The form federal contractors should use to gather data on employee disability status and measure progress in reaching the OFCCP’s aspirational utilization of 7% has been released.
On March 24, 2014, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) implemented the latest regulations regarding Section 503 of the Rehabilitation Act of 1973.
According to the OFCCP website, “Section 503 prohibits federal contractors and subcontractors from discriminating in employment against individuals with disabilities (IWDs), and requires these employers to take affirmative action to recruit, hire, promote, and retain these individuals. The new rule strengthens the affirmative action provisions of the regulations to aid contractors in their efforts to recruit and hire IWDs, and improve job opportunities for individuals with disabilities. The new rule also makes changes to the nondiscrimination provisions of the regulations to bring them into compliance with the ADA Amendments Act of 2008.”
The new regulations require federal contractors to gather more data related to employee disability status than ever before. Employers are now required to invite new hires to self-identify whether or not they have a disability at the pre-offer and post-offer stage. They are also expected to invite existing employees to self-identify every five years. The OFCCP requires contractors to maintain these data for three years and to use the data to measure their outreach and recruiting efforts. To this end, an additional utilization goal of 7% IWDs in each job group has been established for those federal contractors with more than 100 employees. The EEOC additionally issued an opinion letter stating that federal contractors will not be in violation of Title I of the American with Disabilities Act (ADA) which prohibits “employers from making disability-related inquiries prior to an employment offer.”The OFCCP has also created the tool that employers will use to gather these data, the self-identification form as approved by the Office of Management and Budget (OMB) and published in 2014. The form requests employees to check one of three boxes:
Employees may or may not choose to return the form to the employer. The data gathered from the employees’ responses are then expected to be used to compare the percent of IWDs in the federal contractor’s workforce by job group against the OFCCP’s utilization goal of 7%.
While OFCCP has published requirements related to data collection and benchmarks, it has not yet specified the method to be used for calculating actual utilization at the contractor’s facilities. Depending on how the contractor uses the newly collected data on IWDs, the comparison is potentially very different. Below are three hypothetical scenarios for a fictitious federal contractor who has already completed the IWD survey process. The fictitious federal contractor has summarized the data collected as follows:
In Scenario 1, the federal contractor calculates the percent of their workforce in each job group with an IWD using the entire number of employees who were surveyed. For Job Group A, the calculation is 50/800 which is 6.3% and below the stipulated 7% utilization goal put forth by the OFCCP. However, the total number of employees in Job Group A includes 80 employees who did not return the form and 55 employees who did not wish to answer whether or not they have a disability. It is debatable as to whether these employees should be included in the total number for the calculation of the utilization in this scenario.
In Scenario 2, the 80 employees who did not return the forms in Job Group A and the 55 employees who refused to answer about their disability status have been removed from the total number of employees used to calculate the utilization. If these 135 employees are removed from the calculation then the utilization increases to 7.5% (i.e., 50/665). Under Scenario 2, the federal contractor meets the utilization goal of 7% as proscribed by the OFCCP.
In Scenario 3, the 80 employees who did not return the forms in Job Group A have been removed, but the 55 employees who refused to answer the disability question have been included in the total number of employees used to calculate the utilization. As a result, the utilization for Job Group A is now at 6.9% (i.e., 50/720). Under Scenario 3, the federal contractor again does not meet the utilization goal of 7% as proscribed by the OFCCP, though it is far closer.
Under these three simplistic scenarios, the choice of which portion of the surveyed population to include in the calculation can have a large impact on whether the federal contractor is meeting or exceeding OFCCP’s utilization goal for IWDs. These calculations may become even more complicated as certain questions about the demographic characteristics of employees who refused to answer or who did not return the form are asked. For example, could one assume that some portion of the non-responsive employees may actually have a disability and therefore be counted towards the contractor’s utilization calculation?
It is unclear at this time how the OFCCP is going to require the federal contractors to calculate the utilization goal. To date, the OFCCP appears
to be assuming that all employees will answer the disability survey form with a “yes” or “no” which would make the calculation straightforward.
The validity of the OFCCP’s assumption will not be proven until the results of these surveys are available at each contractor’s site. Contact
our OFCCP Compliance Group for additional information.