United States: Trick Or Treat: Final Veterans/Disabled Rules Contains A Few Additional Surprises For Federal Contractors

As we previously reported, the Office of Federal Contract Compliance Programs (OFCCP) recently announced final rules established hiring targets with respect to the hiring of veterans and individuals with disabilities. Since that announcement, the rules have been published in the Federal Register and are scheduled to take effect on March 24, 2014. Although much of the publicity to date has focused on the hiring benchmarks and challenges they pose for the contractor community, the final rules impose several other new obligations on federal contractors.

Below is a list of six other significant changes set forth in the final rules:

  1. Invitations to Self-Identify: Contractors will now be required to ask applicants to self-identify as veterans and individuals with disabilities at both the pre- and post-offer stage. (Previously, contractors were only required to ask about veteran and disability status at the post-offer stage.) Additionally, contractors will be required to reissue the invitation to self-identify every five years and must remind employees at least once during the intervening time period that they can voluntarily update their disability status.
  2. Priority Considerations & Referrals: Under the final rules, contractors are still required to list their job openings with the appropriate state workforce agency. However, they now must also take the following actions at the time an initial job listing is made: (1) inform the state employment service of their contractor status, (2) provide contact information for the hiring official at each location in the state, (3) provide contact information for any outside job search service the contractor uses, and (4) request priority referrals of protected veterans for job openings.
  3. Mandatory Recruitment & Outreach: Contractors are required to conduct appropriate outreach and make "substantial" recruitment and on-the-job training efforts with respect to veterans and individuals with disabilities. The final rules specify a number of resources that must be contacted and actions that must be taken by contractors to carry out these obligations. These include contacts with the local veterans' employment office, Department of Veterans Affairs Regional Office, veterans' representatives on college campuses, local veterans' service groups, the state vocational rehabilitation service agency, local disability groups or Centers for Independent Living, placement or career offices at educational institutions, and private recruitment sources specializing in disabled individuals, among others. Additionally, contractors must formally evaluate the effectiveness of their recruitment efforts on annual basis, document the evaluation, and implement alternative efforts if their current recruitment efforts were not effective in identifying and recruiting qualified veterans and individuals with disabilities.
  4. Notification Regarding Affirmative Action Plan & Policy: The new rules require contractors to make the full affirmative action plan available to any employee or applicant on request and to post an affirmative action policy statement (reflecting the support of the contractor's chief executive) on bulletin boards and in policy manuals. This notice must be accessible to persons with disabilities and easy to understand. Contractors must also notify all subcontractors and subcontracting vendors, in writing, of the contractor's affirmative action program and request appropriate actions toward compliance on the subcontractor's part. Finally, contractors must notify unions of the affirmative action policy and request the union's cooperation with policy compliance.
  5. Changes to Reasonable Accommodation Policy or Procedure: The final rules require contractors to participate in an interactive process regarding accommodations for disabled veterans and individuals with disabilities. Although not required, the use of a written reasonable accommodation policy is listed as a best practice. Additionally, the rules require contractors to give disabled veterans the option of covering a portion (or all) of the expense of a proposed reasonable accommodation themselves if the accommodation is deemed an undue hardship by the contractor. The rules also describe circumstances under which a contractor may need to make confidential inquiries if a known disabled veteran is having difficulty performing his or her job in order to determine if the problem is disability-related and if the employee needs a reasonable accommodation.
  6. Mandatory Training: Finally, the final rules require that all personnel involved in recruitment, screening, selection, promotion, and disciplinary actions be trained on the contractor's affirmative action obligations.

Because these changes are substantial, federal contractors should be meeting with their management, IT personnel, and legal advisors now to ensure compliance with the new regulations. As always, please feel free to contact your Foley attorney for more information on the final rules and compliance obligations for federal contractors.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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