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OFCCP Sends Proposed Disability Self-Identification Form to OMB

Under OFCCP’s new 503 regulations covering individuals with disabilities, employers must use the prescribed form to be provided by OFCCP to solicit disability status of applicants and employees.  OFCCP has sent to the Office of Management and Budget (OMB) for review.  It can be found here.  OMB must approve this form before OFCCP can require its use by federal contractors.  Many contractors and employer associations have already provided to OMB comments raising concerns and proposing changes to the proposed form.

The form includes a section for applicants and employees to identify themselves as disabled and to indicate if they need an accommodation.  The form also includes a brief definition of “disability” that complies with the ADA – however, it does not restate the ADA’s full definition of the term, which may result in underreporting of disability status.  The form then asks applicants and employees to either check a box marked “Yes, I have a disability (or have previously had a disability)” or “No, I don’t wish to identify as having a disability” and requests them to fill out more information regarding reasonable accommodations, “If, because of your disability, you require a reasonable accommodation such as a change to application or work procedures, documents in an alternate format, sign language interpreter, or specialized equipment, please let us know.”

Notably, this form does not contain a place for the name of an applicant or employee.  Since OFCCP encourages employers to keep self-ID forms separate from personnel files, employers will necessarily have to annotate on the form or elsewhere (since OFCCP says the form cannot be modified) the name of the individual if this is not added during the OMB review and the form remains as is.

In addition, the form asks all applicants and employees who have a current or past disability to mark “yes.”  While this may be helpful in increasing the representation of disabled employees in employer data to meet the 7% disabled “goal” required by the new regulations, this is problematic for several reasons.  First, disabled status often can change over time, which is precisely why employers are required to resurvey employees every five years and remind them at least once in between of their ability to self-identify under the new regulations.  Second, employers historically have not wanted applicants and employees to self-identify as disabled because:

(i)  this information is sensitive and could lead to increased failure-to-hire claims alleging disability discrimination with the EEOC since the “regarded as” prong of the ADA will be met (employers will know these candidates are “disabled) and

(ii)  if OFCCP runs adverse impact analyses, the higher numbers of disabled individuals who were not selected will likely lead to adverse impact trends employers will be called upon to defend.

Similarly, the “no” option seems to suggest that the individual does not wish to self-identify, but not necessarily because he/she is not disabled.  Individuals who are not disabled may have difficultly discerning which box to check.  As a result, the way options are worded likely will result in higher numbers of individuals self-identifying as “disabled” and may be problematic for employers.

Finally, the form states that companies “are required to invite…employees to self-identify each year,” which is not required by the regulations.  As described above, the regulations only require employers to resurvey for disability status once every five years.  Employers also must remind employees they may self-identify once within that five year period.

Many of these issues have been addressed in pending comments to the form and, hopefully, they will be addressed during OMB review.  We expect a different form in its final version.  Stay tuned…