On January 22, 2014, after several months of review, the Office of Management and Budget (“OMB”) finally approved the voluntary self-identification form required by the Section 503 Final Rule that becomes effective on March 24, 2014.
The Office of Federal Contract Compliance Program (“OFCCP”) designed the self-identification form to alleviate contractor concerns that collecting disability data would run afoul of the Americans with Disabilities Act and to assure employees and applicants that the self-identification requests are routine and consistent with OFCCP reporting obligations. As a result, under the OFCCP Section 503 Final Rule, federal contractors must provide employees and applicants for employment with unaltered copies of the OMB-approved form. Forms may be distributed electronically or in hard copy.
The approved form varies from the proposed form, in part, by providing employees and applicants with the option of providing their names and the date that the form was signed. OFCCP added this option to assist contractors in meeting Section 503’s 7% utilization goal. But, in order to guard against disability discrimination lawsuits, contractors must be diligent in their efforts to retain completed self-identification forms separate from personnel files and to use the data only in accordance with the contractors’ affirmative action obligations.
In addition, the approved form asks employees and applicants for employment to identify if they have ever had a disability. Allowing employees and applicants to self-identify as individuals who previously had a disability may help contractors meet the 7% utilization goal established by the Final Rule. However, expanding the number of applicants identifying as individuals with disabilities may create an adverse impact on the hiring of applicants with disabilities or increase contractor exposure to lawsuits where contractors fail to hire candidates who identify as individuals with disabilities.
As noted above, the Final Rule goes into effect on March 24, 2014. Under the Final Rule, contractors are required to collect voluntary disclosure information from applicants (as defined in the Internet Applicant Rule), new hires and from their entire workforce every five years. With the effective date fast approaching, contractors should develop procedures for distributing the new form to applicants and employees, collecting and analyzing information from it, and retain copies of completed forms.