have a disability. This information is requested in furtherance of
our affirmative action obligations as a Government contractor
subject to section 503, and to measure the effectiveness of the
outreach, recruitment, training and development efforts we have
undertaken pursuant to section 503.
A person has a disability as defined in section 503 if that
person either: (1) Has a physical or mental impairment which
substantially limits one or more of that person's major life
activities; or (2) has a history or record of such an impairment.
Major life activities include, but are not limited to, caring for
oneself, performing manual tasks, seeing, hearing, eating, sleeping,
walking, standing, sitting, reaching, lifting, bending, speaking,
breathing, learning, reading, concentrating, thinking,
communicating, interacting with others, and working. Major life
activities also include major bodily functions such as functions of
the immune system, special sense organs and skin, normal cell
growth, digestive, genitourinary, bowel, bladder, neurological,
brain, respiratory, circulatory, cardiovascular, endocrine, hemic,
lymphatic, musculoskeletal and reproductive functions.
Please indicate whether you have a disability as defined in
section 503 by checking the box below.
[ ] YES, I HAVE A DISABILITY
2. Your submission of this information is voluntary, and your
refusal to provide it will not adversely affect our consideration of
your application for employment, or subject you to adverse treatment
of any kind. The information provided will be used only in ways that
are consistent with section 503 of the Rehabilitation Act of 1973,
as amended, and OFCCP's regulations.
3. This means that the information you provide will be used
solely for affirmative action purposes, and/or by Government
officials engaged in enforcement of the laws administered by OFCCP,
or in the enforcement of other Federal EEO laws such as the
Americans with Disabilities Act (ADA).
4. Section 503 also requires that Government contractors provide
individuals with disabilities with reasonable accommodations that
are needed to ensure equal employment opportunity. If you require an
assistive device, sign language interpreter, or other assistance,
change or modification to enable you to fully participate in the
application process, please let us know.
OFCCP invites public comment on this potential self-identification
invitation text, including suggestions for specific alternate text. An
alternative would be to harmonize the approach to collecting such data
that is used by the Federal government for government employees.
Specifically, it is anticipated that the EEOC will use an applicant
flow form to collect disability-related data pre-employment and OPM
uses SF256 to collect data once an applicant is hired. Such forms ask
for sufficient information to determine if an individual has certain
``severe'' or targeted disabilities, or has any of various other types
of disabilities. We request comment on these alternative approaches in
the context of the need to strike a balance between more specific data
and encouraging responses, and in consideration of the objectives of
ensuring applicant comprehension of what is being asked, achieving, to
the extent possible, comparability of data with other sources, and
compliance with the ADAAA.
Proposed paragraph (b) retains but modifies the current rule's
requirement that contractors invite individuals, after an offer of
employment is extended, but before the applicant begins his or her job
duties, to voluntarily self-identify as an individual with a
disability. We propose to retain this requirement, in addition to the
new requirement to invite self-identification at the pre-offer stage,
so that individuals with hidden disabilities who fear potential
discrimination if their disability is revealed prior to receiving a job
offer will, nevertheless, have the opportunity to provide this valuable
data.
Proposed paragraph (b)(1) requires that the contractor invite self-
identification using the language and manner prescribed by the
Director, as published on the OFCCP Web site. Again, we believe that
this requirement will ensure consistency in all post-offer invitations
that are made, minimize any burden to contractors of compliance with
this responsibility and, consequently, facilitate such contractor
compliance.
Proposed paragraph (c) requires that, on an annual basis, the
contractor shall anonymously survey all of its employees using the
language and manner prescribed by the Director. Because baseline data
are not available, at a minimum, it is important to provide all
employees with an opportunity to self-identify. Annual surveying,
however, would be meaningful because an employee may become disabled at
any time or may feel more comfortable self-identifying once he or she
has been employed for some time. Assuring that employee responses to
the annual survey will be anonymous will likely increase the response
rate, thereby providing that the most accurate data possible is
available to assist contractors and OFCCP. Such data will assist
contractors and OFCCP in evaluating and refining the contractor's
affirmative action efforts. Surveying of employees may be accomplished
by the contractor using a paper and/or electronic format, using the
method(s) generally used by the contractor to communicate with
employees regarding work-related matters. Proposed paragraph (d)
emphasizes that the contractor is prohibited from compelling or
coercing individuals to self-identify. While proposed paragraph (e)
emphasizes that all information regarding self-identification as an
individual with a disability shall be kept confidential and maintained
in a data analysis file in accordance with Sec. 60-741.23 of this
part. Paragraph (e) also states that self-identification information
must be provided to OFCCP, upon request, and that the information may
only be used in accordance with this part.
The proposed rule eliminates Appendix B of the current regulations.
Appendix B provides a sample invitation to self-identify as an
individual with a disability to assist the contractor in developing its
own pre-employment self-identification invitation. Since the proposed
regulation provides that OFCCP will prescribe the text that the
contractor must use when inviting applicants and employees to
voluntarily self-identify, there is no longer a need for a sample
invitation.
Finally, the proposed rule renumbers existing paragraphs (c) and
(d) as paragraphs (f) and (g). Proposed paragraph (g) is revised
slightly to clarify that the contractor is not relieved from liability
for discrimination in violation of ``section 503 or this part.''
Section 60-741.44 Required Contents of Affirmative Action Programs
This section details the elements that the contractor's affirmative
action programs must contain. These elements include: (1) An equal
employment opportunity policy statement; (2) a comprehensive annual
review of
[[Page 77064]]
personnel processes; (3) a review of physical and mental job
qualifications; (4) a statement that the contractor is committed to
making reasonable accommodations for persons with physical and mental
disabilities; (5) a statement that the contractor is committed to
ensuring a harassment-free workplace for individuals with disabilities;
(6) external dissemination of the contractor's affirmative action
policy, as well as outreach and recruitment efforts; (7) internal
dissemination of the contractor's affirmative action policy to all of
its employees; (8) development and maintenance of an audit and
reporting system designed to evaluate affirmative action programs; and
(9) training regarding the implementation of the affirmative action
program for all personnel involved in employment-related activities,
such as the conduct of recruitment, screening, selection, and
discipline of employees.
The first substantive proposed revisions to this section focus on
the contractor's policy statement set forth in paragraph (a). The
proposed regulation would revise the second sentence to clarify the
contractor's duty to provide notices of employee rights and contractor
obligations in a manner that is accessible and understandable to
persons with disabilities. It would also revise the parenthetical at
the end of the sentence, replacing the outdated suggestion of
``hav[ing] the notice read to a visually disabled individual'' as an
accommodation with the suggestion to provide Braille, large print, or
other versions that allow persons with disabilities to read the notice
themselves.
The proposed regulation would also revise the third sentence of
paragraph (a) regarding the content of the policy statement, replacing
the provision that the policy statement ``should indicate the chief
executive officer's attitude on the subject matter'' with the
requirement that the policy statement ``shall indicate the chief
executive officer's support for the affirmative action program.'' This
proposed change is made to clarify the intent to mandate the inclusion
of a statement from the contractor's CEO in the affirmative action
policy statement that will signal to the contractor's employees that
support for the affirmative action program goes to the very top of the
contractor's organization.
In paragraph (b), the proposed rule requires that the contractor
must review its personnel processes on at least an annual basis to
ensure that its obligations are being met. The current rule requires
that the contractor review these processes ``periodically.'' This
standard is vague and subject to confusion. Indeed, OFCCP's efforts to
enforce this requirement in recent years have been complicated by
contractors' various subjective interpretations of what constitutes
``periodic'' review. This proposal sets forth a clear, measurable, and
uniform standard that will be easily understood by the contractor and
more easily enforced by OFCCP. In addition, the proposed rule requires
that the contractor ensure that its use of information and
communication technology is accessible to applicants and employees with
disabilities. The contractor is required to review its technological
processes annually, make any necessary changes and include a
description of its review and any modifications made in its affirmative
action program.
Further, the proposed revisions mandate certain specific steps that
the contractor must take, at a minimum, in the review of its personnel
processes. These specific steps are those currently set forth in
Appendix C to the regulation. Appendix C currently suggests that the
contractor: (1) Identify the vacancies and training programs for which
applicants and employees with disabilities are considered; (2) provide
a statement of reasons explaining the circumstances for rejecting
individuals with disabilities for vacancies and training programs and a
description of considered accommodations; and (3) describe the nature
and type of accommodations for individuals with disabilities who were
selected for hire, promotion, or training programs. Previously, these
steps were recommended as an appropriate set of procedures. OFCCP's
enforcement efforts have found that many contractors do not follow
these recommended steps, and that the documentation contractors
maintain of the steps they do take are often not conducive to a
meaningful review by the contractor or OFCCP, particularly in the event
of employee/applicant complaints. Such a meaningful review has always
been the goal of the requirements in paragraph (b), as it ensures that
the contractor remains aware of and actively engages in its overall
affirmative action obligations toward individuals with disabilities.
The proactive approach set forth in the current Appendix C would
provide greater transparency between the contractor, its applicants/
employees, and OFCCP as to the reasons for the contractor's personnel
actions. Requiring that contractors record the specific reasons for
their personnel actions and make them available to an employee or
applicant upon request would also aid them in clearly explaining their
personnel actions to applicants and employees, which could subsequently
reduce the number of complaints filed against contractors. Thus, we
propose requiring the contractor to take these steps outlined currently
in Appendix C (which are incorporated into paragraph (b) in the
proposed rule), and encourage the contractor to undertake any
additional appropriate procedures to satisfy its affirmative action
obligations.
The proposed paragraph (c) clarifies that all physical and mental
job qualification standards must be reviewed and updated, as necessary,
on an annual basis. As with paragraph (b), the current rule's
requirement that the contractor review these standards ``periodically''
is vague and subject to confusion. OFCCP has concluded that contractors
inconsistently interpret what constitutes ``periodic'' review. The
proposed change provides a clear, measurable, and uniform standard.
The proposed paragraph (c)(1) adds language requiring the
contractor to document the results of its annual review of physical and
mental job qualification standards. The regulation has long required
this review to ensure that job qualification standards that tend to
screen out individuals with disabilities are job-related and consistent
with business necessity. The proposed change would merely require that
the contractor document the review it has already been required to
perform. It is anticipated that this documentation will list the
physical and mental job qualifications for the job openings during a
given AAP year- which should already be available from the contractor's
job postings--and provide an explanation as to why each requirement is
related to the job to which it corresponds. Documenting this review
will ensure that the contractor critically analyzes its job
requirements and proactively eliminates those that are not job-related.
It will also allow OFCCP to conduct audits and investigations in a more
thorough and efficient manner.
Paragraph (c)(3) currently provides that, as a defense to a claim
by an individual that certain mental or physical qualifications are not
job-related and consistent with business necessity, the contractor may
assert that the individual poses a ``direct threat'' to the health or
safety of the individual or others in the workplace. The definition of
``direct threat'' in these regulations spells out the criteria that the
contractor must consider in determining whether a ``direct threat''
exists. The proposed paragraph (c)(3) would require the
[[Page 77065]]
contractor to contemporaneously create a written statement of reasons
supporting its belief that a direct threat exists, tracking the
criteria set forth in the ``direct threat'' definition in these
regulations, and to maintain the written statement as set forth in the
recordkeeping requirement in Sec. 60-741.80. Once again, this is to
ensure that the contractor's ``direct threat'' analysis--which is
already required under these regulations--is well-reasoned and
available for review by OFCCP. Finally, for both the proposed
documentation requirements in paragraphs (c)(1) and (c)(3), the
proposed regulation requires that the contractor treat the created
documents as confidential medical records in accordance with Sec. 60-
741.23.(d).
Perhaps the most significant substantive changes in the proposed
rule address the scope of the contractor's recruitment efforts and the
dissemination of its affirmative action policies described in
paragraphs (f) and (g) of this section. While these two paragraphs
generally would require that the contractor engage in recruitment and
disseminate its policies, the current rule recommends rather than
requires the specific methods for carrying out these obligations.
The current paragraph (f) suggests a number of outreach and
recruitment efforts that the contractor can undertake in order to
increase the employment opportunities for individuals with
disabilities. See 41 CFR 60-741.44(f)(1). The proposed paragraph (f)
would require that the contractor engage in a minimum number of
outreach and recruitment efforts (as described in proposed paragraph
(f)(1)). The proposed paragraph (f) also includes a list of additional
outreach and recruitment efforts that are suggested (proposed paragraph
(f)(2)), a new requirement that the contractor conduct self-assessments
of their outreach and recruitment efforts (proposed paragraph (f)(3)),
and a clarification of the contractor's recordkeeping obligation with
regard to its outreach and recruitment efforts (proposed paragraph
(f)(4)).
Proposed paragraph (f)(1) requires the contractor to promptly list
all of its employment opportunities, with limited exceptions, with the
nearest Employment One-Stop Career Center. It also requires the
contractor to engage in a minimum of three additional outreach and
recruitment efforts. First, the contractor is required to enter into
linkage agreements and establish ongoing relationships with the local
State Vocational Rehabilitation Agency office nearest the contractor's
establishment, or a local organization listed in the Social Security
Administration's Ticket to Work Employment Network Directory.
Second, the contractor is required to enter into a linkage
agreement with at least one of several other listed organizations and
agencies for purposes of recruitment and developing training
opportunities. The listed organizations and agencies include: Entities,
such as the Employer Assistance and Resource Network (EARN), that are
funded by the Department of Labor to provide recruitment or training
services for individuals with disabilities. EARN provides employers
with free consulting services and resources to support the recruitment
and hiring of individuals with disabilities; the nearest Employment
One-Stop Career Center, established under the Workforce Investment Act
to provide a full range of job seeker assistance under one roof; the
nearest Department of Veterans Affairs Regional Offices, which, in
part, provide services to disabled veterans; local disability groups,
organizations or Centers for Independent Living that provide services
to individuals with disabilities; placement or career offices of
educational institutions; and private recruitment sources, such as
professional organizations or employment placement services.
Third, proposed paragraph (f)(1) also requires that the contractor
consult the Employer Resources section of the National Resource
Directory, a partnership and online collaboration among the Departments
of Labor, Defense, and Veterans Affairs. New contractors and
subcontractors often inquire about how they can find qualified
individuals with disabilities to comply with their AAP obligations. The
National Resource Directory is a leading government Web site that
provides prospective employers of disabled veterans access to veterans'
service organizations, existing job banks, and other resources at the
national, state and local levels. Finally, proposed paragraph (f)(1)
requires that the contractor send written notification of company
policy related to affirmative action efforts to its subcontractors,
including subcontracting vendors and suppliers in order to request
appropriate action on their parts and to publicize the contractor's
commitment to affirmative action on behalf of individuals with
disabilities. While the proposed regulations would not require that the
contractor send written notification to vendors and suppliers who are
not subcontractors as defined by these regulations, such disclosure
remains an encouraged activity, just as it is under the current
regulation. See 41 CFR 60-741.44(f)(6).
We believe that the required linkage agreements we propose in
paragraph (f)(1) will greatly facilitate the contractor's efforts to
attract qualified applicants with disabilities. We encourage comments
from stakeholders regarding this proposal, particularly if stakeholders
have information on recruitment sources not included in this proposal
that might increase employment of individuals with disabilities.
In paragraph (f)(2) of the proposed rule, we list a number of
outreach and recruitment efforts that are suggested measures for
increasing employment opportunities for individuals with disabilities.
The efforts listed in proposed paragraph (f)(2) are very similar to the
efforts that are suggested in paragraphs (f)(1) through (f)(7) of the
current rule. This includes: (1) Holding briefing sessions with
representatives from recruiting resources; (2) incorporating efforts to
locate individuals with disabilities into recruitment activities at
educational institutions; (3) participating in work-study programs for
students, trainees, or interns with disabilities; (4) making available
individuals with disabilities for participation in career days, youth
motivation programs, and related activities in their communities; (5)
any other positive steps the contractor deems necessary to attract
qualified individuals with disabilities, including contacts with any
local disability-related organizations; and (6) considering applicants
who are known individuals with disabilities for all available positions
when the position applied for is unavailable.
Paragraph (f)(3) of the proposed rule requires the contractor, on
an annual basis, to review the outreach and recruitment efforts it has
undertaken over the previous twelve months and evaluate their
effectiveness in identifying and recruiting qualified individuals with
disabilities, and document its review. Contractors that do not
proactively monitor their outreach and recruitment efforts often lose
opportunities to consider and hire qualified individuals with
disabilities. This requirement will allow the contractor to look at its
measurable accomplishments and reconsider unproductive methods. We
believe requiring this review on an annual basis strikes the proper
balance by ensuring that adjustments to recruitment efforts are made on
a timely basis if needed, while also ensuring that the contractor has
enough data on existing recruitment
[[Page 77066]]
efforts to be able to determine if adjustments need to be made.
We recognize that the ``effectiveness'' of an outreach or
recruitment effort is not easily defined, and may include a number of
factors that are unique to a particular contractor establishment.
Generally speaking, a review of the efficacy of a contractor's efforts
should include the number of candidates with disabilities that each
effort identifies. Recognizing that other unique and intangible
characteristics may contribute to the assessment of the
``effectiveness'' of a given effort, the proposed regulation allows the
contractor some flexibility in making this assessment. However, the
proposed regulation would require that the contractor consider the
numbers of individuals with disabilities who were referrals,
applicants, and hires for the current year and two previous years as
criteria in evaluating its efforts, and document all other criteria
that it uses to assess the effectiveness of its efforts, so that OFCCP
compliance officers are able to understand clearly the rationale behind
the contractor's self-assessment. The contractor's conclusion as to the
effectiveness of its outreach must be reasonable as determined by OFCCP
in light of these regulations. The primary indicator of effectiveness
is whether qualified individuals with disabilities have been hired.
Further, should the contractor determine that its efforts were not
effective, the proposed rule requires the contractor to identify and
implement one or more of the alternative efforts listed in proposed
paragraphs (f)(1) and (f)(2) in order to fulfill its obligations. The
general purpose of this self-assessment is to ensure that the
contractor thinks critically about its recruitment and outreach
efforts, and modifies its efforts as needed to ensure that its
obligations are being met.
Paragraph (f)(4) of the proposed rule requires that the contractor
document its linkage agreements and the activities it undertakes in
order to comply with paragraph (f), and retain these documents for a
period of five (5) years. This requirement will enable the contractor
and OFCCP to more effectively review recruitment and outreach efforts
undertaken to ensure that the affirmative action obligations of
paragraph (f) are satisfied.
Paragraph (g) of this section requires that the contractor develop
internal procedures to communicate to its employees its obligation to
engage in affirmative action efforts. The current paragraph (g)(2)
contains several suggested means by which the contractor may accomplish
this. The proposed rule mandates that the contractor include its
affirmative action policy in its policy manual and discuss the policy
in orientation and management training programs. In addition, if the
contractor is party to a collective bargaining agreement, then the
proposed rule requires the contractor to meet with union officials and
representatives to inform them about the policy and seek their
cooperation.
A newly proposed paragraph (g)(3) requires the contractor to
document the activities it undertakes in order to comply with paragraph
(g), and retain these documents as records subject to the recordkeeping
requirements of Sec. 60-741.80. This will allow for a more effective
review by the contractor and OFCCP to ensure that the affirmative
action obligations of paragraph (g) are being met.
Other suggested elements would remain in the proposed rule at newly
created paragraph (g)(4) as suggested additional dissemination efforts
the contractor can make. This includes suggesting that the contractor
use company newspapers, magazines, annual reports, handbooks, or other
media to publicize its affirmative action obligations and feature
individuals with disabilities and their accomplishments. See current
regulation at 41 CFR 60-741.44(g)(2)(vii) and (viii). The proposed rule
also suggests that the contractor discuss its affirmative action
policies at meetings with employees and/or supervisors and managers
where personnel practices or equal employment opportunity matters are
discussed.
Paragraph (h) of this section details the contractor's
responsibilities in designing and implementing an audit and reporting
system for its affirmative action program, including the specific
computations and comparisons that are part of the audit. The proposed
regulations add a new paragraph (h)(1)(vi) requiring the contractor to
document the actions taken to comply with paragraphs (h)(1)(i)-(v), and
maintain such documents as records subject to the recordkeeping
requirements of Sec. 60-741.80. Again, this will allow for a more
effective review by the contractor and OFCCP to ensure the affirmative
action obligations of this paragraph are being met.
The only substantive proposed change in paragraph (i)
(Responsibility for implementation) requires that the identity of the
officials responsible for a contractor's affirmative action activities
must appear on all internal and external communications regarding the
contractor's affirmative action program. In the current regulation,
this disclosure is only suggested. Requiring this disclosure will
increase transparency, making it clear to applicants, employees, OFCCP,
and other interested parties, which individual(s) is responsible for
the implementation of the contractor's affirmative action program.
Paragraph (j) of the current rule requires that the contractor
train those employees who implement the personnel decisions pursuant to
its affirmative action program. The proposed regulation specifies the
topics that must be included in the contractor's training: The business
and societal benefits of employing individuals with disabilities;
appropriate sensitivity toward recruits, applicants, and employees with
disabilities; and the legal responsibilities of the contractor and its
agents regarding individuals with disabilities, including the
obligation to provide reasonable accommodation to qualified individuals
with disabilities. Training employees on these issues will facilitate a
greater understanding of the purpose of the affirmative action plan
among the contractor's decision makers, and will enhance the visibility
and importance of affirmative action to the recruitment, hiring, and
advancement of individuals with disabilities.\7\ The proposed
regulation also requires that the contractor record which of its
personnel receive this training, the dates they receive it, and the
person(s) who administers the training, and maintain these records,
along with all written or electronic training materials used, in
accordance with the recordkeeping requirements of Sec. 60-741.80.
Again, this will allow for a more effective review by the contractor
and OFCCP to ensure the affirmative action obligations of this
paragraph are being met.
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\7\ Contractors needing assistance in developing their training
will find resources available on the OFCCP Web site and/or may
request free technical assistance from the nearest OFCCP field
office. In addition, the Department of Labor's Office of Disability
Employment Policy (ODEP) provides extensive resources and technical
assistance for employers on its Web site, http://www.dol.gov/odep.
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The proposed regulation adds a new paragraph (k) that requires the
contractor to maintain several quantitative measurements and
comparisons regarding individuals with disabilities who have been
referred by state employment services, have applied for positions with
the contractor, and/or have been hired by the contractor. The impetus
behind this new section is that, as stated in the discussion of Sec.
60-741.44(a), no structured data regarding
[[Page 77067]]
the number of individuals with disabilities who are referred for, or
apply for jobs with Federal contractors is currently maintained. This
absence of data makes it nearly impossible for the contractor and OFCCP
to perform even rudimentary evaluations of the availability of
individuals with disabilities in the workforce, or to make any
quantitative assessments of how effective contractor outreach and
recruitment efforts have been in attracting candidates with
disabilities. The proposed regulations provide for the collection of
referral data as well as applicant and hire data (see Sec. 60-
741.42(a)). Accordingly, proposed paragraph (k) requires that the
contractor document and update annually the following calculations: (1)
For referral data, the total number of referrals from applicable
employment service delivery systems and from groups and organizations
with which the contractor has a linkage agreement; (2) for applicant
data, the total number of applicants for employment, the number of
applicants who are known to be individuals with disabilities, and the
``applicant ratio'' of known applicants with disabilities to total
applicants; (3) for hiring data, the total number of job openings, the
number of jobs filled, the number of known individuals with
disabilities hired, and the ``hiring ratio'' of hires with known
disabilities to total hires; and (4) the total number of job openings,
the number of jobs that are filled, and the ``job fill ratio'' of job
openings to job openings filled. These basic measurements will provide
the contractor and OFCCP with important information that does not
currently exist. This will aid the contractor in evaluating and
tailoring its recruitment and other affirmative action strategies.
We seek comment on the amount of time it will take contractors to
develop the computations and comparisons required in this proposed
paragraph, however, OFCCP does not think these requirements will
present an onerous burden to contractors. Although the measurements
specific to disability are new requirements of this proposed
regulation, the non-disability-specific data, such as the total number
of applicants, the total number of job openings, and the number of jobs
filled is information that contractors are already required to maintain
pursuant to Executive Order 11246 and Section 4212 of the Vietnam Era
Veterans' Readjustment Assistance Act of 1974, as amended.
OFCCP is also considering adding a reporting requirement, and
invites public comment on this option. Under this proposal, contractors
would be required to provide OFCCP with a report containing the
measurements and computations required by proposed paragraph (k), and
including the percentage of applicants, new hires, and total workforce
for each EEO-1 category. The report would be provided to OFCCP on an
annual basis, regardless of whether the contractor has been selected
for a compliance evaluation.
Section 60-741.45 Reasonable Accommodation Procedures
Current Sec. 60-741.45 entitled ``Sheltered workshops'' has been
revised and moved to Sec. 60-741.48, and is discussed later in the
preamble.
This proposed section is new. It requires the contractor to develop
and implement written procedures for processing requests for reasonable
accommodation. We believe that the development and implementation of
written procedures for processing requests for reasonable accommodation
will assist the contractor in consistently satisfying its reasonable
accommodation obligation by serving as a ``blueprint'' for the prompt
handling of reasonable accommodation requests. The maintenance and
dissemination of such procedures will also ensure that applicants and
employees know how to request a reasonable accommodation, who is
responsible for handling such a request, and the maximum amount of time
within which the contractor must complete the processing of such a
request.
Proposed paragraph (a) requires that any contractor that is
obligated to develop an affirmative action program also develop and
implement written reasonable accommodation procedures. It also
encourages any contractor that is not required to develop an
affirmative action program to consider adopting and implementing
written reasonable accommodation procedures to assist it in meeting its
nondiscrimination obligations under section 503. Proposed paragraph
(a)(1) requires that the reasonable accommodation procedures be
included in the section 503 affirmative action program and be developed
and implemented in conformance with section 503 and its implementing
regulations in this part.
Proposed paragraph (a)(2) states that the minimum elements that the
contractor shall include or address in its reasonable accommodation
procedures are described in paragraph (d). The purpose of including
these elements is to ensure that applicants and employees know how to
request a reasonable accommodation and the steps that will be taken by
the contractor to process requests for accommodation; to ensure that
supervisors and managers know what to do should they receive a request;
and to ensure that that all accommodation requests are processed
swiftly and within established timeframes.
Proposed paragraph (b) requires the contractor to designate an
official to be responsible for the implementation of the reasonable
accommodation procedures. This official may be the same official
responsible for the implementation of the contractor's affirmative
action program, and shall have the authority, resources, support, and
access to top management necessary to effectively implement the
reasonable accommodation procedures.
Proposed paragraph (c) requires the contractor to disseminate its
reasonable accommodation procedures to all employees. Notice of the
reasonable accommodation procedures may be provided by inclusion in an
employee handbook that is distributed to all employees and/or by email
or electronic posting on a company Web page where work-related notices
are ordinarily posted. Employees who work off-site shall be provided
with notice of the reasonable accommodation procedures in the same
manner that notice of other work-related matters is ordinarily provided
to such employees. Proposed paragraph (c)(2) requires the contractor to
inform all applicants of the reasonable accommodation procedures
regarding the application process. Reasonable accommodation procedures
regarding the application process is further addressed in proposed
paragraph (d)(2)(iii).
Proposed paragraph (d) acknowledges that the specific requirements
of a contractor's reasonable accommodation procedures may vary
depending upon the size, structure, and resources of the contractor.
However, paragraph (d) lists specific elements that shall be included
in every contractor's reasonable accommodation procedures. These
elements are:
(1) Responsible official contact information. The proposed rule
requires inclusion of the name, title/office, and contact information
of the official designated as responsible for implementation of the
reasonable accommodation procedures pursuant to paragraph (b), and
notes that this information should be updated when changes occur.
(2) Requests for reasonable accommodation. The proposed rule
requires that the contractor's reasonable accommodation procedures
state that a request for accommodation may be either oral or written,
and may be made
[[Page 77068]]
by an applicant, employee, or a third party on his or her behalf.
Proposed paragraph (d)(2)(i) requires that the contractor's
reasonable accommodation procedures address instances of a recurring
need for an accommodation, such as a sign language interpreter for a
hearing impaired employee, and provides that an individual needing such
an accommodation will not be required to repeatedly submit or renew his
or her request for accommodation each time it is needed. In the absence
of a reasonable belief that the individual's recurring need for the
accommodation has changed, requiring the repeated submission of a
request for the same accommodation could be considered harassment on
the basis of disability in violation of this part.
Proposed paragraph (d)(2)(ii) requires the contractor to identify
to whom a request for reasonable accommodation may be submitted. At a
minimum, an employee in need of accommodation must be able to submit a
request to any supervisor or management official in his or her chain of
command, or to the official responsible for the implementation of the
contractor's reasonable accommodation procedures.
Proposed paragraph (d)(2)(iii) requires that the contractor's
procedures ensure that all applicants, including those using the
contractor's online or other electronic application system, are made
aware of the contractor's reasonable accommodation obligation, and are
invited to request reasonable accommodation to enable their full
participation in the application process. The contractor's procedures
also must provide all applicants with contact information for
contractor staff able to assist the applicant, or his or her
representative, in making a request for accommodation. With regard to
applicants, the contractor's procedures must provide that reasonable
accommodation requests are processed expeditiously, using timeframes
tailored to the application process.
(3) Written confirmation of receipt of a request. The proposed rule
requires that written confirmation of the contractor's receipt of an
accommodation request be provided to each accommodation requester, by
letter or email. The written confirmation shall include the date the
accommodation request was received and be signed by the authorized
decision maker or his or her designee.
(4) Timeframe for processing requests of reasonable accommodations.
The proposed rule requires that the contractor's procedures indicate
that requests for accommodation will be processed as expeditiously as
possible. The rule permits the contractor to set its own timeframes for
completing the processing of requests, within certain parameters.
Specifically, the proposed rule requires that the timeframe for
processing requests shall not be longer than 5 to 10 business days if
no supporting medical documentation is needed. If medical documentation
is needed, or if special equipment must be ordered, the timeframe,
excepting extenuating circumstances, shall not exceed 30 calendar days.
Proposed paragraph (d)(4)(i) requires the contractor to provide written
notice to the requester when the processing of their accommodation
request will not be completed within the established timeframes. The
notice shall include the reason(s) for any delay, project a date for
processing completion, and be duly signed and dated.
