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New disability self-ID form among paperwork requirements of revised OFCCP veterans and disability regulations submitted for OMB approval

October 1st, 2013  |  Cynthia L. Hackerott

On September 24, 2013, the OFCCP submitted for Office of Management and Budget (OMB) approval the paperwork requirements for two final rules published in the Federal Register that same day: one rule revises the agency’s regulations at 41 CFR Part 60-300 that implement the provisions of the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (VEVRAA) (and rescind the outdated regulations at 41 CFR Part 60-250); the other rule revises the regulations in 41 CFR Part 60-741 that implement the provisions of Section 503 of the Rehabilitation Act of 1973, as amended (Section 503). The documentation submitted in support of the request for OMB approval includes a new standard form, entitled “Voluntary Self-Identification of Disability”, that contractors will be required to use under the Section 503 regulations.

The rules are scheduled to take effect on March 24, 2014. Although federal contractors and subcontractors will be required to comply with most of the requirements of the new rules by this date, contractors with existing affirmative action programs (AAPs) on the effective date may wait to come into compliance with Subpart C of both rules as part of their standard AAP review and updating cycle. In other words, contractors that have an AAP in operation (mid-cycle) on March 24, 2014 may wait to comply with Subpart C of both rules until their new annual AAP cycle begins.

The supporting statements for both the VEVRAA and Section 503 approval requests detail the paperwork burdens the OFCCP estimates will be imposed on contractors by the upcoming regulations. The following is a brief overview of major new paperwork requirements.

New metric requirements. The VEVRAA rule (78 FR 58614–58679) will require contractors to establish an annual hiring benchmark, either based on the national percentage of veterans in the workforce (currently 8 percent), or based on the best available data and factors (specified in the regulations) unique to their establishments. Records related to the criteria and conclusions regarding contractor established hiring benchmarks must be kept for three years.

The Section 503 rule (78 FR 58682-58752) will require contractors to establish a 7 percent utilization goal for the employment of individuals with disabilities (IWDs). Contractors must apply the goal to each of their job groups, with the exception of contractors with 100 or fewer employees, who may apply the go to their entire workforce. In addition, contractors must conduct an annual utilization analysis and assessment of problem areas, and establish specific action-oriented programs to address any identified problems.

Invitations to self-identify. The final Section 503 rule requires contractors to invite applicants to self-identify as IWDs at both the pre-offer and post-offer phases of the application process. The final rule also requires that contractors invite their incumbent employees to self-identify as IWDs every five years. All invitations must use the standardized form prescribed by the OFCCP. As stated previously, that form was included in the supporting documentation filed with the OMB.

The final VEVRAA rule requires that contractors invite applicants to self-identify as protected veterans at both the pre-offer and post-offer phases of the application process. At the pre-offer stage, contractors must extend an invitation to self-identify generally as a “protected veteran.”  At the post-offer stage, contractors must extend an invitation to self-identify as to the specific veteran category(ies) that contractors are required to report on in the VETS-100A form.

Appendix B of the VEVRAA final rule includes sample invitations to self-identify (for both the pre-offer and post-offer stages) that contractors may use. Unlike the requirements of the Section 503 final rule, contractors are not required to use any specific form for the VEVRAA invitations. Nevertheless, contractors that do not use the sample forms provided in Appendix B must still ensure that the format they use meets the criteria provided in the VEVRAA rule.

Data collection analysis. The final rules will require contractors to document and update annually the following data:

•           number of IWD and protected veteran applicants;

•           total number of applicants for all jobs;

•           total number of job openings and jobs filled;

•           number of IWDs and protected veterans hired; and

•           total number of applicants hired.

Outreach and recruitment records. Both rules will require contractors not only to engage in outreach and recruitment activities for IWDs and protected veterans, but will also require documentation of each of these efforts and an annual written assessment of the effectiveness of each of activities. If the totality of the contractor’s efforts is not effective, the contractor must identify and implement alternative efforts. Further, contractors must retain records relating to these efforts for three years.

Comparison charts. On a related note, the OFCCP has also posted on its website side by side comparison charts to highlight the changes between the agency’s current regulations and the upcoming revisions. The VEVRAA chart is available at http://www.dol.gov/ofccp/regs/compliance/factsheets/VEVRAA_Crosswalk_QA_508c.pdf and the Section 503 chart is available at http://www.dol.gov/ofccp/regs/compliance/factsheets/Section503_Crosswalk_QA_508c.pdf.