[Federal Register Volume 76, Number 237 (Friday, December 9, 2011)]
[Proposed Rules]
[Pages 77056-77105]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-31371]



[[Page 77055]]

Vol. 76

Friday,

No. 237

December 9, 2011

Part II





Department of Labor





-----------------------------------------------------------------------





Office of Federal Contract Compliance Programs





-----------------------------------------------------------------------





41 CFR Part 60-741





Affirmative Action and Non-discrimination Obligations of Contractors 
and Subcontractors Regarding Individuals With Disabilities; Proposed 
Rule

  Federal Register / Vol. 76 , No. 237 / Friday, December 9, 2011 / 
Proposed Rules  

[[Page 77056]]


-----------------------------------------------------------------------

DEPARTMENT OF LABOR

Office of Federal Contract Compliance Programs

41 CFR Part 60-741

RIN 1250-AA02


Affirmative Action and Nondiscrimination Obligations of 
Contractors and Subcontractors Regarding Individuals With Disabilities

AGENCY: Office of Federal Contract Compliance Programs, Labor.

ACTION: Notice of proposed rulemaking.

-----------------------------------------------------------------------

SUMMARY: The Office of Federal Contract Compliance Programs (OFCCP) is 
proposing to revise the regulations implementing the non-discrimination 
and affirmative action regulations of section 503 of the Rehabilitation 
Act of 1973, as amended. Section 503 prohibits discrimination by 
covered Federal contractors and subcontractors against individuals on 
the basis of disability, and requires affirmative action on behalf of 
qualified individuals with disabilities. The proposed regulations would 
strengthen the affirmative action provisions, detailing specific 
actions a contractor must take to satisfy its obligations. They would 
also increase the contractor's data collection obligations, and 
establish a utilization goal for individuals with disabilities to 
assist in measuring the effectiveness of the contractor's affirmative 
action efforts. Revision of the non-discrimination provisions to 
implement changes necessitated by the passage of the ADA Amendments Act 
(ADAAA) of 2008 is also proposed.

DATES: To be assured of consideration, comments must be received on or 
before February 7, 2012.

ADDRESSES: You may submit comments, identified by RIN number 1250-AA02, 
by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Fax: (202) 693-1304 (for comments of six pages or less).
     Mail: Debra A. Carr, Director, Division of Policy, 
Planning, and Program Development, Office of Federal Contract 
Compliance Programs, Room C-3325, 200 Constitution Avenue NW., 
Washington, DC 20210.
    Receipt of submissions will not be acknowledged; however, the 
sender may request confirmation that a submission has been received by 
telephoning OFCCP at (202) 693-0103 (voice) or (202) 693-1337 (TTY) 
(these are not toll-free numbers).
    All comments received, including any personal information provided, 
will be available for public inspection during normal business hours at 
Room C-3325, 200 Constitution Avenue NW., Washington, DC 20210, or via 
the Internet at http://www.regulations.gov. Upon request, individuals 
who require assistance to review comments will be provided with 
appropriate aids such as readers or print magnifiers. Copies of this 
Notice of Proposed Rulemaking (NPRM) will be made available in the 
following formats: Large print, electronic file on computer disk, and 
audiotape. To schedule an appointment to review the comments and/or to 
obtain this NPRM in an alternate format, please contact OFCCP at the 
telephone numbers or address listed above.

FOR FURTHER INFORMATION CONTACT: Debra A. Carr, Director, Division of 
Policy, Planning, and Program Development, Office of Federal Contract 
Compliance Programs, 200 Constitution Avenue NW., Room C-3325, 
Washington, DC 20210. Telephone: (202) 693-0103 (voice) or (202) 693-
1337 (TTY).

SUPPLEMENTARY INFORMATION: 

Background

    Enacted in 1973, the purpose of section 503 of the Rehabilitation 
Act (section 503), as amended, is twofold. First, section 503 prohibits 
employment discrimination on the basis of disability by Federal 
government contractors and subcontractors. Second, it requires each 
covered Federal government contractor and subcontractor to take 
affirmative action to employ and advance in employment qualified 
individuals with disabilities.
    The nondiscrimination requirements and general affirmative action 
requirements of section 503 apply to all Government contractors with 
contracts or subcontracts in excess of $10,000 for the purchase, sale, 
or use of personal property or nonpersonal services (including 
construction). See 41 CFR 60-741.4. The requirement to prepare and 
maintain an affirmative action program, the specific obligations of 
which are described at 41 CFR 60-741.44, apply to those contractors 
that have a contract or subcontract of $50,000 or more and 50 or more 
employees. In the section 503 context, with the awarding of a Federal 
contract comes a number of responsibilities, including compliance with 
the section 503 anti-discrimination and anti-retaliation provisions, 
meaningful and effective efforts to recruit and employ individuals with 
disabilities, creation and enforcement of personnel policies that 
support its affirmative action obligations, maintenance of accurate 
records on its affirmative action efforts, and OFCCP access to these 
records upon request. Failure to abide by these responsibilities may 
result in various sanctions, from withholding progress payments up to 
and including termination of contracts and debarment from receiving 
future contracts.
    The framework articulating a contractor's responsibilities with 
respect to affirmative action, recruitment, and placement has been in 
place since the 1970's. However, both the unemployment rate of working 
age individuals with disabilities and the percentage of working age 
individuals with disabilities that are not in the labor force remain 
significantly higher than for those without disabilities. Recent data 
from the U.S. Department of Labor's Bureau of Labor Statistics (BLS) 
indicates that just 21.8% of working age people with certain functional 
disabilities were in the labor force in 2010, compared with 70.1% of 
working age individuals without such disabilities; while the 
unemployment rate for working age individuals with these disabilities 
was 14.8%, compared with an unemployment rate of 9.4% for working age 
individuals without such disabilities. See Table A. Employment status 
of the civilian noninstitutional population by disability status and 
age, 2009 and 2010 annual averages, available online at http://www.bls.gov/news.release/disabl.a.htm.
    A substantial disparity in the employment rate of individuals with 
disabilities continues to persist despite years of technological 
advancements that have made it possible to apply for and perform many 
jobs from remote locations, and to read, write, and communicate in an 
abundance of alternative ways. Strengthening the implementing 
regulations of section 503, whose stated purpose ``requires Government 
contractors and subcontractors to take affirmative action to employ and 
advance in employment qualified individuals with disabilities,'' will 
be an important means by which the government can address the issue of 
employment for individuals with disabilities.
    Prior to publishing this NPRM, OFCCP conducted multiple town hall 
meetings, webinars, and listening sessions with individuals from the 
contractor community, state employment services, disability 
organizations, and other interested parties to understand those 
features of the section 503 regulations that work well, those that can 
be improved, and possible new requirements that could

[[Page 77057]]

help to effectuate the overall goal of increasing the employment 
opportunities for individuals with disabilities with Federal 
contractors. In addition, OFCCP also published an Advance Notice of 
Proposed Rulemaking (ANPRM) on July 23, 2010, 75 Federal Register (FR) 
43116, requesting public comment on specific inquiries regarding 
potential ways to strengthen the section 503 affirmative action 
regulations. The comment period ended September 21, 2010, and all 
comments received have been reviewed and given due consideration.
    A total of 127 comments were received and are available for review 
at the Federal eRulemaking Portal at http://www.regulations.gov. 
Comments were received from trade and professional associations; 
disability and veteran advocacy organizations; employers; federal, 
state, and local government agencies; representatives of schools and 
organizations that provide education and/or vocational training; and 
from several private citizens. These written comments were generally 
reflective of the comments, suggestions and opinions expressed during 
the town hall meetings, webinars, and listening sessions, and are 
summarized briefly below.
    47 of the comments received were non-substantive in nature. These 
commenters provided only generic responses indicating general support 
or opposition to strengthening the affirmative action regulations and/
or to concepts such as the use of hiring goals or voluntary self-
identification as an individual with a disability, or addressed issues 
unrelated to the ANPRM. 80 commenters provided substantive responses to 
at least some of the ANPRM questions. 51 of these were from the 
disability/advocacy perspective and 24 were from the contractor 
community. By and large, the contractor community argued that changes 
to the affirmative action regulations were not needed, while disability 
and employment service organizations and agencies requested that OFCCP 
strengthen the existing affirmative action requirements and consider 
additional requirements.
    Among the most significant inquiries in the ANPRM were two 
questions regarding the utility of establishing hiring goals for 
individuals with disabilities similar to the requirements for 
minorities and women contained in the implementing regulations for 
Executive Order 11246, and the data source(s) from which such goals 
could be derived.\1\ A third inquiry in the ANPRM asked about 
contractors' experiences with the disability employment goals programs 
of State or local governments.\2\ 57 commenters addressed this issue. 
Of these, 37 said that hiring goals ``like those for race and gender'' 
should be established. These commenters asserted that quantitative and 
measurable analyses similar to those for minorities and women were 
needed to make affirmative action for individuals with disabilities 
``more than a paperwork exercise.'' Almost all of these commenters 
referenced the U.S. Census Bureau's American Community Survey (ACS) \3\ 
data as the best available source of data about the number of persons 
with certain types of disabilities in the US. However, these commenters 
did not offer workable recommendations as to how OFCCP or contractors 
could use the data for the establishment of goal percentages.
---------------------------------------------------------------------------

    \1\ Specifically, the ANPRM asked: ``If OFCCP were to require 
Federal contractors to conduct utilization analyses and to establish 
hiring goals for individuals with disabilities, comparable to the 
analyses and establishment of goals required under the regulations 
implementing Executive Order 11246, what data should be examined in 
order to identify the appropriate availability pool of such 
individuals for employment?'' and ``Would the establishment of 
placement goals for individuals with disabilities measurably 
increase their employment opportunities in the Federal contractor 
sector? Explain why or why not.''
    \2\ This question asked: ``What experience have Federal 
contractors had with respect to disability employment goals programs 
voluntarily undertaken or required by state, local or foreign 
governments?''
    \3\ The American Community Survey conducted by the U.S. Census 
Bureau inquires about an array of demographic information, including 
several questions intended to ascertain the existence of certain 
functional disabilities, focusing on serious aural, visual, 
intellectual, developmental and mobility impairment.
---------------------------------------------------------------------------