(5) Description of process. The proposed rule requires that the
reasonable accommodation procedures contain a description of the steps
the contractor will take when processing a reasonable accommodation
request, including the process by which the contractor renders a final
determination on the accommodation request. If specific information
must be provided to the contractor in order to obtain a reasonable
accommodation, the description shall identify this information. For
example, the contractor's procedures may require that the contractor be
informed of the existence of a disability, the disability-related
limitation(s) or workplace barrier(s) that needs to be accommodated,
and, if known, the desired reasonable accommodation before providing a
reasonable accommodation. The description shall also indicate that the
contractor may initiate an interactive process with the accommodation
requester if the need for accommodation is not obvious, or if
additional information is needed in order to provide the accommodation.
(6) Supporting medical documentation. The proposed rule requires
that the contractor's procedures provide an explanation of the
circumstances under which medical documentation may be requested and
reviewed before a reasonable accommodation is provided. Paragraph
(d)(6)(i) requires that the procedures explain that any request for
medical documentation must be limited to documentation of the
individual's disability and functional limitations for which reasonable
accommodation is sought. Proposed paragraph (d)(6)(ii) requires that
the procedures contain a statement that submission of medical
documentation is not required when the disability for which a
reasonable accommodation is sought is known or readily observable and
the need for accommodation is known or obvious.
(7) Denial of reasonable accommodation. The proposed rule requires
that any denial or refusal to provide a reasonable accommodation must
be provided by the contractor to the accommodation requester in
writing. The written denial shall include the basis for the denial and
a statement of the requester's right to file a complaint with OFCCP.
The written denial shall be signed by the authorized decision maker or
his/her designee and dated. The rule further states that if the
contractor offers an internal appeal or reconsideration process, the
written denial shall inform the requester about this process, and
include a clear statement that participation in the internal process
does not toll the time for filing a complaint with OFCCP or EEOC.
(8) Confidentiality. The proposed rule requires that the
contractor's reasonable accommodation procedures indicate that requests
for reasonable accommodation, related documentation (such as request
confirmation receipts, requests for additional information, and
decisions regarding accommodation requests), and any medical or
disability-related information provided to the contractor will be
treated as a confidential medical record and maintained in a separate
medical file, in accordance with section 503.
Proposed paragraph (e) contains a training requirement. The
effectiveness of the contractor's reasonable accommodation procedures
is dependent upon the contractor's supervisors and managers being
trained in their implementation. Contractors would be required to train
all supervisors and managers on the accommodation procedures on an
annual basis and upon significant changes in policy or procedure. The
rule notes that the required training may be provided in conjunction
with other required equal employment opportunity or affirmative action
training.
Section 60-741.46 Utilization Goals
This section of the proposed rule is new and proposes to establish
a single, national utilization goal for individuals with
disabilities.\8\ A utilization goal is neither a hiring quota, nor a
restrictive hiring ceiling. Rather, it is an equal employment
opportunity objective, and
[[Page 77069]]
an important tool for measuring the contractor's progress toward equal
employment opportunity and assessing where barriers to equal employment
opportunity remain.
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\8\ This provision, as well as all other provisions in subpart C
of this part, applies only to those contractors that have 50 or more
employees and a contract of $50,000 or more. See 60-741.40(b).
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The Need for a Goal
Before considering the appropriate methodology for such a goal,
OFCCP first considered the option of not having any goal. The current
section 503 regulations require affirmative action but lack a goal.
This has been the case since their inception in the 1970's. As
discussed, below, the intervening years have resulted in little
improvement in the unemployment and workforce participation rates of
individuals with disabilities. In light of the long-term and
intractable nature of the substantial employment disparity between
those with and without disabilities, we concluded that process
requirements, without a quantifiable means of assessing whether
progress toward equal employment opportunity is occurring, are
insufficient. We concluded, therefore, that the establishment of a
utilization goal for individuals with disabilities is warranted. Though
aspirational, establishing a goal would create more accountability
within the contractor's organization and might be key to ensuring that
the goal is achieved.
Little Government data measuring the unemployment and workforce
participation rates of individuals with disabilities exists prior to
the 2000 Census. However, illustrative data can be found in the 1989
legislative history of the Americans with Disabilities Act. Explaining
the need for inclusion of employment provisions in the then-pending
legislation, the Senate reported that individuals with disabilities
``experience staggering levels of unemployment.'' Senate Committee on
Labor and Human Resources, S. Rep. No. 101-116, 101st Cong, 1st Sess.
(1989) at 9. More specifically, the Senate reported that two-thirds of
all disabled Americans of working age were not working at all, even
though a large majority of those not working (66%) wanted to work. Id.
(citing a poll by the Lou Harris company).
Today, more than twenty years later, there continues to be a
substantial discrepancy between the workforce participation and
unemployment rates of working age \9\ individuals with and without
disabilities. According to the U.S. Department of Labor's Bureau of
Labor Statistics (BLS), just 21.8% of working age individuals with
certain functional disabilities were in the labor force in 2010,
compared with 70.1% of working age individuals without such
disabilities. This same data also indicates that the unemployment rate
for those with these disabilities was 14.8%, compared with a 9.4%
unemployment rate for those without a disability.
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\9\ The working age population consists of people between the
ages of 16 and 64, excluding those in the military and people who
are in institutions.
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Similarly, according to the U.S. Census Bureau's 2009 American
Community Survey (the most recent year for which data are available),
just 23% of individuals with certain functional disabilities age 16 and
over \10\ were employed, compared to 65.8% of those 16 and over without
such disabilities. The survey also reported that nearly three-quarters
of individuals with these disabilities (72.2%) age 16 and over were not
in the labor force, compared with just 27.3% of those age 16 and over
without such disabilities.
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\10\ See 2009 American Community Survey, Table S1811, Selected
Economic Characteristics for the Civilian Noninstitutionalized
Population by Disability Status (U.S. Census Bureau).
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The establishment of a utilization goal for individuals with
disabilities is not, by itself, a ``cure'' for this longstanding
problem. We believe, however, that the goal proposed in this section is
a vital element that, in conjunction with other requirements of this
part, will enable contractors and OFCCP to assess the effectiveness of
specific affirmative action efforts, and to identify and address
specific workplace barriers to employment.
Methodology for Setting the Utilization Goal
The utilization goal established in this section is derived, in
part from the disability data collected as part of the American
Community Survey. The American Community Survey (ACS) was designed to
replace the census ``long form'' of the decennial census, last sent out
to U.S. households in 2000, to gather information regarding the
demographic, socioeconomic and housing characteristics of the nation.
Whereas the Census Bureau now only administers a very short survey for
the decennial census, a more detailed view of the social and
demographic characteristics of the population is provided by the ACS,
which collects data from a sample of 3 million residents on a
continuing basis.\11\
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\11\ A national sample of approximately 3 million addresses
nationwide receives the ACS each year, with a portion of this total
receiving the survey each month. For more information on the
American Community Service visit the Census Bureau's ACS Web page at
www.census.gov/acs.
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The ACS was first launched in 2005, after a decade of testing and
development by the Census Bureau. Refinement of the questions designed
to characterize disability status has been continuous, with the current
set of disability-related questions incorporated into the ACS in 2008.
Taken together, the six dichotomous (``yes'' or ``no'') disability-
related questions \12\ comprise the function-based definition of
``disability,'' used in the ACS and by most of the other major surveys
administered by the Federal Statistical System.
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\12\ The six questions are: Is this person deaf or does he/she
have serious difficulty hearing? Is this person blind or does he/she
have serious difficulty seeing even when wearing glasses? Because of
a physical, mental, or emotional condition, does this person have
serious difficulty concentrating, remembering, or making decisions?
Does this person have serious difficulty walking or climbing stairs?
Does this person have difficulty dressing or bathing? Because of a
physical, mental, or emotional condition, does this person have
difficulty doing errands alone such as visiting a doctor's office or
shopping? 2009 American Community Survey, Questions 17-19.
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The definition of disability used by the ACS, however, is clearly
not as broad as that of the Rehabilitation Act and the ADA. For
example, since the ACS questions do not say that one should respond
without considering mitigating measures (e.g., medication or aids),
some individuals with disabilities that are well-controlled by
medication (e.g., depression or epilepsy) or in remission might respond
to the ACS in a way that leads them not to be coded as ``disabled.''
Likewise, since the ACS questions do not include major bodily
functions, an individual who has a disability that substantially limits
a major bodily function such as HIV, cancer, or diabetes but does not
limit an activity such as hearing, seeing or walking, might respond
that he or she does not have a disability on the ACS. Despite its
limitations, the ACS is the best source of nationwide disability data
available today, and, thus, an appropriate starting place for
developing a utilization goal.
In developing the utilization goal proposed in this section, OFCCP
considered two general approaches. The first approach OFCCP considered
aimed to mirror precisely the goals framework for minorities and women
that is used by supply and service (non-construction) contractors
subject to Executive Order (EO) 11246. Accordingly, it would require
individual contractor establishments to set their own goals for each of
their job groups \13\ based on the percentage of
[[Page 77070]]
individuals with disabilities available in the particular recruitment
area from which the contractor sought to fill the jobs in the job
group. Where there are fewer than expected incumbent disabled employees
in a job group given their availability percentage, a contractor would
be required to establish a goal for the specific job group that is at
least equal to the availability percentage in the job group's
recruitment area. See 41 CFR 60-2.12--60-2.16 for a more detailed
description of the EO 11246 goals provisions for supply and service
contractors.
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\13\ Job groups usually contain one to three jobs each. However,
contractors with fewer than 150 employees may use the broader EEO-
1job categories in place of smaller job groups.
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After careful consideration of the available data and consultation
with the U.S. Census Bureau regarding the level of geographic
aggregation at which the data could be analyzed, OFCCP became concerned
that replicating the supply and service goals framework might not be
the most effective approach for the establishment of goals for
individuals with disabilities. Supply and service contractors
establishing goals for minorities and women typically use the Special
EEO Tabulation of census data to assist them. The results of the 2000
decennial census can be tabulated for 472 occupation categories and
thousands of geographic areas. However, the ACS disability data, which
is based on sampling, cannot be broken down into as many job titles, or
as many geographic areas as the data for race and gender based on the
decennial census. That is, the confidence intervals on such estimates
are large and the estimates are not statistically significant when
broken down to the degree of detail required by the supply and service
goals framework. Contractors therefore would not be able to use the job
groups established under EO 11246 to establish goals for individuals
with disabilities, and would often be unable to utilize the geographic
recruitment areas established under the Executive Order when
determining the availability of individuals with the disabilities (as
queried in the ACS). In addition, the Executive Order supply and
service goals framework does not include consideration of discouraged
workers in computing availability, a factor particularly important in
the context of disability, as discussed below.
In light of the difficulties replicating the supply and service
goals approach in the context of disability, OFCCP considered other
options. For a variety of reasons, OFCCP believes that the
establishment of a single, national goal \14\ for all jobs in all
geographic areas is a more viable approach to the establishment of a
goal for individuals with disabilities. This approach would also allow
for the continued use of the contractor's EO 11246 job groups, and
require that those job groups be used to measure the representation of
individuals with disabilities in the contractor's workforce.
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\14\ Disability rates by State for the civilian labor force has
a mean of 6.32, median of 6.20, and standard deviation of 1.29.
There are only two states, Alaska (9.0%) and Oklahoma (9.5%) that
are outside the 95% confidence interval of this otherwise almost
uniform distribution. This general uniformity is consistent with the
use of a single national goal. See Table 15 in Affirmative Action
for People with Disabilities--Volume I: Data Sources and Models,
Economic Systems, Inc. (April 30, 2010) at 55.
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OFCCP proposes to set a goal for individuals with disabilities,
based on the most recent 2009 ACS disability data for the ``civilian
labor force'' and the ``civilian population,'' \15\ first averaged by
EEO-1 job category, and then averaged across EEO-1 category totals.
Specifically, we use the mean across these EEO-1 groups (5.7%) as a
starting point for deriving a range of values upon which we will take
comment. 5.7% is OFCCP's estimate of the percentage of the civilian
labor force that has a disability as defined by the ACS. However, OFCCP
acknowledges that this number does not encompass all individuals with
disabilities as defined under the broader definition in section 503 and
the ADAAA; therefore, 5.7% should not be construed as an affirmative
action goal for individuals with disabilities under these authorities,
nor to convey a false sense of precision. Even if the 5.7% represented
a complete availability figure for all individuals with disabilities as
defined under the ADAAA, we are concerned that such an availability
figure does not take into account discouraged workers, or the effects
of historical discrimination against individuals with disabilities that
has suppressed the representation of such individuals in the workforce.
Discouraged workers are those individuals who are not now seeking
employment, but who might do so in the absence of discrimination or
other employment barriers. There are undoubtedly some individuals with
disabilities who, for a variety of reasons, would not seek employment
even in the absence of employment barriers. However, given the acute
disparity in the workforce participation rates of those with and
without disabilities, it is reasonable to assume that at least a
portion of that gap is due to a lack of equal employment opportunity.
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\15\ The civilian labor force is the sum of people who are
employed and those who are unemployed and looking for work. The
civilian population is the civilian labor force plus civilians who
are not in the labor force, excluding those in institutions.
---------------------------------------------------------------------------
One way one might go about estimating the size of the discouraged
worker effect would be to compare the percent of the civilian
population with a disability (per the ACS definition) who identified as
having an occupation to the percent of the civilian labor force with a
disability who identified as having an occupation. Though not currently
seeking employment, it might be reasonable to believe that those in the
civilian population who identify as having an occupation, but who are
currently not in the labor force, remained interested in working should
job opportunities become available. Using the 2009 ACS EEO-1 category
data, the result of this comparison is 1.7%.\16\
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\16\ This number was derived from an updated 2009 version of
Table 24 in Affirmative Action for People with Disabilities--Volume
I: Data Sources and Models, Economic Systems, Inc. (April 30, 2010)
at 64. The original table uses ACS data from 2008.
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Adding this figure to the 5.7% availability figure above, results
in 7.4%.\17\ OFCCP uses this level, rounded to 7% to avoid implying a
false level of precision, as its initial approximation of the
availability for employment of individuals with disabilities. Because
of the various data limitations and underlying measurement issues
discussed above, OFCCP requests comment on using 7% as its utilization
goal as well as on a range of values between 4% and 10%. The lower and
upper bounds of this range are designed to take into account the
variability across the EEO-1 categories, the potential for geographic
variation in availability, and whether or not a discouraged worker
effect should be taken into account.
---------------------------------------------------------------------------
\17\ As it is derived from ACS data, the 1.7% is also a limited
number that does not fully encompass all individuals with
disabilities as defined in section 503 and the ADA.
---------------------------------------------------------------------------
OFCCP also takes comment on whether there might be other approaches
for setting a utilization goal, particularly approaches to setting
ranges that recognize that in some geographic areas and some
occupations, there may be fewer people with disabilities. OFCCP
requests comment on whether and, if so, how to take into account
discouraged workers in assessing the availability of workers with
disabilities. OFCCP is also very interested in public comment on
whether there are empirically-based approaches that recognize that
there are many more people who have disabilities as characterized by
the ADAAA than the ACS and that there is likely a discouraged worker
effect.
[[Page 77071]]
OFCCP recognizes that including a discouraged worker component in
the establishment of a proposed goal is a new approach. We therefore
invite public comment on the methodology used to calculate the
discouraged worker effect, and on the application of the discouraged
worker effect in the goal-setting context.
OFCCP believes that a single-goal approach will serve the equal
opportunity and affirmative action objectives of the Rehabilitation Act
and this part better than the supply and service approach of EO 11246.
It will allow contractors to use their existing job groups and not
require the use of multiple geographic availability comparisons as
would the supply and service goals approach. OFCCP invites public
comment on the impact of this proposal on contractors. In particular,
we invite small businesses with current federal prime contracts or
subcontracts, or those interested in future prime or subcontract work
with the federal government, to identify any impacts unique to small
businesses and to propose potential alternatives to alleviate the
difficulties identified.
Section-by-Section Analysis
Paragraph (a) of the proposed rule states that the utilization goal
for employment of individuals with disabilities is 7% for each job
group in the contractor's workforce.
Proposed paragraph (b) states that the purpose of this section is
to establish a benchmark against which contractors can measure the
representation of individuals with disabilities within each of their
job groups. The goal serves as an equal opportunity objective that
should be attainable by complying with all of the affirmative action
requirements of part 60-741.
Proposed paragraph (c) provides that the Director of OFCCP will
periodically review and update, as appropriate, the utilization goal
established in proposed paragraph (a) of this section.
Proposed paragraph (d) sets out the steps that the contractor must
use to determine whether it has met the utilization goal. Proposed
paragraph (d)(1) states that the purpose of a utilization analysis is
to evaluate the representation of individuals with disabilities in each
job group within a contractor's workforce and compare the rate against
the utilization goal set forth in Sec. 60-741.46(a).
Proposed paragraph (d)(2) clarifies that in evaluating the
representation of individuals with disabilities in its workforce, the
contractor must use the same job groups it established pursuant to EO
11246, either as prescribed in 41 CFR 60-2.12, or in accordance with 41
CFR part 60-4. OFCCP considered permitting contractors to compare the
individuals with disabilities in its workforce as a whole with the
proposed 7% goal. We decided against this approach because of its
potential for masking discrimination and segregation. For example, a
contractor that has segregated all of its employees with disabilities
into one or two low-paying jobs might be able to conceal this
discrimination and satisfy the 7% goal if only a single whole-workforce
comparison were required by this section. Nevertheless, as we are
mindful of the burden required of contractors in making the job group-
by-job group comparisons required in this proposed paragraph, we are
mandating the use of the EO 11246 job groups for this purpose, by
eliminating the need for any geographic assessment, and by providing
the single goal to which each job group will be compared.
Proposed paragraph (d)(3) requires that the contractor evaluate its
utilization of individuals with disabilities in each job group
annually.
When the percentage of employees with disabilities in one or more
job groups is less than the utilization goal proposed in paragraph (a)
of this section, proposed paragraph (e) requires that the contractor
must develop and execute ``action-oriented programs'' designed to
correct any identified problems and attain the established goal. Such
programs may include additional efforts from among those listed in
Sec. Sec. 60-741.44(f)(1) and (f)(2) and/or any other appropriate
actions.
Paragraph (f) of the proposed rule clarifies that a contractor's
determination that it has not attained the utilization goal in one or
more job groups does not constitute either a finding or admission of
discrimination in violation of this part. It is also important to point
out that such a determination, whether by OFCCP or the contractor, will
not impede or prevent OFCCP from finding that one or more unlawful
discriminatory practices caused the contractor's failure to meet the
utilization goal. In such a circumstance, OFCCP will take appropriate
enforcement measures.
Lastly, proposed paragraph (g) states that the goal proposed in
this section shall not be used as a quota or ceiling that limits or
restricts the employment of individuals with disabilities.
Sub-Goal Option
OFCCP is considering the option of including within the 7% goal for
individuals with disabilities a sub-goal of 2% for individuals with
certain particularly severe disabilities. The federal government
currently monitors internal hiring with respect to a list of
particularly severe disabilities, referred to as ``targeted
disabilities'' in furtherance of its affirmative action obligation to
employ and advance in employment individuals with disabilities in the
Government pursuant to section 501 of the Rehabilitation Act. The list
of targeted disabilities is defined in the President's July 2010
Executive Order ``Increasing Federal Employment of Individuals with
Disabilities,'' as set forth in Standard Form 256 (SF256). Subject to
updating, SF 256 currently identifies the following as ``targeted/
severe disabilities:'' Total deafness, blindness, missing extremities
(hand, foot, arm or leg), partial paralysis, complete paralysis,
epilepsy, severe intellectual disability, psychiatric disability, and
dwarfism.\18\ If such a sub-goal is adopted, the Director would
similarly prescribe the language and manner in which contractors should
invite applicants and employees to self-identify. This will ensure
consistency in all pre-offer invitations that are made, and will
reassure applicants that the request is routine and executed pursuant
to obligations created by OFCCP.
---------------------------------------------------------------------------
\18\ See OPM Form SF 256 available on-line at http://www.opm.gov/forms/pdf_fill/sf256.pdf.
---------------------------------------------------------------------------
OFCCP invites comments from the public on this sub-goal option. If
OFCCP adopts the use of a sub-goal, it will be included in the Final
Rule.\19\ We are seeking public input and comment on both the concept
of a sub-goal, as well as the disabilities to be included within that
sub-goal. Comments on the questions below will be especially helpful.
---------------------------------------------------------------------------
\19\ The adoption of the sub-goal option would also necessitate
modification to the mandated text of the invitation to voluntarily
self-identify as an individual with a disability in proposed section
60-741.42 to include voluntary self-identification as an individual
with a disability encompassed in the sub-goal. In addition, the
adoption of the sub-goal option would necessitate modification to
the data collection analysis in proposed section 60-741.44(k) to
provide for the collection and computation of data related to
``targeted disabilities.''
---------------------------------------------------------------------------
1. What data or research is available that informs the design of an
appropriate sub-goal including, but not limited to which severe
disabilities should be covered by the sub-goal, and the appropriate
sub-goal target?
2. How does a sub-goal further the overall objective of increasing
employment opportunities for individuals with severe disabilities?
3. What data or research is available on the need for a sub-goal
for specific disabilities?
[[Page 77072]]
Section 60-741.47 Providing Priority Consideration in Employment
This proposed new section encourages the contractor to voluntarily
develop and implement programs that provide priority consideration to
individuals with disabilities in recruitment and/or hiring. While the
current regulations do not prohibit contractors from establishing such
priority consideration programs, they fail to highlight the
availability to contractors of this important affirmative action tool.
In contrast, the proposed regulation would ensure the contractor's
awareness of, and encourage the use of, voluntary strategies that may
be used in their efforts to take affirmative action and increase
employment opportunities for individuals with disabilities.
Providing priority consideration for individuals with disabilities
does not violate the ADA or section 503, as it would not result in
discrimination on the basis of disability. Furthermore, as explicitly
stated in the ADA Amendments Act, neither the ADA nor the
Rehabilitation Act provides ``the basis for a claim * * * that [an]
individual was subject to discrimination because of the individual's
lack of disability.'' ADAAA at sec. 6(a)(1)(g). Thus, it is permissible
for contractors to provide priority consideration to individuals with
disabilities when selecting candidates for training, hiring, and/or
promotion.
Proposed paragraph (a) encourages contractors to voluntarily
develop and implement priority consideration programs as part of their
affirmative action efforts. Examples of priority consideration programs
are provided, but the contractor may, and is encouraged to, develop
other types of programs that enhance their affirmative action efforts
on behalf of individuals with disabilities.
Proposed paragraph (a)(1) requires that a contractor that elects to
utilize a priority consideration program shall include a description of
the program in its affirmative action program. An annual report
describing the contractor's activities and outcomes pursuant to the
priority consideration program should also be included in the
contractor's affirmative action program. In proposed paragraph (a)(2)
we note that contractors may use information garnered from the
applicant and employee self-identification required by proposed Sec.
60-741.42 to identify individuals who may be eligible to participate in
the contractor's priority consideration program.
Proposed paragraph (b) prohibits contractors from using a priority
consideration program to segregate individuals with disabilities, or to
limit or restrict the employment opportunities of any individual with a
disability. Similarly, in paragraph (c), the proposed rule prohibits
discrimination against any individual with a disability who has
received priority consideration with respect to any term, condition or
benefit of employment. Such discrimination would constitute
discrimination on the basis of disability prohibited by section 503 and
this part.
Section 60-741.48 Sheltered Workshops
This section has been relocated from Sec. 60-741.45 of the
existing regulation. The proposed rule replaces the phrase ``qualified
disabled individuals'' in the first sentence of the current regulation
with ``qualified individuals with disabilities.'' This revised phrasing
reflects the terminology used elsewhere in this part, but does not
alter the meaning of the section.
Subpart D--General Enforcement and Complaint Procedures
Section 60-741.60 Compliance Evaluations
This section details the form and scope of the compliance
evaluations of the contractor's affirmative action programs conducted
by OFCCP. The proposed rule contains several changes to this section.
First, the proposed rule modifies the wording of paragraph (a) to
more clearly state the section 503 obligation of the contractor to
employ, ``advance in employment and otherwise treat qualified
individuals without discrimination on the basis of disability in all
employment practices.'' Next, the proposal adds a sentence to paragraph
(a)(1)(i) regarding the temporal scope of desk audits performed by
OFCCP. This new language merely clarifies OFCCP's long-standing policy
that, in order to fully investigate and understand the scope of
potential violations, OFCCP may need to examine information after the
date of the scheduling letter in order to determine, for instance, if
violations are continuing or have been remedied. The language does not
represent a change in policy or new contractor obligations.
Third, the proposed rule contains a change to the nature of
document production under paragraph (a)(3). This paragraph, which
specifies a ``compliance check'' as an investigative procedure OFCCP
can use to monitor a contractor's recordkeeping, currently states that
the contractor may provide relevant documents either on-site or off-
site ``at the contractor's option.'' The proposed regulation would
eliminate this quoted clause and provide that OFCCP may request the
documents to be provided either on-site or off-site.
The proposed rule also contains a minor change to the scope of
``focused reviews'' set forth in paragraph (a)(4). Focused reviews
allow OFCCP to target one or more components of a contractor's
organization or employment practices, rather than conducting a more
comprehensive compliance review of an entire organization. Currently,
the regulations provide that these focused reviews are ``on-site,''
meaning they must take place at the contractor's place of business. The
increased use of electronic records that are easily accessible from
multiple locations affords compliance officers greater flexibility in
conducting focused reviews. Therefore, we propose to delete the word
``on-site'' from this section, which will allow compliance officers to
conduct reviews of relevant materials at any appropriate location.
Finally, the proposed rule contains a new paragraph (c) which
details a new procedure for pre-award compliance evaluations under
section 503. This proposed procedure is based on the pre-award
compliance procedures contained in the Executive Order regulations (see
Sec. 60-1.20(d)).
Section 60-741.61 Complaint Procedures
This section outlines the manner in which applicants or employees
who are individuals with disabilities may file complaints alleging
violations of section 503 or its regulations.
The proposed rule revises the text of existing paragraph (c)(2) for
clarity. The paragraph provides, in pertinent part, that when a written
complaint is filed by an authorized representative on behalf of another
person, the complaint need not identify the name of the person on whose
behalf it is filed. However, the person's identity and contact
information must be provided to OFCCP, which will then verify with the
person their authorization of the complaint. The proposed rule's
revision of this paragraph does not represent a change in policy or
practice, but is merely a clarification of the language used to express
the existing policy.
The proposed rule also revises the citation to the Americans with
Disabilities Act to reflect its recent amendment by the ADA Amendments
Act, and replaces the term ``Deputy Assistant Secretary'' with the term
``Director'' in paragraphs (b), (f)(1), (f)(2)
[[Page 77073]]
and (f)(3), for the reasons set forth in the discussion of Sec. 60-
741.2.
Section 60-741.62 Conciliation Agreements
This section describes OFCCP's use of conciliation agreements as a
means to correct violations and/or deficiencies by contractors. The
proposed rule renumbers the current rule as paragraph (a) and adds a
new paragraph (b) to Sec. 60-741.62. Proposed paragraph (b)
specifically permits the establishment of benchmarks in conciliation
agreements as one possible form of remedial action. Benchmarks may be
established for outreach, recruitment, hiring, or other employment
activities of the contractor, as appropriate, and will provide a
quantifiable method for measuring the contractor's progress toward
correcting identified violations and/or deficiencies.
Section 60-741.64 Show Cause Notice
This section describes how OFCCP notifies a contractor when OFCCP
believes the contractor has violated section 503 or its regulations.
The proposed rule replaces the term ``Deputy Assistant Secretary'' in
this section with the term ``Director,'' for the reasons set forth in
the discussion of Sec. 60-741.2.
Section 60-741.65 Enforcement Proceedings
This section describes the procedures for formal enforcement
proceedings against a contractor in the event OFCCP finds a violation
of section 503 or its regulations that has not been corrected. The
proposed rule replaces the term ``Deputy Assistant Secretary'' in
paragraph (a)(2) of this section with the term ``Director,'' for the
reasons set forth in the discussion of Sec. 60-741.2. In paragraph
(b)(2), the proposed rule replaces the term ``Associate Solicitor for
Civil Rights'' with ``Associate Solicitor for Civil Rights and Labor-
Management'' to reflect the reorganization of the Office of the
Solicitor.
Section 60-741.66 Sanctions and Penalties
This section discusses the types of sanctions and penalties that
may be assessed against a contractor if it is found to have violated
the act or this part. The proposed rule replaces the term ``Deputy
Assistant Secretary'' in paragraph (a) of this section with the term
``Director,'' for the reasons set forth in the discussion of Sec. 60-
741.2.
Section 60-741.67 Notification of Agencies
This section provides that agency heads will be notified if any
contractors are debarred. The proposed rule replaces the term ``Deputy
Assistant Secretary'' in this section with the term ``Director,'' for
the reasons set forth in the discussion of Sec. 60-741.2.
Section 60-741.68 Reinstatement of Ineligible Contractors
This section outlines the process by which a contractor that has
been debarred may apply for reinstatement. The proposed rule adds a
sentence at the end of paragraph (a) to clarify that the Director shall
issue a written decision on a contractor's request for reinstatement.
The proposed rule also replaces the term ``Deputy Assistant Secretary''
in paragraphs (a) and (b) of this section with the term ``Director,''
for the reasons set forth in the discussion of Sec. 60-741.2. The term
``Associate Solicitor for Civil Rights'' in proposed paragraph (b) of
this section is replaced with ``Associate Solicitor for Civil Rights
and Labor-Management'' to reflect the reorganization of the Office of
the Solicitor.
Section 60-741.69 Intimidation and Interference
This section forbids the contractor from retaliating against
individuals who have engaged in or may engage in certain specified
protected activities, and describes the contractor's affirmative
obligations in preventing retaliation. The proposed rule replaces the
term ``Deputy Assistant Secretary'' in paragraph (b) of this section
with the term ``Director,'' for the reasons set forth in the discussion
of Sec. 60-741.2. In proposed paragraphs (a)(2) and (a)(3) the term
``disabled persons'' is replaced with the term ``individuals with
disabilities'' to reflect the terminology used elsewhere in this part.
