Gov. Ends 'Don't Ask' Policy For Disabled Workers

Federal contractors, who employ more than 15 million workers nationwide, will soon be asking disabled individuals to 'out' themselves as part of new regulations.  Contrary to the strict policies in effect at most employers prohibiting asking employees or potential employees about possible disabilities, a new rule forces employers to ask and track such individuals, in an effort to reach a target of employing 7% disabled workers.  

Years of training to comply with the Americans With Disabilities Act (ADA), which forbids employers from gathering information on disability status, is now being turned on its head.  Previously, such inquiries were considered discriminatory as well as dangerous for employers, since knowledge of a disability could trigger a requirement to accommodate under the ADA.  In fact, the EEOC was required to make an exception to allow employers to comply with the new rule so that they can show they are meeting the targets or are attempting to recruit to meet the targets.

The new rule, promulgated by the the Office of Federal Contract Compliance Programs (OFCCP) becomes effective on March 24, 2014 and changes the regulations to Section 503 of the Rehabilitation Act of 1973.  Its new requirements are summarized on the Department of Labor website.

Key changes include: 

• Data collection: Contractors will be required to document and update annually several quantitative comparisons for the number of Individuals with disabilities who apply for jobs and the number they hire. The data must be maintained for three years.
• Invitation to Self-Identify: Contractors will be required to invite applicants to self-identify at both the pre-offer and post-offer phases of the application process, using language prescribed by OFCCP. The Rule also requires that contractors invite employees to self-identify every five years, using the prescribed language. 

The new self-identification form asks employees and potential employees to self-identify and provides a non-exhaustive list of possible disabilities.  It allows individuals to self-identify or to choose not to answer.  It also includes information on the duty to accommodate and provides an opportunity to request an accommodation.

While government contractor employers may see an immediate shift in culture as employing individuals with disabilities becomes a more universally celebrated, rather than hidden aspect of the employment culture, private employers are likely to feel the effects eventually as well.  However, non-government contractors should not change any policies or practices with regards to individuals with disabilities and should continue to focus exclusively on each person's ability to perform the essential functions of his or her job.  For help on compliance with the ADA and/or the new regulations for government contractors, contact employment counsel.