CORNELL — Section 503 New Rules

Title: New Rules, New Choices-The Impact of RA Section 503, New Rules on Job Seeker and Employees with Disabilities. Image:  Blue tinted high-rise building.When Sally Jones (not her real name) applied for a nursing job, she worried about what she might be asked during the interview. During college, she was briefly hospitalized for severe depression. Though she has been fine since then, Sally feared she would not be hired if the employer found out. And she had reason to fear. Four months ago, this same employer fired a colleague of Sally’s after taking leave for cancer treatments. Before the interview, the HR manager asked Sally to complete a form with a question about whether she was a person with a disability. When she saw this form was voluntary, she quickly folded it up and put it among her belongings to be thrown away later.

The form Sally was being asked to complete was probably the voluntary self-identification form that is now required by the Rehabilitation Act (RA) Section 503 new rules which took effect on March 24, 2014. Because Sally did not trust this employer, she chose to not identify as a person with a disability. Was this the right decision?

Covering over 200,000 workplaces across the U.S., these new rules could have a sweeping impact on the employment of people with disabilities (OFCCP, 2014a). Employers with at least $10,000 in federal contracts or subcontracts must comply with the new rules.

Much of what has been written about the new rules is directed toward employers. This is understandable; the Section 503 new rules change what employers need to do. Yet, jobseekers and employees with disabilities will also be impacted in several key ways. What do people with disabilities most need to know about Section 503 as they make choices around getting and keeping a job? In what follows, we discuss seven key points about how the new rules for RA Section 503 could impact the choices of job-seekers and employees with disabilities.

1. Understand the basics of RA Section 503

Because the new rules could significantly impact the disability inclusiveness practices of many employers, it’s important for anyone with a disability who has or seeks a job to understand the basics. For the most part, the Section 503 new rules do not grant new rights to people with disabilities in the workplace. Instead, the new rules require employers to implement strategies for improving disability inclusiveness and track progress toward having a workforce that consists of seven percent of people with disabilities. The Section 503 new rules also require employers to align with the existing ADA Amendments Act. The U.S. Office of Federal Contract Compliance Programs (OFCCP) enforces Section 503 new rules. More information on the Section 503 new rules can be found on the OFCCP website.

2. Know which employers in your community region are federal contractors

It is likely that several employers in your community are federal contractors covered under Section 503 new rules (have federal contracts/subcontracts of at least $10,000). Sometimes, however, employers themselves might not fully understand whether they are covered. Who is a covered federal contractor can be confusing and has been challenged in court. This is particularly the case for employers in a rapidly-growing segment of our labor market: healthcare providers. Healthcare providers often have arrangements with the federal government to provide care to certain populations, such as veterans. Do these arrangements “count” as federal subcontracts and, hence, do these employers need to comply with RA Section 503 new rules? Thus far, it seems the answer is yes. Courts have tended to uphold the federal contractor status of healthcare providers, but have in some cases allowed more time to comply (OFCCP 2014b). To find out which employers could be federal contractors/subcontractors in your community, go to: abilityJOBS.com/fed-contractors

3. Target covered employers in your job search

Having a disability could be an advantage when applying for jobs with employers covered under Section 503. Over the next few years, employers will be gearing up to meet the goal of a workforce with seven percent of people with disabilities. Start your job search by targeting these employers.

4. Connect with employment placement agencies partnering with employers covered by Section 503 new rules

Employers covered by Section 503 new rules are required to reach out to employment agencies who can provide qualified job applicants with disabilities. As a job-seeker, using the services of these agencies could give you an advantage in finding a job. Ask employment placement agencies in your community or region if they partner with employers who are covered under RA Section 503 new rules. Also, ask these agencies how they supply job applicants to these employers. How do they communicate with these employers? What can you expect as a job applicant with a disability?

5. Being asked to work for less than minimum wage? Think again…

Section 14(c) of the Fair Labor Standards Act issues a certificate allowing employers, in some cases, to pay workers with disabilities less than the Federal minimum wage. OFCCP (who enforces RA Section 503 new rules) does not have jurisdiction over these policies and could not address this in the new rules. So it is still permissible under Section 503 new rules for employers with a 14c certificate to pay subminimum wages to workers with disabilities when these workers are in a work-training situation. Employers, however, are required to pay competitive wages and benefits to workers with disabilities who become qualified to do the job.

Individuals with disabilities should ask some hard questions about entering into these sorts of arrangements. Is there a concrete description of what “qualified” means? Is there a clear path toward competitive employment? Is there any sort of accountability where employers must hire individuals who become qualified? What is the history of other individuals with disabilities who have been in this work training situation? Have they moved on to competitive jobs? How long has this taken?

6. About disability disclosure

RA Section 503 new rules require employers to track their progress in reaching a workplace that consists of seven percent of workers with disabilities. To do this, employers must find out how many individuals with disabilities have applied for jobs and are in their workforce. This is done by asking applicants and employees to voluntarily self-identify as a person with a disability both during hiring and after employment has started. It is important to understand that this invitation to self-identify does not conflict with the ADA. The invitation to self-identify required by Section 503 new rules is voluntary and confidential. There is no penalty for not completing the self-identification form and the disability information given on the form must be kept separate from other personnel records used for decisions such as hiring, firing, or promotion. So this voluntary self-identification form is very different from an in-person, face-to- face disability disclosure made, for example, during a job interview. As a job-seeker with a disability, you still have the ADA protections against an employer questions that force you to disclose your disability to, for example, a hiring manager during a job interview.

7. Make a disclosure decision that’s right for you and right for each situation

The decision to provide disability information to an employer (either through the voluntary self-identification form or through a personal disclosure) really comes down to one thing: trust. Do you have reason to trust the employer? Remember Sally Jones? She had reason to believe that this employer may not use disability information in a way that’s legally compliant, effective and responsible. But each employer is different.

You need not make the same disclosure decision for all your job applications. Pose a few questions before making this decision. Does this employer have any sort of track record (either good or bad) around employing people with disabilities? Is there anything in the employer’s culture that would suggest disability inclusiveness (e.g. an Employee Resource Group for people with disabilities, a well-designed and effective accommodation process, or a diversity plan that fully includes disability)? What tends to happen to employees in this company when a disability arises? What messages does this employer send about disability? Look for answers to these types of questions among members of the disability community, the internet, or an employment placement professional.

The final point that’s most important to keep in mind is this: As a job-seeker with a disability, you have reason to hope. With the ADA Amendments Act, Section 503 new rules and other changes in disability law, positive change is now on our horizon. The skills and abilities you bring to the workplace matter, not just to you, but also to the employers who will soon discover them.

by Hannah Rudstam, Ellice Switzer, Judy Young, Kathleen Lee

OFCCP (2014b). District court judge rules in favor of OFCCP’s New Section 503 Rule. OFCCP Blog Spot. Office of Federal Contractor Compliance Program. Washington, DC. Retrieved from ofccp.blogspot.com/2014/03/district-court-judge-rules-in-favor-of.html

Read more articles from the Laura Dern Issue.