Subpart E--Ancillary Matters
Section 60-741.80 Recordkeeping
This section describes the recordkeeping requirements that apply to
the contractor under section 503, and the consequences for the failure
to preserve records in accordance with these requirements. The proposed
regulation adds a sentence at the end of paragraph (a) of this section
clarifying that the newly proposed recordkeeping requirements set forth
in proposed Sec. 60-741.44(f)(4) (linkage agreements and other
outreach and recruiting efforts), and in proposed Sec. 60-741.44(k)
(collection of referral, applicant and hire data) must be maintained
for five (5) years, for the reasons set forth in the discussion of
those sections, supra.
Section 60-741.81 Access to Records
This section describes a contractor's obligations to permit access
to OFCCP during compliance evaluations and complaint investigations.
The proposed rule adds some language clarifying the contractor's
obligations, particularly in light of the increased use of
electronically stored records. First, the proposed rule adds a sentence
requiring the contractor to provide off-site access to materials if
requested by OFCCP investigators or officials as part of an evaluation
or investigation. This change reflects the increasing use of electronic
records from multiple locations, and accordingly gives OFCCP greater
flexibility in conducting its evaluations and investigations.
Second, the proposed rule would require that the contractor specify
to OFCCP all formats (including specific electronic formats) in which
its records are available, and produce records to OFCCP in the
format(s) selected by OFCCP. This change is proposed in light of
numerous instances in which OFCCP has conducted extensive review and
analysis of a contractor's records only to find subsequently that the
records were available in more readily accessible formats. Specifying
the variety of available formats upon request, and providing records to
OFCCP in the format(s) it selects, will facilitate a more efficient
investigation process.
Lastly, the proposed rule revises the citation to the Americans
with Disabilities Act to reflect its recent amendment by the ADA
Amendments Act.
Section 60-741.83 Rulings and Interpretations
In the current regulation, this section establishes that rulings
and interpretations of section 503 will be made by the Deputy Assistant
Secretary of OFCCP. The proposed rule replaces the term ``Deputy
Assistant Secretary'' with the term ``Director,'' for the reasons set
forth in the discussion of Sec. 60-741.2.
Section 60-741.84 Effective Date
This section of the current regulations established an effective
date of August 29, 1996. The proposed rule deletes this section as it
is now obsolete.
Appendix A to Part 60-741--Guidelines on a Contractor's Duty To Provide
Reasonable Accommodation
The proposed rule includes several changes to Appendix A that would
mandate activities that previously were only suggested. These changes
primarily
[[Page 77074]]
reflect proposed revisions to Sec. 60-741.42 and the newly proposed
Sec. 60-741.45 regarding the contractor's adoption of written
affirmative action procedures, supra, that would alter the contractor's
responsibilities.
First, in paragraph 1, to conform more closely to the terminology
used in the ADA, as amended, and this part, the term ``otherwise
qualified'' would be changed to ``qualified.'' The proposed rule also
adds a reference to the new requirement, in proposed Sec. 60-741.45,
that the contractor develop, implement and disseminate procedures for
processing requests for reasonable accommodation.
Next, in paragraph 2, the proposed rule changes the appendix to
reflect the revision to Sec. 60-741.42, requiring the contractor to
invite applicants to voluntarily self-identify as an individual with a
disability at both the pre-offer and post-offer stages of the selection
process. The proposed rule also notes that the mandated invitation to
self-identify also invites individuals with disabilities to request any
reasonable accommodation that they might need.
In the last sentence of paragraph 4, the proposed rule requires,
rather than merely encourages, that in the event an accommodation
constitutes an undue hardship for the contractor, the individual with a
disability in need of the accommodation be given the option of
providing the accommodation or paying the portion of the cost that
constitutes the undue hardship for the contractor. In the fifth
sentence of paragraph 5, we propose changing the language to require a
contractor to seek the advice of the individual with a disability in
providing reasonable accommodation.
Lastly, the proposed rule changes the reference to ``Sec. 60-
741.2(v)'' in paragraphs 5 and 8 of the appendix to ``Sec. 60-
741.2(t).'' This is to reflect the revised alphabetical structure of
the definitions section in the proposed rule, as discussed in Sec. 60-
741.2, supra. The references to various information resources in
paragraph 5 is also updated, and the term ``TDD'' is replaced with
``TTY'' to reflect current technology.
Appendix B to Part 60-741--Sample Invitation To Self-Identify
As previously noted, this proposal eliminates Appendix B of the
current regulations. Appendix B provides a sample invitation to self-
identify as an individual with a disability to assist the contractor in
developing its own pre-employment self-identification invitation. Since
Sec. 60-741.42 of the proposed regulation mandates the text that the
contractor must use when inviting applicants and employees to
voluntarily self-identify, there is no longer a need for a sample
invitation.
Appendix C to Part 60-741--Review of Personnel Processes
The proposed rule eliminates Appendix C and moves its content, with
some edits, to proposed Sec. 60-741.44(b). See the Section-by-Section
Analysis of Sec. 60-741.44, supra, for further discussion.
Appendix D to Part 60-741--Guidelines Regarding Positions Engaged in
Carrying Out a Contract
The proposed rule eliminates Appendix D as it applied only to the
contractor's employment decisions and practices occurring prior to
October 29, 1992.
Regulatory Procedures
Executive Order 12866 (Regulatory Planning and Review) and Executive
Order 13563 (Improving Regulation and Regulatory Review)
Executive Orders 12866 and 13563 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits (while recognizing that some benefits and costs are difficult
to quantify), reducing costs, harmonizing rules, and promoting
flexibility. This rule has been designated a ``significant regulatory
action,'' although not economically significant, under section 3(f) of
Executive Order 12866. Accordingly, the rule has been reviewed by the
Office of Management and Budget.
The Need for the Regulation
The guiding principle and overall benefit of this proposed
regulation is to reduce barriers to equal employment opportunity for
individuals with disabilities and alleviate the inefficiencies in the
job market that these barriers create. This includes facilitating the
process of connecting job seekers with disabilities with contractor
employers looking to hire, and helping individuals with disabilities
succeed once they are employed. As we have stated previously in this
NPRM, the framework articulating a contractor's responsibilities with
respect to affirmative action, recruitment, and placement have remained
largely unchanged since the section 503 implementing rules were first
published. While DOL is not aware of any existing data that show the
number or percentage of Federal contractor employees with disabilities,
for the U.S. at large both the percentage of people with disabilities
not in the labor force and the unemployment rate of people with
disabilities have increased. These individuals possess valuable skills
that are highly sought after in the job market. However, they face
substantial obstacles in finding employment. Addressing these barriers
is a high priority of the current Administration and, as discussed in
the background section, has been the focus of a number of Federal
efforts.
To help determine how we could assist individuals with disabilities
in their search for employment, and facilitate contractors'
satisfaction of affirmative action obligations designed to employ more
individuals with disabilities, OFCCP conducted multiple town hall
meetings, webinars, and listening sessions with the public to determine
how we could help to carry out the overall goal of increasing the
employment opportunities for qualified individuals with disabilities
with Federal contractors. From the information we received, we
pinpointed specific changes that could be made to the implementing
regulations of section 503 that would help increase employment
opportunities for individuals with disabilities.
The changes set forth in this proposal create four broad categories
of benefits. First and foremost, the proposed changes will help to
connect job-seeking individuals with disabilities with contractors
looking to hire. Many commenters suggested that mandatory listing be a
part of the outreach requirements. Therefore, as an initial matter, the
proposal adds a mandatory job listing requirement and requires
contractors to provide additional, regularly updated information to
employment service delivery systems to ensure their job openings are
listed accurately. This will help to ensure that individuals with
disabilities can easily learn about all available jobs with federal
contractors in their state. The proposal also helps to ensure that
contractors can find qualified applicants with disabilities by
requiring contractors to engage in recruitment efforts and enter into
linkage agreements with several disability-focused employment sources
(many of which are specifically listed by OFCCP in the proposed rule),
while allowing contractors flexibility to determine the sources that
work best for them.
[[Page 77075]]
Second, many of the proposed changes ensure that the contractor
understands and effectively communicates its affirmative action
obligations to its workforce and the other entities with which it does
business. While bringing job-seeking individuals with disabilities and
employers together is an important first step, it is equally important
that the contractors, their employees, and applicants with disabilities
understand the protections and benefits of section 503. Accordingly,
the proposed rule seeks to promote this clear communication in several
ways, including:
Requiring dissemination of the contractor's affirmative
action policy in its internal policy manual and discussing the policy
at employee orientation and training programs. These steps will
facilitate a greater understanding of the purpose of the affirmative
action policies among the contractor's employees, and will enhance the
visibility and importance of affirmative action to the recruitment,
hiring, and advancement of individuals with disabilities;
Providing notices of rights under section 503 in
accessible formats for those working offsite (i.e., electronically-
accessible postings) as well as those with visual impairments, so that
all parties understand their respective rights and obligations under
the law;
Requiring contractors to review their personnel processes
on an annual basis, and to document personnel actions taken with regard
to individuals with disabilities to provide greater transparency
between the contractor, its applicants/employees, and OFCCP as to the
reasons for the contractor's personnel actions;
Requiring the contractor to meet with and/or otherwise
send notification of its AAP obligations to third parties with which it
does business, such as union officials and subcontractors.
Third, the proposed rule provides increased mechanisms by which the
contractor can assess its affirmative action efforts. Until now,
contractors had few objective measures they could use to determine how
the time and money they were spending on AAP compliance could be used
most effectively. To that end, the proposed rule requires contractors
to collect data by which contractors may more accurately assess their
efforts. This includes collecting data on referrals and applicants so
contractors know how many individuals with disabilities they are
reaching. Contractors will be able to use this information to
objectively measure their recruitment efforts and determine which ones
are most fruitful in attracting qualified disabled candidates.
Finally, the proposed rule's changes to the manner in which OFCCP
conducts its compliance reviews will benefit both individuals with
disabilities and contractors. These changes include a greater emphasis
on identifying electronic data that OFCCP can review, greater
flexibility in where reviews take place, and a new procedure allowing
for a pre-award compliance review. The emphasis on using electronic
data and flexibility will allow OFCCP to complete reviews far more
efficiently.
Discussion of Impacts
OFCCP has separately determined the costs of compliance with those
requirements of section 503 that fall under the scope of the Paperwork
Reduction Act. See Analysis of Paperwork Reduction Act burden, infra.
Additional costs outside the scope of the PRA, stemming from new or
revised obligations in the proposed rule, are discussed below.
To determine the number of impacted contractor establishments,
OFCCP reviewed the FY 2009 EEO-1 data on contractor establishments \20\
with 50 or more employees, resulting in a total of 87,013 contractor
establishments. This was then combined with an additional 10,518
establishments identified through a cross-check of other contractor
databases for a total of 97,531 establishments. Lastly, since
contractors subject to the written affirmative action plan (AAP)
requirement must develop AAPs for all of their facilities, even those
with fewer than 50 employees, we added in those 73,744 contractor
establishments with fewer than 50 employees for a final total of
171,275 covered contractor establishments.
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\20\ A single firm, business or ``entity'' may have multiple
establishments or facilities. Thus, the number of contractor
establishments or facilities is significantly greater than the
number of parent contractor firms, or companies. Unless otherwise
noted, the NPRM uses the term ``contractor'' to refer to
establishments.
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60-741.44(f)(3): As discussed in the Section-by-Section Analysis of
this paragraph, the proposed rule would require the contractor to
review the effectiveness of its outreach and recruitment efforts on an
annual basis. The general purpose of this self-assessment is to ensure
that the contractor thinks critically about its recruitment and
outreach efforts, and requiring the assessment will allow contractors
to look at their measurable accomplishments, maintain methods that are
successful in recruiting individuals with disabilities, and reconsider
unproductive methods. OFCCP expects that contractors will conduct this
assessment in conjunction with the correlating assessments required
under EO11246 and VEVRAA. We estimate that adding the proposed section
503 review to these other similar assessments will take approximately
30 minutes. OFCCP further estimates that 1% of the 171,275 federal
contractor establishments are first-time contractors during an
abbreviated AAP year, and therefore would not be able to complete an
annual outreach and recruitment effort. 171,275 x .99 = 169,562.
169,562 x 30 mins/60 mins = 84,781 hours.
60-741.44(g): As discussed in the Section-by-Section Analysis of
this paragraph, the proposed rule would require the contractor to
discuss the policy at employee orientation and training programs. This
paragraph requires only that contractors discuss their affirmative
action policies at any employee orientation or management training
programs that they already provide. Consequently, the burden imposed by
this requirement will be minimal. Specifically, OFCCP estimates that
contractors will have a one-time preparation burden of 20 minutes and a
recurring burden of 5 minutes for actually presenting the additional
information at the training session. Therefore, the average burden per
contractor establishment would be the following: 171,275 x 20/60 =
57,092 hours; 171,275 x 5/60 = 14,273 hours.
60-741.44(j): As discussed in the Section-by-Section Analysis of
this paragraph, the proposed rule would also require specific training
for those involved in recruitment, screening, hiring, promotion, and
related processes to ensure that they are making such decisions in
compliance with section 503. Training on these issues will benefit
contractors and individuals with disabilities by facilitating a greater
understanding of the purpose of the affirmative action plan among
decision makers for the contractor, and will enhance the visibility and
importance of affirmative action to the recruitment, hiring, and
advancement of individuals with disabilities. Furthermore, proactive
training on these issues holds the real promise of reducing the number
of section 503 violations. While this is a new requirement under
section 503, the cost/benefit and PRA elements of this burden have
already been partially incorporated under the equivalent provision in
the Notice of Proposed Rulemaking (NPRM) revising the regulations
implementing the Vietnam Era Veterans' Readjustment Assistance
[[Page 77076]]
Act, published at 76 FR 23358 (April 26, 2011). As the same person will
likely be identified to provide/coordinate the training for both
section 503 and 4212 regulations, the only additional section 503-
related burden would result from incorporating into the training those
elements unique to section 503, such as the proposed reasonable
accommodation procedures requirement. OFCCP estimates contractors would
have a one-time development burden of 40 minutes and a recurring
presentation burden of 20 minutes. Therefore, the burden costs for
section 503 are calculated as follows: 171,275 x 40/60 = 114,183;
171,275 x 20/60 = 57,092.
60-741.45: As discussed in the Section-by-Section Analysis of this
paragraph, the proposed rule would require contractors to develop and
implement specific reasonable accommodation procedures to be included
as part of their written affirmative action plan. This requirement
benefits both contractors and the disability community by ensuring
consistent handling of requests for reasonable accommodation made by
both applicants and employees. Although a contractor's obligation to
consider/make reasonable accommodation upon request is covered under
the ADA, as amended, and the implementing regulations published by
EEOC, the requirement to develop a specific implementation plan is
exclusive to OFCCP and new to the section 503 regulations and therefore
is addressed herein. The documentation-related elements of this
provision are covered under the PRA analysis, infra. Furthermore, based
on comments received in response to the ANPRM (75 FR 43116 (July 23,
2010)) as well as information provided by ODEP, OFCCP estimates that
approximately 10% of the contractor community will already have similar
procedures in place and, therefore. the only burden will be the
inclusion of those procedures in the AAP. Therefore, OFCCP estimates
that initial development of procedures will affect 154,148 contractors
and that these contractors will spend 2 hours on average to develop
their procedures. The average non-PRA burden per contractor
establishment would be the following: 171,275 x .90 = 154,148. 154,148
x 2 hours = 308,296 hours.
The estimated annualized cost to respondent contractors is based on
Bureau of Labor Statistics data in the publication ``Employer Costs for
Employee Compensation'' (September 2011), which lists total
compensation for management, professional, and related occupations as
$50.07 per hour and administrative support as $22.67 per hour. OFCCP
estimates that 52% percent of the burden hours will be management,
professional, and related occupations and 48% percent will be
administrative support. We have calculated the total one-time,
recurring, and overall estimated costs for the combined burden hours
from the obligations described above (i.e., those that do not fall
under the scope of the Paperwork Reduction Act) as follows:
One Time Costs:
Mgmt. Prof.: 171,275 contractors x 3 hours x .52 x $50.07/hr =
$13,378,153
Adm. Supp.: 171,275 contractors x 3 hours x .48 x $22.67/hr =
$5,591,238
Total annualized cost estimate = $18,969,391
Estimated annual average cost per establishment is: $18,969,391/
171,275 = $111
Recurring Costs:
Mgmt. Prof.: 171,275 contractors x 0.9 hours x .52 x $50.07/hr =
$4,013,446
Adm. Supp.: 171,275 contractors x 0.9 hours x .48 x $22.67/hr =
$1,677,371
Total annualized cost estimate = $5,690,817
Estimated annual average cost per establishment is: $5,690,817/
171,275 = $33
Therefore, the overall total cost (both one-time and recurring) per
establishment would be: $18,969,391 + $5,690,817 = $24,660,208/171,275
= $144.
Summary of Costs
While OFCCP seeks comments in this proposed rule regarding the
effects of the rule and its cost estimates, OFCCP preliminarily
estimates the overall annualized total cost for complying with those
provisions that fall outside the Paperwork Reduction Act to be
$24,660,208 (or $144 per contractor establishment). OFCCP estimates the
total annual cost for complying with those provisions that fall under
the Paperwork Reduction Act to be $54,583,152 (or $319 per contractor
establishment). See Paperwork Reduction Act discussion, infra. OFCCP
further estimates the total annual operations and maintenance costs
from this rule to be $1,820,859 (or $11 per contractor establishment).
OFCCP estimates the total annual cost of the proposed rule is
approximately $81,064,219 (or $473 per contractor establishment).
It should be noted however, that the above totals include both one-
time (first year only) and recurring costs as follows:
One-Time Costs: OFCCP estimates the total one-time cost
for complying with those provisions that fall outside the Paperwork
Reduction Act to be $18,969,391 (or $111 per contractor establishment).
OFCCP estimates the total one-time cost for complying with those
provisions that fall under the Paperwork Reduction Act to be
$10,543,855 (or $62 per contractor establishment). See Paperwork
Reduction Act discussion, infra. OFCCP further estimates the total one-
time operations and maintenance costs from this rule to be $0.
Therefore, OFCCP estimates the total one-time cost of the proposed rule
to be approximately $29,513,246 (or $172 per contractor establishment).
Recurring Costs: OFCCP estimates the total recurring cost
for complying with those provisions that fall outside the Paperwork
Reduction Act to be $5,690,817 (or $33 per contractor establishment).
OFCCP estimates the total recurring cost for complying with those
provisions that fall under the Paperwork Reduction Act to be
$44,049,297 (or $257 per contractor establishment). See Paperwork
Reduction Act discussion, infra. OFCCP further estimates the total
recurring operations and maintenance costs from this rule to be
$1,820,859 (or $11 per contractor establishment). OFCCP estimates the
total recurring cost of the proposed rule to be approximately
$51,550,973 (or $301 per contractor establishment).
Summary of Benefits
In short, OFCCP believes that the societal benefits discussed in
the Section-by-Section Analysis and in this section outweigh the
societal costs of the proposed rule. These benefits include improved
outreach to and recruitment of individuals with disabilities, the
establishment of clear procedures to ensure that needed reasonable
accommodations can be swiftly requested and promptly provided, and
ensuring that those in the workplace understand their rights and
respective obligations under section 503. In addition, the proposed
rule will provide contractors with much needed tools, such as increased
data, to measure the success of their affirmative action efforts and to
determine whether refinements are needed to improve equal employment
opportunity for individuals with disabilities.
Generally, these benefits will result from proposed requirements
that will improve human resource functions. Improving such functions
will
[[Page 77077]]
contribute to job market efficiencies and other efficiency gains.
Employers subject to policies that improve human resource functions
tend to provide more training and contribute to a more qualified
workforce.\21\ A policy that utilizes an outreach program resulting in
more recruits raises the competition for job openings and thus raises
efficiency by employing the highest qualified individuals. The proposed
rule would reduce barriers to equal employment opportunity for
individuals with disabilities and alleviate the inefficiencies in the
job market that these barriers create. Moreover, as more individuals
with disabilities are hired, employers naturally create mentors and
expand networking opportunities for such individuals. Mentors are
essential not only for recruiting purposes but also as a retention
strategy, because they provide a support mechanism for new hires.
Retention is a direct benefit to employers because employers will not
lose their initial investment in recruiting and training individuals
with disabilities. Without improved affirmative action policies,
individuals with disabilities may have fewer job opportunities. Because
individuals with disabilities are almost three times more likely to
live in poverty than other groups,\22\ improving employment
opportunities will only help such individuals move out of poverty or
working poor status. OFCCP invites comments from stakeholders on the
cost/benefit analysis included in this section.
---------------------------------------------------------------------------
\21\ Holzer, H. and Neumark, D., ``Assessing Affirmative
Action,'' Journal of Economic Literature, Vol. XXXVII (2000).
\22\ World Institute on Disability, http://www.wid.org/about-wid.
---------------------------------------------------------------------------
Regulatory Flexibility Act and Executive Order 13272 (Consideration of
Small Entities)
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601 et seq.,
requires agencies promulgating proposed rules to consider the impact
they are likely to have on small entities. More specifically, the RFA
requires agencies to ``review rules to assess and take appropriate
account of the potential impact on small businesses, small governmental
jurisdictions, and small organizations.'' If a proposed rule is
expected to have a ``significant economic impact on a substantial
number of small entities,'' the agency must prepare an initial
regulatory flexibility analysis (IRFA). However, if a proposed rule is
not expected to have a significant economic impact on a substantial
number of small entities, the agency may so certify, and need not
perform an IRFA.
Based on the analysis below, in which OFCCP has estimated the
impact on small entities that are covered contractors of complying with
the requirements contained in this proposed rule, OFCCP certifies that
this proposed rule will not have a significant economic impact on a
substantial number of small entities. OFCCP invites comments on its
analysis, and requests that commenters provide any relevant additional
data they may have.
In making this certification, OFCCP first determined the
approximate number of small entities that have covered federal
contracts and whether this is a substantial number of such entities.
OFCCP's review of the FY 2009 EEO-1 data revealed that 20,490 small
entities (not establishments) with between 50 and 500 employees had
federal contracts subject to the obligations of the proposed
regulation.\23\ The most recent data provided by the Small Business
Administration Office of Advocacy reports that there are 27.4 million
small entities in the United States.\24\ See Firm Size Data at
www.sba.gov/advo/research/data.html#us. The proposed rule will
therefore impact less than 1% \25\ of small entities nationwide.\26\
Although the RFA does not specifically define ``substantial number,''
OFCCP has determined that an impact on less that 1% of small entities
does not constitute a substantial number. See A Guide for Government
Agencies: How To Comply With the Regulatory Flexibility Act, Office of
Advocacy, U.S. Small Business Administration at 20 (``The
interpretation of the term ``substantial number'' is not likely to be
five small firms in an industry with more than 1,000 firms.'').
---------------------------------------------------------------------------
\23\ The EEO-1data base separately identifies contractor
entities and the facilities that comprise them. The FPDS-NG data
base, by contrast, identifies contractor facilities, but does not
identify the larger entities of which they are a part.
\24\ This figure includes 6,049,655 employer firms and
21,351,320 non-employer firms.
\25\ 20490 is .075% of 27.4 million and .34% of 6,049,655.
\26\ Since federal contracts are not limited to specific
industries, it is appropriate to assess the impact of this proposed
rule on small entities nationwide.
---------------------------------------------------------------------------
Having determined that a substantial number of small entities will
not be impacted by the proposed rule, we need not assess whether the
impact on those small entities affected would be economically
significant. Nevertheless, we also conclude that the $331 approximate
cost of this rule per contractor establishment is not likely to have a
significant economic impact on the small entities subject to the
proposed rule.
We note, too, the significant benefits of the proposed rule to both
individuals with disabilities and federal contractors. These benefits
are discussed extensively in the Section-by-Section Analysis section of
this NPRM and in the discussion of this proposal's conformity with
Executive Order 12866. Generally, the proposed rule will benefit
individuals with disabilities and the contractor by providing effective
mechanisms, such as mandatory job listing requirements and linkage
agreements with disability-related organizations that facilitate the
ability of contractors to connect with qualified applicants with
disabilities, who, with a workforce participation rate of just 21.8%,
represent a largely untapped potential labor source. Tapping into this
underutilized pool can help stabilize an aging and shrinking workforce,
thereby maintaining (or even increasing) productivity. Increasing
employment opportunities for individuals with disabilities will also
likely result in a decrease in the number of individuals receiving
Social Security Disability Insurance (SSDI) benefits and disability
payments through contractor-sponsored insurance plans, as individuals
with disabilities join the workforce and discontinue such payments.
This will increase the incomes of these newly working individuals with
disabilities, which, in turn, will likely increase the demand for goods
and services, including those provided by small businesses.
Paperwork Reduction Act
As part of its continuing effort to reduce paperwork and respondent
burden, the Department of Labor conducts a pre-clearance consultation
program to provide the general public and Federal agencies with an
opportunity to comment on proposed and continuing collections of
information in accordance with the Paperwork Reduction Act of 1995
(PRA) (44 U.S.C. 3506(c)(2)(A)). This helps to ensure that the public
understands the Department's collection instructions; respondents can
provide the requested data in the desired format, reporting burden
(time and financial resources) is minimized, collection instruments are
clearly understood, and the Department can properly assess the impact
of collection requirements on respondents.
The Department notes that a Federal agency cannot conduct or
sponsor a collection of information unless it is approved by OMB under
the PRA and displays a currently valid OMB control number. The public
is not required to
[[Page 77078]]
respond to a collection of information unless it displays a currently
valid OMB control number. Also, notwithstanding any other provisions of
law, no person shall be subject to penalty for failing to comply with a
collection of information if the collection of information does not
display a currently valid OMB control number. Until any final
regulations become effective and OFCCP publishes a notice announcing
OMB's approval of these proposed information collections, they will not
take effect.
The information collection requirements contained in the existing
section 503 regulations, with the exception of those related to
complaint procedures, are currently approved under OMB Control No.
1250-0003 (Recordkeeping and Reporting Requirements-Supply and Service)
and OMB Control No. 1250-0001 (Construction Recordkeeping and
Reporting). The information collection requirements contained in the
existing complaint procedures regulation are currently approved under
OMB Control No. 1250-0002.
The proposed rule contains information collections that are subject
to review by the Office of Management and Budget (OMB) under the
Paperwork Reduction Act of 1995. This proposal includes several new
requirements shown below with their respective burden estimates.
The information collections discussed below relate to Federal
contractor and subcontractor responsibilities under section 503 as
amended and its implementing regulations at 41 CFR 60-741. OFCCP
invites the public to comment on whether each of the proposed
collections of information:
(1) Is necessary to the proper performance of the agency, including
whether the information will have practical utility;
(2) Estimates the projected burden, including the methodology and
assumptions used, accurately; and
(3) Is structured to minimize the burden of the collection of
information on those who are to respond, including through the use of
appropriate automated, electronic, mechanical, or other technological
collection techniques or other forms of information technology (e.g,
permitting electronic submission of responses).
Where estimates are provided or assumptions are described,
contractors and other members of the public are encouraged to provide
data they have that could help OFCCP refine the estimates of amount of
time needed to fulfill specific requirements.
60-741.5
[squ] Contractor must provide Braille, large print, or other
versions of the EEO poster so that visually impaired individuals may
read the notice themselves (]4 of EO Clause). Contractors may obtain
copies of the joint EEOC-OFCCP EEO poster in accessible formats,
upon request, from EEOC.
[squf] OFCCP used Bureau of Labor Statistics (BLS) Data, the
``Employment status of the civilian population by sex, age, and
disability status, not seasonally adjusted'' for November 2010. This
data shows 5,784,000 individuals with disabilities in the civilian
labor force out of a total of 147,914,000. Since approximately 22%
of the US workforce works for a federal contractor, OFCCP estimates
that 22% of 5,784,000, or 1,272,480 disabled individuals, works for
a federal contractor. Data on visually impaired employed individuals
is not separated out from the total of employed individuals with
disabilities, therefore, OFCCP estimates 10% of disabled individuals
are visually impaired, for an estimated total of 127,248 visually
impaired individuals working for federal contractors. This total
would include disabled veterans who should not be counted twice.
OFCCP had previously estimated 6,200 visually impaired disabled
veterans. OFCCP has counted these hours in its Notice of Proposed
Rulemaking (NPRM) revising the regulations implementing the Vietnam
Era Veterans' Readjustment Assistance Act, published in 76 FR 23358
(April 26, 2011). The calculations were as follows:
The FY 2008 VETS-100 report identified 62,000 Special Disabled
Veterans (SDVs). Not all SDVs will normally request and
accommodation, therefore the estimate is 10% of the SDVs may request
an accommodation due to visual impairment.
Therefore, 127,248--6200 = 121,048. OFCCP estimates that it
takes 5 minutes for the contractor to receive the accommodation
request and 5 minutes for recordkeeping and providing the notice in
an alternative format, for a total of 10 minutes per request.
Therefore, 10 minutes x 121,048 = 1,210,480 minutes/60 = 20,175
total Federal contractor hours.
[squ] Posting of notice for employees working at a site other
than the contractor's physical location. (] 4 of EO Clause). OFCCP
has counted these hours in its Notice of Proposed Rulemaking (NPRM)
revising the regulations implementing the Vietnam Era Veterans'
Readjustment Assistance Act, published in 76 FR 23358 (April 26,
2011). A contractor would expend no additional hours under this
NPRM, as the offsite notification for both section 4212 and section
503 occurs in the same EEO poster, which contractors may obtain,
upon request, from OFCCP or EEOC. Therefore, no additional
contractor burden exists for this paragraph.
[squ] Contractor must state in all solicitations and
advertisements that it is an EEO employer of individuals with
disabilities (]7 of EO Clause). (This is a third party disclosure
burden.) The contractor already must state that it is an EEO
employer due to many state and federal requirements, including the
Executive Order 11246 EEO requirements. This revision would simply
require the contractor to add individuals with disabilities to the
list of categories of protected EEO groups. OFCCP estimates 5
minutes additional burden per contractor, or 171,275 x 5 minute/60 =
14,273 total third party disclosure hours.
[squ] Contractor must include the entire clause verbatim in
Federal contracts (d). (This is a third party disclosure burden.)
OFCCP estimates 5 minutes per contractor to download and incorporate
the required text, or 171,275 x 5 minute/60 = 14,273 total third
party disclosure hours.
