What steps should federal contractors take to ensure compliance with the OFCCP's Final Rule regarding Section 503 of the Rehabilitation Act of 1973?

Author: Susan A.P. Woodhouse, Littler

Federal contractors and subcontractors should take several steps to ensure compliance with the OFCCP's Final Rule. As a starting point, contractors and subcontractors should carefully review all policies, procedures and practices to verify that they align with the Final Rule. In addition, contractors and subcontractors should have in place:

  • A periodic review process of physical and mental job qualification standards (should already be in place, notwithstanding the Final Rule);
  • A plan for meeting the seven percent hiring goal (i.e., utilization goal), including a plan and outreach efforts to recruit, train, retain and promote applicants and employees with qualifying disabilities;
  • Measurable objectives and an internal auditing and reporting system to measure an employer's progress towards achieving equal employment opportunity for individuals with disabilities;
  • Procedures for collecting and retaining voluntary self-identification information from applicants and employees (i.e., minimum every five years, send reminder to employees that they may change their disability status). Contractors should keep in mind that they cannot compel or coerce employees or applicants to self-identify. In addition, if an individual with a disability does not self-identify, a contractor may note an obvious disability but should not guess or speculate when doing so;
  • Procedures for periodically surveying current employees regarding self-identification information and a process for keeping disability demographic information confidential in a data analysis file (e.g., storage place, individuals who can see the information, etc.). A contractor should not keep this information in an employee's personnel file;
  • A plan for using the information received through the self-identification process (i.e., to improve outreach and recruitment efforts);
  • The OFCCP's official form regarding voluntary self-identification (which is available in several languages);
  • A proper system for electronic or online job applications. An employer should note that while it can use electronic applications, the use of such applications cannot result in the denial of equal employment opportunity to individuals with disabilities. Therefore, a contractor should review its online job application systems to ensure compatibility with assistive technologies and resources. Helpful resources can be found, for example, on the US Department of Labor's Office of Disability Employment Policy (ODEP) or the Job Accommodation Network (JAN) website. See also FAQs from the OFCCP Regarding Internet Applicant Recordkeeping Rule;
  • Reasonable accommodation procedures (these are recommended but not required);
  • An equal employment opportunity policy with the required OFCCP language. In addition, all solicitations, advertisements and contracts should include the mandated equal opportunity language (see Employee Management > Disabilities (ADA)); and
  • A training program to train all employees involved in recruiting, screening, selecting, promoting and disciplining applicants or employees to ensure their understanding of the new regulations. Training should be documented and recorded, if possible.

The OFCCP issued a checklist to assist contractors in complying with the Final Rule. Complying with the checklist alone, however, does not ensure compliance with the Final Rule.