    Five of these 37 commenters also responded to the inquiry regarding 
State or local government goal programs. These commenters all 
referenced California's State workforce affirmative action program as 
an example of an affirmative action success story. According to the 
commenters, the California program requires that State agencies submit 
annual affirmative action plans that include specific ``targets and 
timetables'' for the employment of individuals with disabilities, based 
on their availability in the State's working age population. Agencies' 
workforce composition and upward mobility of individuals with 
disabilities is monitored by the State Personnel Board, and annual 
reports are required to be submitted to the Governor and State 
legislature. As a result of these affirmative action efforts, the 
commenters stated, individuals with disabilities comprised 9.3% of the 
State government workforce in 2009.\4\ Though informative, it should be 
noted that the commenters provided few details about the design or 
operation of the California State program, and that, consequently, it 
is unclear whether the California program represents an appropriate 
goals model for federal contractors.\5\
---------------------------------------------------------------------------

    \4\ The commenters cite the Annual Census of Employees in the 
State Civil Service 2008-2009, California State Personnel Board, 
February 2010 for this statistic. See http://www.spb.ca.gov/WorkArea/showcontent.aspx?id=5634.
    \5\ For example, no details were provided with regard to the 
basis of the availability data used in the program, the method(s) 
used in setting the ``targets and timetables,'' the program's 
enforcement mechanism(s), if any, and/or the rate of State agencies' 
compliance with the program.
---------------------------------------------------------------------------

    The remaining 20 commenters, mostly contractors or contractor 
representatives, opposed the use of hiring goals in the section 503 
context, asserting primarily that available disability data (including 
ACS data) is not sufficiently comprehensive or robust to be used for 
this purpose. See the Preamble to section 60-741.46 for further 
discussion regarding disability data sources.
    Another significant issue posed in the ANPRM was whether inviting 
applicants to self-identify as individuals with disabilities prior to 
receiving a job offer would enhance the contractor's ability to monitor 
the impact of their hiring practices and measure the effectiveness of 
their affirmative action efforts. 55 commenters addressed this 
question. Of these, 37 commenters said voluntary pre-offer self-
identification of disability would have a positive effect on the 
employment of individuals with disabilities. Several commenters 
recommended that the contractor be required to invite voluntary self-
identification at both the pre- and post-offer employment process 
stages to alleviate concerns that information about a hidden disability 
might be improperly used if provided before an employment offer was 
made. A few commenters recommended that individuals with disabilities 
be offered the additional option of self-identifying ``for 
recordkeeping purposes only,'' rather than for purposes of receiving 
affirmative action. The remaining 19 commenters were against the idea 
of pre-offer self-identification for various reasons, including 3 
commenters who erroneously asserted that it would violate the Americans 
with Disabilities Act (ADA) of 1990. See the Preamble to section 60-742 
for a discussion of the permissibility under the ADA of disability-
related inquiries in furtherance of an affirmative action obligation.

[[Page 77058]]

    Support was also expressed among a significant number of commenters 
for strengthening the implementing regulations regarding contractors' 
use of linkage agreements \6\ with recruitment and/or training sources, 
and for adding a mandatory job listing requirement similar to the one 
in the Vietnam Era Veterans' Readjustment Assistance Act of 1974, as 
amended.
---------------------------------------------------------------------------

    \6\ See section 741.2(m) for a definition of ``linkage 
agreement.''
---------------------------------------------------------------------------

    This NPRM proposes several major changes to part 60-741. Many of 
these changes were informed and significantly shaped by the comments 
received on the ANPRM, and by the information we received at the town 
hall meetings, listening sessions, and in webinars. In addition to 
changes to the regulations implementing section 503's affirmative 
action requirements, changes necessitated by the passage of the ADA 
Amendments Act (ADAAA) of 2008 and the subsequent amendment by the 
Equal Employment Opportunity Commission (EEOC) of their implementing 
regulations at 29 CFR part 1630, have also been made to the rule's 
definitions and nondiscrimination provisions. The ADAAA amends section 
503 to the same extent as it amends the ADA, and became effective on 
January, 1, 2009. It is, therefore, OFCCP's intention that these 
changes will have the same meaning as set forth in the ADAAA, and in 
the revised EEOC regulations published at 76 FR 16978 (March 25, 2011).
    The detailed Section-by-Section Analysis below identifies and 
discusses all proposed changes in each section. Due to the extensive 
proposed revisions to the section 503 regulations, part 60-741 will be 
republished in its entirety in this NPRM for ease of reference. 
However, the Department will only accept comments on the proposed 
revisions of the regulations detailed herein.

Section-by-Section Analysis

41 CFR Part 60-741

Subpart A--Preliminary Matters, Equal Opportunity Clause
Section 60-741.1 Purpose, Applicability, and Construction
    We propose a few minor changes to this section. Paragraph (a) of 
Sec.  60-741.1 of the current rule sets forth the scope of section 503 
and the purpose of its implementing regulations. Existing paragraph (a) 
discusses the contractor's affirmative action obligations but does not 
mention the other primary element of section 503--the prohibition of 
discrimination in employment against individuals with disabilities. 
Accordingly, the proposed rule adds language to the first sentence of 
paragraph (a) including this important element.
    Next, the proposal modifies the citation in paragraph (c) to the 
``Americans With Disabilities Act of 1990'' (ADA) to reflect its recent 
amendment by the ADA Amendments Act of 2008.
    Finally, in accordance with changes in the ADAAA, the proposed rule 
adds a new paragraph (c)(2), and renumbers the existing paragraph 
(c)(2) as (c)(3). New paragraph (c)(2) reflects the ADAAA's 
affirmation, in section 6(a)(1), that nothing in the statute ``alters 
the standards for determining eligibility for benefits'' under State 
worker's compensation law or under State and Federal disability benefit 
programs.
Section 60-741.2 Definitions
    The proposed rule incorporates the vast majority of the existing 
definitions contained in existing Sec.  60-741.2 without change. 
However, OFCCP proposes several changes to the substance and structure 
of this section, as set forth below.
    With regard to the structure of this section, the current rule 
lists the definitions in order of subject matter. However, for those 
who are unfamiliar with the regulations, this ordering makes it 
difficult to locate specific terms within the section. For the most 
part, the proposed rule reorders the defined terms in alphabetical 
order. A few terms that are typically used in connection with specific 
definitions are defined as subparagraphs of those definitions. So, for 
example, definitions of the terms ``contracting agency'' and 
``modification'' are found within the definition of ``Government 
contract.'' This modified structure is proposed for ease of reference, 
and to allow individuals to continue to cite to specific definitions. 
However, because of this reordering, the citation to specific terms may 
be different in the proposed rule than it is currently. For instance, 
the term ``contract,'' which is Sec.  60-741.2(h) in the current 
regulations, is Sec.  60-741.2(c) in the proposed regulation.
    With regard to substantive changes, the proposed rule makes several 
revisions that relate to the definition of ``disability'' and its 
component parts as a result of the passage of the ADAAA, which became 
effective on January 1, 2009, and which amends both the ADA and section 
503. As noted previously, it is OFCCP's intention that these terms will 
have the same meaning as set forth in the ADAAA, and as implemented by 
the EEOC in its revised regulations.
    The proposed section 503 rule replaces the term ``individual with a 
disability'' with the ADAAA term ``disability.'' The ADAAA definition 
of ``disability'' retains the three prongs of the definition of 
``individual with a disability'' in the current regulation, but 
clarifies that the assessment of whether a disability exists is to be 
made ``with respect to an individual.'' The proposed rule incorporates 
this change in paragraph (g)(1). The term ``individual with a 
disability'' will be retained in alphabetical order as paragraph (l) in 
the proposed rule for the convenience of those not yet accustomed to 
the new terminology. However, proposed paragraph (l) does not contain a 
definition, but directs readers to refer to the new definition of 
``disability'' in paragraph (g).
    New paragraphs (g)(2), (g)(3) and (g)(4) incorporate additional 
ADAAA requirements regarding the assessment of when an impairment 
constitutes a ``disability.'' These requirements are crucial to ensure 
that ``the broad scope of protection'' Congress intended for 
``disability'' to provide is not unduly ``narrowed'' by administrative 
or court rulings. See ADAAA at section 2. Proposed paragraph (g)(2) 
provides that the definition of ``disability'' must be ``construed in 
favor of broad coverage of individuals, to the maximum extent permitted 
by law,'' and that therefore extensive analysis should not be needed in 
order to determine whether an individual has a disability. New 
paragraph (g)(3) incorporates the ADAAA's affirmation that ``an 
impairment that substantially limits one major life activity need not 
limit other major life activities in order to be considered a 
disability;'' while new paragraph (g)(4) reflects the ADAAA's 
requirement that ``an impairment that is episodic or in remission is a 
disability if it would substantially limit a major life activity when 
active.''
    New paragraphs (g)(5) and (g)(6) are added for the convenience of 
persons using the rule. A cross-reference alerting the reader that the 
terms ``major life activities,'' ``physical or mental impairment,'' 
``record of such impairment,'' ``regarded as having such an 
impairment,'' and ``substantially limits'' are separately defined in 
Sec.  60-741.2 appears in (g)(5). A cross reference informing readers 
that exceptions to the definition of ``disability'' are contained in 
Sec.  60-741.3 of the rule is added as paragraph (g)(6).
    The proposed rule incorporates the ADAAA's revision of the 
definition of ``major life activities'' in paragraph (n).