60-741.41
[squ] Contractor must inform employees who do not work at
contractor's physical establishment regarding the availability of
AAP for review. OFCCP has counted these hours in its Notice of
Proposed Rulemaking (NPRM) revising the regulations implementing the
Vietnam Era Veterans' Readjustment Assistance Act, published in 76
FR 23358 (April 26, 2011). A contractor would expend no additional
hours under this NPRM, as the offsite notification for both section
4212 and section 503 would occur in the same notice. Therefore, no
additional contractor burden exists for this paragraph.
60-741.42
[squ] .42(a) and (b)--The proposed regulation would require that
the contractor invite all applicants to self-identify as a protected
individual with a disability prior to and after an offer of
employment. OFCCP provides mandatory text for the invitations to
self-identify so that the contractor will not have the burden of
creating these invitations. We estimate it will take 5 minutes for
the contractor to download and save the prescribed text of the
invitations to self-identify into a separate document that it can
store electronically, include it in electronic applications or print
out to include in a hard copy application package as needed.
Therefore, 5 minute x 171,275 establishments/60 = 14,273 total
Federal contractor hours adapting the self-identification forms for
contractor use.
OFCCP estimates that protected individuals with disabilities
will have zero burden complying with this proposal in the course of
completing their applications for employment with a contractor and
checking the appropriate boxes in the self-identification forms. No
written documentation is required and the applicant need only check
a box on a form already provided.
[squ] .42(c)--The proposed regulation would require that the
contractor annually re-invite all employees to self-identify as an
individual with a disability. We estimate it will take 5 minutes for
the contractor to download and save the prescribed text of the
invitation to self-identify into a separate document that it can
store electronically and transmit to its employees. 5 minute x
171,275 establishments/60 = 14,273 total Federal contractor hours
adapting the self-identification forms for contractor use.
OFCCP estimates that protected employees with disabilities will
have zero burden complying with this proposal in the course of
completing the annual resurvey. No
[[Page 77079]]
written documentation is required as the employee need only check a
box on a form already provided.
[squ] .42(e)--Contractor must maintain self-identification data.
The contractor was required to maintain some self-identification
data prior to this proposed regulation. Reviewing the entire data
collection process required under .42, we estimate that simply
maintaining the completed self-identification forms, whether
collected under (a), (b), or (c) of this section, will take 1 minute
per contractor, or 171,275 minutes/60 = 2,855 total Federal
contractor hours. No additional contractor burden has been
calculated for processing/analyzing the self-identification results
as the only requirement under this paragraph is that the contractor
maintains the data to provide to OFCCP upon request. Any burden
imposed by the actual use/analysis of the data would be covered
under the appropriate analysis sections such as .44(h) (Audit and
Reporting System) and/or .44(k) (Data Collection Analysis).
60-741.44
[squ] .44(a) Policy statement. Contractor must provide Braille,
large print, or other versions of AA policy statement so that
visually impaired persons may read the policy themselves. OFCCP used
Bureau of Labor Statistics (BLS) Data, the ``Employment status of
the civilian population by sex, age, and disability status, not
seasonally adjusted'' for November 2010. This data shows 5,784,000
individuals with disabilities in the civilian labor force out of a
total of 147,914,000. Since approximately 22% of the U.S. workforce
works for a federal contractor, OFCCP estimates that 22% of
5,784,000 or 1,272,480 disabled individuals works for a federal
contractor. Data on visually impaired employed individuals is not
separated out from the total of employed individuals with
disabilities, therefore, OFCCP estimates 10% of disabled individuals
are visually impaired, for an estimated total of 127,248 visually
impaired individuals working for federal contractors. This total
would include disabled veterans who should not be counted twice.
OFCCP previously estimated that there are 6,200 visually impaired
disabled veterans in its Notice of Proposed Rulemaking (NPRM)
revising the regulations implementing the Vietnam Era Veterans'
Readjustment Assistance Act, published in 76 FR 23358 (April 26,
2011). The calculations were as follows:
The FY 2008 VETS-100 report identified 62,000 Special Disabled
Veterans (SDVs). Not all SDVs will normally request an
accommodation, therefore the estimate is 10% of the SDVs may request
an accommodation due to visual impairment.
Therefore, 127,248 - 6200 = 121,048. OFCCP estimates that it
takes 5 minutes for the contractor to receive the accommodation
request and 5 minutes for recordkeeping and providing this document
in an alternative format, for a total of 10 minutes. Therefore, 10
minutes x 121,048 = 1,210,480 minutes/60 minutes = 20,175 total
Federal contractor hours complying with this paragraph.
[squ] .44(b) Review of personnel processes. Contractor must
review personnel processes annually, and is required to go through a
specific analysis for doing so which would include: (1) identifying
the vacancies and training programs for which applicants and
employees with disabilities were considered; (2) providing a
statement of reasons explaining the circumstances for rejecting
individuals with disabilities for vacancies and training programs
and a description of considered accommodations; and (3) describing
the nature and type of accommodations for individuals with
disabilities who were selected for hire, promotion, or training
programs.
[squf] The contractor needs to identify vacancies as part of
the review. OFCCP counted these hours in its Notice of Proposed
Rulemaking (NPRM) revising the regulations implementing the Vietnam
Era Veterans' Readjustment Assistance Act, published in 76 FR 23358
(April 26, 2011). A contractor would expend no additional hours
under this NPRM, as the identified vacancies for both section 4212
and section 503 would be identical. Therefore, no additional
contractor burden exists for this paragraph.
[squf] The contractor needs to identify training programs for
individuals with disabilities applicants and employees. OFCCP
counted these hours in its Notice of Proposed Rulemaking (NPRM)
revising the regulations implementing the Vietnam Era Veterans'
Readjustment Assistance Act, published in 76 FR 23358 (April 26,
2011). A contractor would expend no additional hours under this
NPRM, as the identified training programs for both section 4212 and
section 503 would be identical. Therefore, no additional contractor
burden exists for this paragraph.
[squf] For providing a statement of reasons explaining the
circumstances for rejecting individuals with disabilities for
vacancies and training programs and a description of considered
accommodations, OFCCP estimates 30 minutes per contractor per year,
or 30 x 171,275/60 = 85,638 total Federal contractor hours.
[squf] For describing the nature and type of accommodations for
individuals with disabilities who were selected for hire, promotion,
or training programs. OFCCP used Bureau of Labor Statistics (BLS)
Data, the ``Employment status of the civilian population by sex,
age, and disability status, not seasonally adjusted'' for November
2010. This data shows 5,784,000 individuals with disabilities in the
civilian labor force out of a total of 147,914,000. Since
approximately 22% of the U.S. workforce works for a federal
contractor, OFCCP estimates that 22% of 5,784,000 or 1,272,480
disabled individuals works for a federal contractor. This total
would include disabled veterans who should not be counted twice.
OFCCP previously estimated that there are 62,000 disabled veterans
in its Notice of Proposed Rulemaking (NPRM) revising the regulations
implementing the Vietnam Era Veterans' Readjustment Assistance Act,
published in 76 FR 23358 (April 26, 2011). The calculations were as
follows:
The FY 2008 VETS-100 report identified 62,000 Special Disabled
Veterans (SDVs). Thus, there will be a total of 62,000 inquiries.
Therefore, 1,272,480 - 62,000 = 1,210,480. OFCCP estimates 10% of
referrals leading to an accommodation request, and 30 minutes per
accommodation request. Therefore, the hours would be 30 x 1,210,480
x 10%/60 = 60,524 total Federal contractor hours.
[squ] .44(c)(1) Physical and mental qualifications. Contractor
must review physical and mental job qualifications annually to
ensure that they are job-related and consistent with business
necessity. This provision exists in the current section 503
regulations (as well as the current section 4212 regulations); the
only difference is that the proposed regulations call for the review
to occur ``annually,'' rather than ``periodically.'' Therefore, all
existing or previous contractors should have experience in
performing the required review.
OFCCP counted these hours in its Notice of Proposed Rulemaking
(NPRM) revising the regulations implementing the Vietnam Era
Veterans' Readjustment Assistance Act, published in 76 FR 23358
(April 26, 2011). A contractor's review of physical and mental
qualifications would occur only once for both section 4212 and
section 503. Therefore, no additional contractor burden exists for
this paragraph.
[squ] .44(c) Direct Threat. Contractor must document the results
of its annual review of physical and mental job qualifications, and
document any employment action taken on the basis of a believed
``direct threat.''
OFCCP counted these hours in its Notice of Proposed Rulemaking
(NPRM) revising the regulations implementing the Vietnam Era
Veterans' Readjustment Assistance Act, published in 76 FR 23358
(April 26, 2011). A contractor's documentation of its review of
physical and mental qualifications would occur only once for both
section 4212 and section 503. Therefore, no additional contractor
burden exists for this paragraph.
60-741.44(f)
[squ] .44(f)(1)(i) Contractor must list job openings with the
nearest Employment One-Stop Career Center.
OFCCP counted these hours in its Notice of Proposed Rulemaking
(NPRM) revising the regulations implementing the Vietnam Era
Veterans' Readjustment Assistance Act, published in 76 FR 23358
(April 26, 2011). A contractor would list the same job openings to
comply with the section 4212 NPRM as it would for the section 503
NPRM. Therefore, no additional contractor burden exists for this
paragraph.
[squ] .44(f)(1)(ii) Linkages. Contractor must enter into linkage
agreements with:
[squf] Either a local State Vocational Rehabilitation Service
Agency (SVRA) or an organization in the Ticket to Work Employment
Network Directory;
[squf] One of the following organizations: (1) the Employer
Assistance and Resource Network (EARN); (2) the nearest Employment
One-Stop Career Center, established under the Workforce Investment
Act; (3) the nearest Department of Veterans Affairs Regional
Offices; (4) any other local disability group, organization or
Centers for Independent Living that provide services to individuals
with disabilities; (5) placement or career offices of educational
institutions; or (6) private recruitment sources; and
[squf] One or more of the disabled veterans' service
organizations listed in the Employer
[[Page 77080]]
Resources section of the National Resource Directory (NRD), or any
future service that replaces or complements it, other than the
agencies listed above.
Therefore, each contractor must enter into 3 linkage agreements.
Linkage Agreement means an agreement describing the connection
between the contractor and appropriate recruitment and/or training
sources. To assist contractors, OFCCP will provide a sample linkage
agreement on its Web page.
The contractor has a variety of ways to establish section 503
linkage agreements. The contractor can receive nationwide assistance
from OFCCP Compliance Officers (COs) to help it establish the 3
linkage agreements. Secondly, during the normal course of an OFCCP
compliance review, the CO will contact all appropriate linkage
resources to obtain specific information on availability of
applicants and potential trainees for positions in the contractor's
labor force. If possible, the CO will arrange a meeting between the
recruitment/referral resources and the contractor.
Where a resource indicates that it can provide applicants or
trainees, the CO will include the contractor's commitment to utilize
the linkage source along with other actions in the Letter of
Commitment or in the Conciliation Agreement.
OFCCP estimates that 30% of the contractors, or 51,383, will
accept OFCCP assistance to help set up their linkage agreements and
it will take these contractors on average 1.5 hours to establish one
new linkage agreement. For the remaining 119,892 contractors, OFCCP
estimates that establishing a new linkage agreement will take an
average of 5.5 hours. Beyond the first year after this rule becomes
effective, it is estimated the contractor will set up one new
agreement a year. It is estimated that maintaining a single, ongoing
linkage agreement will take an average of 15 minutes for all 171,275
contractors.
For those contractors setting up linkage agreements on their
own, OFCCP estimates that on average, a contractor will establish
one new agreement and maintain two ongoing agreements in a given
year, which would be 5.5 hours + .25 hours + .25 hours = 6 hours. If
the contractor establishes linkage agreements with OFCCP's
assistance, we estimate an annual average of 1.5 hours per
contractor to establish a new linkage agreement and .25 hours to
maintain each of the two ongoing linkage agreements, which would be
1.5 hours + .25 hours + .25 hours = 2 hours. Therefore, 6 hours x
119,892 contractors = 719,352 hours, and 51,383 x 2 hours = 102,766
hours, for a total of 822,118 Federal contractor hours.
However, NRD is also used as a resource in the section 4212
NPRM, and those burden hours are already counted under the section
4212 NPRM and should not be counted twice. To adjust the section 503
burden hours accordingly, OFCCP reduced the total of 822,118 hours
by one-third, for a total of 550,819 Federal contractor hours.
[squ] .44(f)(1)(iii) Contractor must send written notification
of company AAP policies to subcontractors, vendors, and suppliers.
(This is a third party disclosure burden)
As the same provision exists in the section 4212 NPRM, and the
creation of the notice is already counted there, OFCCP estimates
that it would take the contractor an additional 5 minutes to revise
the section 4212 notification to include the required reference to
section 503. Therefore, 5 minutes per contractor x 171,275/60
minutes = 14,273 total third party disclosure hours.
[squ] .44(f)(3) Assessment. Contractor must document its review
of outreach and recruitment efforts.
OFCCP estimates that documenting this required review of
outreach and recruitment will take 10 minutes annually. OFCCP
further estimates that 1% of federal contractors are first-time
contractors during an abbreviated AAP year, therefore would not be
able to complete an annual outreach and recruitment effort.
Therefore, reducing the 171,275 by 1% (1,713 contractors) = 169,562
contractors, at 10 minutes each/60 = 28,260 total Federal contractor
hours. The burden and cost of actually conducting the review does
not fall under the PRA, and is instead set forth in the sections on
Executive Order 12866.
[square] .44(f)(4). Linkage Recordkeeping. Contractor must
document (f)(1) linkage agreements and maintain these documents for
5 years.
Since establishing a linkage agreement includes its
documentation, there is no additional burden for this paragraph
beyond that already set forth in the burden calculation for
.44(f)(1)(i) and (ii).
[squ] .44(g). Internal dissemination of policy. Contractor is
required to undertake efforts to internally disseminate its EEO
policy, including, if the contractor is a party to a collective
bargaining agreement, meeting with union officials to inform them of
the policy. (This is a third party disclosure burden):
The January 22, 2010, Bureau of Labor Statistics News Release
states that in 2009, union membership was 12.3%. In its most recent
Supply and Service (S&S) PRA Justification, OFCCP estimated 30
minutes composition time for union notification. For this NPRM, we
estimate 15 minutes preparation for this new notification
requirement, as contractors party to a collective bargaining
agreement already have a notification template in place. We also
estimate 15 additional minutes to meet with union officials as they
are already required to meet with union officials in S&S. The total
third party disclosure burden hours would be 171,275 x 12.3% x 30
minutes/60 = 10,533 total Federal contractor hours.
The burden and cost of other requirements of .44(g) does not
fall under the PRA, and is instead set forth in the sections on
Executive Order 12866.
[squ] .44(g)(3). Contractor must document internal dissemination
efforts in (g), retain these documents as employment records subject
to the recordkeeping requirements of Sec. 60-741.80.
Since much of the documentation will occur during the
preparation time, OFCCP estimates an additional 5 minutes of
recordkeeping per contractor, which means 5 minutes x 171,275 =
856,375 minutes/60 = 14,273 total Federal contractor hours.
[squ] .44(h). Audit and reporting system. Contractor must
document the actions taken to comply with audit and reporting
system, and retain these documents as employment records subject to
the recordkeeping requirements of Sec. 60-741.80.
Since much of the documentation will occur when conducting the
annual audit, OFCCP estimates an additional 5 minutes recordkeeping
burden per contractor, which means 5 minutes x 171,275 = 856,375
minutes/60 = 14,273 total Federal contractor hours.
[squ] .44(i) Responsibility for implementation. Contractor must
identify responsible official for AAP on all internal and external
communications regarding the AAP. OFCCP counted these hours in its
Notice of Proposed Rulemaking (NPRM) revising the regulations
implementing the Vietnam Era Veterans' Readjustment Assistance Act,
published in 76 FR 23358 (April 26, 2011). The same person will
likely be identified for both section 503 and section 4212
regulations. Therefore, no additional contractor burden exists for
this paragraph.
[squ] .44(j) Training. Contractor must document its training
efforts as set forth by the regulation, and maintain these documents
as required by 60-741.80.
OFCCP estimates that much of the documentation will be included
in the training preparation time. OFCCP estimates an additional 5
minutes recordkeeping time per contractor, which means 5 minutes x
171,275 = 856,375 minutes/60 = 14,273 total Federal contractor hours
The burden and cost of the actual training preparation and
conducting the training does not fall under the PRA, and is instead
set forth in the sections on Executive Order 12866 and the
Regulatory Flexibility Act.
[squ] .44(k) Data collection analysis. Contractor must make
several quantitative tabulations and comparisons using referral
data, applicant data, hiring data, and the number of job openings;
must maintain these records for 5 years:
(1) The number of referrals of individuals with disabilities
that the contractor received from applicable employment service
delivery system(s), such as State Vocational Rehabilitation Service
Agencies and Employment One-Stop Career Centers;
(2) The number of referrals of individuals with disabilities
that the contractor received from other entities, groups or
organizations with which the contractor has a linkage agreement
pursuant to paragraph (f)(1)(i);
(3) The number of applicants who self-identified as individuals
with disabilities pursuant to Sec. 60-741.42(a), or who are
otherwise known to be individuals with disabilities;
(4) The total number of job openings and total number of jobs
filled;
(5) The ratio of jobs filled to job openings;
(6) The total number of applicants for all jobs;
(7) The ratio of applicants with disabilities to all applicants
(``applicant ratio'');
(8) The number of applicants with disabilities hired;
(9) The total number of applicants hired; and
(10) The ratio of individuals with disabilities hired to all
hires (``hiring ratio'').
[[Page 77081]]
The number of hires shall include all employees as defined in Sec.
60-741.2.
The calculations for 4, 5, 6, and 9 are already
included in the Executive Order 11246 AAP. Therefore, there is no
additional burden for 4, 5, 6, and 9.
The remaining calculations, for 1, 2, 3, 7, 8, and 10,
OFCCP estimates at 10 minutes each per contractor, or 60 minutes
recordkeeping time per contractor. Therefore, the total burden would
be 60 minutes x 171,275/60 = 171,275 total Federal contractor hours.
60-741.45
[squ] .45(a) Development and implementation. Contractor must
develop and implement procedures for processing reasonable
accommodation requests.
OFCCP estimates that much of the documentation will be included
in the development and implementation of these procedures. OFCCP
estimates an additional 30 minutes recordkeeping time per
contractor, which means 30 minutes x 171,275 = 5,138,250 minutes/60
= 85,638 total Federal contractor hours. The burden and cost of the
actual development and implementation does not fall under the PRA,
and is instead set forth in the sections on Executive Order 12866
and the Regulatory Flexibility Act. 1
[squ] .45(b) Designation of responsibility. Contractor must
designate responsible official for implementing reasonable
accommodation procedures.
That official should already be in place for current
contractors. For 1% first time contractors, 171,275 x 1% = 1,713
contractors, OFCCP estimates 5 minutes per contractor, or 1,713 x 5
minutes = 8,565 minutes/60 = 143 total Federal contractor hours.
[squ] .45(c) Dissemination of procedures. Contractor must
disseminate its reasonable accommodation procedures to employees,
including off-site employees, and applicants.
OFCCP estimates that it would take the contractor 15 minutes to
post the procedures on its Web site in an accessible format.
Therefore, 15 minutes per contractor x 171,275/60 minutes = 42,819
total Federal contractor hours.
[squ] .45(d) Required Elements. A contractor's reasonable
accommodation procedures must include specific required elements,
including official contact information, processing requests for
employees and applicants, timeframes, and a description of these
processes. These burden hours are already included in .45(a)
Development and Implementation.
[squ] .45(e) Training. A contractor must train its managers and
supervisors on reasonable accommodation.
OFCCP estimates that much of the documentation will be included
in the training preparation time. OFCCP estimates an additional 5
minutes recordkeeping time per contractor, which means 5 minutes x
171,275 = 856,375 minutes/60 = 14,273 total Federal contractor
hours. The burden and cost of the actual training preparation and
conducting the training does not fall under the PRA, and is instead
set forth in the sections on Executive Order 12866.
60-741.46
[squ] Contractor must set a utilization goal of 7%.
Minimum Goal. OFCCP has established a utilization goal of 7% as
a benchmark against which the contractor must measure the
representation of individuals with disabilities within each job
group in its workforce.
Since the goal is provided by OFCCP, OFCCP estimates 5 minutes
recordkeeping time per contractor to document the goal requirement,
which means 5 minutes x 171,275/60 = 14,273 total Federal contractor
hours.
Comparing incumbency to the goal: The contractor shall compare
the percentage of its incumbent employees who are individuals with
disabilities with the goal in paragraph (a) of this section on an
annual basis. When making this comparison the contractor shall:
(1) Use the job groups it established pursuant to 41 CFR 60-2.12
or part 60-4. Supply and service contractors under OMB Information
Collection Request OMB Control No. 1250-0003 (Recordkeeping and
Reporting Requirements--Supply and Service) have already established
job groups so there are no additional hours associated with
developing job groups.
(2) Separately state the percentage of individuals with
disabilities it employs in each job group. This rule requires
contractors to invite all applicants to self-identify as individuals
with disabilities prior to employment (.42(a) and (b)). The burden
for self-identification is listed at (.42(a) and (b)). Therefore
contractors will know whether their applicants are individuals with
disabilities. In addition, contractors must annually survey its
employees so that any employee may self-identify as an individual
with a disability. The burden hours for the survey are at (.42(c)).
However, burden hours must be assigned to identifying the percentage
of individuals within each job group.
As this is a new requirement, OFCCP estimates that it
will take 60 minutes for contractors to determine whether they have
met the goal the first year, and 30 minutes for all subsequent
years. Therefore, 60 x 171,275 Federal contractors/60 minutes =
171,275 hours.; 30 x 171,275/60 = 85,638 hours.
This task is informed by the results of several other proposed
requirements, including the review of the effectiveness of
contractors' outreach and recruitment efforts required by section
60-741.44(f)(3) and the review of physical and mental job
qualifications required by section 60-741.44(c). The burden and
costs associated with these requirements are listed and discussed
separately.
Action-oriented programs. When the percentage of individuals
with disabilities in one or more job groups is less than the goal
established in paragraph (a) of this section, the contractor must
develop and execute action-oriented programs designed to correct any
identified problems areas. Entering linkage agreements with
recruitment sources is considered action-oriented programs. This
NPRM already requires contractors to enter into 3 linkage
agreements, in order to increase the number of individuals with
disabilities within their workforce. Burden hours have already been
given for these programs under section (.44(f)(1)) and will not be
duplicated for this action.
60-741.60
[squ] .60(a)(3)--Contractor must provide documents to OFCCP on-
site or off-site at OFCCP's request, not at the contractor's option.
These hours not included in burden as they are excepted under 5
CFR 1320.4(a)(2) (``an administrative action, investigation, or
audit involving an agency against specific individuals or
entities'').
[squ] .60(c)--New procedure for pre-award compliance
evaluations.
These hours not included in burden as they are excepted under 5
CFR 1320.4(a)(2) (``an administrative action, investigation, or
audit involving an agency against specific individuals or
entities'').
60-741.80
[squ] See new 5 year recordkeeping requirements in sections
741.44(f)(4) and 741.44(k).
No additional burden hours as they are included in the
individual calculations above.
60-741.81
[squ] Contractor must provide off-site access to documents if
requested by OFCCP. Such records are never requested except during
the course of a specific investigation of a particular contractor.
Consequently, these hours are not included in burden as they are
excepted under 5 CFR 1320.4(a)(2) (``an administrative action,
investigation, or audit involving an agency against specific
individuals or entities'').
[squ] Contractor must specify to OFCCP all formats in which its
records are available.
These hours not included in burden as they are excepted under 5
CFR 1320.4(a)(2) (``an administrative action, investigation, or
audit involving an agency against specific individuals or
entities'').
The Department has submitted a copy of the information
collections associated with this proposed rule to the Office of
Management and Budget (OMB) in accordance with 44 U.S.C. 3507(d) for
review and approval. In addition to filing comments with OFCCP,
interested persons may submit comments about the information
collections, including suggestions for reducing their burden, to the
Office of Information and Regulatory Affairs, OMB, New Executive
Office Building, 725 17th Street NW., Room 10235, Washington, DC
20503. Attention: Desk Officer for DOL/OFCCP. To ensure proper
consideration comments to OMB should reference ICR reference number:
[insert the number from ROCIS when OFCCP creates the package]. Upon
receiving OMB approval of the new information, the Department will
submit non-substantive change requests to OMB Control Numbers 1250-
0001 and 1250-0003 in order to remove regulatory citations for any
information collected purely under the new collection.
[[Page 77082]]
Table 1--Reporting, Recordkeeping, and Third Party Disclosure Burden
----------------------------------------------------------------------------------------------------------------
Section of One-time burden Recurring burden
Burden description proposed hours per hours per Recurring burden
regulation contractor contractor hours per element
----------------------------------------------------------------------------------------------------------------
Contractor must provide Braille, 60-741.5 ................... ................... 10 minutes per
large print, or other versions accommodation
of poster so that visually request. Total
impaired may read the notice Hours 20,175.
themselves (] 4 of EO Clause).
Contractor must state in all 60-741.5 5 minutes per
solicitations and advertisements contractor. Total
that it is an EEO employer of third party
individuals with disabilities (] disclosure burden
7 of EO Clause). [Note: Burden hours 14,273.
is based on one-time action of
adding ``individuals with
disabilities'' to list of
protected groups].
Contractor must cite to EEO 60-741.5 5 minutes per
clause in Federal contracts contractor. Total
using specific text provided by third party
OFCCP (.5(d)) [Note: Burden is disclosure burden
based on one-time action of hours 14,273.
downloading & saving text
provided by OFCCP].
Contractor must invite all 60-741.42 5 minutes per
applicants to self-identify as contractor. Total
individuals with disabilities Hours 14,273.
prior to and subsequent to offer
of employment (.42(a) and (b)).
[Note: Burden is based on one-
time cost of downloading OFCCP-
prescribed mandatory invitation
language].
Contractor must annually survey 60-741.42 5 minutes per ...................
its employees so that any contractor. Total
employee may self-identify as an Hours 14,273.
individual with a disability
(.42(c)). [Note: Burden is based
on one-time cost of downloading
OFCCP-prescribed mandatory
invitation language].
Contractor must maintain self- 60-741.42 ................... 1 minute per ...................
identification data (.42(e)). contractor. Total
Hours 2,855.
Contractor must provide Braille, 60-741.44 ................... ................... 10 minutes per
large print, or other versions accommodation
of AA policy statement so that request. Total
visually impaired may read the Hours 20,175.
notice themselves (.44(a)).
Contractor must review personnel 60-741.44 ................... 30 minutes per 30 minutes per
processes annually, and is contractor accommodation
required to go through a (statement of request. Subtotal
specific analysis for doing so reasons). Subtotal Hours 60,524,
which would include: Providing a Hours 85,638. Total Hours
statement of reasons for 146,162.
rejecting individuals with
disabilities describing the
nature and type of
accommodations for individuals
with disabilities (.44(b)).
Contractor must enter into 60-741.44 ................... Total Hours ...................
linkage agreement with nearest 550,819.
SVRA, one of the organizations
listed in (f)(1), and an
organization listed in the
National Resource Directory
(.44(f)(1)).
Contractor must send written 60-741.44 ................... 5 minutes per ...................
notification of company AAP contractor. Total
policies to subcontractors, third party
vendors, and suppliers disclosure burden
(.44(f)(1)(iii)). hours 14,273.
Contractor must review outreach 60-741.44 ................... 10 minutes per ...................
and recruitment efforts on an contractor (non
annual basis and evaluate their first time
effectiveness; contractor must contractors).
identify and implement further Total Hours 28,260.
outreach efforts if existing
efforts are found ineffective
(.44(f)(3)).
If the contractor is a party to a 60-741.44 ................... 30 minutes per ...................
collective bargaining agreement unionized
it must meet with union contractor. Total
officials to inform them of the third party
policy (.44(g)). disclosure burden
hours 10,533.
Contractor must document internal 60-741.44 ................... 5 minutes per ...................
dissemination efforts in (g) and contractor. Total
retain these documents Hours 14,273.
(.44(g)(4)).
Contractor must document the 60-741.44 ................... 5 minutes per ...................
actions taken to comply with contractor. Total
audit and reporting system and Hours 14,273.
retain these documents (.44(h)).
Contractor must document its 60-741.44 ................... 5 minutes per ...................
training efforts as set forth by contractor. Total
the reg, and maintain these Hours 14,273.
documents (.44(j)).
[[Page 77083]]
Contractor must make several 60-741.44 ................... 60 minutes per ...................
quantitative tabulations and contractor. Total
comparisons using referral data, Hours 171,275.
applicant data, hiring data, and
the number of job openings; and
must maintain these records
(.44(k)).
Contractor is required to develop 60-741.45 ................... 30 minutes per ...................
and implement reasonable contractor. Total
accommodation procedures hours 85,638.
(.45(a)).
Contractor must identify 60-741.45 5 minutes per first
responsible official for time contractor.
reasonable accommodation Total Hours 143.
procedures (.45(b)).
Contractor must disseminate 60-741.45 15 minutes per
reasonable accommodation contractor. Total
procedures (.45(c). Hours 42,819.
Contractor must train managers 60-741.45 ................... 5 minutes per ...................
and supervisors (.45(e)). contractor. Total
Hours 14,273.
Contractor must set hiring goals 60-741.46 5 minutes per 30 minutes per
(.46). contractor contractor
(initial (analysis).
documentation). Subtotal hours
Subtotal Hours 85,638, Total
14,273. hours 271,186.
60 minutes per
contractor (first
year analysis).
Subtotal hours
171,275.
Total Recordkeeping burden 1,425,145
hours.
--------------------------------------------------------------
Total Reporting burden hours.
----------------
Total Third Party burden 53,352
hours.
----------------
Total all hours.............. 1,478,497
----------------------------------------------------------------------------------------------------------------
The estimated annualized cost to respondent contractors is based on
Bureau of Labor Statistics data in the publication ``Employer Costs for
Employee Compensation'' (September 2011), which lists total
compensation for management, professional, and related occupations as
$50.07 per hour and administrative support as $22.67 per hour. OFCCP
estimates that 52% percent of the burden hours will be management,
professional, and related occupations and 48% percent will be
administrative support. We have calculated the total one-time,
recurring, and overall estimated annualized costs as follows:
------------------------------------------------------------------------
------------------------------------------------------------------------
One-Time Costs:
Mgmt. Prof. 285,602 hours x .52 x $50.07 =.......... $7,436,048
Adm. Supp. 285,602 hours x .48 x $22.67 =........... 3,107,807
Operations & Maintenance Cost (see discussion below) 0
---------------
Total cost estimate =........................... 10,543,855
------------------------------------------------------------------------
Estimated average cost per establishment is: 62
$10,543,855/171,275 =..............................
