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OMB approves paperwork for revised OFCCP disability and veterans regulations, including new disability self-id form

January 24th, 2014  |  Cynthia L. Hackerott  |  2 Comments

On January 22, 2014, the Office of Management and Budget (OMB) approved the paperwork requirements for the OFCCP’s final rule that revises the agency’s regulations which implement Section 503 of the Rehabilitation Act of 1973 (Section 503), including the eagerly-awaited finalized version of the new standard “Voluntary Self-Identification of Disability” form. As previously reported in Employment Law Daily, the OMB approved the paperwork requirements for the final rule that revises the OFCCP’s regulations implementing the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (VEVRAA) on January 13, 2014. OMB approval of the paperwork requirements is a necessary step for the rules to take legal effect.

Both final rules were published in the Federal Register on September 24, 2013 (78 FR 58614–58679 and 78 FR 58682-58752). The VEVRAA rule revises the OFCCP’s regulations at 41 CFR Part 60-300 (and rescinds the outdated regulations at 41 CFR Part 60-250); the Section 503 rule revises the agency’s regulations in 41 CFR Part 60-741. The revised regulations will require federal contractors to establish a 7 percent utilization goal for workers with disabilities and a variable hiring benchmark for protected veterans as well as new data collection and recordkeeping requirements.

Although federal contractors and subcontractors will be required to comply with Subparts A, B, D, and E of the both new rules by March 24, 2014, the OFCCP has indicated that contractors with existing affirmative action programs (AAPs) on the effective date may wait to comply with the new requirements of 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 may wait to comply with the new requirements of Subpart C of both rules until their new annual AAP cycle begins. However, contractors must still comply with all existing obligations under the current regulations while they are waiting to comply with the new requirements.

Invitations to self-identify. The final Section 503 rule requires contractors to invite applicants to self-identify as individuals with disabilities (IWDs) at both the pre-offer and post-offer phases of the application process. It 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.

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.

Required VEVRAA format/Section 503 form. The OFCCP submitted its proposed paperwork requirements for both rules to the OMB on September 24, 2013. In comments submitted to OMB, many contractors and employer groups expressed concern that the proposed version of the prescribed disability self-identification form could be confusing to workers, failed to completely define the term “disability,” and conflicted with some provisions of the upcoming regulations. OFCCP Branch Chief of Policy Naomi Levin noted in a January 16, 2014 webinar that the finalized version of the form has been revised from the proposed version in light of stakeholder comments.

Contractors can provide the form electronically, advised Senior Labor Department Attorney Jessica Lyn during the webinar, if the electronic form meets certain requirements.  These requirements, which are specified in one of the OFCCP’s FAQs on the rule, are that the e-form must:

  • Display the OMB number and expiration date;
  • Contain the text of the form without alteration;
  • Use a sans-serif font, such as Calibri or Arial; and
  • Use at least 11-pitch for font size (with the exception of the footnote and burden statement, which must be at least 10-pitch in size).

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 of the VEVRAA rule must still ensure that the format they use meets the criteria provided in the VEVRAA rule.

The OMB approval of paperwork requirements for both rules will expire on January 31, 2017.

The supporting statement, supplementary document, and public comments regarding the VEVRAA paperwork requirements are available at: http://www.reginfo.gov/public/do/PRAViewDocument?ref_nbr=201307-1250-002.

The supporting statement, supplementary document, and public comments regarding the Section 503 paperwork requirements are available at: http://www.reginfo.gov/public/do/PRAViewDocument?ref_nbr=201307-1250-001.

*Update: As of January 27, 2014, the OFCCP has the form posted on its website at: http://www.dol.gov/ofccp/regs/compliance/sec503/Voluntary_Self-Identification_of_Disability_CC-305_SD_Edit1.24.14.pdf.

Responses

  1. Karen Wright says:

    November 17th, 2014 at 2:02 pm

    Is this form a requirement?

  2. Cynthia L. Hackerott says:

    November 21st, 2014 at 6:01 pm

    The OFCCP’s FAQ on the Section 503 regulations states:

    “The new Section 503 regulations require contractors to invite applicants to self-identify at the pre-offer stage, in addition to the already required post-offer self-identification invitation. OFCCP added this requirement so that contractors can track the number of individuals with disabilities who apply for jobs and use this information to assess the effectiveness of their outreach and recruitment efforts. The pre-offer invitation to self-identify may be included in the contractors´ application materials for a position, but must be separate from the application.

    OFCCP has developed a form for contractors to use to invite self-identification of disability. The form is available on the OFCCP Web site, in English and Spanish, and in both Word and .pdf formats at http://www.dol.gov/ofccp/regs/compliance/section503.htm.”

    The OFCCP’s FAQ on the VEVRAA regulations states:

    “The new VEVRAA regulations require contractors to invite applicants to self-identify as a protected veteran prior to making a job offer, in addition to the post-offer self-identification that is already required. OFCCP added this requirement so that contractors can track the number of protected veterans who apply for jobs and use this data to assess the effectiveness of their outreach and recruitment efforts. The pre-offer invitation to self-identify may be included in the contractors’ application materials. After making a job offer to an applicant, the new regulations retain the obligation that contractors invite applicants to voluntarily self-identify as belonging to any of the specific categories of protected veteran (e.g., recently separated veteran; disabled veteran) on which the contractor is required to report by the Veterans Employment and Training Service (VETS). Appendix B of the new VEVRAA regulations includes a sample invitation to self-identify that contractors may choose to use. You can find the sample invitations on the OFCCP Web site.”

    Also see http://www.employmentlawdaily.com/index.php/2014/02/05/neli-webinar-provides-transactional-approach-to-ofccp-revised-disability-veterans-rules/ and http://www.employmentlawdaily.com/index.php/2014/02/20/expert-provides-discussion-of-docs-necessary-for-ofccps-revised-disability-veterans-regs/.

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