[[Page 77059]]

The ADAAA adds several items to the list of examples of major life 
activities contained in the current regulation. In addition, the ADAAA 
clarifies that the term ``major life activities'' includes ``major 
bodily functions'' and enumerates several examples of functions that 
would constitute ``major bodily functions.'' EEOC's implementing 
regulations include additional examples of major life activities and 
major bodily functions. All of these examples are contained in the 
proposed rule in paragraphs (n)(1) and (2).
    In new paragraph (n)(3), the proposed rule states that the term 
``major'' must not be interpreted to create a demanding standard when 
determining other examples of major life activities, and cautions that 
such an assessment is not to be determined by reference to whether the 
life activity is of ``central importance to daily life.'' See ADAAA 
section 2(b)(4).
    New paragraph (o) adds a definition of ``mitigating measures'' 
that, as prescribed in section 3 of the ADAAA, consists of a non-
exhaustive list of examples of mitigating measures. The ADAAA also 
prescribes definitions of the mitigating measures of ``ordinary 
eyeglasses or contact lenses,'' ``low-vision devices,'' and ``auxiliary 
aids and services,'' and these definitions are likewise included in 
this paragraph of the proposed rule. Consistent with the EEOC's 
recently issued implementing regulations, the proposed regulation also 
adds ``psychotherapy, behavioral therapy, or physical therapy'' to the 
non-exhaustive list of mitigating measures in paragraph (o)(1)(v).
    The ADAAA replaces the term ``qualified individual with a 
disability'' with the term ``qualified individual.'' The definition of 
this new term omits the words ``with a disability,'' thus emphasizing 
that the assessment of whether a person is qualified for a job is 
distinct from the assessment of whether the person has a disability, 
but is otherwise unchanged from the definition in the Americans with 
Disabilities Act as originally enacted. The proposed rule reflects this 
statutory change in the definition of ``qualified individual'' in 
paragraph (s) by deleting the words ``with a disability'' that are in 
the current regulation.
    Proposed paragraph (t) makes two changes to the definition of 
``reasonable accommodation'' currently found at Sec.  60-741.2(v). 
First, it revises footnote 2 in the current rule to emphasize that 
before providing a reasonable accommodation the contractor is advised 
to verify with the individual with a disability that the accommodation 
it plans to provide will effectively meet the individual's needs. 
Second, it adds a new paragraph (4) to reflect the ADAAA's 
clarification that individuals who only satisfy the ``regarded as'' 
part of the definition of ``disability'' are not entitled to receive 
reasonable accommodation. See ADAAA at sec. 6(a)(1)(h).
    A clarification has been added to the definition of ``record of 
such an impairment'' in proposed paragraph (u). It explains that an 
individual satisfies the record of prong of ``disability'' if the 
individual has ``a history'' of a substantially limiting impairment 
``when compared to most people in the general population,'' or has been 
misclassified as having had such an impairment.
    The ADAAA also significantly redefines and simplifies the 
``regarded as'' part of the definition of ``disability.'' Under the new 
definition of ``regarded as having such an impairment,'' in proposed 
paragraph (w)(1), an individual satisfies the ``regarded as'' prong of 
the definition of ``disability'' if ``the individual establishes that 
he or she has been subjected to an action prohibited under subpart B 
(Discrimination Prohibited) of these regulations because of an actual 
or perceived physical or mental impairment, whether or not the 
impairment substantially limits or is perceived to substantially limit 
a major life activity.'' Such prohibited actions include, but are not 
limited to, refusal to hire, demotion, placement on involuntary leave, 
termination, exclusion for failure to meet a qualification standard, 
harassment, or denial of any other term, condition, or privilege of 
employment.
    In paragraph (w)(2) the proposed rule explains that an individual 
satisfies the regarded as prong any time a contractor takes a 
prohibited action against the individual because of an actual or 
perceived impairment, even if the contractor asserts or ultimately 
establishes a defense for its challenged action. In paragraph (w)(3) 
the proposed rule clarifies that the establishment that an individual 
is regarded as having a disability is distinct from the establishment 
of liability for unlawful discrimination in violation of this part. 
Such liability is established only when the individual ``proves that a 
contractor discriminated on the basis of disability.''
    The ADAAA excludes from the ``regarded as'' prong of ``disability'' 
impairments that are ``transitory and minor,'' and defines a 
``transitory'' impairment as one that ``has an actual or expected 
duration of six months or less.'' Proposed paragraph (w)(4) 
incorporates this exclusion. The proposed rule also makes clear that it 
is incumbent upon the contractor to demonstrate that an impairment is 
both transitory and minor for it to be excluded from coverage under the 
regarded as prong of ``disability.'' Whether the contractor has 
succeeded in demonstrating that a particular impairment is transitory 
and minor will be determined objectively. A contractor's subjective 
belief that the impairment was transitory and minor is not sufficient 
to defeat an individual's coverage under the regarded as prong.
    The definition of ``substantially limits'' at Sec.  60-741.2(q) of 
the current rule is also significantly revised in accordance with the 
ADAAA, and to ensure that it is consistent with the EEOC's implementing 
regulations. As revised in paragraph (aa), the proposed regulation sets 
forth rules of construction that must be applied when determining 
whether an impairment substantially limits a major life activity, but 
in contrast to the current regulation, does not specify a substantially 
limits standard. This new approach is in keeping with the ADAAA's 
rejection of the current regulatory definition of ``substantially 
limits'' as ``significantly restricted'' as setting too high a 
standard, and with the statute's mandate to interpret ``substantially 
limits'' ``consistently with the findings and purposes'' of the ADAAA. 
See ADAAA sections 2 and 3.
    Paragraph (aa)(1) states that the term ``substantially limits'' 
must be construed broadly in favor of expansive coverage, to the 
maximum extent permitted by law, and is not meant to be a demanding 
standard requiring extensive analysis. An impairment need not 
``prevent'' or ``significantly or severely restrict'' the individual 
from performing a major life activity to be considered substantially 
limiting. Rather, an impairment is substantially limiting if it 
substantially limits the ability to perform a major life activity 
``compared to most people in the general population.'' In making this 
comparison, it may be useful, in appropriate cases, to consider the 
condition under which the individual performs the major life activity, 
the manner in which the individual performs the major life activity, 
and/or the duration of time it takes the individual to perform the 
major life activity. This comparison, though, usually will not require 
scientific, medical, or statistical analysis. So, for example, 
scientific, medical, or statistical analysis would not be needed to 
determine that an individual who, because of an impairment, could only

[[Page 77060]]

stand for five minutes at a time is substantially limited in the major 
life activity of standing, as most people can stand for a significant 
longer period of time.
    In paragraph (aa)(2), the proposed regulation explains that whether 
an individual's impairment substantially limits a major life activity 
is not relevant to a determination of whether the individual is 
regarded as having a disability within the meaning of Sec.  60-
741.2(g)(1)(iii).
    The ADAAA's express prohibition of the consideration of ``the 
ameliorative effects of mitigating measures'' when determining whether 
an impairment ``substantially limits a major life activity'' is 
incorporated into paragraph (aa)(3). The exception to this 
prohibition--the ADAAA's mandate that the ameliorative effects of 
``ordinary eyeglasses or contact lenses shall be considered'' when 
determining whether an impairment substantially limits a major life 
activity--is encompassed in proposed (aa)(3)(i). Proposed paragraph 
(aa)(3)(ii) addresses the non-ameliorative effects of mitigating 
measures, such as negative side effects from medication, and provides 
that such detrimental effects may be considered when assessing whether 
an individual's impairment is substantially limiting.
    In paragraph (aa)(4) the proposed regulation emphasizes that the 
focus of a ``substantially limits'' determination is not on the 
outcomes that an individual can achieve, but on whether a major life 
activity is substantially limited. Thus, for example, someone with a 
learning disability may be substantially limited in the major life 
activity of learning because of the additional time or effort required 
for the individual to read, write or learn, even though the individual 
has achieved a high level of academic success.
    The proposed regulation notes, in paragraph (aa)(5), that the 
principles set forth in this section are intended to provide for 
generous coverage of the law by means of an analytical framework that 
is predictable, consistent, and workable for all individuals and 
contractors. Accordingly, the individualized assessment of some types 
of impairments will, ``in virtually all cases,'' result in a factual 
determination that the individual has either a substantially limiting 
impairment (actual disability) or a history of a substantially limiting 
impairment (record of disability). With respect to such an impairment, 
the necessary individualized assessment of an individual should be 
particularly simple and straightforward. Proposed paragraph (aa)(5) 
includes several examples of such impairments, including deafness, 
blindness, epilepsy, cancer and HIV, along with the major life activity 
they most typically substantially limit. It should also be noted that, 
consistent with the revised EEOC ADAAA implementing regulations, the 
discussion of the major life activity of working that appears in the 
current regulation at Sec.  60-741.2(q)(3) has been removed from the 
text of the proposed regulation. No other major life activity receives 
special attention in the regulation. Moreover, in light of the expanded 
definition of disability pursuant to the ADAAA, this major life 
activity will seldom be used, since impairments that substantially 
limit an individual's ability to work usually will substantially limit 
one or more other major life activities. In those rare cases where an 
individual needs to demonstrate a substantial limitation in working, 
the individual can continue to do so by showing that an impairment 
substantially limits his or her ability to perform a class of jobs, or 
a broad range of jobs in various classes, as compared to most people 
having comparable training, skills, and abilities.
    In addition to the revisions related to the definition of 
``disability,'' the proposed rule makes revisions to several other 
definitions in the section. First, the proposed rule replaces the term 
``Deputy Assistant Secretary,'' found currently at Sec.  60-741.2(d), 
with ``Director.'' The current rule defines ``Deputy Assistant 
Secretary'' as ``the Deputy Assistant Secretary for Federal Contract 
Compliance of the United States Department of Labor, or his or her 
designee.'' As a result of the elimination of the Department's 
Employment Standards Administration in November 2009, the head of OFCCP 
now has the title of Director. See Secretary's Order 7-2009 (Nov. 6, 
2009). Accordingly, the proposed rule reflects this change, which will 
be made throughout part 60-741.
    Lastly, in paragraph (m), the proposed rule adds a definition of 
``linkage agreement,'' which is currently only described in the OFCCP 
Federal Contract Compliance Manual (FCCM). We propose adding this 
definition to the regulations for ease of reference and clarity to the 
contractor community.
Section 60-741.3 Exceptions to the Definitions of ``Disability'' and 
``Qualified Individual''
    This section addresses exceptions to the key definitions of 
``disability'' and ``qualified individual.'' The proposed rule modifies 
this section by changing the terms ``individual with a disability'' and 
``qualified individual with a disability'' in the section title, as 
well as throughout the section, to ``disability'' and ``qualified 
individual,'' respectively, in accordance with the ADAAA.
Section 60-741.4 Coverage and Waivers
    The proposed rule replaces the term ``Deputy Assistant Secretary,'' 
found in paragraphs (b)(1) and (b)(2) of this section, with the term 
``Director,'' for the reasons set forth in the discussion of Sec.  60-
741.2. The proposal also removes the text of paragraph (a)(2) as the 
``contract work only'' exception applied to ``employment decisions and 
practices occurring before October 29, 1992'' and has now expired. 
Paragraphs (3), (4) and (5) are, accordingly, renumbered as paragraphs 
(2), (3) and (4).
Section 60-741.5 Equal Opportunity Clause
    Paragraph (a) contains the equal opportunity (EO) clause that must 
be included in all covered Government contracts and subcontracts. The 
proposed rule makes several substantive changes to the text of the 
mandated clause.
    In paragraph 1 of the EO clause, the phrase ``to employ, advance in 
employment and otherwise treat qualified individuals with disabilities 
without discrimination based on their physical or mental disability'' 
is modified to read ``to employ and advance in employment individuals 
with disabilities, and to treat qualified individuals without 
discrimination on the basis of their physical or mental disability.'' 
This formulation more closely mirrors the language and intent of the 
ADAAA.
    In paragraph 4, we propose two revisions. First, the proposed 
regulation revises the parenthetical at the end of the third sentence 
of this paragraph to replace the outdated suggestion of ``hav[ing] the 
notice read to a visually disabled individual'' as an accommodation 
with the suggestion to provide Braille, large print, or other versions 
that allow persons with disabilities to read the notice themselves. The 
proposed regulation also adds the following sentences to the end of 
proposed paragraph 4 of the EO clause:

    With respect to employees who do not work at a physical location 
of the contractor, a contractor will satisfy its posting obligations 
by posting such notices in an electronic format, provided that the 
contractor provides computers that can access the electronic posting 
to such employees, or the contractor has actual knowledge that such 
employees otherwise

[[Page 77061]]

are able to access the electronically posted notices. Electronic 
notices for employees must be posted in a conspicuous location and 
format on the company's intranet or sent by electronic mail to 
employees. An electronic posting must be used by the contractor to 
notify job applicants of their rights if the contractor utilizes an 
electronic application process. Such electronic applicant notice 
must be conspicuously stored with, or as part of, the electronic 
application.