Recurring Costs:
Mgmt. Prof. 1,192,895 hours x .52 x $50.07 =........ 31,058,691
Adm. Supp. 1,192,895 hours x .48 x $22.67 =......... 12,980,606
Operations & Maintenance Cost (see discussion below) 1,820,859
---------------
Total annualized cost estimate =................ 45,860,156
------------------------------------------------------------------------
Estimated average cost per establishment is: $ 268
45,860,156/171,275 =...............................
Total Costs:
Mgmt. Prof. 1,478,497 hours x .52 x $50.07 =........ 38,494,739
Adm. Supp. 1,478,497 hours x .48 x $22.67 =......... 16,088,413
Operations & Maintenance Cost (see discussion below) 1,820,859
---------------
Total annualized cost estimate =................ 56,404,011
------------------------------------------------------------------------
Estimated average cost per establishment is: 329
$56,404,011/171,275 =..............................
------------------------------------------------------------------------
[[Page 77084]]
Operations and Maintenance Costs
OFCCP estimates that the contractor will have some operations and
maintenance costs in addition to the time burden calculated above
associated with this collection.
60-741.5
Contractor must provide the EO poster for review by employees and
applicants, including in alternative formats upon request such as
Braille, large print, or other versions so that visually impaired
individuals may read the notice themselves (] 4 of EO Clause). OFCCP
does not expect the contractor to incur any cost for this element as
the poster may be acquired from OFCCP or, in alternative formats from
EEOC.
60-741.42
OFCCP estimates that the contractor will have some operations and
maintenance cost associated with the invitation to self-identify. The
contractors must invite all applicants with the pre- and post-offer
invitation, and must also survey its employees annually with an
invitation to self-identify. Given the increasingly widespread use of
electronic applications, any contractor that uses such applications
would not incur copy costs. However, to account for contractors who may
still choose to use paper versions, we are including printing and/or
copying costs. Therefore, we estimate 1 page for the pre- and post-
offer invitations printed for 60 applicants per year, and 1 page for
the employee survey invitation printed for 60 employees per year. We
also estimate an average copying cost of .08 cents per page. The
estimated total cost to contractors will be: pre- and post-offer--
171,275 x 1 x 60 x $.08 = $822,120; survey--171,275 x 1 x 60 x $.08 =
$822,120; total cost $822,120 x 2 = $1,644,240
60-741.44
Contractor must provide Braille, large print, or other versions of
AA policy statement so that visually impaired may read the notice
themselves (.44(a)). OFCCP estimates that the contractor will have some
operations and maintenance costs associated with providing the AA
policy statement. We estimate that the cost of an alternative format,
such as Braille or audio, to be $1.00 per contractor. The estimated
total cost to contractors will be: $1.00 x 171,275 federal contractor
establishments = $171,275
60-741.44
Contractor must provide its AAP to OFCCP during a desk audit.
Contractor must provide its AAP to OFCCP during a desk audit. In light
of the increased use of electronic formats and the proposed
requirement, in section 60-741.81, that contractors provide records to
OFCCP in electronic format, where available, we estimate that only 30
percent of contractors will be submitting paper copies of their AAPs.
Given an average copying cost of $.08 per page and an average size of
an AAP of 7 pages, the estimated total copying cost to contractors will
be: 7 pages x $.08 x 1,501 (5,004 FY 2009 Compliance Evaluations--30%)
= $841 In addition, we estimate an average mailing cost of $3.00 per
contractor. The total mailing cost for contractors will be $3.00 x
1,501 = $ 4503. The total estimated costs would be $841+ $4503 = $5,344
Table 3--Operations and Maintenance Costs
------------------------------------------------------------------------
------------------------------------------------------------------------
Contractor must post EO poster for review by 60-741.5 $0
employees and applicants (] 4 of EO Clause)..
Contractor must provide Braille, large print, 60-741.5 0
or other versions of EO poster so that
visually impaired individuals may read the
notice themselves (] 4 of EO Clause).........
Contractor must invite all applicants and 60-741.42 1,644,240
employees to self-identify as an individual
with a disability (.42(a)(b)(c)).............
Contractor must provide Braille, large print, 60-741.44 171,275
or other versions of AA policy statement so
that visually impaired individuals may read
the notice themselves (.44(a))...............
Copying and mailing costs of AAPs (.44)....... 60-741.44 $5,344
-------------------------
Total O&M Costs........................... ........... 1,820,859
------------------------------------------------------------------------
These paperwork burden estimates are summarized as follows:
Type of Review: New collection (Request for new OMB Control
Number).
Agency: Office of Federal Contract Compliance Programs, Department
of Labor.
Title: Disclosures and Recordkeeping Under Affirmative Action and
Nondiscrimination Obligations of Contractors and Subcontractors
Regarding Individuals With Disabilities
OMB ICR Reference Number: [Provide from ROCIS].
Affected Public: Business or other for-profit; individuals.
Estimated Number of Annual Responses: 171,275.
Frequency of Response: On occasion.
Estimated Total Annual Burden Hours: 1,464,224.
Estimated Total Annual Burden Cost (Start-up, capital, operations,
and maintenance): $1,820,859.
Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by Section 804 of the
Small Business Regulatory Enforcement Fairness Act of 1996. This rule
will not result in an annual effect on the economy of $100 million or
more; a major increase in costs or prices; or significant adverse
effects on competition, employment, investment, productivity,
innovation, or on the ability of the United States-based companies to
compete with foreign-based companies in domestic and export markets.
Unfunded Mandates Reform Act of 1995
For purposes of the Unfunded Mandates Reform Act of 1995, 2 U.S.C.
1532, this NPRM does not include any Federal mandate that may result in
excess of $100 million in expenditures by state, local, and tribal
governments in the aggregate or by the private sector.
Executive Order 13132 (Federalism)
OFCCP has reviewed this proposed rule in accordance with Executive
Order 13132 regarding federalism, and has determined that it does not
have ``federalism implications.'' This proposed rule will not ``have
substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government.''
Executive Order 13084 (Consultation and Coordination With Indian Tribal
Governments)
This NPRM does not have tribal implications under Executive Order
13175 that would require a tribal summary impact statement. The NPRM
would not have substantial direct effects
[[Page 77085]]
on one or more Indian tribes, on the relationship between the Federal
government and Indian tribes or on the distribution of power and
responsibilities between the Federal government and Indian tribes.
Executive Order 13045 (Protection of Children)
This NPRM would have no environmental health risk or safety risk
that may disproportionately affect children.
Environmental Impact Assessment
A review of this NPRM in accordance with the requirements of the
National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321 et
seq.; the regulations of the Council on Environmental Quality, 40 CFR
1500 et seq.; and DOL NEPA procedures, 29 CFR part 11, indicates the
NPRM would not have a significant impact on the quality of the human
environment. There is, thus, no corresponding environmental assessment
or an environmental impact statement.
Executive Order 13211 (Energy Supply)
This NPRM is not subject to Executive Order 13211. It will not have
a significant adverse effect on the supply, distribution, or use of
energy.
Executive Order 12630 (Constitutionally Protected Property Rights)
This NPRM is not subject to Executive Order 12630 because it does
not involve implementation of a policy that has takings implications or
that could impose limitations on private property use.
Executive Order 12988 (Civil Justice Reform Analysis)
This NPRM was drafted and reviewed in accordance with Executive
Order 12988 and will not unduly burden the Federal court system. The
NPRM was: (1) Reviewed to eliminate drafting errors and ambiguities;
(2) written to minimize litigation; and (3) written to provide a clear
legal standard for affected conduct and to promote burden reduction.
List of Subjects in 41 CFR Parts 60-741
Administrative practice and procedure, Civil rights, Employment,
Equal employment opportunity, Government contracts, Government
procurement, Individuals with disabilities, Investigations, and
Reporting and recordkeeping requirements.
Patricia A. Shiu,
Director, Office of Federal Contract Compliance Programs.
For the reasons set forth in the preamble, OFCCP proposes to revise
41 CFR part 60-741 to read as follows:
PART 60-741--AFFIRMATIVE ACTION AND NONDISCRIMINATION OBLIGATIONS
OF FEDERAL CONTRACTORS AND SUBCONTRACTORS REGARDING INDIVIDUALS
WITH DISABILITIES
Subpart A--Preliminary Matters, Equal Opportunity Clause
Sec.
60-741.1 Purpose, applicability and construction.
60-741.2 Definitions.
60-741.3 Exceptions to the definitions of ``disability'' and
``qualified individual.''
60-741.4 Coverage and waivers.
60-741.5 Equal opportunity clause.
Subpart B--Discrimination Prohibited
60-741.20 Covered employment activities.
60-741.21 Prohibitions.
60-741.22 Direct threat defense.
60-741.23 Medical examinations and inquiries.
60-741.24 Drugs and alcohol.
60-741.25 Health insurance, life insurance and other benefit plans.
Subpart C--Affirmative Action Program
60-741.40 General purpose and applicability of the affirmative
action program requirement.
60-741.41 Availability of affirmative action program.
60-741.42 Invitation to self-identify.
60-741.43 Affirmative action policy.
60-741.44 Required contents of affirmative action programs.
60-741.45 Reasonable Accommodation Procedures.
60-741.46 Utilization goals.
60-741.47 Providing priority consideration in employment.
60-741.48 Sheltered workshops.
Subpart D--General Enforcement and Complaint Procedures
60-741.60 Compliance evaluations.
60-741.61 Complaint procedures.
60-741.62 Conciliation agreements.
60-741.63 Violations of conciliation agreements.
60-741.64 Show cause notices.
60-741.65 Enforcement proceedings.
60-741.66 Sanctions and penalties.
60-741.67 Notification of agencies.
60-741.68 Reinstatement of ineligible contractors.
60-741.69 Intimidation and interference.
60-741.70 Disputed matters related to compliance with the act.
Subpart E--Ancillary Matters
60-741.80 Recordkeeping.
60-741.81 Access to records.
60-741.82 Labor organizations and recruiting and training agencies.
60-741.83 Rulings and interpretations.
Appendix A to Part 60-741--Guidelines on a Contractor's Duty To Provide
Reasonable Accommodation
Authority: 29 U.S.C. 705 and 793; E.O. 11758 (3 CFR, 1971-1975
Comp., p. 841).
Subpart A--Preliminary Matters, Equal Opportunity Clause
Sec. 60-741.1 Purpose, applicability, and construction.
(a) Purpose. The purpose of this part is to set forth the standards
for compliance with section 503 of the Rehabilitation Act of 1973, as
amended (29 U.S.C. 793), which prohibits discrimination against
individuals with disabilities and requires Government contractors and
subcontractors to take affirmative action to employ and advance in
employment qualified individuals with disabilities.
(b) Applicability. This part applies to all Government contracts
and subcontracts in excess of $10,000 for the purchase, sale or use of
personal property or nonpersonal services (including construction):
Provided, That subpart C of this part applies only as described in
Sec. 60-741.40(a). Compliance by the contractor with the provisions of
this part will not necessarily determine its compliance with other
statutes, and compliance with other statutes will not necessarily
determine its compliance with this part: Provided, That compliance
shall also satisfy the employment provisions of the Department of
Labor's regulations implementing section 504 of the Rehabilitation Act
of 1973 (see 29 CFR 32.2(b)) when the contractor is also subject to
those requirements.
(c) Construction--(1) In general. Except as otherwise provided in
this part, this part does not apply a lesser standard than the
standards applied under title I of the Americans with Disabilities Act
(ADA) of 1990, as amended, (42 U.S.C. 12101 et seq.) or the regulations
issued by the Equal Employment Opportunity Commission pursuant to that
title (29 CFR part 1630). The Interpretive Guidance on Title I of the
Americans with Disabilities Act set out as an appendix to 29 CFR part
1630 issued pursuant to that title may be relied upon for guidance in
interpreting the parallel non-discrimination provisions of this part.
(2) Benefits under State worker's compensation laws. Nothing in
this part alters the standards for determining eligibility for benefits
under State worker's compensation laws or under
[[Page 77086]]
State and Federal disability benefit programs.
(3) Relationship to other laws. This part does not invalidate or
limit the remedies, rights, and procedures under any Federal law or the
law of any State or political subdivision that provides greater or
equal protection for the rights of individuals with disabilities as
compared to the protection afforded by this part. It may be a defense
to a charge of violation of this part that a challenged action is
required or necessitated by another Federal law or regulation, or that
another Federal law or regulation prohibits an action (including the
provision of a particular reasonable accommodation) that would
otherwise be required by this part.
Sec. 60-741.2 Definitions.
For the purpose of this part:
(a) Act means the Rehabilitation Act of 1973, as amended, 29 U.S.C.
706 and 793.
(b) Compliance evaluation means any one or combination of actions
OFCCP may take to examine a Federal contractor's or subcontractor's
compliance with one or more of the requirements of section 503 of the
Rehabilitation Act of 1973.
(c) Contract means any Government contract or subcontract.
(d) Contractor means, unless otherwise indicated, a prime
contractor or subcontractor holding a contract in excess of $10,000.
(e) Direct threat means a significant risk of substantial harm to
the health or safety of the individual or others that cannot be
eliminated or reduced by reasonable accommodation. The determination
that an individual with a disability poses a direct threat shall be
based on an individualized assessment of the individual's present
ability to perform safely the essential functions of the job. This
assessment shall be based on a reasonable medical judgment that relies
on the most current medical knowledge and/or on the best available
objective evidence. In determining whether an individual would pose a
direct threat, the factors to be considered include:
(1) The duration of the risk;
(2) The nature and severity of the potential harm;
(3) The likelihood that the potential harm will occur; and
(4) The imminence of the potential harm.
(f) Director means the Director, Office of Federal Contract
Compliance Programs of the United States Department of Labor, or his or
her designee.
(g) Disability--(1) The term disability means, with respect to an
individual:
(i) A physical or mental impairment that substantially limits one
or more major life activities of such individual;
(ii) A record of such an impairment; or
(iii) Being regarded as having such an impairment (as defined in
paragraph (w) of this section).
(2) As used in this part, the definition of ``disability'' must be
construed in favor of broad coverage of individuals, to the maximum
extent permitted by law. The question of whether an individual meets
the definition under this part should not demand extensive analysis.
(3) An impairment that substantially limits one major life activity
need not limit other major life activities in order to be considered a
disability.
(4) An impairment that is episodic or in remission is a disability
if it would substantially limit a major life activity when active.
(5) See paragraphs (n), (p), (u), (w), and (aa) of this section,
respectively, for definitions of ``major life activities,'' ``physical
or mental impairment,'' ``record of such an impairment,'' ``regarded as
having such an impairment,'' and ``substantially limits.''
(6) See Sec. 60-741.3 for exceptions to the definition of
``disability.''
(h) Equal opportunity clause means the contract provisions set
forth in Sec. 60-741.5, ``Equal opportunity clause.''
(i) Essential functions--(1) In general. The term essential
functions means fundamental job duties of the employment position the
individual with a disability holds or desires. The term essential
functions does not include the marginal functions of the position.
(2) A job function may be considered essential for any of several
reasons, including but not limited to the following:
(i) The function may be essential because the reason the position
exists is to perform that function;
(ii) The function may be essential because of the limited number of
employees available among whom the performance of that job function can
be distributed; and/or
(iii) The function may be highly specialized so that the incumbent
in the position is hired for his or her expertise or ability to perform
the particular function.
(3) Evidence of whether a particular function is essential
includes, but is not limited to:
(i) The contractor's judgment as to which functions are essential;
(ii) Written job descriptions prepared before advertising or
interviewing applicants for the job;
(iii) The amount of time spent on the job performing the function;
(iv) The consequences of not requiring the incumbent to perform the
function;
(v) The terms of a collective bargaining agreement;
(vi) The work experience of past incumbents in the job; and/or
(vii) The current work experience of incumbents in similar jobs.
(j) Government means the Government of the United States of
America.
(k) Government contract means any agreement or modification thereof
between any contracting agency and any person for the purchase, sale or
use of personal property or nonpersonal services (including
construction). The term ``Government contract'' does not include
agreements in which the parties stand in the relationship of employer
and employee, and federally assisted contracts.
(1) Construction, as used in paragraphs (k) and (y)(1) of this
section, means the construction, rehabilitation, alteration,
conversion, extension, demolition, or repair of buildings, highways, or
other changes or improvements to real property, including facilities
providing utility services. The term also includes the supervision,
inspection, and other on-site functions incidental to the actual
construction.
(2) Contracting agency means any department, agency, establishment,
or instrumentality of the United States, including any wholly owned
Government corporation, which enters into contracts.
(3) Modification means any alteration in the terms and conditions
of a contract, including supplemental agreements, amendments, and
extensions.
(4) Nonpersonal services, as used in paragraphs (k) and (y)(1) of
this section, includes, but is not limited to, the following: Utility,
construction, transportation, research, insurance, and fund depository.
(5) Person, as used in paragraphs (k), (q), (v), (y), and (z) of
this section, means any natural person, corporation, partnership or
joint venture, unincorporated association, State or local government,
and any agency, instrumentality, or subdivision of such a government.
(6) Personal property, as used in paragraphs (k) and (y)(1) of this
section, includes supplies and contracts for the use of real property
(such as lease arrangements), unless the contract for the use of real
property itself constitutes real property (such as easements).
[[Page 77087]]
(l) Individual with a disability--See definition of ``disability''
in paragraph (g) of this section.
(m) Linkage agreement means an agreement describing the connection
between contractors and appropriate recruitment and/or training
sources. A linkage agreement is to be used by the contractor as a
source of potential applicants with disabilities, as required in Sec.
60-741.44(f). The contractor's representative that signs the linkage
agreement should be the company official responsible for the
contractor's affirmative action program and/or has hiring authority.
(n) Major life activities--(1) In general. Major life activities
include, but are not limited to, caring for oneself, performing manual
tasks, seeing, hearing, eating, sleeping, walking, standing, sitting,
reaching, lifting, bending, speaking, breathing, learning, reading,
concentrating, thinking, communicating, interacting with others, and
working.
(2) Major bodily functions. For purposes of paragraph (n)(1) of
this section, a major life activity also includes the operation of a
major bodily function, including, but not limited to, functions of the
immune system, special sense organs and skin, normal cell growth,
digestive, genitourinary, bowel, bladder, neurological, brain,
respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic,
musculoskeletal, and reproductive functions. The operation of a major
bodily function includes the operation of an individual organ within a
body system.
(3) In determining other examples of major life activities, the
term ``major'' shall not be interpreted strictly to create a demanding
standard for disability. Whether an activity is a ``major life
activity'' is not determined by reference to whether it is of ``central
importance to daily life.''
(o) Mitigating measures--(1) In general. The term mitigating
measures includes, but is not limited to:
(i) Medication, medical supplies, equipment, or appliances, low-
vision devices (which do not include ordinary eyeglasses or contact
lenses), prosthetics including limbs and devices, hearing aids and
cochlear implants or other implantable hearing devices, mobility
devices, or oxygen therapy equipment and supplies;
(ii) Use of assistive technology;
(iii) Reasonable accommodations or ``auxiliary aids or services''
(as defined by 42 U.S.C. 12103(1));
(iv) Learned behavioral or adaptive neurological modifications; or
(v) Psychotherapy, behavioral therapy, or physical therapy.
(2) Ordinary eyeglasses or contact lenses. The term ordinary
eyeglasses or contact lenses means lenses that are intended to fully
correct visual acuity or to eliminate refractive error.
(3) Low-vision devices. The term low-vision devices means devices
that magnify, enhance, or otherwise augment a visual image, but not
including ordinary eyeglasses or contact lenses.
(4) Auxiliary aids and services. The term auxiliary aids and
services includes--
(i) Qualified interpreters or other effective methods of making
aurally delivered materials available to individuals with hearing
impairments;
(ii) Qualified readers, taped texts, or other effective methods of
making visually delivered materials available to individuals with
visual impairments;
(iii) Acquisition or modification of equipment or devices; and
(iv) Other similar services and actions.
(p) Physical or mental impairment means:
(1) Any physiological disorder, or condition, cosmetic
disfigurement, or anatomical loss affecting one or more body systems
such as neurological, musculoskeletal, special sense organs,
respiratory (including speech organs), cardiovascular, reproductive,
digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin,
and endocrine; or
(2) Any mental or psychological disorder, such as an intellectual
disability (formerly termed mental retardation), organic brain
syndrome, emotional or mental illness, and specific learning
disabilities.
(q) Prime contractor means any person holding a contract in excess
of $10,000, and, for the purposes of subpart D of this part, ``General
Enforcement and Complaint Procedures,'' includes any person who has
held a contract subject to the act.
(r) Qualification standards means the personal and professional
attributes including the skill, experience, education, physical,
medical, safety, and other requirements established by the contractor
as requirements which an individual must meet in order to be eligible
for the position held or desired.
(s) Qualified individual means an individual who satisfies the
requisite skill, experience, education, and other job-related
requirements of the employment position such individual holds or
desires, and who, with or without reasonable accommodation, can perform
the essential functions of such position. See Sec. 60-741.3 for
exceptions to this definition.
(t) Reasonable accommodation--(1) In general. The term reasonable
accommodation means modifications or adjustments:
(i) To a job application process that enable a qualified applicant
with a disability to be considered for the position such applicant
desires; \1\ or
---------------------------------------------------------------------------
\1\ A contractor's duty to provide a reasonable accommodation
with respect to applicants with disabilities is not limited to those
who ultimately demonstrate that they are qualified to perform the
job in issue. Applicants with disabilities must be provided a
reasonable accommodation with respect to the application process if
they are qualified with respect to that process (e.g., if they
present themselves at the correct location and time to fill out an
application).
---------------------------------------------------------------------------
(ii) To the work environment, or to the manner or circumstances
under which the position held or desired is customarily performed, that
enable a qualified individual with a disability to perform the
essential functions of that position; or
(iii) That enable the contractor's employee with a disability to
enjoy equal benefits and privileges of employment as are enjoyed by the
contractor's other similarly situated employees without disabilities.
(2) Reasonable accommodation may include but is not limited to:
(i) Making existing facilities used by employees readily accessible
to and usable by individuals with disabilities; and
(ii) Job restructuring; part-time or modified work schedules;
reassignment to a vacant position; acquisition or modifications of
equipment or devices; appropriate adjustments or modifications of
examinations, training materials, or policies; the provision of
qualified readers or interpreters; and other similar accommodations for
individuals with disabilities.
(3) To determine the appropriate reasonable accommodation it may be
necessary for the contractor to initiate an informal, interactive
process with the qualified individual with a disability in need of the
accommodation.\2\ This process should identify the precise limitations
resulting from the disability and potential reasonable accommodations
that could overcome those limitations. (Appendix A of this part
provides guidance on a contractor's duty to provide reasonable
accommodation.)
---------------------------------------------------------------------------
\2\ Before providing a reasonable accommodation, the contractor
is strongly encouraged to verify with the individual with a
disability that the accommodation will effectively meet the
individual's needs.
---------------------------------------------------------------------------
(4) Individuals who meet the definition of ``disability'' solely
under the ``regarded as'' prong of the definition of ``disability'' as
defined in paragraph (w)(1) of this section are not entitled to receive
reasonable accommodation.
[[Page 77088]]
(u) Record of such impairment means has a history of, or has been
misclassified as having, a mental or physical impairment that
substantially limits one or more major life activities. An individual
shall be considered to have a record of a disability if the individual
has a history of an impairment that substantially limited one or more
major life activities when compared to most people in the general
population, or was misclassified as having had such an impairment.
(v) Recruiting and training agency means any person who refers
workers to any contractor, or who provides or supervises apprenticeship
or training for employment by any contractor.
(w) Regarded as having such an impairment--(1) Except as provided
in paragraph (w)(4) of this section, an individual is ``regarded as
having such an impairment'' if the individual is subjected to an action
prohibited under subpart B (Discrimination Prohibited) of these
regulations because of an actual or perceived physical or mental
impairment, whether or not the impairment substantially limits or is
perceived to substantially limit a major life activity. Prohibited
actions include but are not limited to refusal to hire, demotion,
placement on involuntary leave, termination, exclusion for failure to
meet a qualification standard, harassment, or denial of any other term,
condition, or privilege of employment.
(2) Except as provided in paragraph (w)(4) of this section, an
individual is ``regarded as having such an impairment'' any time a
contractor takes a prohibited action against the individual because of
an actual or perceived impairment, even if the contractor asserts, or
may or does ultimately establish a defense to such action.
(3) Establishing that an individual is ``regarded as having such an
impairment'' does not, by itself, establish liability for unlawful
discrimination in violation of this part. Such liability is established
only when an individual proves that a contractor discriminated on the
basis of disability as prohibited by this part.
(4) Impairments that are transitory and minor. Paragraph (w)(1) of
this section shall not apply to an impairment that is shown by the
contractor to be transitory and minor. The contractor must demonstrate
that the impairment is both ``transitory'' and ``minor.'' Whether the
impairment at issue is or would be ``transitory and ``minor'' is to be
determined objectively. The fact that a contractor subjectively
believed the impairment was transitory and minor is not sufficient to
defeat an individual's coverage under paragraph (w)(1) of this section.
(i) An impairment is transitory if it has an actual or expected
duration of six months or less.
(ii) [Reserved]
(x) Secretary means the Secretary of Labor, United States
Department of Labor, or his or her designee.
(y) Subcontract means any agreement or arrangement between a
contractor and any person (in which the parties do not stand in the
relationship of an employer and an employee):
(1) For the purchase, sale or use of personal property or
nonpersonal services (including construction) which, in whole or in
part, is necessary to the performance of any one or more contracts; or
(2) Under which any portion of the contractor's obligation under
any one or more contracts is performed, undertaken, or assumed.
(z) Subcontractor means any person holding a subcontract in excess
of $10,000 and, for the purposes of subpart D of this part, ``General
Enforcement and Complaint Procedures,'' any person who has held a
subcontract subject to the act.
(aa) Substantially limits--(1) In general. The term ``substantially
limits'' shall be construed broadly in favor of expansive coverage, to
the maximum extent permitted by law. ``Substantially limits'' is not
meant to be a demanding standard and should not demand extensive
analysis.
(i) An impairment is substantially limiting within the meaning of
this section if it substantially limits the ability of an individual to
perform a major life activity as compared to most people in the general
population. An impairment need not prevent, or significantly or
severely restrict, the individual from performing a major life activity
in order to be considered ``substantially limiting.'' Nonetheless, not
every impairment will constitute a disability within the meaning of
this section.
(ii) The comparison of an individual's performance of a major life
activity to the performance of the same major life activity by most
people in the general population usually will not require scientific,
medical, or statistical analysis. However, nothing in this section is
intended to prohibit the presentation of scientific, medical, or
statistical evidence to make such a comparison where appropriate.
(iii) In determining whether an individual is substantially limited
in a major life activity, it may be useful in appropriate cases to
consider, as compared to most people in the general population, the
condition under which the individual performs the major life activity;
the manner in which the individual performs the major life activity;
and/or the duration of time it takes the individual to perform the
major life activity, or for which the individual can perform the major
life activity. This may include consideration of facts such as the
difficulty, effort, or time required to perform a major life activity;
pain experienced when performing a major life activity; the length of
time a major life activity can be performed; and/or the way an
impairment affects the operation of a major bodily function.
(2) Non-applicability to the ``regarded as'' prong. Whether an
individual's impairment substantially limits a major life activity is
not relevant to a determination of whether the individual is regarded
as having a disability within the meaning of Sec. 60-741.2(g)(1)(iii).
(3) Ameliorative effects of mitigating measures. Except as provided
in paragraph (aa)(3)(i) of this section, the determination of whether
an impairment substantially limits a major life activity shall be made
without regard to the ameliorative effects of mitigating measures as
defined in Sec. 60-741.2(o).
(i) The ameliorative effects of the mitigating measures of ordinary
eyeglasses or contact lenses shall be considered when determining
whether an impairment substantially limits a major life activity. See
Sec. 60-741.2(o)(2) for a definition of ``ordinary eyeglasses or
contact lenses.''
(ii) Non-ameliorative effects of mitigating measures. The non-
ameliorative effects of mitigating measures, such as negative side
effects of medication or burdens associated with following a particular
treatment regimen, may be considered when determining whether an
individual's impairment substantially limits a major life activity.
(4) In determining whether an individual is substantially limited
the focus is on how a major life activity is substantially limited, and
not on the outcomes an individual can achieve. For example, someone
with a learning disability may achieve a high level of academic
success, but may nevertheless be substantially limited in the major
life activity of learning because of the additional time or effort he
or she must spend to read, write, or learn compared to most people in
the general population.
(5) Predictable assessments. The determination of whether an
impairment substantially limits a major life activity requires an
individualized
[[Page 77089]]
assessment. However, the principles set forth in this section are
intended to provide for generous coverage through a framework that is
predictable, consistent, and workable for all individuals and
contractors with rights and responsibilities under this part.
Therefore, the individualized assessment of some types of impairments
will, in virtually all cases, result in a determination of coverage
under Sec. Sec. 60-741.2(g)(1)(i) or (ii). Given their inherent
nature, these types of impairments will, as a factual matter, virtually
always be found to impose a substantial limitation on a major life
activity. With respect to these types of impairments, the necessary
individualized assessment should be particularly simple and
straightforward.
(i) Examples of predictable assessments. Applying the principles
set forth in this section it should easily be concluded that the
following types of impairments will, at a minimum, substantially limit
the major life activities indicated: Deafness substantially limits
hearing; blindness substantially limits seeing; an intellectual
disability (formerly termed mental retardation) substantially limits
brain function; partially or completely missing limbs or mobility
impairments requiring the use of a wheelchair substantially limit
musculoskeletal function; autism substantially limits brain function;
cancer substantially limits normal cell growth; cerebral palsy
substantially limits brain function; diabetes substantially limits
endocrine function; epilepsy substantially limits neurological
function; Human Immunodeficiency Virus (HIV) infection substantially
limits immune function; multiple sclerosis (MS) substantially limits
neurological function; muscular dystrophy substantially limits
neurological function; and major depressive disorder, bipolar disorder,
post-traumatic stress disorder (PTSD), obsessive compulsive disorder,
and schizophrenia substantially limit brain function. The types of
impairments described in this section may also substantially limit
additional major life activities not explicitly listed above.
