Particularly relevant for employers in this area, the Office of Federal Contract Compliance Programs (“OFCPP”) recently issued new rules that increase the affirmative action requirements of direct federal contractors and subcontractors. The rules require that contractors take affirmative steps to hire individuals with disabilities, along with including more stringent reporting requirements and higher hiring targets for contractors.
The Department of Labor noted that the new rule was necessary because of the continuing high disparity in employment between individuals with disabilities and non-disabled individuals; although non-binding, the rule includes a seven percent utilization goal that encourages contractors to employ people with disabilities at all levels of their business structures. The rule applies to contractors and subcontractors with a covered contract of $10,000 or more; contractors with 50 or more employees and a contract of $50,000 or more are also required to maintain written affirmative action policies.
The new rule overhauls Section 503 of the Rehabilitation Act of 1973, which prohibits discrimination and requires contractors to take affirmative action steps in personnel practices. It also requires that employers use voluntary self-disclosure surveys for applicants and employees in order to determine whether they have disabilities (a reporting requirement). Lastly, it orders that contractors develop more expansive affirmative action programs, and maintain up-to-date reasonable accommodation and harassment policies, along with promoting workplace training regarding discrimination.
Specifically, as noted by the Department of Labor, the new rule: “strengthens the affirmative action provisions of the regulations to aid contractors in their efforts to recruit and hire [individuals with disabilities], and improve job opportunities for individuals with disabilities. The Final Rule also makes changes to the nondiscrimination provisions of the regulations to bring them into compliance with the ADA Amendments Act of 2008.” In addition, it requires that contractors incorporate specific equal opportunity language into subcontracts in order to alert subcontractors to their requirements under Section 503. As noted here before, the ADAAA expanded the definition of what constitutes a disability; as such, contractors will have similar broader requirements under the new rule in regards to non-discrimination and the myriad ADA requirements that we have sometimes touched on in this blog. The rule will become effective on March 24, 2014.