Friday, August 30, 2013

A Kairos Briefing (Part 2 of 6) – Changes to Section 503 of the Rehabilitation Act of 1973

Introduction
With the release of the Section 503 Final Rule, significant procedural changes have occurred in information dissemination, data collection and self-assessments required by Federal Contractors to comply with the new Final Rule.  Part two of this series highlights the most significant changes in the first four (4) of the following nine (9) areas:
  (1) Definition of “Disability”
  (2) Equal Opportunity Clauses
  (3) Reasonable Accommodation Procedures
  (4) Voluntary Self-Identification – Pre-Offer, Post Offer and Resurvey
Areas 5 through 9 will be covered in part three of this series and include:
  (5) Outreach and Recruitment Efforts
  (6) Audit and Reporting System
  (7) The 7% Utilization Goal
  (8) Affirmative Action Policies
  (9) Data, Data and More Data
We will identify what is required, recommended and what is considered a best practice in the Final Rule.
Definition of “Disability”
In order to implement changes necessitated by the passage of the ADA Amendments Act (ADAAA) of 2008, Section 503 required revisions to the definition of “disability” in order to incorporate the ADAAA requirements.  The Final Rule defines disability as a “physical or mental impairment that substantially limits one or more of the major life activities of such individual” 60-741.2(g).  Additionally, the definition of disability also includes having a “record of” such an impairment or “regarded as” having such an impairment. This definition of disability was intentional and “in favor of a broad coverage of individuals, to the maximum extent permitted by law.”
Equal Opportunity Clause
The Equal Opportunity (EO) clause is a required part of all federal contracts and subcontracts subject to Section 503.  However, it is not necessary to include the clause verbatim so long as the contract cites the clause 41 CFR 60-741.5(a) and includes the following language verbatim, in bold, after the citation: “This contractor and subcontractor shall abide by the requirements of 41 CFR 60-741.5(a). This regulation prohibits discrimination against qualified individuals on the basis of disability, and requires affirmative action by covered prime contractors and subcontractors to employ and advance in employment qualified individuals with disabilities.” 
Reasonable Accommodation Processes and Procedures
Section 503 requires covered Federal contractors and subcontractors provide reasonable accommodations to qualified individuals with disabilities, except when an accommodation would impose an “undue hardship” or a “direct threat”.  It should be noted that reasonable accommodation applies to qualified individuals in the job application process, affirmed by the invitation to voluntarily self-identify as a person with a disability in the Pre-Offer stage of employment as well as Post Offer.
After the job application process, reasonable accommodations also applies to the actual work environment, as well as benefits, privileges and opportunities which may be associated with employment.  It should further be noted that “as a matter of affirmative action, if an employee with a known disability is having significant difficulty performing his or her job and it is reasonable to conclude that the performance problem may be related to the known disability, the contractor shall confidentially notify the employee of the performance problem and inquire whether the problem is related to the employee’s disability. If the employee responds affirmatively, the contractor shall confidentially inquire whether the employee is in need of a reasonable accommodation.”
Although the written use of procedures for processing reasonable accommodations is a best practice and is not required, the Final Rule provides guidance to contractors in Appendix B, including a suggested written procedure should a contractor engage in such a process.
All data collected with respect to reasonable accommodations is required to be “preserved by the contractor for a period of two years from the date of the making of the record or the personnel action involved, whichever occurs later. However, if the contractor has fewer than 150 employees or does not have a Government contract of at least $150,000, the minimum record retention period shall be one year from the date of the making of the record or the personnel action involved, whichever occurs later, except as set forth in paragraph (b) of this section.”
Voluntary Self-Identification – Pre-Offer, Post Offer and Resurvey 
One of the most substantive changes to Section 503 is the required process for collecting and recording self-identification data, particularly in the Pre-Offer stage of employment.  OFCCP’s rationale to allow Federal contractors the ability to gather disability statistics in their hiring practices, Pre-Offer, is so they can assess the effectiveness of their outreach and recruitment efforts.
  • ·         Pre-Offer – The invitation to self-identify may be included with the application materials for a position but must be separate from the application.  The contractor must invite the applicant to self-identify using the language and manner prescribed by the Director and to be published on the OFCCP web site “soon”.
  • ·         Post-Offer – Defined as any time after the offer of employment but before the applicant begins their job duties, the contractor must invite the applicant to self-identify using the language and manner prescribed by the Director and to be published on the OFCCP web site “soon”.
  • ·         Resurvey – Current employees must be extended an invitation to self-identify as an individual with a disability.  New Federal contractors must invite current employees to voluntarily self-identify within the first year the contractor becomes subject to Section 503.  After the first year, Federal contractors must invite employees to self-identify at five year intervals and must remind their employees once during the five year interval that they may update their disability status.
It is important to note that all self-identification information must be kept confidential and must be maintained in a data analysis file separate from the employee’s medical file.  Additionally, the medical information can only be shared with:
  • 1.      Managers and supervisors regarding necessary restrictions of work or duties of the applicant or employee and necessary accommodations
  • 2.      First aide and safety personnel when appropriate, if they require emergency treatment
  • 3.      Government officials enforcing ADA or laws administered by OFCCP
All self-identification data collected must be maintained for three years.  This data includes:
  • 1.      The number of applicants who self-identified as individuals with disabilities or are known to be individuals with disabilities
  • 2.      The total number of job openings and total jobs filled
  • 3.      The total number of applicants for all jobs
  • 4.      The total number of applicants with disabilities hired
  • 5.      The total number of applicants hired
Coming Soon
In part three of this training series we will discuss areas 5 through 9:
  (5) Outreach and Recruitment Efforts
  (6) Audit and Reporting System
  (7) The 7% Utilization Goal
  (8) Affirmative Action Policies
  (9) Data, Data and More Data
Kairos Services welcomes any comments or questions regarding any issues or information raised in this training series.

