Sweeping changes proposed for affirmative action requirements regarding disabled workers

Jill Jensen-Welch Iowa Employment & Labor Law Dickinson Law Firm Des Moines Iowa

Posted on 12/09/2011 at 11:14 AM by Jill Jensen-Welch

Continuing the Obama administration's aggressive regulatory agenda, the Office of Federal Contracts Compliance Programs published proposed regulations today in the Federal Register that, if adopted, will make sweeping changes to Affirmative Action Plan (AAP) requirements regarding disabled workers.  The OFCCP's proposed regulations would set a goal that 7% of the workforce of a federal contractor be people with disabilities.  Currently, federal contractors who must comply with affirmative action requirements of E.O. 11246 and Section 503 of the Rehabilitation Act of 1973 do not have to set hiring goals or conduct numeric utilization analyses for persons with disabilities like they must do for racial minorities and women.  Only good faith efforts to recruit persons with disabilities are required at present.  According to OFCCP Director Patricia A. Shiu, 'Clearly, that's not working,' because the unemployment rate for the disabled is one and a half times that of those without disabilities, and a new Bureau of Labor Statistics study found that 79.2% of all persons with disabilities are not in the workforce.  'What gets measured gets done,' said Shiu, 'and we're in the business of getting things done.' In addition to a hiring goal, the proposed regulations new requirements related to data collection, training, record keeping, and policy dissemination for disabled workers that are similar to current requirements for women and racial minorities. The definition of who is 'disabled' under the amended Americans with Disabilities Act is so broad that many applicants and employees qualify for its protections.  The ADA was patterned after the Rehabilitation Act, and the two statutes share almost identical definitions of who is 'disabled.'  Taking that into consideration, one might guess that a 7% hiring goal should be easily attained.  Because many disabilities are not visible, however, the bigger difficulty may be in getting applicants and employees to voluntarily self-identify so employers can count them and provide proof of meeting the hiring goal.  More careful review of the proposed regulations will be required before practical considerations can be made with any degree of certainty. Stay tuned for more posts on this subject after the proposed regulations are issued.


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