    The addition of these sentences is in response to the increased use 
of telecommuting and other work arrangements that do not include a 
physical office setting, as well as internet-based application 
processes in which applicants never enter a contractor's physical 
office. These revisions therefore would permit equivalent access to the 
required notices for these employees and applicants.
    For paragraph 5, which refers to the contractor's obligation to 
notify labor organizations or other workers' representatives about its 
obligations under section 503, we propose adding language clarifying 
that these obligations include non-discrimination, in addition to 
affirmative action. The current paragraph 5 does not specifically 
mention contractors' non-discrimination obligations.
    The proposed rule also adds a new paragraph 7 to the EO clause that 
requires the contractor to state and thereby affirm in solicitations 
and advertisements that it is an equal employment opportunity employer 
of individuals with disabilities protected under section 503. A 
comparable clause exists in the equal opportunity clause of the 
Executive Order 11246 regulations, see 41 CFR 60-1.4(a)(2), describing 
the protected classes under that Order. This proposed addition would 
ensure consistency between the regulations and aid in communicating the 
contractor's EEO responsibilities to job seekers.
    In addition to modifying the text of the EO clause, the proposed 
rule also amends paragraph (d) of this section to require that the 
entire equal opportunity clause be included verbatim in Federal 
contracts. OFCCP has found that contractors are not always aware of 
their EO clause responsibilities. Subcontractors, in particular, are 
frequently not informed of their EO responsibilities by the prime 
contractor and are unaware of their obligations until they are selected 
by OFCCP for a compliance evaluation. Requiring that the entire EO 
clause be included verbatim in all covered Federal contracts, including 
subcontracts, will help ensure that contractors (including 
subcontractors) read and understand the language in this clause.
    Finally, the proposed rule replaces the term ``Deputy Assistant 
Secretary,'' found in paragraphs (a)(4), (a)(6), and (f) of this 
section, with the term ``Director,'' for the reasons set forth in the 
discussion of Sec.  60-741.2.
Subpart B--Discrimination Prohibited
Section 60-741.21 Prohibitions
    This section of the rule describes types of conduct that would 
violate the non-discrimination requirements of section 503. The 
proposed rule makes both minor and substantive changes.
    First, the section's introductory sentence is numbered as (a), with 
appropriate subsection renumbering so that the original paragraphs (a) 
through (i) become paragraphs (1) through (9).
    Next, paragraph (a)(1) of the proposed rule (Sec.  60-741.21(a) of 
the current rule) is revised to mirror the language in section 5 of the 
ADAAA by changing ``discriminate against a qualified individual with a 
disability because of that individual's disability'' to ``discriminate 
against a qualified individual on the basis of disability.''
    The word ``qualified'' is deleted from the example in proposed 
paragraph (a)(2), which currently provides, in Sec.  60-741.21(b), that 
``the contractor may not segregate employees into separate work areas 
or into separate lines of advancement on the basis of disability.'' As 
modified, the example would more accurately reflect the prohibition's 
requirement that a contractor not ``limit, segregate, or classify a job 
applicant or employee in a way that adversely affects his or her 
employment opportunities or status on the basis of disability.''
    The proposed rule adds a new paragraph (iv) to paragraph (a)(6) 
that clarifies, as provided in the ADAAA, that a contractor is ``not 
required'' to provide reasonable accommodation to individuals who 
``satisfy only the `regarded as having such an impairment' prong of the 
definition of disability.'' However, contractors are not prohibited 
from providing reasonable accommodation to individuals who are only 
``regarded as'' having a disability, and may choose to do so if they 
wish. The new paragraph also includes a cross-reference to the 
definition of ``regarded as'' having a disability in proposed Sec.  60-
741.2(w).
    A new paragraph (ii) is added to proposed paragraph (a)(7) to 
incorporate the ADAAA's specific prohibition on the use of 
qualification standards, employment tests, or other selection criteria 
that are ``based on an individual's uncorrected vision'' unless the 
standard, test, or other selection criteria, as used by the contractor, 
``is shown to be job-related for the position in question and 
consistent with business necessity.'' On its face, this provision 
protects not only individuals with disabilities, but broadly prohibits 
a contractor from using any ``individual's'' uncorrected vision as a 
qualification standard unless the contractor can demonstrate that doing 
so is justified by business necessity. Thus, the proposed regulation 
states that an individual need not be an individual with a disability 
in order to challenge a contractor's use of an uncorrected vision 
standard, so long as the individual has been adversely affected by the 
contractor's use of the challenged standard. The proposed rule also 
renumbers the current paragraph (ii) as paragraph (iii).
    A new sentence is added by the proposal to paragraph (a)(9), which 
currently provides that a contractor may not reduce the compensation 
provided to an individual with a disability because the individual 
receives a disability-related pension or benefit from another source. 
The new sentence clarifies that it would likewise be impermissible for 
a contractor to reduce the amount of compensation it provides to an 
individual with a disability because of the ``actual or anticipated 
cost of a reasonable accommodation the individual needs or requests.''
    Finally, the proposed rule adds a new subsection (b) to incorporate 
the ADAAA's prohibition on claims of discrimination because of an 
individual's lack of disability. The ADAAA expressly prohibits claims 
that ``an individual without a disability was subject to discrimination 
because of the lack of disability.'' ADAAA at sec. 6(a)(1)(g).
Section 60-741.22 Direct Threat Defense
    The proposed rule changes the reference in the parenthetical at the 
end of this section to ``Sec.  60-741.2(e),'' to reflect the new 
designation of the definition of ``direct threat'' in the restructured 
Definitions section, as discussed in Sec.  60-741.2, above.
Section 60-741.23 Medical Examinations and Inquiries
    The proposed rule revises paragraph (b)(4) by adding a sentence at 
the end of the paragraph clarifying that voluntary medical examinations 
and activities need not be job-related and consistent with business 
necessity. Paragraph (b)(5) is revised to delete the reference to 
paragraph (b)(4). This revision is intended to clarify that contractors 
may not use medical information obtained through voluntary medical

[[Page 77062]]

examinations and activities as the basis for an employment decision 
such as a determination of fitness for duty.
    Lastly, the proposed rule revises paragraph (d)(1)(iii) to add ``as 
amended'' to the reference to the ``Americans with Disabilities Act.''
Section 60-741.25 Health Insurance, Life Insurance and Other Benefit 
Plans
    The proposed rule revises paragraph (d) by changing the current 
rule's two references to ``qualified individual with a disability'' to 
``individual with a disability.'' This paragraph ensures that 
individuals will not be denied access to insurance or subjected to 
different terms or conditions of insurance on the basis of disability, 
if the disability does not impose increased risks. The ability to 
perform essential functions, as specified in the definition of 
``qualified individual'' in Sec.  60-741.2(s), is not relevant to these 
insurance considerations. Accordingly, the proposed rule would 
eliminate the term ``qualified'' from the paragraph's references to 
``individual with a disability.''
Subpart C--Affirmative Action Program
Section 60-741.40 General Purpose and Applicability of the Affirmative 
Action Program Requirement
    This section sets forth which contractors are required to maintain 
an affirmative action program, and the general timing requirements for 
its creation and submission to OFCCP. The proposed rule adds a new 
paragraph (a) that sets forth a statement of purpose that articulates 
OFCCP's general expectations for contractors' affirmative action 
programs. An affirmative action program must be ``more than a paperwork 
exercise.'' Rather, an affirmative action program is a management tool 
that includes measurable objectives, quantitative analyses, and 
internal auditing and reporting systems designed to measure the 
contractor's progress toward achieving equal employment opportunity for 
individuals with disabilities.
    In light of the addition of new paragraph (a), the existing 
paragraphs of this section have been renumbered and newly captioned in 
the proposed regulation. However, except for one minor clarification, 
the remainder of the text of Sec.  60-741.40 is unchanged. We propose a 
minor clarification to paragraph (b)(3) of this section, which is 
paragraph (c) in the current rule, specifying that the affirmative 
action program shall be reviewed and updated annually ``by the official 
designated by the contractor pursuant to Sec.  60-741.44(i).'' While 
this is the intent of the existing language, the proposal clarifies 
this intention and ensures that company officials who are knowledgeable 
about the contractor's affirmative action activities and obligations 
are reviewing the program.
Section 60-741.41 Availability of Affirmative Action Program
    This section sets forth the manner by which contractors must make 
their affirmative action programs available to employees for 
inspection, including the location and hours during which the program 
may be obtained. The proposed regulation adds a sentence at the end of 
this section requiring that, in instances where contractors have 
employees who do not work at the contractors' physical establishment, 
the contractor shall inform these employees about the availability of 
the affirmative action program by means other than a posting at its 
establishment. This addition is proposed in light of the increased use 
of telework and other flexible workplace arrangements.
Section 60-741.42 Invitation To Self-identify
    The proposed revisions to this section make significant, 
substantive changes to the contractor's responsibilities and the 
process through which applicants are invited to voluntarily self-
identify as individuals with disabilities protected by section 503 
during the hiring process. The proposed rule also adds a new 
requirement that contractors annually survey their employees, providing 
an opportunity for each employee who is, or subsequently becomes, an 
individual with a disability to voluntarily self-identify as such in an 
anonymous manner, thereby allowing those who have subsequently become 
disabled or who did not wish to self-identify during the hiring process 
to be counted.
    These changes are proposed in order to collect important data 
pertaining to the participation of individuals with disabilities in the 
contractor's applicant pools and workforces. This will allow the 
contractor and OFCCP to better identify and monitor the contractor's 
hiring and selection practices with respect to individuals with 
disabilities. Data related to the pre-offer stage will be particularly 
helpful, as it will provide the contractor and OFCCP with valuable 
information regarding the number of individuals with disabilities who 
apply for jobs with contractors. This data will enable OFCCP and the 
contractor to assess the effectiveness of the contractor's recruitment 
efforts over time, and to refine and improve the contractor's 
recruitment strategies, where necessary.
    Proposed paragraph (a) of this section requires that the contractor 
invite all applicants to voluntarily self-identify as individuals with 
disabilities whenever the applicant applies for or is considered for 
employment. The invitation may be included with the application 
materials, but must be separable or detachable from the job 
application.
    The requirement to give applicants and employees the opportunity to 
self-identify is consistent with the ADA's restrictions on pre-
employment disability-related inquiries. Although the ADA generally 
prohibits inquiries about disability prior to an offer of employment, 
it does not prohibit the collection of this information by a contractor 
in furtherance of its section 503 affirmative action obligation to 
employ and advance in employment qualified individuals with 
disabilities. The EEOC's regulations implementing the ADA state that 
the ADA ``does not invalidate or limit the remedies, rights, and 
procedures of any Federal law * * * that provides greater or equal 
protection for the rights of individuals with disabilities'' than does 
the ADA. 29 CFR 1630.1(c)(2). Noting that Section 503 is such a Federal 
law, EEOC states in the Appendix to its ADA implementing regulations 
that: ``collecting information and inviting individuals to identify 
themselves as individuals with disabilities as required to satisfy the 
affirmative action requirements of section 503 of the Rehabilitation 
Act is not restricted by [the ADA or EEOC's implementing 
regulations].'' Appendix to 29 CFR 1630.14(a).
    Proposed paragraph (a)(1) requires that the contractor invite 
applicants to self-identify ``using the language and manner prescribed 
by the Director and published on the OFCCP Web site.'' This will ensure 
consistency in all pre-offer invitations that are made, and will 
reassure applicants that the request is routine and executed pursuant 
to obligations created by OFCCP. It will also minimize any burden to 
contractors resulting from compliance with this responsibility, as they 
will not be required to develop suitable self-identification 
invitations individually. This, in turn, we believe, will facilitate 
contractor compliance with this proposed section.
    The inquiry that OFCCP will prescribe for contractors is a limited 
one and will be narrowly tailored. To minimize privacy concerns and the 
possibility of misuse of disability-

