The Office of Federal Contracts Compliance Program (OFCCP) recently released its final rules for changes in the regulations pertaining to Section 503 of the Rehabilitation Act and the Vietnam Era Veterans Readjustment Assistance Act (VEVRAA). For the estimated 200,000 or more federal contractors in theUS, these rule changes mean increased affirmative action requirements relating to veterans and people with disabilities. The effective date of the new rules will be 180 days from the date of publication in the federal register. However, contractors will not be required to comply with many of the new rules (those contained in subpart C) until their current affirmative action plans are scheduled to be updated.
Long anticipated by federal contractors, the final rules are a softened version of the proposed rules but will still require significant changes to the way federal contractors operate, particularly in relation to definitional changes, applicant tracking, self-identification, self-assessment, training and record keeping. Section 503 will adopt the broader definition of disability to align with the ADA Amendment Act (ADAAA), while VEVRAA will change the term “covered veteran” to “protected veteran” and also rename other” protected veterans” to “active duty wartime or campaign badge veteran.”
OFCCP has created a utilization goal for people with disabilities as 7% of employees in each job category or 7% of the total workforce for businesses with less than 100 employees. While failing to meet this goal is not a violation, federal contractors must assess their efforts on an annual basis to measure their effectiveness and implement corrective actions if needed. For veterans in a protected category, the OFCCP is asking contractors to adopt an annual hiring benchmark of 8%, representing the number of civilian veterans in the current labor force or by using their own specific set of metrics relevant to the contractor’s industry and workforce availability. Similar to the 503 regulations, failing to meet the proposed benchmark is not a violation, but contractors must conduct annual assessments to measure their efforts. Patricia A. Shiu, Director of OFCCP, has stated that if implemented successfully, the new hiring goal and benchmarks could potentially mean jobs for an additional 200,000 veterans and 600,000 individuals with disabilities.
Contractors will also be required to invite applicants and incumbent employees to self-identify as a protected veteran, a person with a disability or both. While VEVRAA regulations provide suggested language for self-identification forms, for Section 503 it is anticipated that OFCCP will provide mandated language. However, contractors may identify individuals with disabilities who do not disclose when their impairments are visible or known. Information related to self-identification must be kept confidential and excluded from personnel or medical files.
Although the proposed rule to mandate community resource partnerships or “linkages” did not make the final rules, it will be impossible for contractors to meet utilization goals without developing such relationships. Beyond the already mandated utilization of state workforce development systems, there is endless potential for accessing talent pipelines by reaching out to community-based nonprofits, educational institutions and internet-based resources. Employers may not be penalized for failing to employ the targeted numbers of individuals with disabilities and protected veterans, but they will most certainly fall under intense OFCCP scrutiny for failing to put forth the effort and to routinely evaluate its efficacy.
With regard to reasonable accommodation requirements under both VEVRAA and Section 503, the language in the final regulations was “softened” as well and are now considered only as best practices. One area that is mandated, however, is equal access to electronic and online job applications systems so veterans and individual with disabilities, especially those who are using screen readers, would be able to utilize them. Likewise, it is expected that EO policies also be provided in accessible and understandable formats.
Critics of the new regulations suggest these do not go far enough to increase the employment of veterans and individuals with disabilities as there will be no penalty for contractors who fail to meet the 7% utilization goal or veterans benchmark. There is concern these regulations, much like the existing regulations and Executive Orders, do not have enough “teeth” to move the needle when it comes to the underutilization of veterans and people with disabilities in the workforce. With several other impending compliance issues on the horizon, including compensation equity and ACA implementation, employers might be tempted to make VEVRAA and Section 503 compliance a lower priority.
However, the OFCCP has been clear about their enforcement priorities. A willingness to remain flexible with contractors who can demonstrate effective compliance strategies will not mean employers can ignore the opportunity to improve their existing practices before the end of their current affirmative action plan cycle. For some businesses, the success of employee self-identification in particular might require a well-planned culture shift in order to create an environment where people with nonvisible disabilities can be assured of their job security, confidentiality and equitable treatment. Likewise, there are specific barriers to disclosure among veterans who may fear stigma attached to self-identification, particularly in relation to such signature disabilities as post-traumatic stress disorder (PTSD). Many veterans, despite having acquired service-connected disabilities, do not identify themselves as disabled and may need to be persuaded to disclose their status in multiple “protected veteran” categories.
Although the effective date of the new rules is months away, there are a few steps contractors can take now in preparation. These include but are not limited to reviewing personnel policies and processes, current outreach and recruitment strategies, physical and mental job requirements and accommodation practices. Along with these reviews contractors should also begin developing required forms for veterans’ self-identification, and for record keeping related to outreach, accommodations and self-assessment.
While no one likes change, more enforcement or added data collection and reporting burdens,
by Judy Young, MA and Ellice Switzer
Judy Young is the grant manager for the National Technical Assistance, Policy and Research Center for Employers on the Employment of Persons with Disabilities funded by the US Department of Labor, Office of Disability and Employment Policy (ODEP). Ms. Young’s areas of expertise include recruitment, accessibility, worksite accommodations, disability etiquette, diversity and inclusion and compliance with the Americans with Disabilities Act. Ms. Young is a frequent presenter at major diversity and employment conferences and she is a member of the speaker’s bureau of the Society of Human Resource Management (SHRM).
Ellice Switzer is the Technical Assistance Specialist for theEARN operated under a grant from the US Department of Labor, Office of Disability and Employment Policy by the Employment and Disability Institute at Cornell University. She provides consultation to employers seeking to diversify their workforce by recruiting, hiring and retaining employees with disabilities.
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