The agency that oversees the employment practices of federal contractors is considering rule changes that would expand the definitions of “disability” and other key terms, as well as new requirements for gathering data on the number of individuals with disabilities among job applicants and in the contractor’s workforce.

In a Notice of Proposed Rulemaking (NPRM) issued on December 9, 2011, the Office of Federal Contract Compliance Programs outlined the proposed changes to nondiscrimination affirmative action requirements for federal contractors and subcontractors. The notice advises public comments must be received by February 12, 2012.

The 50-page NPRM calls for revising and expanding the definitions of “disability,” “major life activity,” “substantially limits,” and other terms in order to conform to those promulgated by the U.S. Equal Employment Opportunity Commission and in recent amendments to the Americans with Disabilities Act (ADA).

In a section-by-section analysis published along with its proposed rules, the OFCCP specifically references as its guiding principle Congress’s mandate in the ADA Amendments Act that the ADA be interpreted “in favor of broad coverage of individuals, to the maximum extent permitted by law.” This new, broad definition of “disability” extends to individuals with actual disabilities, individuals regarded as having disabilities, and individuals who have a record of having a disability.

The NPRM also proposes new procedural requirements for federal contractors and subcontractors, including a mandate to enhance data collection and recordkeeping efforts. If adopted, the NPRM would require contractors to track the number of individuals with disabilities in their applicant pools and workforces through voluntary pre-offer and post-offer self-identification. The proposed rules would require contractors to conduct utilization analyses for individuals with disabilities based on a proposed national utilization goal of 7 percent for each job group in a contractor’s workforce. The OFCCP is also considering sub-goals for individuals with certain “severe disabilities” that the OFCCP refers to as “targeted disabilities.”

The proposed rules would also require contractors to annually review their personnel policies to ensure that obligations under their affirmative action plans are being met, and prescribe specific steps contractors must take during these reviews. These steps would include those that are suggested as appropriate procedures under existing regulations. The NPRM includes a sample self-identification form that the OFCCP would make available if the new regulations are adopted.

The OFCCP is seeking public input on the proposed regulations, specifically the amount of time it would take contractors to satisfy the data gathering, including the required computations and comparisons. If you wish to obtain additional information regarding how to comment, please consult the Federal eRulemaking Portal.

If you have questions about the proposed rule or its implications, please contact Constantinos G. Panagopoulos at 202.661.2202 or, Christopher T. Cognato at 215.864.8612 or, or the member of the Labor and Employment Group with whom you work.  

Copyright © 2011 by Ballard Spahr LLP.
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