[[Page 77063]]

related information, we are proposing that the required invitation 
would ask only for self-identification as to the existence of a 
``disability,'' not asking about the general nature or type of 
disability the individual has, or the nature or severity of any 
limitations the individual has as a result of their disability. For 
example, OFCCP might prescribe that the contractor invite applicants to 
self-identify at the pre-offer stage using the following language:

    1. This employer is a Government contractor or subcontractor 
subject to section 503 of the Rehabilitation Act of 1973 (section 
503), as amended, which requires Government contractors to take 
affirmative action to employ and advance in employment qualified 
individuals with disabilities. Regulations of the U.S. Department of 
Labor's Office of Federal Contract Compliance Programs (OFCCP) 
implementing section 503 require that Government contractors and 
subcontractors ask job applicants to indicate whether or not they 
have a disability. This information is requested in furtherance of 
our affirmative action obligations as a Government contractor 
subject to section 503, and to measure the effectiveness of the 
outreach, recruitment, training and development efforts we have 
undertaken pursuant to section 503.
    A person has a disability as defined in section 503 if that 
person either: (1) Has a physical or mental impairment which 
substantially limits one or more of that person's major life 
activities; or (2) has a history or record of such an impairment. 
Major life activities include, but are not limited to, caring for 
oneself, performing manual tasks, seeing, hearing, eating, sleeping, 
walking, standing, sitting, reaching, lifting, bending, speaking, 
breathing, learning, reading, concentrating, thinking, 
communicating, interacting with others, and working. Major life 
activities also include major bodily functions such as functions of 
the immune system, special sense organs and skin, normal cell 
growth, digestive, genitourinary, bowel, bladder, neurological, 
brain, respiratory, circulatory, cardiovascular, endocrine, hemic, 
lymphatic, musculoskeletal and reproductive functions.
    Please indicate whether you have a disability as defined in 
section 503 by checking the box below.

[ ] YES, I HAVE A DISABILITY

    2. Your submission of this information is voluntary, and your 
refusal to provide it will not adversely affect our consideration of 
your application for employment, or subject you to adverse treatment 
of any kind. The information provided will be used only in ways that 
are consistent with section 503 of the Rehabilitation Act of 1973, 
as amended, and OFCCP's regulations.
    3. This means that the information you provide will be used 
solely for affirmative action purposes, and/or by Government 
officials engaged in enforcement of the laws administered by OFCCP, 
or in the enforcement of other Federal EEO laws such as the 
Americans with Disabilities Act (ADA).
    4. Section 503 also requires that Government contractors provide 
individuals with disabilities with reasonable accommodations that 
are needed to ensure equal employment opportunity. If you require an 
assistive device, sign language interpreter, or other assistance, 
change or modification to enable you to fully participate in the 
application process, please let us know.

    OFCCP invites public comment on this potential self-identification 
invitation text, including suggestions for specific alternate text. An 
alternative would be to harmonize the approach to collecting such data 
that is used by the Federal government for government employees. 
Specifically, it is anticipated that the EEOC will use an applicant 
flow form to collect disability-related data pre-employment and OPM 
uses SF256 to collect data once an applicant is hired. Such forms ask 
for sufficient information to determine if an individual has certain 
``severe'' or targeted disabilities, or has any of various other types 
of disabilities. We request comment on these alternative approaches in 
the context of the need to strike a balance between more specific data 
and encouraging responses, and in consideration of the objectives of 
ensuring applicant comprehension of what is being asked, achieving, to 
the extent possible, comparability of data with other sources, and 
compliance with the ADAAA.
    Proposed paragraph (b) retains but modifies the current rule's 
requirement that contractors invite individuals, after an offer of 
employment is extended, but before the applicant begins his or her job 
duties, to voluntarily self-identify as an individual with a 
disability. We propose to retain this requirement, in addition to the 
new requirement to invite self-identification at the pre-offer stage, 
so that individuals with hidden disabilities who fear potential 
discrimination if their disability is revealed prior to receiving a job 
offer will, nevertheless, have the opportunity to provide this valuable 
data.
    Proposed paragraph (b)(1) requires that the contractor invite self-
identification using the language and manner prescribed by the 
Director, as published on the OFCCP Web site. Again, we believe that 
this requirement will ensure consistency in all post-offer invitations 
that are made, minimize any burden to contractors of compliance with 
this responsibility and, consequently, facilitate such contractor 
compliance.
    Proposed paragraph (c) requires that, on an annual basis, the 
contractor shall anonymously survey all of its employees using the 
language and manner prescribed by the Director. Because baseline data 
are not available, at a minimum, it is important to provide all 
employees with an opportunity to self-identify. Annual surveying, 
however, would be meaningful because an employee may become disabled at 
any time or may feel more comfortable self-identifying once he or she 
has been employed for some time. Assuring that employee responses to 
the annual survey will be anonymous will likely increase the response 
rate, thereby providing that the most accurate data possible is 
available to assist contractors and OFCCP. Such data will assist 
contractors and OFCCP in evaluating and refining the contractor's 
affirmative action efforts. Surveying of employees may be accomplished 
by the contractor using a paper and/or electronic format, using the 
method(s) generally used by the contractor to communicate with 
employees regarding work-related matters. Proposed paragraph (d) 
emphasizes that the contractor is prohibited from compelling or 
coercing individuals to self-identify. While proposed paragraph (e) 
emphasizes that all information regarding self-identification as an 
individual with a disability shall be kept confidential and maintained 
in a data analysis file in accordance with Sec.  60-741.23 of this 
part. Paragraph (e) also states that self-identification information 
must be provided to OFCCP, upon request, and that the information may 
only be used in accordance with this part.
    The proposed rule eliminates Appendix B of the current regulations. 
Appendix B provides a sample invitation to self-identify as an 
individual with a disability to assist the contractor in developing its 
own pre-employment self-identification invitation. Since the proposed 
regulation provides that OFCCP will prescribe the text that the 
contractor must use when inviting applicants and employees to 
voluntarily self-identify, there is no longer a need for a sample 
invitation.
    Finally, the proposed rule renumbers existing paragraphs (c) and 
(d) as paragraphs (f) and (g). Proposed paragraph (g) is revised 
slightly to clarify that the contractor is not relieved from liability 
for discrimination in violation of ``section 503 or this part.''
Section 60-741.44 Required Contents of Affirmative Action Programs
    This section details the elements that the contractor's affirmative 
action programs must contain. These elements include: (1) An equal 
employment opportunity policy statement; (2) a comprehensive annual 
review of

[[Page 77064]]