(ii) [Reserved]
(bb) Undue hardship--(1) In general. Undue hardship means, with
respect to the provision of an accommodation, significant difficulty or
expense incurred by the contractor, when considered in light of the
factors set forth in paragraph (bb)(2) of this section.
(2) Factors to be considered. In determining whether an
accommodation would impose an undue hardship on the contractor, factors
to be considered include:
(i) The nature and net cost of the accommodation needed, taking
into consideration the availability of tax credits and deductions, and/
or outside funding;
(ii) The overall financial resources of the facility or facilities
involved in the provision of the reasonable accommodation, the number
of persons employed at such facility, and the effect on expenses and
resources;
(iii) The overall financial resources of the contractor, the
overall size of the business of the contractor with respect to the
number of its employees, and the number, type and location of its
facilities;
(iv) The type of operation or operations of the contractor,
including the composition, structure and functions of the work force of
such contractor, and the geographic separateness and administrative or
fiscal relationship of the facility or facilities in question to the
contractor; and
(v) The impact of the accommodation upon the operation of the
facility, including the impact on the ability of other employees to
perform their duties and the impact on the facility's ability to
conduct business.
(cc) United States, as used herein, shall include the several
States, the District of Columbia, the Virgin Islands, the Commonwealth
of Puerto Rico, Guam, American Samoa, the Commonwealth of the Northern
Mariana Islands, and Wake Island.
Sec. 60-741.3 Exceptions to the definitions of ``disability'' and
``qualified individual.''
(a) Current illegal use of drugs--(1) In general. The terms
``disability'' and ``qualified individual'' do not include individuals
currently engaging in the illegal use of drugs, when the contractor
acts on the basis of such use.
(2) ``Drug'' defined. The term drug means a controlled substance,
as defined in schedules I through V of Section 202 of the Controlled
Substances Act (21 U.S.C. 812).
(3) ``Illegal use of drugs'' defined. The term illegal use of drugs
means the use of drugs, the possession or distribution of which is
unlawful under the Controlled Substances Act, as updated pursuant to
that act. Such term does not include the use of a drug taken under
supervision by a licensed health care professional, or other uses
authorized by the Controlled Substances Act or other provisions of
Federal law.
(4) Construction. (i) Nothing in paragraph (a)(1) of this section
shall be construed to exclude from the definition of disability or
qualified individual an individual who:
(A) Has successfully completed a supervised drug rehabilitation
program and is no longer engaging in the illegal use of drugs, or has
otherwise been rehabilitated successfully and is no longer engaging in
the illegal use of drugs;
(B) Is participating in a supervised rehabilitation program and is
no longer engaging in such use; or
(C) Is erroneously regarded as engaging in such use, but is not
engaging in such use.
(ii) In order to be protected by section 503 and this part, an
individual described in paragraph (a)(4)(i) of this section must, as
appropriate, satisfy the requirements of the definition of disability
and qualified individual.
(5) Drug testing. It shall not be a violation of this part for the
contractor to adopt or administer reasonable policies or procedures,
including but not limited to drug testing, designed to ensure that an
individual described in paragraphs (a)(4)(i)(A) and (B) of this section
is no longer engaging in the illegal use of drugs. (See Sec. 60-
741.24(b)(1).)
(b) Alcoholics--(1) In general. The terms disability and qualified
individual do not include an individual who is an alcoholic whose
current use of alcohol prevents such individual from performing the
essential functions of the employment position such individual holds or
desires or whose employment, by reason of such current alcohol abuse,
would constitute a direct threat to property or to the health or safety
of the individual or others.
(2) Duty to provide reasonable accommodation. Nothing in paragraph
(b)(1) of this section shall relieve the contractor of its obligation
to provide a reasonable accommodation for an individual described in
paragraph (b)(1) of this section when such an accommodation will enable
the individual to perform the essential functions of the employment
position such individual holds or desire, or when the accommodation
will eliminate or reduce the direct threat to the health or safety of
the individual or others posed by such individual, provided that such
individual satisfies the requisite skill, experience, education, and
other job-related requirements of such position.
(c) Contagious disease or infection--(1) In general. The terms
disability and qualified individual do not include an individual who
has a currently contagious disease or infection and who, by reason of
such disease or infection, would constitute a direct threat to the
health or safety of the individual or others or who, by reason
[[Page 77090]]
of the currently contagious disease or infection, is unable to perform
the essential functions of the employment position such individual
holds or desires.
(2) Duty to provide reasonable accommodation. Nothing in paragraph
(c)(1) of this section shall relieve the contractor of its obligation
to provide a reasonable accommodation for an individual described in
paragraph (c)(1) of this section when such an accommodation will enable
the individual to perform the essential functions of the employment
position such individual holds or desires, or when the accommodation
will eliminate or reduce the direct threat to the health or safety of
the individual or others posed by such individual, provided that such
individual satisfies the requisite skill, experience, education, and
other job-related requirements of such position.
(d) Homosexuality and bisexuality. Homosexuality and bisexuality
are not impairments and so are not disabilities as defined in this
part.
(e) Other conditions. The term disability does not include:
(1) Transvestism, transsexualism, pedophilia, exhibitionism,
voyeurism, gender identity disorders not resulting from physical
impairments, or other sexual behavior disorders;
(2) Compulsive gambling, kleptomania, or pyromania; or
(3) Psychoactive substance use disorders resulting from current
illegal use of drugs.
Sec. 60-741.4 Coverage and waivers.
(a) Coverage--(1) Contracts and subcontracts in excess of $10,000.
Contracts and subcontracts in excess of $10,000 are covered by this
part. No contracting agency or contractor shall procure supplies or
services in less than usual quantities to avoid the applicability of
the equal opportunity clause.
(2) Contracts and subcontracts for indefinite quantities. With
respect to indefinite delivery-type contracts and subcontracts
(including, but not limited to, open end contracts, requirement-type
contracts, Federal Supply Schedule contracts, ``call-type'' contracts,
and purchase notice agreements), the equal opportunity clause shall be
included unless the contracting agency has reason to believe that the
amount to be ordered in any year under such contract will not be in
excess of $10,000. The applicability of the equal opportunity clause
shall be determined at the time of award for the first year and
annually thereafter for succeeding years, if any. Notwithstanding the
above, the equal opportunity clause shall be applied to such contract
whenever the amount of a single order exceeds $10,000. Once the equal
opportunity clause is determined to be applicable, the contract shall
continue to be subject to such clause for its duration, regardless of
the amounts ordered, or reasonably expected to be ordered in any year.
(3) Employment activities within the United States. This part
applies only to employment activities within the United States and not
to employment activities abroad. The term employment activities within
the United States includes actual employment within the United States,
and decisions of the contractor made within the United States,
pertaining to the contractor's applicants and employees who are within
the United States, regarding employment opportunities abroad (such as
recruiting and hiring within the United States for employment abroad,
or transfer of persons employed in the United States to contractor
establishments abroad).
(4) Contracts with State or local governments. The requirements of
the equal opportunity clause in any contract or subcontract with a
State or local government (or any agency, instrumentality or
subdivision thereof) shall not be applicable to any agency,
instrumentality or subdivision of such government which does not
participate in work on or under the contract or subcontract.
(b) Waivers--(1) Specific contracts and classes of contracts. The
Director may waive the application to any contract of the equal
opportunity clause in whole or part when he or she deems that special
circumstances in the national interest so require. The Director may
also grant such waivers to groups or categories of contracts: where it
is in the national interest; where it is found impracticable to act
upon each request individually; and where such waiver will
substantially contribute to convenience in administration of the act.
When a waiver has been granted for any class of contracts, the Director
may withdraw the waiver for a specific contract or group of contracts
to be awarded, when in his or her judgment such action is necessary or
appropriate to achieve the purposes of the act. The withdrawal shall
not apply to contracts awarded prior to the withdrawal, except that in
procurements entered into by formal advertising, or the various forms
of restricted formal advertising, such withdrawal shall not apply
unless the withdrawal is made more than 10 calendar days before the
date set for the opening of the bids.
(2) National security. Any requirement set forth in the regulations
of this part shall not apply to any contract whenever the head of the
contracting agency determines that such contract is essential to the
national security and that its award without complying with such
requirements is necessary to the national security. Upon making such a
determination, the head of the contracting agency will notify the
Director in writing within 30 days.
(3) Facilities not connected with contracts. (i) Upon the written
request of the contractor, the Director may waive the requirements of
the equal opportunity clause with respect to any of a contractor's
facilities if the Director finds that the contractor has demonstrated
that:
(A) The facility is in all respects separate and distinct from
activities of the contractor related to the performance of a contract;
and
(B) Such a waiver will not interfere with or impede the
effectuation of the act.
(ii) The Director's findings as to whether the facility is separate
and distinct in all respects from activities of the contractor related
to the performance of a contract shall include consideration of the
following factors:
(A) Whether any work at the facility directly or indirectly
supports or contributes to the satisfaction of the work performed on a
Government contract;
(B) The extent to which the facility benefits, directly or
indirectly, from a Government contract;
(C) Whether any costs associated with operating the facility are
charged to a Government contract;
(D) Whether working at the facility is a prerequisite for
advancement in job responsibility or pay, and the extent to which
employees at facilities connected to a Government contract are
recruited for positions at the facility;
(E) Whether employees or applicants for employment at the facility
may perform work related to a Government contract at another facility,
and the extent to which employees at the facility are interchangeable
with employees at facilities connected to a Government contract; and
(F) Such other factors that the Director deems are necessary or
appropriate for considering whether the facility is in all respects
separate and distinct from the activities of the contractor related to
the performance of a contract.
(iii) The Director's findings as to whether granting a waiver will
interfere with or impede the effectuation of the act shall include
consideration of the following factors:
[[Page 77091]]
(A) Whether the waiver will be used as a subterfuge to circumvent
the contractor's obligations under the act;
(B) The contractor's compliance with the act or any other Federal,
State or local law requiring equal opportunity for disabled persons;
(C) The impact of granting the waiver on OFCCP enforcement efforts;
and
(D) Such other factors that the Director deems are necessary or
appropriate for considering whether the granting of the waiver would
interfere with or impede the effectuation of the act.
(iv) A contractor granted a waiver under paragraph (b)(3) of this
section shall:
(A) Promptly inform the Director of any changed circumstances not
reflected in the contractor's waiver request; and
(B) Permit the Director access during normal business hours to the
contractor's places of business for the purpose of investigating
whether the facility granted a waiver meets the standards and
requirements of paragraph (b)(3) of this section, and for inspecting
and copying such books and accounts and records, including computerized
records, and other material as may be relevant to the matter under
investigation.
(v)(A) A waiver granted under paragraph (b)(3) of this section
shall terminate on one of the following dates, whichever is earliest:
(1) Two years after the date the waiver was granted.
(2) When the facility performs any work that directly supports or
contributes to the satisfaction of the work performed on a Government
contract.
(3) When the Director determines, based on information provided by
the contractor under this section or upon any other relevant
information, that the facility does not meet the requirements of
paragraph (b)(3) of this section.
(B) When a waiver terminates in accordance with paragraph
(b)(3)(v)(A) of this section the contractor shall ensure that the
facility complies with this part on the date of termination, except
that compliance with Sec. Sec. 60-741.40 through 60-741.45, if
applicable, must be attained within 120 days of such termination.
(vi) False or fraudulent statements or representations made by a
contractor under paragraph (b)(3) of this section are prohibited and
may subject the contractor to sanctions and penalties under this part
and criminal prosecution under 18 U.S.C. 1001.
Sec. 60-741.5 Equal opportunity clause.
(a) Government contracts. Each contracting agency and each
contractor shall include the following equal opportunity clause in each
of its covered Government contracts or subcontracts (and modifications,
renewals, or extensions thereof if not included in the original
contract):
EQUAL OPPORTUNITY FOR WORKERS WITH DISABILITIES
1. The contractor will not discriminate against any employee or
applicant for employment because of physical or mental disability in
regard to any position for which the employee or applicant for
employment is qualified. The contractor agrees to take affirmative
action to employ and advance in employment individuals with
disabilities, and to treat qualified individuals without
discrimination on the basis of their physical or mental disability
in all employment practices, including the following:
i. Recruitment, advertising, and job application procedures;
ii. Hiring, upgrading, promotion, award of tenure, demotion,
transfer, layoff, termination, right of return from layoff and
rehiring;
iii. Rates of pay or any other form of compensation and changes
in compensation;
iv. Job assignments, job classifications, organizational
structures, position descriptions, lines of progression, and
seniority lists;
v. Leaves of absence, sick leave, or any other leave;
vi. Fringe benefits available by virtue of employment, whether
or not administered by the contractor;
vii. Selection and financial support for training, including
apprenticeship, professional meetings, conferences, and other
related activities, and selection for leaves of absence to pursue
training;
viii. Activities sponsored by the contractor including social or
recreational programs; and
ix. Any other term, condition, or privilege of employment.
2. The contractor agrees to comply with the rules, regulations,
and relevant orders of the Secretary of Labor issued pursuant to the
act.
3. In the event of the contractor's noncompliance with the
requirements of this clause, actions for noncompliance may be taken
in accordance with the rules, regulations, and relevant orders of
the Secretary of Labor issued pursuant to the act.
4. The contractor agrees to post in conspicuous places,
available to employees and applicants for employment, notices in a
form to be prescribed by the Director, Office of Federal Contract
Compliance Programs, provided by or through the contracting officer.
Such notices shall state the rights of applicants and employees as
well as the contractor's obligation under the law to take
affirmative action to employ and advance in employment qualified
employees and applicants with disabilities. The contractor must
ensure that applicants or employees with disabilities are provided
the notice in a form that is accessible and understandable to the
individual applicant or employee (e.g., providing Braille or large
print versions of the notice, or posting a copy of the notice at a
lower height for easy viewing by a person using a wheelchair). With
respect to employees who do not work at a physical location of the
contractor, a contractor will satisfy its posting obligations by
posting such notices in an electronic format, provided that the
contractor provides computers that can access the electronic posting
to such employees, or the contractor has actual knowledge that such
employees otherwise are able to access the electronically posted
notices. Electronic notices for employees must be posted in a
conspicuous location and format on the company's intranet or sent by
electronic mail to employees. An electronic posting must be used by
the contractor to notify job applicants of their rights if the
contractor utilizes an electronic application process. Such
electronic applicant notice must be conspicuously stored with, or as
part of, the electronic application.
5. The contractor will notify each labor organization or
representative of workers with which it has a collective bargaining
agreement or other contract understanding, that the contractor is
bound by the terms of section 503 of the Rehabilitation Act of 1973,
as amended, and is committed to take affirmative action to employ
and advance in employment, and shall not discriminate against,
individuals with physical or mental disabilities.
6. The contractor will include the provisions of this clause in
every subcontract or purchase order in excess of $10,000, unless
exempted by the rules, regulations, or orders of the Secretary
issued pursuant to section 503 of the act, as amended, so that such
provisions will be binding upon each subcontractor or vendor. The
contractor will take such action with respect to any subcontract or
purchase order as the Director, Office of Federal Contract
Compliance Programs may direct to enforce such provisions, including
action for noncompliance.
7. The contractor must, in all solicitations or advertisements
for employees placed by or on behalf of the contractor, state that
all qualified applicants will receive consideration for employment
and will not be discriminated against on the basis of disability.
[End of Clause]
(b) Subcontracts. Each contractor shall include the equal
opportunity clause in each of its subcontracts subject to this part.
(c) Adaption of language. Such necessary changes in language may be
made to the equal opportunity clause as shall be appropriate to
identify properly the parties and their undertakings.
(d) Inclusion of the equal opportunity clause in the contract. It
shall be necessary to include the equal opportunity clause verbatim in
the contract.
(e) Incorporation by operation of the act. By operation of the act,
the equal opportunity clause shall be considered to be a part of every
contract and subcontract required by the act and the
[[Page 77092]]
regulations in this part to include such a clause, whether or not it is
physically incorporated in such contract and whether or not there is a
written contract between the agency and the contractor.
(f) Duties of contracting agencies. Each contracting agency shall
cooperate with the Director and the Secretary in the performance of
their responsibilities under the act. Such cooperation shall include
insuring that the equal opportunity clause is included in all covered
Government contracts and that contractors are fully informed of their
obligations under the act and this part, providing the Director with
any information which comes to the agency's attention that a contractor
is not in compliance with the act or this part, responding to requests
for information from the Director, and taking such actions for
noncompliance as are set forth in Sec. 60-741.66 as may be ordered by
the Secretary or the Director.
Subpart B--Discrimination Prohibited
Sec. 60-741.20 Covered employment activities.
The prohibition against discrimination in this part applies to the
following employment activities:
(a) Recruitment, advertising, and job application procedures;
(b) Hiring, upgrading, promotion, award of tenure, demotion,
transfer, layoff, termination, right of return from layoff, and
rehiring;
(c) Rates of pay or any other form of compensation and changes in
compensation;
(d) Job assignments, job classifications, organizational
structures, position descriptions, lines of progression, and seniority
lists;
(e) Leaves of absence, sick leave, or any other leave;
(f) Fringe benefits available by virtue of employment, whether or
not administered by the contractor;
(g) Selection and financial support for training, including
apprenticeships, professional meetings, conferences and other related
activities, and selection for leaves of absence to pursue training;
(h) Activities sponsored by the contractor including social and
recreational programs; and
(i) Any other term, condition, or privilege of employment.
Sec. 60-741.21 Prohibitions.
(a) The term discrimination includes, but is not limited to, the
acts described in this section and Sec. 60-741.23.
(1) Disparate treatment. It is unlawful for the contractor to deny
an employment opportunity or benefit or otherwise to discriminate
against a qualified individual on the basis of disability.
(2) Limiting, segregating and classifying. Unless otherwise
permitted by this part, it is unlawful for the contractor to limit,
segregate, or classify a job applicant or employee in a way that
adversely affects his or her employment opportunities or status on the
basis of disability. For example, the contractor may not segregate
employees into separate work areas or into separate lines of
advancement on the basis of disability.
(3) Contractual or other arrangements--(i) In general. It is
unlawful for the contractor to participate in a contractual or other
arrangement or relationship that has the effect of subjecting the
contractor's own qualified applicant or employee with a disability to
the discrimination prohibited by this part.
(ii) Contractual or other arrangement defined. The phrase
contractual or other arrangement or relationship includes, but is not
limited to, a relationship with: An employment or referral agency; a
labor organization, including a collective bargaining agreement; an
organization providing fringe benefits to an employee of the
contractor; or an organization providing training and apprenticeship
programs.
(iii) Application. This paragraph (a)(3) applies to the contractor,
with respect to its own applicants or employees, whether the contractor
offered the contract or initiated the relationship, or whether the
contractor accepted the contract or acceded to the relationship. The
contractor is not liable for the actions of the other party or parties
to the contract which only affect that other party's employees or
applicants.
(4) Standards, criteria or methods of administration. It is
unlawful for the contractor to use standards, criteria, or methods of
administration, that are not job-related and consistent with business
necessity, and that:
(i) Have the effect of discriminating on the basis of disability;
or
(ii) Perpetuate the discrimination of others who are subject to
common administrative control.
(5) Relationship or association with an individual with a
disability. It is unlawful for the contractor to exclude or deny equal
jobs or benefits to, or otherwise discriminate against, a qualified
individual because of the known disability of an individual with whom
the qualified individual is known to have a family, business, social,
or other relationship or association.
(6) Not making reasonable accommodation. (i) It is unlawful for the
contractor to fail to make reasonable accommodation to the known
physical or mental limitations of an otherwise qualified applicant or
employee with a disability as defined in Sec. Sec. 60-741.2(g)(1)(i)
or (ii), unless such contractor can demonstrate that the accommodation
would impose an undue hardship on the operation of its business.
(ii) It is unlawful for the contractor to deny employment
opportunities to an otherwise qualified job applicant or employee with
a disability based on the need of such contractor to make reasonable
accommodation to such an individual's physical or mental impairments.
(iii) A qualified individual with a disability is not required to
accept an accommodation, aid, service, opportunity, or benefit which
such qualified individual chooses not to accept. However, if such
individual rejects a reasonable accommodation, aid, service,
opportunity or benefit that is necessary to enable the individual to
perform the essential functions of the position held or desired, and
cannot, as a result of that rejection, perform the essential functions
of the position, the individual will not be considered a qualified
individual with a disability.
(iv) A contractor is not required to provide reasonable
accommodation to an individual who satisfies only the ``regarded as
having such an impairment'' prong of the definition of ``disability,''
as defined in Sec. 60-741.2(w)(1).
(7) Qualification standards, tests and other selection criteria--
(i) In general. It is unlawful for the contractor to use qualification
standards, employment tests, or other selection criteria that screen
out or tend to screen out an individual with a disability or a class of
individuals with disabilities, on the basis of disability, unless the
standard, test, or other selection criterion, as used by the
contractor, is shown to be job-related for the position in question and
is consistent with business necessity. Selection criteria that concern
an essential function may not be used to exclude an individual with a
disability if that individual could satisfy the criteria with provision
of a reasonable accommodation. Selection criteria that exclude or tend
to exclude an individual with a disability or a class of individuals
with disabilities on the basis of disability but concern only marginal
functions of the job would not be consistent with business necessity.
The contractor may not refuse to hire an applicant with a disability
because the applicant's disability prevents him or her from performing
marginal functions.
[[Page 77093]]
(ii) Qualification standards and tests related to uncorrected
vision. It is unlawful for the contractor to use qualification
standards, employment tests, or other selection criteria based on an
individual's uncorrected vision unless the standard, test, or other
selection criteria, as used by the contractor, is shown to be job-
related for the position in question and consistent with business
necessity. An individual challenging a contractor's application of a
qualification standard, test, or other criterion based on uncorrected
vision need not be an individual with a disability, but must be
adversely affected by the application of the standard, test, or other
criterion.
(iii) The Uniform Guidelines on Employee Selection Procedures, 41
CFR part 60-3, do not apply to the Rehabilitation Act and are similarly
inapplicable to this part.
(8) Administration of tests. It is unlawful for the contractor to
fail to select and administer tests concerning employment in the most
effective manner to ensure that, when a test is administered to a job
applicant or employee who has a disability that impairs sensory,
manual, or speaking skills, the test results accurately reflect the
skills, aptitude, or whatever other factor of the applicant or employee
that the test purports to measure, rather than reflecting the impaired
sensory, manual, or speaking skills of such employee or applicant,
except where such skills are the factors that the test purports to
measure.
(9) Compensation. In offering employment or promotions to
individuals with disabilities, it is unlawful for the contractor to
reduce the amount of compensation offered because of any income based
upon a disability-related pension or other disability-related benefit
the applicant or employee receives from another source. Nor may the
contractor reduce the amount of compensation offered to an individual
with a disability because of the actual or anticipated cost of a
reasonable accommodation the individual needs or may request.
(b) Claims of No Disability. Nothing in this part shall provide the
basis for a claim that an individual without a disability was subject
to discrimination because of the lack of disability, or because an
individual with a disability was granted an accommodation that was
denied to an individual without a disability.
Sec. 60-741.22 Direct threat defense.
The contractor may use as a qualification standard the requirement
that an individual be able to perform the essential functions of the
position held or desired without posing a direct threat to the health
or safety of the individual or others in the workplace. (See Sec. 60-
741.2(e) defining direct threat.)
Sec. 60-741.23 Medical examinations and inquiries.
(a) Prohibited medical examinations or inquiries. Except as stated
in paragraphs (b) and (c) of this section, it is unlawful for the
contractor to require a medical examination of an applicant or employee
or to make inquiries as to whether an applicant or employee is an
individual with a disability or as to the nature or severity of such
disability.
(b) Permitted medical examinations and inquiries--(1) Acceptable
pre-employment inquiry. The contractor may make pre-employment
inquiries into the ability of an applicant to perform job-related
functions, and/or may ask an applicant to describe or to demonstrate
how, with or without reasonable accommodation, the applicant will be
able to perform job-related functions.
(2) Employment entrance examination. The contractor may require a
medical examination (and/or inquiry) after making an offer of
employment to a job applicant and before the applicant begins his or
her employment duties, and may condition an offer of employment on the
results of such examination (and/or inquiry), if all entering employees
in the same job category are subjected to such an examination (and/or
inquiry) regardless of disability.
(3) Examination of employees. The contractor may require a medical
examination (and/or inquiry) of an employee that is job-related and
consistent with business necessity. The contractor may make inquiries
into the ability of an employee to perform job-related functions.
(4) Other acceptable examinations and inquiries. The contractor may
conduct voluntary medical examinations and activities, including
voluntary medical histories, which are part of an employee health
program available to employees at the work site. These medical
examinations and activities do not have to be job-related and
consistent with business necessity.
(5) Medical examinations conducted in accordance with paragraph
(b)(2) of this section do not have to be job-related and consistent
with business necessity. However, if certain criteria are used to
screen out an applicant or applicants or an employee or employees with
disabilities as a result of such examinations or inquiries, the
contractor must demonstrate that the exclusionary criteria are job-
related and consistent with business necessity, and that performance of
the essential job functions cannot be accomplished with reasonable
accommodations as required in this part.
(c) Invitation to self-identify. The contractor shall invite the
applicant to self-identify as an individual with a disability as
specified in Sec. 60-741.42.
(d) Confidentiality and use of medical information. (1) Information
obtained under this section regarding the medical condition or history
of any applicant or employee shall be collected and maintained on
separate forms and in separate medical files and treated as a
confidential medical record, except that:
(i) Supervisors and managers may be informed regarding necessary
restrictions on the work or duties of the applicant or employee and
necessary accommodations;
(ii) First aid and safety personnel may be informed, when
appropriate, if the disability might require emergency treatment; and
(iii) Government officials engaged in enforcing the laws
administered by OFCCP, including this part, or enforcing the Americans
with Disabilities Act, as amended, shall be provided relevant
information on request.
(2) Information obtained under this section regarding the medical
condition or history of any applicant or employee shall not be used for
any purpose inconsistent with this part.
Sec. 60-741.24 Drugs and alcohol.
(a) Specific activities permitted. The contractor:
(1) May prohibit the illegal use of drugs and the use of alcohol at
the workplace by all employees;
(2) May require that employees not be under the influence of
alcohol or be engaging in the illegal use of drugs at the workplace;
(3) May require that all employees behave in conformance with the
requirements established under the Drug-Free Workplace Act of 1988 (41
U.S.C. 701 et seq.);
(4) May hold an employee who engages in the illegal use of drugs or
who is an alcoholic to the same qualification standards for employment
or job performance and behavior to which the contractor holds its other
employees, even if any unsatisfactory performance or behavior is
related to the employee's drug use or alcoholism;
(5) May require that its employees employed in an industry subject
to such regulations comply with the standards established in the
regulations (if any) of the Departments of Defense and Transportation,
and of the Nuclear
[[Page 77094]]
Regulatory Commission, and other Federal agencies regarding alcohol and
the illegal use of drugs; and
(6) May require that employees employed in sensitive positions
comply with the regulations (if any) of the Departments of Defense and
Transportation, and of the Nuclear Regulatory Commission, and other
Federal agencies that apply to employment in sensitive positions
subject to such regulations.
(b) Drug testing--(1) General policy. For purposes of this part, a
test to determine the illegal use of drugs is not considered a medical
examination. Thus, the administration of such drug tests by the
contractor to its job applicants or employees is not a violation of
Sec. 60-741.23. Nothing in this part shall be construed to encourage,
prohibit, or authorize the contractor to conduct drug tests of job
applicants or employees to determine the illegal use of drugs or to
make employment decisions based on such test results.
(2) Transportation employees. Nothing in this part shall be
construed to encourage, prohibit, or authorize the otherwise lawful
exercise by contractors subject to the jurisdiction of the Department
of Transportation of authority to test employees in, and applicants
for, positions involving safety-sensitive duties for the illegal use of
drugs or for on-duty impairment by alcohol; and remove from safety-
sensitive positions persons who test positive for illegal use of drugs
or on-duty impairment by alcohol pursuant to paragraph (b)(1) of this
section.
(3) Any information regarding the medical condition or history of
any employee or applicant obtained from a test to determine the illegal
use of drugs, except information regarding the illegal use of drugs, is
subject to the requirements of Sec. Sec. 60-741.23(b)(5) and (c).
Sec. 60-741.25 Health insurance, life insurance, and other benefit
plans.
(a) An insurer, hospital, or medical service company, health
maintenance organization, or any agent or entity that administers
benefit plans, or similar organizations may underwrite risks, classify
risks, or administer such risks that are based on or not inconsistent
with State law.
(b) The contractor may establish, sponsor, observe, or administer
the terms of a bona fide benefit plan that are based on underwriting
risks, classifying risks, or administering such risks that are based on
or not inconsistent with State law.
(c) The contractor may establish, sponsor, observe, or administer
the terms of a bona fide benefit plan that is not subject to State laws
that regulate insurance.
(d) The contractor may not deny an individual with a disability
equal access to insurance or subject an individual with a disability to
different terms or conditions of insurance based on disability alone,
if the disability does not pose increased risks.
(e) The activities described in paragraphs (a), (b), and (c) of
this section are permitted unless these activities are used as a
subterfuge to evade the purposes of this part.
Subpart C--Affirmative Action Program
Sec. 60-741.40 General purpose and applicability of the affirmative
action program requirement.
(a) General purpose. An affirmative action program is a management
tool designed to ensure equal employment opportunity and foster
employment opportunities for individuals with disabilities. An
affirmative action program institutionalizes the contractor's
commitment to equality in every aspect of employment and is more than a
paperwork exercise. Rather, an affirmative action program is dynamic in
nature and includes measurable objectives, quantitative analyses, and
internal auditing and reporting systems that measure the contractor's
progress toward achieving equal employment opportunity for individuals
with disabilities.
(b) Applicability of the affirmative action program. (1) The
requirements of this subpart apply to every Government contractor that
has 50 or more employees and a contract of $50,000 or more.
(2) Contractors described in paragraph (b)(1) of this section
shall, within 120 days of the commencement of a contract, prepare and
maintain an affirmative action program at each establishment. The
affirmative action program shall set forth the contractor's policies
and procedures in accordance with this part. This program may be
integrated into or kept separate from other affirmative action
programs.
