OFCCP Proposes Numerical Goals for Employment of Persons with Disabilities

Posted on January 9, 2012 by Jamie LaPlante

The U.S. Department of Labor Office of Federal Contracts Compliance Programs (OFCCP) has proposed a new rule requiring federal contractors and subcontractors to set a goal to have 7% of their workforce be individuals with disabilities. Presently, federal contractors and subcontractors are only required to set percentage numerical goals for areas of their workforces where women and minorities are found to be underrepresented based on an "Availability Analysis" conducted under OFCCP regulations. The 7% goal for persons with disabilities proposed by OFCCP would apply to each job group in the contractor’s workforce. It is not based on any calculation by the contractor of availability but is rather based simply on OFCCP's estimate of the percentage of the overall workforce that is disabled.

The proposed rule also imposes a requirement that contractors invite applicants to voluntarily self-identify as an individual with a disability at the hiring stage and the pre-offer stage, and to conduct an annual anonymous survey of its employee's inviting them to identify themselves as a person with a disability. The rule would also require contractors to maintain recruiting and hiring data concerning persons with disabilities.

The proposed rule also requires contractors to develop and implement written programs for handling requests for reasonable accommodation and to engage in specific types of outreach and recruitment efforts to recruit individuals with disabilities, and to make mandatory job opening listings with the nearest One Stop Career Center as is currently required for recruiting veterans.

A link to the the OFCCP's related FAQ's can be found here.

The proposed rule is open for comment until February 7, 2012.  

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House Overwhelmingly Approves ADA Amendments Act

Posted on July 11, 2008 by Christy Pate

The U.S. House of Representatives overwhelmingly passed the ADA Amendments Act, H.R. 3195, by a vote of 402-17. The bill would amend the Americans with Disabilities Act (ADA) and reject several U.S. Supreme Court decisions that have narrowed the scope of the ADA’s protection. If enacted, the bill would be effective January 1, 2009.

The intent of the bill is to restore the broad scope of protection available under the ADA.  The legislation includes the following key provisions:

  • The definition of disability is to be construed broadly.
  • Clarifies the definition of “disability” by:
    • Defining “substantially limits” to mean materially restricts (rather than the current standard of prevents or severely restricts);
    • Defining “major life activity” broadly and including within that definition “major bodily functions”;
    • Clarifying that an impairment substantially limits one major life activity does not have to limit any other major life activities;
    • Clarifying that impairments that are episodic or in remission are disabilities if they would substantially limit a major life activity when active;
    • Prohibiting consideration of the ameliorative effects of mitigating measures in determining whether an individual has a disability; 
    • Stating that an individual does not have to establish that the impairment limits or is perceived to limit a major life activity under “regarded as” disabled provisions. 
  • Provides that employers are not required to provide reasonable accommodations to employees who are “regarded as” disabled.

Having received broad bipartisan support, the bill moved quickly through the House. The Amendments also have the support of both leading employer and disability groups. The legislation is now in the Senate, where it is expected to pass by the end of the year. Some media reports suggest that the Senate may actually take action before Congress takes its August recess.     It is not clear whether the legislation will be signed by President Bush. The Bush Administration expressed its general support for the bill, but has expressed concern that certain provisions are too broad, would be difficult to implement, and would lead to increased litigation.

From a policy and practical standpoint for employers, the clarified definition of what constitutes a disability is expected to increase the overall number of people considered disabled and in turn may require employer to accommodate a larger number of employees. Indeed, the legislation can be read to require reasonable accommodations to be provided to people who are fully able to perform their job duties when they are taking medication or using prescribed medical devices.

From a litigation standpoint, the Amendments generally are not expected to mean significantly more litigation. The Amendments may, however, make it more difficult for employers to win these cases on summary judgment, resulting in more “employee-friendly decisions” and potentially larger settlements.

We will continue to monitor the progress of this bill and will report back here if and when the bill is presented to President Bush for his signature.
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