personnel processes; (3) a review of physical and mental job 
qualifications; (4) a statement that the contractor is committed to 
making reasonable accommodations for persons with physical and mental 
disabilities; (5) a statement that the contractor is committed to 
ensuring a harassment-free workplace for individuals with disabilities; 
(6) external dissemination of the contractor's affirmative action 
policy, as well as outreach and recruitment efforts; (7) internal 
dissemination of the contractor's affirmative action policy to all of 
its employees; (8) development and maintenance of an audit and 
reporting system designed to evaluate affirmative action programs; and 
(9) training regarding the implementation of the affirmative action 
program for all personnel involved in employment-related activities, 
such as the conduct of recruitment, screening, selection, and 
discipline of employees.
    The first substantive proposed revisions to this section focus on 
the contractor's policy statement set forth in paragraph (a). The 
proposed regulation would revise the second sentence to clarify the 
contractor's duty to provide notices of employee rights and contractor 
obligations in a manner that is accessible and understandable to 
persons with disabilities. It would also revise the parenthetical at 
the end of the sentence, replacing the outdated suggestion of 
``hav[ing] the notice read to a visually disabled individual'' as an 
accommodation with the suggestion to provide Braille, large print, or 
other versions that allow persons with disabilities to read the notice 
themselves.
    The proposed regulation would also revise the third sentence of 
paragraph (a) regarding the content of the policy statement, replacing 
the provision that the policy statement ``should indicate the chief 
executive officer's attitude on the subject matter'' with the 
requirement that the policy statement ``shall indicate the chief 
executive officer's support for the affirmative action program.'' This 
proposed change is made to clarify the intent to mandate the inclusion 
of a statement from the contractor's CEO in the affirmative action 
policy statement that will signal to the contractor's employees that 
support for the affirmative action program goes to the very top of the 
contractor's organization.
    In paragraph (b), the proposed rule requires that the contractor 
must review its personnel processes on at least an annual basis to 
ensure that its obligations are being met. The current rule requires 
that the contractor review these processes ``periodically.'' This 
standard is vague and subject to confusion. Indeed, OFCCP's efforts to 
enforce this requirement in recent years have been complicated by 
contractors' various subjective interpretations of what constitutes 
``periodic'' review. This proposal sets forth a clear, measurable, and 
uniform standard that will be easily understood by the contractor and 
more easily enforced by OFCCP. In addition, the proposed rule requires 
that the contractor ensure that its use of information and 
communication technology is accessible to applicants and employees with 
disabilities. The contractor is required to review its technological 
processes annually, make any necessary changes and include a 
description of its review and any modifications made in its affirmative 
action program.
    Further, the proposed revisions mandate certain specific steps that 
the contractor must take, at a minimum, in the review of its personnel 
processes. These specific steps are those currently set forth in 
Appendix C to the regulation. Appendix C currently suggests that the 
contractor: (1) Identify the vacancies and training programs for which 
applicants and employees with disabilities are considered; (2) provide 
a statement of reasons explaining the circumstances for rejecting 
individuals with disabilities for vacancies and training programs and a 
description of considered accommodations; and (3) describe the nature 
and type of accommodations for individuals with disabilities who were 
selected for hire, promotion, or training programs. Previously, these 
steps were recommended as an appropriate set of procedures. OFCCP's 
enforcement efforts have found that many contractors do not follow 
these recommended steps, and that the documentation contractors 
maintain of the steps they do take are often not conducive to a 
meaningful review by the contractor or OFCCP, particularly in the event 
of employee/applicant complaints. Such a meaningful review has always 
been the goal of the requirements in paragraph (b), as it ensures that 
the contractor remains aware of and actively engages in its overall 
affirmative action obligations toward individuals with disabilities. 
The proactive approach set forth in the current Appendix C would 
provide greater transparency between the contractor, its applicants/
employees, and OFCCP as to the reasons for the contractor's personnel 
actions. Requiring that contractors record the specific reasons for 
their personnel actions and make them available to an employee or 
applicant upon request would also aid them in clearly explaining their 
personnel actions to applicants and employees, which could subsequently 
reduce the number of complaints filed against contractors. Thus, we 
propose requiring the contractor to take these steps outlined currently 
in Appendix C (which are incorporated into paragraph (b) in the 
proposed rule), and encourage the contractor to undertake any 
additional appropriate procedures to satisfy its affirmative action 
obligations.
    The proposed paragraph (c) clarifies that all physical and mental 
job qualification standards must be reviewed and updated, as necessary, 
on an annual basis. As with paragraph (b), the current rule's 
requirement that the contractor review these standards ``periodically'' 
is vague and subject to confusion. OFCCP has concluded that contractors 
inconsistently interpret what constitutes ``periodic'' review. The 
proposed change provides a clear, measurable, and uniform standard.
    The proposed paragraph (c)(1) adds language requiring the 
contractor to document the results of its annual review of physical and 
mental job qualification standards. The regulation has long required 
this review to ensure that job qualification standards that tend to 
screen out individuals with disabilities are job-related and consistent 
with business necessity. The proposed change would merely require that 
the contractor document the review it has already been required to 
perform. It is anticipated that this documentation will list the 
physical and mental job qualifications for the job openings during a 
given AAP year- which should already be available from the contractor's 
job postings--and provide an explanation as to why each requirement is 
related to the job to which it corresponds. Documenting this review 
will ensure that the contractor critically analyzes its job 
requirements and proactively eliminates those that are not job-related. 
It will also allow OFCCP to conduct audits and investigations in a more 
thorough and efficient manner.
    Paragraph (c)(3) currently provides that, as a defense to a claim 
by an individual that certain mental or physical qualifications are not 
job-related and consistent with business necessity, the contractor may 
assert that the individual poses a ``direct threat'' to the health or 
safety of the individual or others in the workplace. The definition of 
``direct threat'' in these regulations spells out the criteria that the 
contractor must consider in determining whether a ``direct threat'' 
exists. The proposed paragraph (c)(3) would require the

[[Page 77065]]

contractor to contemporaneously create a written statement of reasons 
supporting its belief that a direct threat exists, tracking the 
criteria set forth in the ``direct threat'' definition in these 
regulations, and to maintain the written statement as set forth in the 
recordkeeping requirement in Sec.  60-741.80. Once again, this is to 
ensure that the contractor's ``direct threat'' analysis--which is 
already required under these regulations--is well-reasoned and 
available for review by OFCCP. Finally, for both the proposed 
documentation requirements in paragraphs (c)(1) and (c)(3), the 
proposed regulation requires that the contractor treat the created 
documents as confidential medical records in accordance with Sec.  60-
741.23.(d).
    Perhaps the most significant substantive changes in the proposed 
rule address the scope of the contractor's recruitment efforts and the 
dissemination of its affirmative action policies described in 
paragraphs (f) and (g) of this section. While these two paragraphs 
generally would require that the contractor engage in recruitment and 
disseminate its policies, the current rule recommends rather than 
requires the specific methods for carrying out these obligations.
    The current paragraph (f) suggests a number of outreach and 
recruitment efforts that the contractor can undertake in order to 
increase the employment opportunities for individuals with 
disabilities. See 41 CFR 60-741.44(f)(1). The proposed paragraph (f) 
would require that the contractor engage in a minimum number of 
outreach and recruitment efforts (as described in proposed paragraph 
(f)(1)). The proposed paragraph (f) also includes a list of additional 
outreach and recruitment efforts that are suggested (proposed paragraph 
(f)(2)), a new requirement that the contractor conduct self-assessments 
of their outreach and recruitment efforts (proposed paragraph (f)(3)), 
and a clarification of the contractor's recordkeeping obligation with 
regard to its outreach and recruitment efforts (proposed paragraph 
(f)(4)).
    Proposed paragraph (f)(1) requires the contractor to promptly list 
all of its employment opportunities, with limited exceptions, with the 
nearest Employment One-Stop Career Center. It also requires the 
contractor to engage in a minimum of three additional outreach and 
recruitment efforts. First, the contractor is required to enter into 
linkage agreements and establish ongoing relationships with the local 
State Vocational Rehabilitation Agency office nearest the contractor's 
establishment, or a local organization listed in the Social Security 
Administration's Ticket to Work Employment Network Directory.
    Second, the contractor is required to enter into a linkage 
agreement with at least one of several other listed organizations and 
agencies for purposes of recruitment and developing training 
opportunities. The listed organizations and agencies include: Entities, 
such as the Employer Assistance and Resource Network (EARN), that are 
funded by the Department of Labor to provide recruitment or training 
services for individuals with disabilities. EARN provides employers 
with free consulting services and resources to support the recruitment 
and hiring of individuals with disabilities; the nearest Employment 
One-Stop Career Center, established under the Workforce Investment Act 
to provide a full range of job seeker assistance under one roof; the 
nearest Department of Veterans Affairs Regional Offices, which, in 
part, provide services to disabled veterans; local disability groups, 
organizations or Centers for Independent Living that provide services 
to individuals with disabilities; placement or career offices of 
educational institutions; and private recruitment sources, such as 
professional organizations or employment placement services.
    Third, proposed paragraph (f)(1) also requires that the contractor 
consult the Employer Resources section of the National Resource 
Directory, a partnership and online collaboration among the Departments 
of Labor, Defense, and Veterans Affairs. New contractors and 
subcontractors often inquire about how they can find qualified 
individuals with disabilities to comply with their AAP obligations. The 
National Resource Directory is a leading government Web site that 
provides prospective employers of disabled veterans access to veterans' 
service organizations, existing job banks, and other resources at the 
national, state and local levels. Finally, proposed paragraph (f)(1) 
requires that the contractor send written notification of company 
policy related to affirmative action efforts to its subcontractors, 
including subcontracting vendors and suppliers in order to request 
appropriate action on their parts and to publicize the contractor's 
commitment to affirmative action on behalf of individuals with 
disabilities. While the proposed regulations would not require that the 
contractor send written notification to vendors and suppliers who are 
not subcontractors as defined by these regulations, such disclosure 
remains an encouraged activity, just as it is under the current 
regulation. See 41 CFR 60-741.44(f)(6).
    We believe that the required linkage agreements we propose in 
paragraph (f)(1) will greatly facilitate the contractor's efforts to 
attract qualified applicants with disabilities. We encourage comments 
from stakeholders regarding this proposal, particularly if stakeholders 
have information on recruitment sources not included in this proposal 
that might increase employment of individuals with disabilities.
    In paragraph (f)(2) of the proposed rule, we list a number of 
outreach and recruitment efforts that are suggested measures for 
increasing employment opportunities for individuals with disabilities. 
The efforts listed in proposed paragraph (f)(2) are very similar to the 
efforts that are suggested in paragraphs (f)(1) through (f)(7) of the 
current rule. This includes: (1) Holding briefing sessions with 
representatives from recruiting resources; (2) incorporating efforts to 
locate individuals with disabilities into recruitment activities at 
educational institutions; (3) participating in work-study programs for 
students, trainees, or interns with disabilities; (4) making available 
individuals with disabilities for participation in career days, youth 
motivation programs, and related activities in their communities; (5) 
any other positive steps the contractor deems necessary to attract 
qualified individuals with disabilities, including contacts with any 
local disability-related organizations; and (6) considering applicants 
who are known individuals with disabilities for all available positions 
when the position applied for is unavailable.
    Paragraph (f)(3) of the proposed rule requires the contractor, on 
an annual basis, to review the outreach and recruitment efforts it has 
undertaken over the previous twelve months and evaluate their 
effectiveness in identifying and recruiting qualified individuals with 
disabilities, and document its review. Contractors that do not 
proactively monitor their outreach and recruitment efforts often lose 
opportunities to consider and hire qualified individuals with 
disabilities. This requirement will allow the contractor to look at its 
measurable accomplishments and reconsider unproductive methods. We 
believe requiring this review on an annual basis strikes the proper 
balance by ensuring that adjustments to recruitment efforts are made on 
a timely basis if needed, while also ensuring that the contractor has 
enough data on existing recruitment

