OFCCP Finalizes Self-Identification Disability Survey for Federal Contractors

January, 2014

Federal contractors are facing new regulations that will go into effect March 24, 2014. One of these new regulations is the requirement for all federal contractors/sub- contractors who are covered under Section 503 of the Rehabilitation Act to provide current employees and job applicants (pre-employment) with a voluntary survey to solicit disability status. When the OFCCP announced the new regulations they stated that contractors would only be allowed to use the disability survey approved by OFCCP. The OFCCP has finally published the final version of this survey.

The original survey draft had no option for employees and applicants to say they were not disabled. It also had no option for the employee/applicant to decline to provide any information on disability status as is included on race/gender pre/post-employment surveys. The updated version includes both of these things. Another addition to the final form that was not included on the original draft is a space for the applicant/employee to include their name, presumably so the contractor can track in which job group to include a current employee with a disability.

One thing that was not changed from the initial draft form is the direction to the applicant/employee to indicate if they "previously had a disability." It is unclear whether contractors will be able to count all individuals who "previously had a disability" as "disabled." The new regulations require contractors to set a 7% "aspirational" utilization goal of individuals with disabilities for each job group, which would seem to encourage contractors to count anyone who self identifies. Following is an example of a potential situation where a contractor may be unsure if they should count the person as disabled to assess utilization.

An employee tore his ACL and for four months an accommodation was provided by the employer (as required by the ADAAA) because he was not able to walk without a brace. For the last year the employee has had no need for the brace and performs all job duties as required without any accommodation. No future accommodation is anticipated. The employee should mark "previously had a disability" on the survey form. Is the employer able to count that employee for the 7% goal?

The OFCCP has been regularly updating the FAQ pages on its website regarding compliance with the new regulations under VEVRAA and Section 503. As they provide new clarification and direction for contractors, we will publish updates to help contractors meet compliance expectations.

As was stated in our previous NewsBrief article, contractors should not begin using this voluntary survey until after March 24, 2014, at the earliest, to avoid potential conflicts with ADAAA regulations. If you have additional questions about the new regulations and compliance, attend our AAP Update session on January 28: Inside What the OFCCP Is Really Up To, or contact Cascade any time.


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