(3) The affirmative action program shall be reviewed and updated
annually by the official designated by the contractor pursuant to Sec.
60-741.44(i).
(c) Submission of program to OFCCP. The contractor shall submit the
affirmative action program within 30 days of a request from OFCCP,
unless the request provides for a different time. The contractor also
shall make the affirmative action program promptly available on-site
upon OFCCP's request.
Sec. 60-741.41 Availability of affirmative action program.
The full affirmative action program shall be available to any
employee or applicant for employment for inspection upon request. The
location and hours during which the program may be obtained shall be
posted at each establishment. In the event that the contractor has
employees who do not work at a physical establishment, the contractor
shall inform such employees about the availability of the affirmative
action program by other means.
Sec. 60-741.42 Invitation to self-identify.
(a) Pre-offer. (1) As part of the contractor's affirmative action
obligation, the contractor shall invite applicants to inform the
contractor whether the applicant believes that he or she is an
individual with a disability as defined in Sec. 60-741.2(g)(i) or (ii)
of this part. This invitation shall be provided to each applicant when
the applicant applies or is considered for employment, whichever comes
first. The invitation may be included in the application materials for
a position, but must be separable or detachable from the application.
(2) The contractor shall invite an applicant to self-identify as
required in paragraph (a) of this section using the language and manner
prescribed by the Director and published on the OFCCP Web site.
(b) Post-offer. (1) At any time after the offer of employment, but
before the applicant begins his or her job duties, the contractor shall
invite the applicant to inform the contractor whether the applicant
believes that he or she is an individual with a disability as defined
in Sec. 60-741.2(g)(i) or (ii) of this part.
(2) The contractor shall invite an applicant to self-identify as
required in paragraph (b) of this section using the language and manner
prescribed by the Director and published on the OFCCP Web site.
(c) Survey of employees. The contractor shall invite each of its
employees to inform the contractor, in an anonymous manner, whether he
or she believes themselves to be an individual with a disability as
defined in Sec. 60-741.2(g)(i) or (ii) of this part. This survey shall
be conducted annually, using the language and manner prescribed by the
Director and published on the OFCCP Web site.
(d) The contractor may not compel or coerce an individual to self-
identify as an individual with a disability.
(e) The contractor shall keep all information on self-
identification confidential, and shall maintain it in a data analysis
file (rather than in the
[[Page 77095]]
medical files of individual employees) in accordance with Sec. 60-
741.23(d). The contractor shall provide self-identification information
to OFCCP upon request. Self-identification information may be used only
in accordance with this part.
(f) Nothing in this section shall relieve the contractor of its
obligation to take affirmative action with respect to those applicants
or employees of whose disability the contractor has knowledge.
(g) Nothing in this section shall relieve the contractor from
liability for discrimination in violation of section 503 or this part.
Sec. 60-741.43 Affirmative action policy.
Under the affirmative action obligations imposed by the act,
contractors shall not discriminate because of physical or mental
disability and shall take affirmative action to employ and advance in
employment qualified individuals with disabilities at all levels of
employment, including the executive level. Such action shall apply to
all employment activities set forth in Sec. 60-741.20.
Sec. 60-741.44 Required contents of affirmative action programs.
Acceptable affirmative action programs shall contain, but not
necessarily be limited to the following elements:
(a) Policy statement. The contractor shall include an equal
opportunity policy statement in its affirmative action program, and
shall post the policy statement on company bulletin boards. The
contractor must ensure that applicants and employees with disabilities
are provided the notice in a form that is accessible and understandable
to the individual with a disability (e.g., providing Braille or large
print versions of the notice, or posting a copy of the notice at a
lower height for easy viewing by a person using a wheelchair). The
policy statement shall indicate the chief executive officer's support
for the contractor's affirmative action program, provide for an audit
and reporting system (see paragraph (h) of this section) and assign
overall responsibility for the implementation of affirmative action
activities required under this part (see paragraph (i) of this
section). Additionally, the policy shall state, among other things that
the contractor will: Recruit, hire, train, and promote persons in all
job titles, and ensure that all other personnel actions are
administered without regard to disability; and ensure that all
employment decisions are based only on valid job requirements. The
policy shall state that employees and applicants shall not be subjected
to harassment, intimidation, threats, coercion, or discrimination
because they have engaged in or may engage in any of the following
activities:
(1) Filing a complaint;
(2) Assisting or participating in an investigation, compliance
evaluation, hearing, or any other activity related to the
administration of section 503 or any other Federal, State, or local law
requiring equal opportunity for individuals with disabilities;
(3) Opposing any act or practice made unlawful by section 503 or
its implementing regulations in this part, or any other Federal, State
or local law requiring equal opportunity for individuals with
disabilities; or
(4) Exercising any other right protected by section 503 or its
implementing regulations in this part.
(b) Review of personnel processes. The contractor must ensure that
its personnel processes provide for careful, thorough, and systematic
consideration of the job qualifications of applicants and employees
with known disabilities for job vacancies filled either by hiring or
promotion, and for all training opportunities offered or available. The
contractor shall ensure that its personnel processes do not stereotype
individuals with disabilities in a manner which limits their access to
all jobs for which they are qualified. In addition, the contractor
shall ensure that its use of information and communication technology
is accessible to applicants and employees with disabilities.\3\ The
contractor shall review such processes on at least an annual basis and
make any necessary modifications to ensure that these obligations are
carried out. A description of the review and any necessary
modifications to personnel processes or development of new processes
shall be included in any affirmative action programs required under
this part. The contractor must design procedures that facilitate a
review of the implementation of this requirement by the contractor and
the Government. These procedures shall, at a minimum, include the
following steps:
---------------------------------------------------------------------------
\3\ There are a variety of resources that may assist contractors
in assessing and ensuring the accessibility of its information and
communication technology. These include the Web Content
Accessibility Guidelines (WCAG 2.0) of the World Wide Web Consortium
Web Accessibility Initiative, online at http://www.w3.org/WAI/intro/wcag.php, and the regulations implementing the accessibility
requirements for federal agencies prescribed in section 508 of the
Rehabilitation Act. Information on section 508 may be found online
at http://www.section508.gov/index.cfm. This web site also provides
information about various State accessibility requirements and
initiatives.
---------------------------------------------------------------------------
(1) For each applicant with a disability, the contractor must be
able to identify:
(i) Each vacancy for which the applicant was considered; and
(ii) Each training program for which the applicant was considered.
(2) For each employee who is an individual with a disability, the
contractor must be able to identify:
(i) Each promotion for which the employee was considered; and
(ii) Each training program for which the employee was considered.
(3) In each case where an applicant or employee who is an
individual with a disability is rejected for employment, promotion or
training, the contractor shall prepare a statement of the reason as
well as a description of any accommodation considered. The statement of
the reason for rejection (if the reason is medically related), and the
description of accommodation(s) considered, shall be treated as
confidential medical records in accordance with Sec. 60-741.23(d).
These materials shall be available to the applicant or employee
concerned upon request.
(4) Where applicants or employees are selected for hire, promotion,
or training and the contractor undertakes any accommodation which makes
it possible to place an individual with a disability on the job, the
contractor shall make a record containing a description of the
accommodation. The record shall be treated as a confidential medical
record in accordance with Sec. 60-741.23(d).
(c) Physical and mental qualifications. (1) The contractor shall
provide in its affirmative action program, and shall adhere to a
schedule for the annual review of all physical and mental job
qualification standards to ensure that, to the extent qualification
standards tend to screen out individuals on the basis of disability,
they are job-related for the position in question and are consistent
with business necessity. The contractor shall document the methods used
to complete the annual review, the results of the annual review, and
any actions taken in response. These documents shall be retained as
employment records subject to the recordkeeping requirements of Sec.
60-741.80.
(2) Whenever the contractor applies physical or mental
qualification standards in the selection of applicants or employees for
employment or other change in employment status such as promotion,
demotion, or training, to the extent that qualification standards tend
to screen out individuals on the basis of
[[Page 77096]]
disability, the standards shall be related to the specific job or jobs
for which the individual is being considered and consistent with
business necessity. The contractor has the burden to demonstrate that
it has complied with the requirements of paragraph (c)(2) of this
section.
(3) The contractor may use as a defense to an allegation of a
violation of paragraph (c)(2) of this section that an individual poses
a direct threat to the health or safety of the individual or others in
the workplace. (See Sec. 60-741.2(e) defining direct threat.) Once the
contractor believes that a direct threat exists, the contractor shall
create a statement of reasons supporting its belief, addressing each of
the criteria for ``direct threat'' listed in Sec. 60-741.2(e). This
statement shall be treated as a confidential medical record in
accordance with Sec. 60-741.23(d), and shall be retained as an
employment record subject to the recordkeeping requirements of Sec.
60-741.80.
(d) Reasonable accommodation to physical and mental limitations. As
is provided in Sec. 60-741.21(a)(6), as a matter of nondiscrimination,
the contractor must make reasonable accommodation to the known physical
or mental limitations of an otherwise qualified individual with a
disability unless it can demonstrate that the accommodation would
impose an undue hardship on the operation of its business. As a matter
of affirmative action, the contractor must ensure that its electronic
or online job application systems are compatible with assistive
technology commonly used by individuals with disabilities, such as
screen reading and speech recognition software. Also as a matter of
affirmative action, if an employee with a known disability is having
significant difficulty performing his or her job and it is reasonable
to conclude that the performance problem may be related to the known
disability, the contractor shall confidentially notify the employee of
the performance problem and inquire whether the problem is related to
the employee's disability. If the employee responds affirmatively, the
contractor shall confidentially inquire whether the employee is in need
of a reasonable accommodation.
(e) Harassment. The contractor must develop and implement
procedures to ensure that its employees are not harassed on the basis
of disability.
(f) External dissemination of policy, outreach, and positive
recruitment. (1) Required outreach efforts. The contractor shall
undertake the outreach and positive recruitment activities listed
below:
(i) The contractor shall promptly list all employment openings with
the Employment One-Stop Career Center (One-Stops) nearest the
contractor's establishment. The contractor must provide the information
about each job vacancy in the manner and format required by the
appropriate One-Stop. The term all employment openings as used in this
paragraph includes all full-time, part-time, and temporary positions
except executive and senior management positions, positions that will
be filled from within the contractor's organization, and positions
lasting three days or less.
(ii) The contractor shall establish linkage agreements enlisting
the assistance and support of either the local State Vocational
Rehabilitation Service Agency (SVRA) office nearest the contractor's
establishment or a local Employment Network (EN) organization (other
than the contractor if the contactor is an EN) listed in the Social
Security Administration's Ticket to Work Employment Network Directory
(http://www.yourtickettowork.com/endir); and at least one of the
following persons and organizations in recruiting and developing
training opportunities for individuals with disabilities to fulfill its
commitment to provide meaningful employment opportunities to such
individuals:
(A) Entities funded by the Department of Labor that provide
recruitment or training services for individuals with disabilities,
such as the services currently provided through The Employer Assistance
and Resource Network (EARN) (http://www.earnworks.com);
(B) The Employment One-Stop Career Center (One-Stops) nearest the
contractor's establishment (any linkage agreement with the One-Stop
must be in addition to the job listing requirement in paragraph
(f)(1)(i));
(C) The Department of Veterans Affairs Regional Office nearest the
contractor's establishment (http://www.va.gov/landing2_locations.htm);
(D) Local disability groups, organizations, or Centers for
Independent Living (CIL) near the contractor's establishment;
(E) Placement or career offices of educational institutions; and
(F) Private recruitment sources, such as professional organizations
or employment placement services.
(iii) The contractor shall also consult the Employer Resources
section of the National Resource Directory (http://www.nationalresourcedirectory.gov/employment/employer_resources), or
any future service that replaces or complements it, and establish a
linkage agreement with one or more of the disabled veterans' service
organizations listed on the directory, other than the agencies listed
in (f)(1)(ii)(A) through (E) of this section, for such purposes as
advice, technical assistance, and referral of potential employees.
Technical assistance from the resources described in this paragraph may
consist of advice on proper placement, recruitment, training, and
accommodations contractors may undertake, but no such resource
providing technical assistance shall have authority to approve or
disapprove the acceptability of affirmative action programs.
(iv) The contractor must send written notification of company
policy related to its affirmative action efforts to all subcontractors,
including subcontracting vendors and suppliers, requesting appropriate
action on their part.
(2) Suggested outreach efforts. The contractor should consider
taking the actions listed below to fulfill its commitment to provide
meaningful employment opportunities to individuals with disabilities:
(i) Formal briefing sessions should be held, preferably on company
premises, with representatives from recruiting sources. Contractor
facility tours, clear and concise explanations of current and future
job openings, position descriptions, worker specifications,
explanations of the company's selection process, and recruiting
literature should be an integral part of the briefing. At any such
briefing sessions, the company official in charge of the contractor's
affirmative action program should be in attendance when possible.
Formal arrangements should be made for referral of applicants, follow
up with sources, and feedback on disposition of applicants.
(ii) The contractor's recruitment efforts at all educational
institutions should incorporate special efforts to reach students who
are individuals with disabilities.
(iii) An effort should be made to participate in work-study
programs for students, trainees, or interns with disabilities. Such
programs may be found through outreach to State and local schools and
universities, and through EARN.
(iv) Individuals with disabilities should be made available for
participation in career days, youth motivation programs, and related
activities in their communities.
(v) The contractor should take any other positive steps it deems
necessary to attract individuals with disabilities not currently in the
work force who have requisite skills and can be
[[Page 77097]]
recruited through affirmative action measures. These persons may be
located through State and local agencies supported by the U.S.
Department of Education's Rehabilitation Services Administration (RSA)
(http://www2.ed.gov/about/offices/list/osers/rsa), local Ticket-to-Work
Employment Networks (http://www.yourtickettowork.com), or local
chapters of groups or organizations that provide services for
individuals with disabilities.
(vi) The contractor, in making hiring decisions, shall consider
applicants who are known to have disabilities for all available
positions for which they may be qualified when the position(s) applied
for is unavailable.
(3) Assessment of external outreach and recruitment efforts. The
contractor shall, on an annual basis, review the outreach and
recruitment efforts it has taken over the previous twelve months to
evaluate their effectiveness in identifying and recruiting qualified
individuals with disabilities. The contractor shall document each
evaluation, including at a minimum the criteria it used to evaluate the
effectiveness of each effort and the contractor's conclusion as to
whether each effort was effective. Among these criteria shall be the
data collected pursuant to paragraph (k) of this section for the
current year and the two most recent previous years. The contractor's
conclusion as to the effectiveness of its outreach efforts shall be
reasonable as determined by OFCCP in light of these regulations. If the
contractor concludes the totality of its efforts were not effective in
identifying and recruiting qualified individuals with disabilities, it
shall identify and implement alternative efforts listed in paragraphs
(f)(1) or (f)(2) of this section in order to fulfill its obligations.
(4) Recordkeeping obligation. The contractor shall document all
linkage agreements and all other activities it undertakes to comply
with the obligations of this section, and retain these documents for a
period of five (5) years.
(g) Internal dissemination of policy. (1) A strong outreach program
will be ineffective without adequate internal support from supervisory
and management personnel and other employees. In order to assure
greater employee cooperation and participation in the contractor's
efforts, the contractor shall develop the internal procedures listed in
paragraph (g)(2) of this section for communication of its obligation to
engage in affirmative action efforts to employ and advance in
employment qualified individuals with disabilities. It is not
contemplated that the contractor's activities will be limited to those
listed. These procedures shall be designed to foster understanding,
acceptance and support among the contractor's executive, management,
supervisory, and other employees and to encourage such persons to take
the necessary actions to aid the contractor in meeting this obligation.
(2) The contractor shall implement and disseminate this policy
internally as follows:
(i) Include it in the contractor's policy manual;
(ii) Discuss the policy thoroughly in any employee orientation and
management training programs;
(iii) If the contractor is a party to a collective bargaining
agreement, it shall meet with union officials and/or employee
representatives to inform them of the contractor's policy and request
their cooperation;
(3) The contractor shall document those activities it undertakes to
comply with the obligations of paragraph (g) of this section and retain
these documents as employment records subject to the recordkeeping
requirements of Sec. 60-741.80.
(4) The contractor is encouraged to additionally implement and
disseminate this policy internally by taking optional steps, such as
the following:
(i) If the contractor has a company newspaper, magazine, annual
report, or other paper or electronic publication distributed to
employees, it should publicize its affirmative action policy in these
publications, and include in these publications, where appropriate,
features on employees with disabilities and articles on the
accomplishments of individuals with disabilities, with their consent;
(ii) The contractor should discuss its affirmative action policies
at employee meetings regarding personnel practices or equal employment
opportunity;
(iii) The contractor should discuss its affirmative action policies
with executive, management, and supervisory personnel at meetings
regarding personnel practices or equal employment opportunity.
(h) Audit and reporting system. (1) The contractor shall design and
implement an audit and reporting system that will:
(i) Measure the effectiveness of the contractor's affirmative
action program;
(ii) Indicate any need for remedial action;
(iii) Determine the degree to which the contractor's objectives
have been attained;
(iv) Determine whether known individuals with disabilities have had
the opportunity to participate in all company sponsored educational,
training, recreational, and social activities;
(v) Measure the contractor's compliance with the affirmative action
program's specific obligations; and
(vi) Document the actions taken to comply with the obligations of
paragraphs (h)(1)(i) through (v) of this section, and retain these
documents as employment records subject to the recordkeeping
requirements of Sec. 60-741.80.
(2) Where the affirmative action program is found to be deficient,
the contractor shall undertake necessary action to bring the program
into compliance.
(i) Responsibility for implementation. An official of the
contractor shall be assigned responsibility for implementation of the
contractor's affirmative action activities under this part. His or her
identity shall appear on all internal and external communications
regarding the company's affirmative action program. This official shall
be given necessary senior management support and staff to manage the
implementation of this program.
(j) Training. In addition to the training set forth in paragraph
(g)(2)(ii) of this section, all personnel involved in the recruitment,
screening, selection, promotion, disciplinary, and related processes
shall be trained to ensure that the commitments in the contractor's
affirmative action program are implemented. This training shall
include, but not be limited to: the benefits of employing individuals
with disabilities, appropriate sensitivity toward applicants and
employees with disabilities, and the legal responsibilities of the
contractor and its agents regarding individuals with disabilities,
including the obligation to provide reasonable accommodation to
qualified individuals with disabilities. The contractor shall create
contemporaneous records documenting the specific subject matter(s)
covered in the training, who conducted the training, who received the
training, and when the training took place. The contractor shall retain
these documents, and any written or electronic materials used for the
training required by this section, as employment records subject to the
recordkeeping requirements of Sec. 60-741.80.
(k) Data Collection Analysis. The contractor shall document and
maintain the following computations or comparisons pertaining to
applicants and hires on an annual basis:
[[Page 77098]]
(1) The number of referrals of individuals with disabilities that
the contractor received from applicable employment service delivery
system(s), such as State Vocational Rehabilitation Service Agencies and
Employment One-Stop Career Centers;
(2) The number of referrals of individuals with disabilities that
the contractor received from other entities, groups, or organizations
with which the contractor has a linkage agreement pursuant to paragraph
(f)(1)(i).
(3) The number of applicants who self-identified as individuals
with disabilities pursuant to Sec. 60-741.42(a), or who are otherwise
known to be individuals with disabilities;
(4) The total number of job openings and total number of jobs
filled;
(5) The ratio of jobs filled to job openings;
(6) The total number of applicants for all jobs;
(7) The ratio of applicants with disabilities to all applicants
(``applicant ratio'');
(8) The number of applicants with disabilities hired;
(9) The total number of applicants hired; and
(10) The ratio of individuals with disabilities hired to all hires
(``hiring ratio''). The number of hires shall include all employees.
Sec. 60-741.45 Reasonable accommodation procedures.
(a) Development and implementation. The contractor shall develop
and implement written procedures for processing requests for reasonable
accommodation. Contractors that are not required to develop an
affirmative action program pursuant to this subpart are encouraged to
voluntarily develop and implement written reasonable accommodation
procedures to assist the contractor in meeting its nondiscrimination
obligations under subpart B of this part.
(1) The contractor's reasonable accommodation procedures shall be
included in the contractor's affirmative action program, and shall be
developed and implemented in compliance with section 503 and this part.
(2) Minimum required elements that shall be addressed or contained
in the reasonable accommodation procedures are described in paragraph
(d) of this section. Inclusion of these elements in all reasonable
accommodation procedures will ensure that applicants and employees are
informed as to how to request a reasonable accommodation and are aware
of how such a request will be processed by the contractor. It will also
ensure that all of the contractor's supervisors and managers know what
to do should they receive a request for reasonable accommodation, and
that all requests for accommodation are processed swiftly and within
established timeframes.
(b) Designation of responsibility. The contractor shall designate
an official to be responsible for the implementation of the reasonable
accommodation procedures. The responsible official may be the same
official who is responsible for the implementation of the contractor's
affirmative action program. The responsible official must have the
authority, resources, support, and access to top management that is
needed to ensure the effective implementation of the reasonable
accommodation procedures.
(c) Dissemination of procedures. (1) The contractor shall
disseminate its reasonable accommodation procedures to all employees.
Notice of the reasonable accommodation procedures may be provided by
their inclusion in an employee handbook that is disseminated to all
employees and/or by email or electronic posting on a company Web page
where work-related notices are ordinarily posted. Notice of the
reasonable accommodation procedures shall be provided to employees who
work off-site in the same manner that notice of other work-related
matters is ordinarily provided to these employees.
(2) The contractor shall inform all applicants of its reasonable
accommodation procedures regarding the application process. See
paragraph (d)(2)(iii) of this section.
(d) Required elements of reasonable accommodation procedures. The
specific requirements of a contractor's reasonable accommodation
procedures may vary depending upon the size, structure, and resources
of the contractor. However, the contractor's reasonable accommodation
procedures shall, at a minimum, include the following elements:
(1) Responsible official contact information. The name, title/
office, and contact information (telephone number and email address) of
the official designated as responsible for implementing the reasonable
accommodation procedures pursuant to paragraph (b) of this section.
This information should be updated when changes occur.
(2) Requests for reasonable accommodation. The reasonable
accommodation procedures shall specify that a request for reasonable
accommodation may be oral or written and shall explain that there are
no required words that must be used by the requester to effectuate a
request for accommodation. The procedures shall also state that
requests for reasonable accommodation may be made by an applicant,
employee, or by a third party on his or her behalf.
(i) Recurring requests. The reasonable accommodation procedures
shall provide that in instances of a recurring need for an
accommodation (e.g., a hearing impaired employee's need for a sign
language interpreter) the requester will not be required to repeatedly
submit or renew their request for accommodation each time an
interpreter is needed. In the absence of a reasonable belief that the
individual's recurring need for the accommodation has changed,
requiring the repeated submission of a request for the accommodation
could be considered harassment on the basis of disability in violation
of this part.
(ii) Submission of request. The reasonable accommodation procedures
shall identify to whom an employee (or a third party acting on his or
her behalf) must submit an accommodation request. At a minimum, this
shall include any supervisor or management official in the employee's
chain of command, and the official responsible for the implementation
of the reasonable accommodation procedures.
(iii) Requests made by applicants. The reasonable accommodation
procedures shall include procedures to ensure that all applicants,
including those using the contractor's online or other electronic
application system, are made aware of the contractor's reasonable
accommodation obligation and are invited to request any reasonable
accommodation needed to participate fully in the application process.
All applicants shall also be provided with contact information for
contractor staff able to assist the applicant, or his or her
representative, in making a request for accommodation. The contractor's
procedures shall provide that reasonable accommodation requests by or
on behalf of an applicant are processed expeditiously, using timeframes
tailored to the application process.
(3) Written confirmation of receipt. The reasonable accommodation
procedures shall specify that written confirmation of receipt of a
request will be provided to the requester, either by letter or email.
The written confirmation shall include the date the accommodation
request was received, and be signed by the authorized decision maker or
his or her designee.
(4) Timeframe for processing requests. (i) The reasonable
accommodation procedures shall indicate that requests for accommodation
will be processed as
[[Page 77099]]
expeditiously as possible. Oral requests must be considered received on
the date they are initially made, even if a reasonable accommodation
request form has not been completed. A contractor may set its own
timeframes for completing the processing of requests. However, if
supporting medical documentation is not needed, that timeframe shall
not be longer than 5 to 10 business days. If supporting medical
documentation is needed, or if special equipment must be ordered, that
timeframe shall not exceed 30 calendar days, except in the event of
extenuating circumstances beyond the control of the contractor. The
procedures shall explain what constitutes extenuating circumstances.
(ii) Delay in responding to request. If the contractor's processing
of an accommodation request will exceed established timeframes, written
notice shall be provided to the requester. The notice shall include the
reason(s) for the delay and a projected date of response. The notice
shall also be dated and signed by the authorized decision maker or his
or her designee.
(5) Description of process. The contractor's reasonable
accommodation procedures shall contain a description of the steps the
contractor takes when processing a reasonable accommodation request,
including the process by which the contractor renders a final
determination on the accommodation request. If specific information
must be provided to the contractor in order to obtain a reasonable
accommodation, the description shall identify this information. For
example, the contractor's reasonable accommodation procedures may state
that to obtain a reasonable accommodation, the contractor must be
informed of the existence of a disability, the disability-related
limitation(s) or workplace barrier(s) that needs to be accommodated,
and, if known, the desired reasonable accommodation. The description
shall also indicate that, if the need for accommodation is not obvious,
or if additional information is needed, the contractor may initiate an
interactive process with the requester.
(6) Supporting medical documentation. The reasonable accommodation
procedures shall explain the circumstances, if any, under which medical
documentation may be requested and reviewed by the contractor.
(i) The procedures shall explain that any request for medical
documentation may not be open ended and must be limited to
documentation of the individual's disability and the functional
limitations for which reasonable accommodation is sought.
(ii) The procedures shall also explain that the submission of
medical documentation is not required when the disability for which a
reasonable accommodation is sought is known or readily observable and
the need for accommodation is known or obvious.
(7) Denial of reasonable accommodation. The contractor's reasonable
accommodation procedures shall specify that any denial or refusal to
provide a requested reasonable accommodation will be provided in
writing. The written denial shall include the reason for the denial and
must be dated and signed by the authorized decision maker or his or her
designee. A statement of the requester's right to file a discrimination
complaint with OFCCP shall also accompany or be included in the written
denial. If the contractor provides an internal appeal or
reconsideration process, the written denial shall inform the requester
about this process. The written denial shall also include a clear
statement that participation in the internal appeal or reconsideration
process does not toll the time for filing a complaint with OFCCP or
EEOC.
(8) Confidentiality. The contractor's reasonable accommodation
procedures shall indicate that all requests for reasonable
accommodation, related documentation (such as request confirmation
receipts, requests for additional information, and decisions regarding
accommodation requests), and any medical or disability-related
information provided to the contractor will be treated as a
confidential medical record and maintained in a separate medical file,
in accordance with section 503 and this part.
(e) Training. The contractor shall provide annual training for its
supervisors and managers regarding the implementation of the reasonable
accommodation procedures. Training shall also be provided whenever
significant changes are made to the reasonable accommodation
procedures. Training regarding the reasonable accommodation procedures
may be provided in conjunction with other required equal employment
opportunity or affirmative action training.
Sec. 60-741.46 Utilization goals.
(a) Goal. OFCCP has established a utilization goal of 7% for
employment of individuals with disabilities for each job group in the
contractor's workforce.
(b) Purpose. The purpose of the utilization goal is to establish a
benchmark against which the contractor must measure the representation
of individuals within each job group in its workforce. The utilization
goal serves as an equal employment opportunity objective that should be
attainable by complying with all aspects of the affirmative action
requirements of this part.
(c) Periodic review of goal. The Director of OFCCP shall
periodically review and update, as appropriate, the utilization goal
established in paragraph (a) of this section.
(d) Utilization analysis--(1) Purpose. The utilization analysis is
designed to evaluate the representation of individuals with
disabilities in each job group within the contractor's workforce with
the utilization goal established in paragraph (a) of this section. If
individuals with disabilities are employed in a job group at a rate
less than the utilization goal, the contractor must take specific
measures to address this disparity.
(2) Grouping jobs for analysis. The contractor must use the same
job groups established for utilization analyses under Executive Order
11246, either in accordance with 41 CFR 60-2.12, or in accordance with
41 CFR part 60-4, as appropriate.
(3) Annual evaluation. The contractor shall evaluate its
utilization of individuals with disabilities in each job group
annually.
(e) Action-oriented programs. When the percentage of individuals
with disabilities in one or more job groups is less than the
utilization goal established in paragraph (a) of this section, the
contractor must develop and execute action-oriented programs designed
to correct any identified problems areas. These action-oriented
programs may include alternative or additional efforts from among those
listed in Sec. Sec. 60-741.44 (f)(1) and (f)(2), and/or other actions
designed to correct the identified problem areas and attain the
established goal.
(f) A contractor's determination that it has not attained the
utilization goal established in paragraph (a) of this section in one or
more job groups does not constitute either a finding or admission of
discrimination in violation of this part.
(g) The utilization goal established in paragraph (a) of this
section shall not be used as a quota or ceiling that limits or
restricts the employment of individuals with disabilities.
Sec. 60-741.47 Providing priority consideration in employment.
(a) The contractor is encouraged to voluntarily develop and
implement programs that provide priority consideration to individuals
with
[[Page 77100]]
disabilities in recruitment and/or hiring. Examples of priority
consideration programs include, but are not limited to, assigning a
weighted value or additional ``points'' to job applicants who self-
identify as being an individual with a disability, and developing a job
training program focused on the specific needs of individuals with
certain disabilities such as traumatic brain injury (TBI) or
developmental disabilities and utilizing linkage agreements to recruit
program trainees.
(1) If a contractor elects to implement a priority consideration
program for individuals with disabilities, a description of the program
and the policies governing the program, including the name and title of
the official responsible for the program, shall be included in the
contractor's written affirmative action program. An annual report
describing the contractor's activities pursuant to the priority
consideration program and identifying the outcomes achieved should also
be included in the contractor's affirmative action program.
(2) Disability-related information from the applicant and/or
employee self-identification request required by Sec. 60-741.42 may be
used to identify individuals with disabilities who are eligible to
benefit from a priority consideration program.
(b) The contractor shall not use a priority consideration program
to segregate individuals with disabilities or to limit or restrict the
employment opportunities of any individual with a disability.