[[Page 77066]]

efforts to be able to determine if adjustments need to be made.
    We recognize that the ``effectiveness'' of an outreach or 
recruitment effort is not easily defined, and may include a number of 
factors that are unique to a particular contractor establishment. 
Generally speaking, a review of the efficacy of a contractor's efforts 
should include the number of candidates with disabilities that each 
effort identifies. Recognizing that other unique and intangible 
characteristics may contribute to the assessment of the 
``effectiveness'' of a given effort, the proposed regulation allows the 
contractor some flexibility in making this assessment. However, the 
proposed regulation would require that the contractor consider the 
numbers of individuals with disabilities who were referrals, 
applicants, and hires for the current year and two previous years as 
criteria in evaluating its efforts, and document all other criteria 
that it uses to assess the effectiveness of its efforts, so that OFCCP 
compliance officers are able to understand clearly the rationale behind 
the contractor's self-assessment. The contractor's conclusion as to the 
effectiveness of its outreach must be reasonable as determined by OFCCP 
in light of these regulations. The primary indicator of effectiveness 
is whether qualified individuals with disabilities have been hired. 
Further, should the contractor determine that its efforts were not 
effective, the proposed rule requires the contractor to identify and 
implement one or more of the alternative efforts listed in proposed 
paragraphs (f)(1) and (f)(2) in order to fulfill its obligations. The 
general purpose of this self-assessment is to ensure that the 
contractor thinks critically about its recruitment and outreach 
efforts, and modifies its efforts as needed to ensure that its 
obligations are being met.
    Paragraph (f)(4) of the proposed rule requires that the contractor 
document its linkage agreements and the activities it undertakes in 
order to comply with paragraph (f), and retain these documents for a 
period of five (5) years. This requirement will enable the contractor 
and OFCCP to more effectively review recruitment and outreach efforts 
undertaken to ensure that the affirmative action obligations of 
paragraph (f) are satisfied.
    Paragraph (g) of this section requires that the contractor develop 
internal procedures to communicate to its employees its obligation to 
engage in affirmative action efforts. The current paragraph (g)(2) 
contains several suggested means by which the contractor may accomplish 
this. The proposed rule mandates that the contractor include its 
affirmative action policy in its policy manual and discuss the policy 
in orientation and management training programs. In addition, if the 
contractor is party to a collective bargaining agreement, then the 
proposed rule requires the contractor to meet with union officials and 
representatives to inform them about the policy and seek their 
cooperation.
    A newly proposed paragraph (g)(3) requires the contractor to 
document the activities it undertakes in order to comply with paragraph 
(g), and retain these documents as records subject to the recordkeeping 
requirements of Sec.  60-741.80. This will allow for a more effective 
review by the contractor and OFCCP to ensure that the affirmative 
action obligations of paragraph (g) are being met.
    Other suggested elements would remain in the proposed rule at newly 
created paragraph (g)(4) as suggested additional dissemination efforts 
the contractor can make. This includes suggesting that the contractor 
use company newspapers, magazines, annual reports, handbooks, or other 
media to publicize its affirmative action obligations and feature 
individuals with disabilities and their accomplishments. See current 
regulation at 41 CFR 60-741.44(g)(2)(vii) and (viii). The proposed rule 
also suggests that the contractor discuss its affirmative action 
policies at meetings with employees and/or supervisors and managers 
where personnel practices or equal employment opportunity matters are 
discussed.
    Paragraph (h) of this section details the contractor's 
responsibilities in designing and implementing an audit and reporting 
system for its affirmative action program, including the specific 
computations and comparisons that are part of the audit. The proposed 
regulations add a new paragraph (h)(1)(vi) requiring the contractor to 
document the actions taken to comply with paragraphs (h)(1)(i)-(v), and 
maintain such documents as records subject to the recordkeeping 
requirements of Sec.  60-741.80. Again, this will allow for a more 
effective review by the contractor and OFCCP to ensure the affirmative 
action obligations of this paragraph are being met.
    The only substantive proposed change in paragraph (i) 
(Responsibility for implementation) requires that the identity of the 
officials responsible for a contractor's affirmative action activities 
must appear on all internal and external communications regarding the 
contractor's affirmative action program. In the current regulation, 
this disclosure is only suggested. Requiring this disclosure will 
increase transparency, making it clear to applicants, employees, OFCCP, 
and other interested parties, which individual(s) is responsible for 
the implementation of the contractor's affirmative action program.
    Paragraph (j) of the current rule requires that the contractor 
train those employees who implement the personnel decisions pursuant to 
its affirmative action program. The proposed regulation specifies the 
topics that must be included in the contractor's training: The business 
and societal benefits of employing individuals with disabilities; 
appropriate sensitivity toward recruits, applicants, and employees with 
disabilities; and the legal responsibilities of the contractor and its 
agents regarding individuals with disabilities, including the 
obligation to provide reasonable accommodation to qualified individuals 
with disabilities. Training employees on these issues will facilitate a 
greater understanding of the purpose of the affirmative action plan 
among the contractor's decision makers, and will enhance the visibility 
and importance of affirmative action to the recruitment, hiring, and 
advancement of individuals with disabilities.\7\ The proposed 
regulation also requires that the contractor record which of its 
personnel receive this training, the dates they receive it, and the 
person(s) who administers the training, and maintain these records, 
along with all written or electronic training materials used, in 
accordance with the recordkeeping requirements of Sec.  60-741.80. 
Again, this will allow for a more effective review by the contractor 
and OFCCP to ensure the affirmative action obligations of this 
paragraph are being met.
---------------------------------------------------------------------------

    \7\ Contractors needing assistance in developing their training 
will find resources available on the OFCCP Web site and/or may 
request free technical assistance from the nearest OFCCP field 
office. In addition, the Department of Labor's Office of Disability 
Employment Policy (ODEP) provides extensive resources and technical 
assistance for employers on its Web site, http://www.dol.gov/odep.
---------------------------------------------------------------------------

    The proposed regulation adds a new paragraph (k) that requires the 
contractor to maintain several quantitative measurements and 
comparisons regarding individuals with disabilities who have been 
referred by state employment services, have applied for positions with 
the contractor, and/or have been hired by the contractor. The impetus 
behind this new section is that, as stated in the discussion of Sec.  
60-741.44(a), no structured data regarding

[[Page 77067]]

the number of individuals with disabilities who are referred for, or 
apply for jobs with Federal contractors is currently maintained. This 
absence of data makes it nearly impossible for the contractor and OFCCP 
to perform even rudimentary evaluations of the availability of 
individuals with disabilities in the workforce, or to make any 
quantitative assessments of how effective contractor outreach and 
recruitment efforts have been in attracting candidates with 
disabilities. The proposed regulations provide for the collection of 
referral data as well as applicant and hire data (see Sec.  60-
741.42(a)). Accordingly, proposed paragraph (k) requires that the 
contractor document and update annually the following calculations: (1) 
For referral data, the total number of referrals from applicable 
employment service delivery systems and from groups and organizations 
with which the contractor has a linkage agreement; (2) for applicant 
data, the total number of applicants for employment, the number of 
applicants who are known to be individuals with disabilities, and the 
``applicant ratio'' of known applicants with disabilities to total 
applicants; (3) for hiring data, the total number of job openings, the 
number of jobs filled, the number of known individuals with 
disabilities hired, and the ``hiring ratio'' of hires with known 
disabilities to total hires; and (4) the total number of job openings, 
the number of jobs that are filled, and the ``job fill ratio'' of job 
openings to job openings filled. These basic measurements will provide 
the contractor and OFCCP with important information that does not 
currently exist. This will aid the contractor in evaluating and 
tailoring its recruitment and other affirmative action strategies.
    We seek comment on the amount of time it will take contractors to 
develop the computations and comparisons required in this proposed 
paragraph, however, OFCCP does not think these requirements will 
present an onerous burden to contractors. Although the measurements 
specific to disability are new requirements of this proposed 
regulation, the non-disability-specific data, such as the total number 
of applicants, the total number of job openings, and the number of jobs 
filled is information that contractors are already required to maintain 
pursuant to Executive Order 11246 and Section 4212 of the Vietnam Era 
Veterans' Readjustment Assistance Act of 1974, as amended.
    OFCCP is also considering adding a reporting requirement, and 
invites public comment on this option. Under this proposal, contractors 
would be required to provide OFCCP with a report containing the 
measurements and computations required by proposed paragraph (k), and 
including the percentage of applicants, new hires, and total workforce 
for each EEO-1 category. The report would be provided to OFCCP on an 
annual basis, regardless of whether the contractor has been selected 
for a compliance evaluation.
Section 60-741.45 Reasonable Accommodation Procedures
    Current Sec.  60-741.45 entitled ``Sheltered workshops'' has been 
revised and moved to Sec.  60-741.48, and is discussed later in the 
preamble.
    This proposed section is new. It requires the contractor to develop 
and implement written procedures for processing requests for reasonable 
accommodation. We believe that the development and implementation of 
written procedures for processing requests for reasonable accommodation 
will assist the contractor in consistently satisfying its reasonable 
accommodation obligation by serving as a ``blueprint'' for the prompt 
handling of reasonable accommodation requests. The maintenance and 
dissemination of such procedures will also ensure that applicants and 
employees know how to request a reasonable accommodation, who is 
responsible for handling such a request, and the maximum amount of time 
within which the contractor must complete the processing of such a 
request.
    Proposed paragraph (a) requires that any contractor that is 
obligated to develop an affirmative action program also develop and 
implement written reasonable accommodation procedures. It also 
encourages any contractor that is not required to develop an 
affirmative action program to consider adopting and implementing 
written reasonable accommodation procedures to assist it in meeting its 
nondiscrimination obligations under section 503. Proposed paragraph 
(a)(1) requires that the reasonable accommodation procedures be 
included in the section 503 affirmative action program and be developed 
and implemented in conformance with section 503 and its implementing 
regulations in this part.
    Proposed paragraph (a)(2) states that the minimum elements that the 
contractor shall include or address in its reasonable accommodation 
procedures are described in paragraph (d). The purpose of including 
these elements is to ensure that applicants and employees know how to 
request a reasonable accommodation and the steps that will be taken by 
the contractor to process requests for accommodation; to ensure that 
supervisors and managers know what to do should they receive a request; 
and to ensure that that all accommodation requests are processed 
swiftly and within established timeframes.
    Proposed paragraph (b) requires the contractor to designate an 
official to be responsible for the implementation of the reasonable 
accommodation procedures. This official may be the same official 
responsible for the implementation of the contractor's affirmative 
action program, and shall have the authority, resources, support, and 
access to top management necessary to effectively implement the 
reasonable accommodation procedures.
    Proposed paragraph (c) requires the contractor to disseminate its 
reasonable accommodation procedures to all employees. Notice of the 
reasonable accommodation procedures may be provided by inclusion in an 
employee handbook that is distributed to all employees and/or by email 
or electronic posting on a company Web page where work-related notices 
are ordinarily posted. Employees who work off-site shall be provided 
with notice of the reasonable accommodation procedures in the same 
manner that notice of other work-related matters is ordinarily provided 
to such employees. Proposed paragraph (c)(2) requires the contractor to 
inform all applicants of the reasonable accommodation procedures 
regarding the application process. Reasonable accommodation procedures 
regarding the application process is further addressed in proposed 
paragraph (d)(2)(iii).
    Proposed paragraph (d) acknowledges that the specific requirements 
of a contractor's reasonable accommodation procedures may vary 
depending upon the size, structure, and resources of the contractor. 
However, paragraph (d) lists specific elements that shall be included 
in every contractor's reasonable accommodation procedures. These 
elements are:
    (1) Responsible official contact information. The proposed rule 
requires inclusion of the name, title/office, and contact information 
of the official designated as responsible for implementation of the 
reasonable accommodation procedures pursuant to paragraph (b), and 
notes that this information should be updated when changes occur.
    (2) Requests for reasonable accommodation. The proposed rule 
requires that the contractor's reasonable accommodation procedures 
state that a request for accommodation may be either oral or written, 
and may be made

