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The Basics Of What Every Government Contractor Needs To Know To Comply With The New Government Contractor Disability Workforce Rules

By Edward Tolchin

Effective March 24, 2014, individuals with qualified disabilities should account for 7 percent of a federal contractor’s workforce; otherwise, the federal contractor must be able to demonstrate that it is taking steps to achieve this 7 percent benchmark goal.  This requirement generally applies to all awardees of federal prime and subcontracts in excess of $10,000.

The use of self-identification forms for both applicants and current employees, will be a company’s primary way of meeting this goal. You can find a sample of the form here, but you can create your own electronic form if you follow certain precise rules.  Use of this type of form is unique, because the American with Disabilities Act (ADA) generally discourages, and may indeed prohibit, employers from inquiring about an applicant or a current employee’s disability status; but under the new rules, federal contractors have become the one exception.

Although federal contractors may make disability status inquiries through the use of self-identification forms, the topic will likely remain sensitive for many applicants and current employees who may find the questions are intrusive or may fear employment discrimination if they claim disabilities. Therefore, federal contractors must take care to advise prospective and current employees that the information will be kept confidential and that they will not be subject to discrimination or retaliation.

Here’s a checklist of actions which will help a contractor to comply with the new rule:

  • Post all new job listings with the Equal Employment clause contained in the regulation.
  •  Include the Equal Employment clause contained in the regulation in all subcontracts in order to alert subcontractors of their responsibilities to comply.
  • Provide applicants and current employees with a written notice informing them of their Equal Employment Opportunity rights.
  • Generally familiarize yourself with the list of qualified disabilities, which include less  apparent disabilities such as cancer, major depression, diabetes, and obsessive compulsive disorder, to name a few.
  • Invite all applicants to voluntarily self-identify as having a qualified disability and provide them with the self-identification form to do so.
  • Invite all current employees to voluntarily self-identify using the self-identification form, and invite them to do this every five years.
  • Maintain self-identification forms separate from prospective or current employee’s   application records in order to maintain confidentiality.
  •  Keep detailed records of the percentage of your workforce with qualified disabilities and   the numbers of disabled applicants.
  • If individuals with qualified disability account for less than 7% of your workforce, begin assessing existing personnel processes, the effectiveness of your outreach and recruitment effort, and carefully document your outreach and recruitment efforts.
  • Implement and publicize a straightforward procedure to allow employees with qualified disabilities to make requests for reasonable accommodations.
  • Consult counsel before responding to accommodation requests to ensure compliance with all applicable rules.

  You can find the new regulation here, and DOL’s summary here.

If you have any questions about Government Contracting please contact Ed Tolchin

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Edward Tolchin’s is a principal at Offit Kurman and focuses his practice on government contracting, business litigation, and technology matters. In government contracting issues, Mr. Tolchin represents prime and subcontractors in contract negotiation and formation matters and in disputes involving both government and commercial business issues. He has been involved in procurement cases before many of the federal and state boards of contract appeal, Government Accountability Office, Small Business Administration, United States Court of Federal Claims, Court of Appeals for the Federal Circuit and other federal and state courts across the United States.

His Business litigation practice involves large and small matters in federal and state courts and before numerous arbitration panels. In the technology arena, Mr. Tolchin has assisted in disputes, licensing, and business development matters for clients ranging from startups to Fortune 500 companies.