(c) The contractor shall not discriminate against an individual
with a disability that has received priority consideration with respect
to any term, condition, or benefit of employment, including, but not
limited to, employment acts such as compensation, promotion, and
termination, that are listed in Sec. 60-741.20.
Sec. 60-741.48 Sheltered workshops.
Contracts with sheltered workshops do not constitute affirmative
action in lieu of employment and advancement of qualified individuals
with disabilities in the contractor's own work force. Contracts with
sheltered workshops may be included within an affirmative action
program if the sheltered workshop trains employees for the contractor
and the contractor is obligated to hire trainees at full compensation
when such trainees become ``qualified individuals with disabilities.''
Subpart D--General Enforcement and Complaint Procedures
Sec. 60-741.60 Compliance evaluations.
(a) OFCCP may conduct compliance evaluations to determine if the
contractor is taking affirmative action to employ, advance in
employment, and otherwise treat qualified individuals without
discrimination on the basis of disability in all employment practices.
A compliance evaluation may consist of any one or any combination of
the following investigative procedures:
(1) Compliance review. A comprehensive analysis and evaluation of
the hiring and employment practices of the contractor, the written
affirmative action program, and the results of the affirmative action
efforts undertaken by the contractor. A compliance review may proceed
in three stages:
(i) A desk audit of the written affirmative action program and
supporting documentation to determine whether all elements required by
the regulations in this part are included, whether the affirmative
action program meets agency standards of reasonableness, and whether
the affirmative action program and supporting documentation satisfy
agency standards of acceptability. OFCCP may extend the temporal scope
of the desk audit beyond that set forth in the scheduling letter if
OFCCP deems it necessary to carry out its investigation of potential
violations of this part. The desk audit is conducted at OFCCP offices;
(ii) An on-site review is conducted at the contractor's
establishment to investigate unresolved problem areas identified in the
affirmative action program and supporting documentation during the desk
audit, to verify that the contractor has implemented the affirmative
action program and has complied with those regulatory obligations not
required to be included in the affirmative action program, and to
examine potential instances or issues of discrimination. An on-site
review normally will involve an examination of the contractor's
personnel and employment policies, inspection and copying of documents
related to employment actions, and interviews with employees,
supervisors, managers, hiring officials; and
(iii) Where necessary, an off-site analysis of information supplied
by the contractor or otherwise gathered during or pursuant to the on-
site review;
(2) Off-site review of records. An analysis and evaluation of the
affirmative action program (or any part thereof) and supporting
documentation, and other documents related to the contractor's
personnel policies and employment actions that may be relevant to a
determination of whether the contractor has complied with the
requirements of section 503 and its regulations;
(3) Compliance check. A determination of whether the contractor has
maintained records consistent with Sec. 60-741.80; OFCCP may request
the documents be provided either on-site or off-site; or
(4) Focused review. A review restricted to one or more components
of the contractor's organization or one or more aspects of the
contractor's employment practices.
(b) Where deficiencies are found to exist, reasonable efforts shall
be made to secure compliance through conciliation and persuasion
pursuant to Sec. 60-741.62.
(c) Pre-award compliance evaluations. Each agency will include in
the invitation for bids for each formally advertised nonconstruction
contract or state at the outset of negotiations for each negotiated
contract, that if the award, when let, should total $10 million or
more, the prospective contractor and its known first-tier
subcontractors with subcontracts of $10 million or more will be subject
to a compliance evaluation before the award of the contract unless
OFCCP has conducted an evaluation and found them to be in compliance
with section 503 within the preceding 24 months. The awarding agency
will notify OFCCP and request appropriate action and findings in
accordance with this subsection. Within 15 days of the notice, OFCCP
will inform the awarding agency of its intention to conduct a pre-award
compliance evaluation. If OFCCP does not inform the awarding agency
within that period of its intention to conduct a pre-award compliance
evaluation, clearance shall be presumed and the awarding agency is
authorized to proceed with the award. If OFCCP informs the awarding
agency of its intention to conduct a pre-award compliance evaluation,
OFCCP will be allowed an additional 20 days after the date that it so
informs the awarding agency to provide its conclusions. If OFCCP does
not provide the awarding agency with its conclusions within that
period, clearance will be presumed and the awarding agency is
authorized to proceed with the award.
Sec. 60-741.61 Complaint procedures.
(a) Coordination with other agencies. Pursuant to section 107(b) of
the Americans with Disabilities Act of 1990, as amended (ADA), OFCCP
and the Equal Employment Opportunity Commission (EEOC) have promulgated
[[Page 77101]]
regulations setting forth procedures governing the processing of
complaints falling within the overlapping jurisdiction of both the act
and title I of the ADA to ensure that such complaints are dealt with in
a manner that avoids duplication of effort and prevents the imposition
of inconsistent or conflicting standards. Complaints filed under this
part will be processed in accordance with those regulations, which are
found at 41 CFR part 60-742, and with this part.
(b) Place and time of filing. Any applicant for employment with a
contractor or any employee of a contractor may, personally, or by an
authorized representative, file a written complaint with the Director
alleging a violation of the act or the regulations in this part. The
complaint may allege individual or class-wide violation(s). Complaints
may be submitted to the OFCCP, 200 Constitution Avenue NW., Washington,
DC 20210, or to any OFCCP regional, district, or area office. Such
complaint must be filed within 300 days of the date of the alleged
violation, unless the time for filing is extended by OFCCP for good
cause shown.
(c) Contents of complaints. (1) In general. A complaint must be
signed by the complainant or his or her authorized representative and
must contain the following information:
(i) Name and address (including telephone number) of the
complainant;
(ii) Name and address of the contractor who committed the alleged
violation;
(iii) The facts showing that the individual has a disability, a
record or history of a disability, or was regarded by the contractor as
having a disability;
(iv) A description of the act or acts considered to be a violation,
including the pertinent dates (in the case of an alleged continuing
violation, the earliest and most recent date that the alleged violation
occurred should be stated); and
(v) Other pertinent information available which will assist in the
investigation and resolution of the complaint, including the name of
any known Federal agency with which the employer has contracted.
(2) Third party complaints. When a written complaint is filed by an
authorized representative, that complaint need not identify by name the
person on whose behalf it is filed. However, the authorized
representative must nonetheless provide the name, address and telephone
number of the person on whose behalf the complaint is filed to OFCCP,
along with the other information specified in paragraph (c)(1) of this
section. OFCCP shall verify the authorization of such complaint with
the person on whose behalf the complaint is filed. Any such person may
request that OFCCP keep his or her identity confidential during the
investigation of the complaint, and OFCCP will protect the individual's
confidentiality wherever that is possible given the facts and
circumstances in the complaint.
(d) Incomplete information. Where a complaint contains incomplete
information, OFCCP shall seek the needed information from the
complainant. If the information is not furnished to OFCCP within 60
days of the date of such request, the case may be closed.
(e) Investigations. The Department of Labor shall institute a
prompt investigation of each complaint.
(f) Resolution of matters. (1) If the complaint investigation finds
no violation of the act or this part, or if the Director decides not to
refer the matter to the Solicitor of Labor for enforcement proceedings
against the contractor pursuant to Sec. 60-741.65(a)(l), the
complainant and contractor shall be so notified. The Director, on his
or her own initiative, may reconsider his or her determination or the
determination of any of his or her designated officers who have
authority to issue Notifications of Results of Investigation.
(2) The Director will review all determinations of no violation
that involve complaints that are not also cognizable under title I of
the Americans with Disabilities Act.
(3) In cases where the Director decides to reconsider the
determination of a Notification of Results of Investigation, the
Director shall provide prompt notification of his or her intent to
reconsider, which is effective upon issuance, and his or her final
determination after reconsideration to the person claiming to be
aggrieved, the person making the complaint on behalf of such person, if
any, and the contractor.
(4) If the investigation finds a violation of the act or this part,
OFCCP shall invite the contractor to participate in conciliation
discussions pursuant to Sec. 60-741.62.
Sec. 60-741.62 Conciliation agreements.
(a) If a compliance evaluation, complaint investigation, or other
review by OFCCP finds a material violation of the act or this part, and
if the contractor is willing to correct the violations and/or
deficiencies, and if OFCCP determines that settlement on that basis
(rather than referral for consideration of formal enforcement) is
appropriate, a written conciliation agreement will be required. The
agreement shall provide for such remedial action as may be necessary to
correct the violations and/or deficiencies noted, including, where
appropriate (but not necessarily limited to) such make whole remedies
as back pay and retroactive seniority. The agreement shall also specify
the time period for completion of the remedial action; the period shall
be no longer than the minimum period necessary to complete the action.
(b) Remedial benchmarks. The remedial action referenced in
paragraph (a) may include the establishment of benchmarks for the
contractor's outreach, recruitment, hiring, or other employment
activities. The purpose of such benchmarks is to create a quantifiable
method by which the contractor's progress in correcting identified
violations and/or deficiencies can be measured.
Sec. 60-741.63 Violations of conciliation agreements.
(a) When OFCCP believes that a conciliation agreement has been
violated, the following procedures are applicable:
(1) A written notice shall be sent to the contractor setting forth
the violation alleged and summarizing the supporting evidence. The
contractor shall have 15 days from receipt of the notice to respond,
except in those cases in which OFCCP asserts that such a delay would
result in irreparable injury to the employment rights of affected
employees or applicants.
(2) During the 15-day period the contractor may demonstrate in
writing that it has not violated its commitments.
(b) In those cases in which OFCCP asserts that a delay would result
in irreparable injury to the employment rights of affected employees or
applicants, enforcement proceedings may be initiated immediately
without proceeding through any other requirement contained in this
chapter.
(c) In any proceedings involving an alleged violation of a
conciliation agreement, OFCCP may seek enforcement of the agreement
itself and shall not be required to present proof of the underlying
violations resolved by the agreement.
Sec. 60-741.64 Show cause notices.
When the Director has reasonable cause to believe that the
contractor has violated the act or this part, he or she may issue a
notice requiring the contractor to show cause, within 30 days, why
monitoring, enforcement proceedings, or other appropriate action to
ensure compliance should not be
[[Page 77102]]
instituted. The issuance of such a notice is not a prerequisite to
instituting enforcement proceedings (see Sec. 60-741.65).
Sec. 60-741.65 Enforcement proceedings.
(a) General. (1) If a compliance evaluation, complaint
investigation, or other review by OFCCP finds a violation of the act or
this part, and the violation has not been corrected in accordance with
the conciliation procedures in this part, or OFCCP determines that
referral for consideration of formal enforcement (rather than
settlement) is appropriate, OFCCP may refer the matter to the Solicitor
of Labor with a recommendation for the institution of enforcement
proceedings to enjoin the violations, to seek appropriate relief, and
to impose appropriate sanctions, or any combination of these outcomes.
OFCCP may seek back pay and other make whole relief for aggrieved
individuals identified during a complaint investigation or compliance
review. Such individuals need not have filed a complaint as a
prerequisite to OFCCP seeking such relief on their behalf. Interest on
back pay shall be calculated from the date of the loss and compounded
quarterly at the percentage rate established by the Internal Revenue
Service (IRS) for the underpayment of taxes.
(2) In addition to the administrative proceedings set forth in this
section, the Director may, within the limitations of applicable law,
seek appropriate judicial action to enforce the contractual provisions
set forth in Sec. 60-741.5, including appropriate injunctive relief.
(b) Hearing practice and procedure. (1) In administrative
enforcement proceedings the contractor shall be provided an opportunity
for a formal hearing. All hearings conducted under the act and this
part shall be governed by the Rules of Practice for Administrative
Proceedings to Enforce Equal Opportunity Under Executive Order 11246
contained in 41 CFR part 60-30 and the Rules of Evidence set out in the
Rules of Practice and Procedure for Administrative Hearings Before the
Office of Administrative Law Judges contained in 29 CFR part 18,
subpart B: Provided, That a final administrative order shall be issued
within one year from the date of the issuance of the recommended
findings, conclusions, and decision of the Administrative Law Judge, or
the submission of any exceptions and responses to exceptions to such
decision (if any) whichever is later.
(2) Complaints may be filed by the Solicitor, the Associate
Solicitor for Civil Rights and Labor-Management, Regional Solicitors
and Associate Regional Solicitors.
(3) For the purposes of hearings pursuant to this part, references
in 41 CFR part 60-30 to ``Executive Order 11246'' shall mean section
503 of the Rehabilitation Act of 1973, as amended; references to
``equal opportunity clause'' shall mean the equal opportunity clause
published at Sec. 60-741.5; and references to ``regulations'' shall
mean the regulations contained in this part.
Sec. 60-741.66 Sanctions and penalties.
(a) Withholding progress payments. With the prior approval of the
Director so much of the accrued payment due on the contract or any
other contract between the Government contractor and the Federal
Government may be withheld as necessary to correct any violations of
the provisions of the act or this part.
(b) Termination. A contract may be canceled or terminated, in whole
or in part, for failure to comply with the provisions of the act or
this part.
(c) Debarment. A contractor may be debarred from receiving future
contracts for failure to comply with the provisions of the act or this
part subject to reinstatement pursuant to Sec. 60-741.68. Debarment
may be imposed for an indefinite period, or may be imposed for a fixed
period of not less than six months, but no more than three years.
(d) Hearing opportunity. An opportunity for a formal hearing shall
be afforded to a contractor before the imposition of any sanction or
penalty.
Sec. 60-741.67 Notification of agencies.
The Director shall ensure that the heads of all agencies are
notified of any debarments taken against any contractor.
Sec. 60-741.68 Reinstatement of ineligible contractors.
(a) Application for reinstatement. A contractor debarred from
further contracts for an indefinite period under the act may request
reinstatement in a letter filed with the Director at any time after the
effective date of the debarment; a contractor debarred for a fixed
period may make such a request following the expiration of six months
from the effective date of the debarment. In connection with the
reinstatement proceedings, all debarred contractors shall be required
to show that they have established and will carry out employment
policies and practices in compliance with the act and this part.
Additionally, in determining whether reinstatement is appropriate for a
contractor debarred for a fixed period, the Director also shall
consider, among other factors, the severity of the violation which
resulted in the debarment, the contractor's attitude towards
compliance, the contractor's past compliance history, and whether the
contractor's reinstatement would impede the effective enforcement of
the act or this part. Before reaching a decision, the Director may
conduct a compliance evaluation of the contractor and may require the
contractor to supply additional information regarding the request for
reinstatement. The Director shall issue a written decision on the
request.
(b) Petition for review. Within 30 days of its receipt of a
decision denying a request for reinstatement, the contractor may file a
petition for review of the decision with the Secretary. The petition
shall set forth the grounds for the contractor's objections to the
Director's decision. The petition shall be served on the Director and
the Associate Solicitor for Civil Rights and Labor-Management and shall
include the decision as an appendix. The Director may file a response
within 14 days to the petition. The Secretary shall issue the final
agency decision denying or granting the request for reinstatement.
Before reaching a final decision, the Secretary may issue such
additional orders respecting procedure as he or she finds appropriate
in the circumstances, including an order referring the matter to the
Office of Administrative Law Judges for an evidentiary hearing where
there is a material factual dispute that cannot be resolved on the
record before the Secretary.
Sec. 60-741.69 Intimidation and interference.
(a) The contractor shall not harass, intimidate, threaten, coerce,
or discriminate against any individual because the individual has
engaged in or may engage in any of the following activities:
(1) Filing a complaint;
(2) Assisting or participating in any manner in an investigation,
compliance evaluation, hearing, or any other activity related to the
administration of the act or any other Federal, State, or local law
requiring equal opportunity for individuals with disabilities;
(3) Opposing any act or practice made unlawful by the act or this
part or any other Federal, State, or local law requiring equal
opportunity for individuals with disabilities; or
(4) Exercising any other right protected by the act or this part.
(b) The contractor shall ensure that all persons under its control
do not engage in such harassment, intimidation, threats, coercion, or
discrimination. The sanctions and penalties contained in
[[Page 77103]]
this part may be exercised by the Director against any contractor who
violates this obligation.
Sec. 60-741.70 Disputed matters related to compliance with the act.
The procedures set forth in the regulations in this part govern all
disputes relative to the contractor's compliance with the act and this
part. Any disputes relating to issues other than compliance, including
contract costs arising out of the contractor's efforts to comply, shall
be determined by the disputes clause of the contract.
Subpart E--Ancillary Matters
Sec. 60-741.80 Recordkeeping.
(a) General requirements. Any personnel or employment record made
or kept by the contractor shall be preserved by the contractor for a
period of two years from the date of the making of the record or the
personnel action involved, whichever occurs later. However, if the
contractor has fewer than 150 employees or does not have a Government
contract of at least $150,000, the minimum record retention period
shall be one year from the date of the making of the record or the
personnel action involved, whichever occurs later. Such records
include, but are not necessarily limited to, records relating to
requests for reasonable accommodation; the results of any physical
examination; job advertisements and postings; applications and resumes;
tests and test results; interview notes; and other records having to do
with hiring, assignment, promotion, demotion, transfer, lay-off or
termination, rates of pay or other terms of compensation, and selection
for training or apprenticeship. In the case of involuntary termination
of an employee, the personnel records of the individual terminated
shall be kept for a period of two years from the date of the
termination, except that contractors that have fewer than 150 employees
or that do not have a Government contract of at least $150,000 shall
keep such records for a period of one year from the date of the
termination. Where the contractor has received notice that a complaint
of discrimination has been filed, that a compliance evaluation has been
initiated, or that an enforcement action has been commenced, the
contractor must preserve all personnel records relevant to the
complaint, compliance evaluation, or action until final disposition of
the complaint, compliance evaluation or action. The term ``personnel
records relevant to the complaint, compliance evaluation, or action''
will include, for example, personnel or employment records relating to
the aggrieved person and to all other employees holding positions
similar to that held or sought by the aggrieved person and application
forms or test papers completed by an unsuccessful applicant and by all
other candidates for the same position as that for which the aggrieved
person applied and was rejected. Records required by Sec. Sec. 60-
741.44(f)(4) and 60-741.44(k) shall be maintained by all contractors
for a period of five years from the date of the making of the record.
(b) Failure to preserve records. Failure to preserve complete and
accurate records as required by paragraph (a) of this section
constitutes noncompliance with the contractor's obligations under the
act and this part. Where the contractor has destroyed or failed to
preserve records as required by this section, there may be a
presumption that the information destroyed or not preserved would have
been unfavorable to the contractor: Provided, That this presumption
shall not apply where the contractor shows that the destruction or
failure to preserve records results from circumstances that are outside
of the contractor's control.
(c) The requirements of this section shall apply only to records
made or kept on or after August 29, 1996.
Sec. 60-741.81 Access to records.
Each contractor must permit access during normal business hours to
its places of business for the purpose of conducting on-site compliance
evaluations and complaint investigations and inspecting and copying
such books, accounts, and records, including electronic records, and
any other material OFCCP deems relevant to the matter under
investigation and pertinent to compliance with the act or this part.
Contractors must also provide OFCCP access to these materials,
including electronic records, off-site for purposes of conducting
compliance evaluations and complaint investigations. Upon request, the
contractor must provide OFCCP information about all format(s),
including specific electronic formats, in which its records and other
information are available. The contractor must provide records and
other information in any available format(s) requested by OFCCP.
Information obtained in this manner shall be used only in connection
with the administration of the act, the Americans with Disabilities Act
of 1990, as amended (ADA), and in furtherance of the purposes of the
act and the ADA.
Sec. 60-741.82 Labor organizations and recruiting and training
agencies.
(a) Whenever performance in accordance with the equal opportunity
clause or any matter contained in the regulations in this part may
necessitate a revision of a collective bargaining agreement, the labor
organizations which are parties to such agreement shall be given an
adequate opportunity to present their views to OFCCP.
(b) OFCCP shall use its best efforts, directly or through
contractors, subcontractors, local officials, vocational rehabilitation
facilities, and all other available instrumentalities, to cause any
labor organization, recruiting and training agency, or other
representative of workers who are employed by a contractor to cooperate
with, and to assist in, the implementation of the purposes of the act.
Sec. 60-741.83 Rulings and interpretations.
Rulings under or interpretations of the act and this part shall be
made by the Director.
Appendix A to Part 60-741--Guidelines on a Contractor's Duty To Provide
Reasonable Accommodation
The guidelines in this appendix are in large part derived from,
and are consistent with, the discussion regarding the duty to
provide reasonable accommodation contained in the Interpretive
Guidance on title I of the Americans with Disabilities Act, as
amended (ADA), set out as an appendix to the regulations issued by
the Equal Employment Opportunity Commission (EEOC) implementing the
ADA (29 CFR part 1630). Although the following discussion is
intended to provide an independent ``free-standing'' source of
guidance with respect to the duty to provide reasonable
accommodation under this part, to the extent that the EEOC appendix
provides additional guidance which is consistent with the following
discussion, it may be relied upon for purposes of this part as well.
See Sec. 60-741.1(c). Contractors are obligated to provide
reasonable accommodation and to take affirmative action. Reasonable
accommodation under section 503, like reasonable accommodation
required under the ADA, is a part of the nondiscrimination
obligation. See EEOC appendix cited in this paragraph. Affirmative
action is unique to section 503, and includes actions above and
beyond those required as a matter of nondiscrimination. An example
of this is the requirement discussed in paragraph 2 of this appendix
that a contractor shall make an inquiry of an employee with a known
disability who is having significant difficulty performing his or
her job.
1. A contractor is required to make reasonable accommodations to
the known physical or mental limitations of a qualified individual
with a disability, unless the contractor can demonstrate that the
accommodation would impose an undue
[[Page 77104]]
hardship on the operation of its business. As stated in Sec. 60-
741.2(s), an individual with a disability is qualified if he or she
satisfies all the skill, experience, education, and other job-
related selection criteria, and can perform the essential functions
of the position with or without reasonable accommodation. A
contractor is required to make a reasonable accommodation with
respect to its application process if the individual with a
disability is qualified with respect to that process. One is
qualified within the meaning of section 503 if he or she is
qualified for a job, except that, because of a disability, he or she
needs a reasonable accommodation to be able to perform the job's
essential functions. Additionally, as provided in Sec. 60-741.45,
the contractor is required to develop, implement and disseminate to
applicants and employees procedures for processing requests for
reasonable accommodation. This will help ensure consistent and
expeditious processing of all accommodation requests.
2. Although the contractor would not be expected to accommodate
disabilities of which it is unaware, the contractor has an
affirmative obligation to provide reasonable accommodation for
applicants and employees whose disabilities the contractor has
actual knowledge. As stated in Sec. 60-741.42, as part of the
contractor's affirmative action obligation, the contractor is
required to invite applicants to inform the contractor whether the
applicant believes that he or she is an individual with a disability
both prior to an offer of employment, and after an offer of
employment but before he or she begins his/her employment duties.
That invitation also informs the applicant of the contractor's
reasonable accommodation obligation and invites applicants with
disabilities to request any accommodation they might need. Moreover,
Sec. 60-741.44(d) provides that if an employee with a known
disability is having significant difficulty performing his or her
job and it is reasonable to conclude that the performance problem
may be related to the disability, the contractor is required to
confidentially inquire whether the problem is disability related and
if the employee is in need of a reasonable accommodation.
3. An accommodation is any change in the work environment or in
the way things are customarily done that enables an individual with
a disability to enjoy equal employment opportunities. Equal
employment opportunity means an opportunity to attain the same level
of performance, or to enjoy the same level of benefits and
privileges of employment as are available to the average similarly
situated employee without a disability. Thus, for example, an
accommodation made to assist an employee with a disability in the
performance of his or her job must be adequate to enable the
individual to perform the essential functions of the position. The
accommodation, however, does not have to be the ``best''
accommodation possible, so long as it is sufficient to meet the job-
related needs of the individual being accommodated. There are three
areas in which reasonable accommodations may be necessary: (1)
Accommodations in the application process; (2) accommodations that
enable employees with disabilities to perform the essential
functions of the position held or desired; and (3) accommodations
that enable employees with disabilities to enjoy equal benefits and
privileges of employment as are enjoyed by employees without
disabilities.
4. The term ``undue hardship'' refers to any accommodation that
would be unduly costly, extensive, substantial, or disruptive, or
that would fundamentally alter the nature or operation of the
contractor's business. The contractor's claim that the cost of a
particular accommodation will impose an undue hardship requires a
determination of which financial resources should be considered--
those of the contractor in its entirety or only those of the
facility that will be required to provide the accommodation. This
inquiry requires an analysis of the financial relationship between
the contractor and the facility in order to determine what resources
will be available to the facility in providing the accommodation. If
the contractor can show that the cost of the accommodation would
impose an undue hardship, it would still be required to provide the
accommodation if the funding is available from another source (e.g.,
a State vocational rehabilitation agency) or if Federal, State, or
local tax deductions or tax credits are available to offset the cost
of the accommodation. In the absence of such funding, the individual
with a disability must be given the option of providing the
accommodation or of paying that portion of the cost which
constitutes the undue hardship on the operation of the business.
5. The definition for ``reasonable accommodation'' in Sec. 60-
741.2(t) lists a number of examples of the most common types of
accommodations that the contractor may be required to provide. There
are a number of specific accommodations that may be appropriate for
particular situations. The discussion in this appendix is not
intended to provide an exhaustive list of required accommodations
(as no such list would be feasible); rather, it is intended to
provide general guidance regarding the nature of the obligation. The
decision as to whether a reasonable accommodation is appropriate
must be made on a case-by-case basis. The contractor generally
should consult with the individual with a disability in deciding on
the appropriate accommodation; frequently, the individual will know
exactly what accommodation he or she will need to perform
successfully in a particular job, and may suggest an accommodation
which is simpler and less expensive than the accommodation the
contractor might have devised. Other resources to consult include
the appropriate State vocational rehabilitation services agency, the
Equal Employment Opportunity Commission (1-(800) 669-4000 (voice) or
1-(800) 669-6820 (TTY)), the Job Accommodation Network (JAN)--a
service of the U.S. Department of Labor's Office of Disability
Employment Policy (1-(800) 526-7234 (voice) or 1-(877) 781-9403
(TTY)), private disability organizations, and other employers.
6. With respect to accommodations that can permit an employee
with a disability to perform essential functions successfully, a
reasonable accommodation may require the contractor to, for
instance, modify or acquire equipment. For those visually-impaired,
such accommodations may include providing adaptive hardware and
software for computers, electronic visual aids, Braille writers,
talking calculators, magnifiers, audio recordings, and Braille or
large print materials. For persons with hearing impairments,
reasonable accommodations may include providing telephone handset
amplifiers, telephones compatible with hearing aids, and TTY
machines. For persons with limited physical dexterity, the
obligation may require the provision of telephone headsets,
mechanical page turners, and raised or lowered furniture.
7. Other reasonable accommodations of this type may include
providing personal assistants such as a reader, interpreter, or
travel attendant, permitting the use of accrued paid leave or
providing additional unpaid leave for necessary treatment. The
contractor may also be required to make existing facilities readily
accessible to and usable by individuals with disabilities--including
areas used by employees for purposes other than the performance of
essential job functions--such as restrooms, break rooms, cafeterias,
lounges, auditoriums, libraries, parking lots, and credit unions.
This type of accommodation will enable employees to enjoy equal
benefits and privileges of employment as are enjoyed by employees
who do not have disabilities.
8. Another of the potential accommodations listed in Sec. 60-
741.2(t) is job restructuring. This may involve reallocating or
redistributing those nonessential, marginal job functions which a
qualified individual with a disability cannot perform to another
position. Accordingly, if a clerical employee is occasionally
required to lift heavy boxes containing files, but cannot do so
because of a disability, this task may be reassigned to another
employee. The contractor, however, is not required to reallocate
essential functions, i.e., those functions that the individual who
holds the job would have to perform, with or without reasonable
accommodation, in order to be considered qualified for the position.
For instance, the contractor that has a security guard position
which requires the incumbent to inspect identity cards would not
have to provide a blind individual with an assistant to perform that
duty; in such a case, the assistant would be performing an essential
function of the job for the individual with a disability. Job
restructuring may also involve allowing part-time or modified work
schedules. For instance, flexible or adjusted work schedules could
benefit individuals with disabilities who cannot work a standard
schedule because of the need to obtain medical treatment, or
individuals with mobility impairments who depend on a public
transportation system that is not accessible during the hours of a
standard schedule.
9. Reasonable accommodation may also include reassignment to a
vacant position. In general, reassignment should be considered only
when accommodation within the individual's current position would
pose an undue hardship. Reassignment is not required for applicants.
However, in making hiring decisions, contractors are encouraged to
consider known applicants with
[[Page 77105]]
disabilities for all available positions for which they may be
qualified when the position(s) applied for is unavailable.
Reassignment may not be used to limit, segregate, or otherwise
discriminate against employees with disabilities by forcing
reassignments to undesirable positions or to designated offices or
facilities. Employers should reassign the individual to an
equivalent position in terms of pay, status, etc., if the individual
is qualified, and if the position is vacant within a reasonable
amount of time. A reasonable amount of time should be determined in
light of the totality of the circumstances.
10. The contractor may reassign an individual to a lower graded
position if there are no accommodations that would enable the
employee to remain in the current position and there are no vacant
equivalent positions for which the individual is qualified with or
without reasonable accommodation. The contractor may maintain the
reassigned individual with a disability at the salary of the higher
graded position, and must do so if it maintains the salary of
reassigned employees who are not disabled. It should also be noted
that the contractor is not required to promote an individual with a
disability as an accommodation.
11. With respect to the application process, appropriate
accommodations may include the following: (1) Providing information
regarding job vacancies in a form accessible to those with vision or
hearing impairments (e.g., by making an announcement available in
Braille, in large print, or on audio tape, or by responding to job
inquiries via TTY); (2) providing readers, interpreters and other
similar assistance during the application, testing and interview
process; (3) appropriately adjusting or modifying employment-related
examinations (e.g., extending regular time deadlines, allowing a
blind person or one with a learning disorder such as dyslexia to
provide oral answers for a written test, and permitting an
applicant, regardless of the nature of his or her disability to
demonstrate skills through alternative techniques and utilization of
adapted tools, aids and devices); and (4) ensuring an applicant with
a mobility impairment full access to testing locations such that the
applicant's test scores accurately reflect the applicant's skills or
aptitude rather than the applicant's mobility impairment.
[FR Doc. 2011-31371 Filed 12-8-11; 8:45 am]
BILLING CODE 4510-45-P