OFCCP Publishes Mandatory Self-Identification Form for Applicants and Employees With Disabilities

This week, the OFCCP finally released its final version of the self-identification form for applicants and employees with disabilities.  Unlike the self-identification form for women and minorities, employers are required by 41 C.F.R. §60-741.42(b) to use the OFCCP’s version of the form and its exact language. Employers are required to invite applicants to voluntarily self-identify their disabilities at the same time that they invite applicants to self-identify their gender and race. (This might be after an initial screening to determine that the applicant fulfills the basic prerequisites of the job or after a batch of unsolicited resumes have been screened).  Employers are also required to invite applicants to voluntarily self-identify their disabilities “[a]t any time after the offer of employment, but before the applicant begins his or her job duties.”  Finally, employers are also required to invite employees to self-identify their disabilities every five years and to remind them at least once during intervening years. (After all, disability status may change over time).

When the form was initially proposed, OFCCP received many comments objecting to the use of a mandatory form, rather than permitting employers to fashion their own invitation to self-identify.  OFCCP responded in September (when it published the final regulation for the Rehabilitation Act affirmative action requirements):

 

OFCCP believes that the use of uniform language is needed to ensure consistency in all self identification invitations, and to reassure individuals with disabilities that the self-identification request is routine and executed pursuant to obligations created by OFCCP. Standardized language will also minimize any burden to contractors associated with this responsibility, and will facilitate contractor compliance.

The form is two pages because OFCCP elected to include the following language about an employer’s obligation to provide reasonable accommodations:

Federal law requires employers to provide reasonable accommodation to qualified individuals with disabilities.  Please tell us if you require a reasonable accommodation to apply for a job or to perform your job.  Examples of reasonable accommodation include making a change to the application process or work procedures, providing documents in an alternative format, using a sign language interpreter, or using specialized equipment.

Contractors may delay utilizing the new self-identification form until the commencement of their next plan year after March 24.   The new form is part of Subsection C in the new rules. As explained by the OFCCP when the final rule was published in September:

Although this final rule becomes effective 180 days after publication, full compliance with the requirements of this final rule by current contractors will be phased in as follows. Current contractors subject to subpart C of the existing 41 CFR part 60–741 regulations that have written affirmative action programs (AAP) prepared pursuant to those regulations in place on the effective date of this final rule may maintain that AAP for the duration of their AAP year. Such contractors are required to update their affirmative action programs to come into compliance with the requirements of subpart C of this final rule at the start of their next standard 12-month AAP review and updating cycle. OFCCP will verify compliance with the requirements of this final rule when a contractor is selected for a compliance evaluation pursuant to § 60–741.60 or subject to a complaint investigation pursuant to § 60–741.61. (bolding added for emphasis).

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.