The content provided herein by Kairos Services, Inc. is for informational purposes only and not a substitute for professional advice.  You should seek independent advice from one of our professionals before acting upon any opinion or information contained in this mailer or our websites.

Tuesday, August 27, 2013

A Kairos Briefing (Part 1 of 6) – Changes to Section 503 of the Rehabilitation Act of 1973

Introduction
After a significant delay since its inception, the Office of Federal Contract Compliance Programs (OFCCP) submitted their proposed regulatory revisions to Section 503 of the Rehabilitation Act of 1973 to the Office of Management and Budget (OMB).  In less than 30 days, OMB approved the proposed Section 503 regulations today.
Welcome to the first installment of our six part series!  The first three parts of this series address the OFCCP’s regulatory changes under Section 503 of the Rehabilitation Act of 1973.  In this installment we will provide a summary and analysis of the most significant revisions contained in the Final Rule.  This review of Section 503 will assist human resource professionals in understanding how these changes impact Federal contractors in the time and cost necessary to comply with the Section 503 Rule.
 Summary
Section 503 prohibits discrimination by covered Federal contractors and subcontractors against individuals on the basis of disability and requires that Federal contractors take affirmative action on behalf of qualified individuals with disabilities.  These “affirmative actions” include engaging in outreach and recruitment efforts, entering into linkage agreements, and a variety of other proactive steps which are to be expressly detailed in a contractor’s personnel policies to recruit persons with disabilities. According to the OFCCP, the existing Section 503 regulations needed significant changes in order to transform the regulations from a “paperwork exercise” into a program for enhancing equal employment opportunities for qualified individuals with disabilities.
The most substantive changes in the Final Rule can be divided into four distinct categories meant to embody the purpose and intent of the Final regulations.  First, the changes are meant to provide a ‘bridge’ between job-seeking qualified individuals with disabilities and Federal contractors seeking them.  Second, the changes ensure contractors understand and effectively communicate their affirmative action obligations to (a) their incumbent workforce, (b) prospective job-seeking individuals with disabilities and (c) entities with which covered contractors engage in business.  Third, the Rule provides significant increases in data collection and analysis for contractors to assess the effectiveness of their affirmative action efforts.  Finally, during its conduct of compliance audits, the Rule provides the OFCCP with greater flexibility and efficiency in conducting compliance evaluations.
 Analysis
In order to strengthen its affirmative action provisions, the OFCCP has made specific changes to the definition and scope of Section 503, removing ambiguities while imposing mandatory “specific actions” be taken by Federal contractors.  The following paragraphs provide a brief narrative from which we analyze the four previously mentioned categories.
Provide a ‘bridge’ – In order to connect qualified individuals with disabilities and contractors looking for them, the OFCCP has codified substantive outreach and recruitment efforts in the Final Rule.  A few of these efforts include (1) listing all employment opportunities with the nearest One-Stop Career Center, (2) engaging in a minimum number of outreach and recruitment efforts, (3) entering into linkage agreements with organizations and agencies for the purpose of recruiting qualified individuals with disabilities, (4) extended dissemination of its affirmative action commitments to affirmative action on behalf of individuals with disabilities and (5) the collection and retention of all applicable data related to outreach efforts for individuals with disabilities for a five-year period.
Effectively Communicate – Once job-seeking individuals with disabilities and employers have come together, it is essential for Federal contractors to effectively communicate the protections and benefits provided under the Section 503 Rule.  Effective communication includes but is not limited to (1) inclusion of affirmative action policies in a policy manual and/or employee manual, (2) discussions of equal employment opportunity during orientation and training programs, (3) providing notice of rights under Section 503 in formats accessible to employees working offsite, (4) providing the option to self-identify and (5) providing a process to request an accommodation and other related communications.  Consistent with the previous section, all records must be kept on file for five years from their creation, including the results of self-monitoring assessments performed on an annual basis.
Increased Data Collection and Analysis – The significant volume of new data that must be collected, maintained and stored is arguably the most rigorous new requirement of the Section 503 Final Rule.  This substantial increase in data collection was largely enacted for the purpose of conducting self-assessments of affirmative action program effectiveness.   Under the new 503 regulations, contractors are required to maintain documentation on referral, applicant, hiring actions and job openings data for a period of five years.  Further, a significant increase in reasonable accommodation compliance requirements also substantially adds to a contractor’s burden of compliance. 
One particularly challenging self-assessment is that which measures progress toward the new 7% utilization goal for persons with disabilities required by the new regulations.  This 7% goal per job group for persons with disabilities represents another compliance challenge to federal contractors.
Greater Flexibility and Efficiency – With increased access to electronic data and contractor self-assessments, the OFCCP will have an increased ability to conduct more in depth compliance evaluations.  With the significant increase in data retention required under the Final Rule, OFCCP will have a greater likelihood of identifying patterns of discrimination against individuals with disabilities within a contractor’s workforce.
Conclusion
Without a doubt the OFCCP has significantly increased the burden on Federal contractors and the cost of doing business with the Federal government across nearly every conceivable area related to affirmative action and Section 503.  Dissimilar from past revisions to Section 503, the OFCCP has substantially increased the size and scope of contractor obligations to include data collection, retention, and annual self-assessments.  It is critical that Federal contractors prepare now to implement the provisions of the Final Section 503 Rule for achieving compliance in the face of these significant changes.

The content provided herein by Kairos Services, Inc. is for informational purposes only and not a substitute for professional advice.  The opinions expressed in this email service are the opinions of the individual author and may not reflect the opinions of the company or any individual professionals. You should seek independent advice from one of our professionals before acting upon any opinion or information contained in this mailer or our websites.

BIG NEWS - THE REGS PASSED!

Dear Kairos Clients:
It is likely that your email inbox has been inundated the last few hours with the announcement of the Final Rules which represent a substantial step forward in advancing employment opportunities for Veterans and Individuals with Disabilities.   These regulations, announced a few hours ago by Vice President Biden, were obviously on a very fast track, navigating the OMB approval process in less than 30 days.  We will have 180 days before the Final Rule takes effect and, for sure, there will be a lot of work involved for federal contractors to comply.   

You will likely receive information on numerous webinars that will be offered as soon as the end of this week.  However, we have a plan in place which will help Kairos clients understand what is codified in the new regulations.  Over the next week to 10 days you will receive a series of six emails.  We had originally planned to release them at the rate of one a week to provide you amply time to review and digest.  So we now have to step up the pace, releasing one to you every 2 or 3 days.  We want you to have time to review these six pieces of information before you participate in our webinars.  We believe this process will help you gain a deeper understanding of the metrics and compliance obligations required by the new regulations, therefore allowing you ample time to contemplate questions you need answers to by the time we hold our webinars.  We will likely do several of them and limit participation to 25 maximum for each webinar so we can include a Q&A session with each.

You can view today’s press release on the DOL’s website by clicking on this link.  As always, we look forward to guiding you through this time of significant change in affirmative action and EEO compliance.

Marshall
Marshall P. Mendez
President

Friday, August 23, 2013

A Kairos Training Series

The upcoming six part series referenced below has been developed by Kairos Services, Inc. as a training tool to assist federal contractors in complying with proposed changes to non-discrimination and affirmative action regulations of section 503 of the Rehabilitation Act of 1973, as amended, and section 4212 of the Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as amended.  Submitted by the Office of Federal Contract Compliance Programs (OFCCP) to the Office of Management and Budget (OMB) at the end of July, these revisions are expected to be approved by OMB in the very near future and may impose significant increases in data collection and analysis a contractor must undertake in order to achieve compliance with these proposed regulations.  Although it is unclear to what extent these regulations will be approved or amended, it is clear that the federal contractor community needs to prepare to comply with these regulatory changes once approved.
 Why is this important to you?  The reasons are basically twofold.  First, the proposed regulations significantly increase the data collection requirements of federal contractors, and second, they establish new utilization goals for individuals with disabilities and veterans against which contractors must self-audit the effectiveness of their outreach, recruitment, hiring and other affirmative action obligations.
 Training Outline – This series has been subdivided into six parts in order to help Human Resource and HRIS professionals with information dissemination, process revisions, and data collection modifications necessary to achieve compliance with the proposed regulations.  The first three parts of this series tackle the data collection requirements and goals specific to the regulations implementing section 503 of the Rehabilitation Act of 1973 (individuals with disabilities), while the second three parts of the series address the provisions of the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (veterans).
 Kairos Services welcomes any comments or questions regarding any issues or information raised in this training series.