[[Page 77068]]

by an applicant, employee, or a third party on his or her behalf.
    Proposed paragraph (d)(2)(i) requires that the contractor's 
reasonable accommodation procedures address instances of a recurring 
need for an accommodation, such as a sign language interpreter for a 
hearing impaired employee, and provides that an individual needing such 
an accommodation will not be required to repeatedly submit or renew his 
or her request for accommodation each time it is needed. In the absence 
of a reasonable belief that the individual's recurring need for the 
accommodation has changed, requiring the repeated submission of a 
request for the same accommodation could be considered harassment on 
the basis of disability in violation of this part.
    Proposed paragraph (d)(2)(ii) requires the contractor to identify 
to whom a request for reasonable accommodation may be submitted. At a 
minimum, an employee in need of accommodation must be able to submit a 
request to any supervisor or management official in his or her chain of 
command, or to the official responsible for the implementation of the 
contractor's reasonable accommodation procedures.
    Proposed paragraph (d)(2)(iii) requires that the contractor's 
procedures ensure that all applicants, including those using the 
contractor's online or other electronic application system, are made 
aware of the contractor's reasonable accommodation obligation, and are 
invited to request reasonable accommodation to enable their full 
participation in the application process. The contractor's procedures 
also must provide all applicants with contact information for 
contractor staff able to assist the applicant, or his or her 
representative, in making a request for accommodation. With regard to 
applicants, the contractor's procedures must provide that reasonable 
accommodation requests are processed expeditiously, using timeframes 
tailored to the application process.
    (3) Written confirmation of receipt of a request. The proposed rule 
requires that written confirmation of the contractor's receipt of an 
accommodation request be provided to each accommodation requester, by 
letter or email. The written confirmation shall include the date the 
accommodation request was received and be signed by the authorized 
decision maker or his or her designee.
    (4) Timeframe for processing requests of reasonable accommodations. 
The proposed rule requires that the contractor's procedures indicate 
that requests for accommodation will be processed as expeditiously as 
possible. The rule permits the contractor to set its own timeframes for 
completing the processing of requests, within certain parameters. 
Specifically, the proposed rule requires that the timeframe for 
processing requests shall not be longer than 5 to 10 business days if 
no supporting medical documentation is needed. If medical documentation 
is needed, or if special equipment must be ordered, the timeframe, 
excepting extenuating circumstances, shall not exceed 30 calendar days. 
Proposed paragraph (d)(4)(i) requires the contractor to provide written 
notice to the requester when the processing of their accommodation 
request will not be completed within the established timeframes. The 
notice shall include the reason(s) for any delay, project a date for 
processing completion, and be duly signed and dated.
    (5) Description of process. The proposed rule requires that the 
reasonable accommodation procedures contain a description of the steps 
the contractor will take when processing a reasonable accommodation 
request, including the process by which the contractor renders a final 
determination on the accommodation request. If specific information 
must be provided to the contractor in order to obtain a reasonable 
accommodation, the description shall identify this information. For 
example, the contractor's procedures may require that the contractor be 
informed of the existence of a disability, the disability-related 
limitation(s) or workplace barrier(s) that needs to be accommodated, 
and, if known, the desired reasonable accommodation before providing a 
reasonable accommodation. The description shall also indicate that the 
contractor may initiate an interactive process with the accommodation 
requester if the need for accommodation is not obvious, or if 
additional information is needed in order to provide the accommodation.
    (6) Supporting medical documentation. The proposed rule requires 
that the contractor's procedures provide an explanation of the 
circumstances under which medical documentation may be requested and 
reviewed before a reasonable accommodation is provided. Paragraph 
(d)(6)(i) requires that the procedures explain that any request for 
medical documentation must be limited to documentation of the 
individual's disability and functional limitations for which reasonable 
accommodation is sought. Proposed paragraph (d)(6)(ii) requires that 
the procedures contain a statement that submission of medical 
documentation is not required when the disability for which a 
reasonable accommodation is sought is known or readily observable and 
the need for accommodation is known or obvious.
    (7) Denial of reasonable accommodation. The proposed rule requires 
that any denial or refusal to provide a reasonable accommodation must 
be provided by the contractor to the accommodation requester in 
writing. The written denial shall include the basis for the denial and 
a statement of the requester's right to file a complaint with OFCCP. 
The written denial shall be signed by the authorized decision maker or 
his/her designee and dated. The rule further states that if the 
contractor offers an internal appeal or reconsideration process, the 
written denial shall inform the requester about this process, and 
include a clear statement that participation in the internal process 
does not toll the time for filing a complaint with OFCCP or EEOC.
    (8) Confidentiality. The proposed rule requires that the 
contractor's reasonable accommodation procedures indicate that requests 
for reasonable accommodation, related documentation (such as request 
confirmation receipts, requests for additional information, and 
decisions regarding accommodation requests), and any medical or 
disability-related information provided to the contractor will be 
treated as a confidential medical record and maintained in a separate 
medical file, in accordance with section 503.
    Proposed paragraph (e) contains a training requirement. The 
effectiveness of the contractor's reasonable accommodation procedures 
is dependent upon the contractor's supervisors and managers being 
trained in their implementation. Contractors would be required to train 
all supervisors and managers on the accommodation procedures on an 
annual basis and upon significant changes in policy or procedure. The 
rule notes that the required training may be provided in conjunction 
with other required equal employment opportunity or affirmative action 
training.
Section 60-741.46 Utilization Goals
    This section of the proposed rule is new and proposes to establish 
a single, national utilization goal for individuals with 
disabilities.\8\ A utilization goal is neither a hiring quota, nor a 
restrictive hiring ceiling. Rather, it is an equal employment 
opportunity objective, and

[[Page 77069]]

an important tool for measuring the contractor's progress toward equal 
employment opportunity and assessing where barriers to equal employment 
opportunity remain.
---------------------------------------------------------------------------

    \8\ This provision, as well as all other provisions in subpart C 
of this part, applies only to those contractors that have 50 or more 
employees and a contract of $50,000 or more. See 60-741.40(b).
---------------------------------------------------------------------------

The Need for a Goal
    Before considering the appropriate methodology for such a goal, 
OFCCP first considered the option of not having any goal. The current 
section 503 regulations require affirmative action but lack a goal. 
This has been the case since their inception in the 1970's. As 
discussed, below, the intervening years have resulted in little 
improvement in the unemployment and workforce participation rates of 
individuals with disabilities. In light of the long-term and 
intractable nature of the substantial employment disparity between 
those with and without disabilities, we concluded that process 
requirements, without a quantifiable means of assessing whether 
progress toward equal employment opportunity is occurring, are 
insufficient. We concluded, therefore, that the establishment of a 
utilization goal for individuals with disabilities is warranted. Though 
aspirational, establishing a goal would create more accountability 
within the contractor's organization and might be key to ensuring that 
the goal is achieved.
    Little Government data measuring the unemployment and workforce 
participation rates of individuals with disabilities exists prior to 
the 2000 Census. However, illustrative data can be found in the 1989 
legislative history of the Americans with Disabilities Act. Explaining 
the need for inclusion of employment provisions in the then-pending 
legislation, the Senate reported that individuals with disabilities 
``experience staggering levels of unemployment.'' Senate Committee on 
Labor and Human Resources, S. Rep. No. 101-116, 101st Cong, 1st Sess. 
(1989) at 9. More specifically, the Senate reported that two-thirds of 
all disabled Americans of working age were not working at all, even 
though a large majority of those not working (66%) wanted to work. Id. 
(citing a poll by the Lou Harris company).
    Today, more than twenty years later, there continues to be a 
substantial discrepancy between the workforce participation and 
unemployment rates of working age \9\ individuals with and without 
disabilities. According to the U.S. Department of Labor's Bureau of 
Labor Statistics (BLS), just 21.8% of working age individuals with 
certain functional disabilities were in the labor force in 2010, 
compared with 70.1% of working age individuals without such 
disabilities. This same data also indicates that the unemployment rate 
for those with these disabilities was 14.8%, compared with a 9.4% 
unemployment rate for those without a disability.
---------------------------------------------------------------------------

    \9\ The working age population consists of people between the 
ages of 16 and 64, excluding those in the military and people who 
are in institutions.
---------------------------------------------------------------------------

    Similarly, according to the U.S. Census Bureau's 2009 American 
Community Survey (the most recent year for which data are available), 
just 23% of individuals with certain functional disabilities age 16 and 
over \10\ were employed, compared to 65.8% of those 16 and over without 
such disabilities. The survey also reported that nearly three-quarters 
of individuals with these disabilities (72.2%) age 16 and over were not 
in the labor force, compared with just 27.3% of those age 16 and over 
without such disabilities.
---------------------------------------------------------------------------

    \10\ See 2009 American Community Survey, Table S1811, Selected 
Economic Characteristics for the Civilian Noninstitutionalized 
Population by Disability Status (U.S. Census Bureau).
---------------------------------------------------------------------------

    The establishment of a utilization goal for individuals with 
disabilities is not, by itself, a ``cure'' for this longstanding 
problem. We believe, however, that the goal proposed in this section is 
a vital element that, in conjunction with other requirements of this 
part, will enable contractors and OFCCP to assess the effectiveness of 
specific affirmative action efforts, and to identify and address 
specific workplace barriers to employment.
Methodology for Setting the Utilization Goal
    The utilization goal established in this section is derived, in 
part from the disability data collected as part of the American 
Community Survey. The American Community Survey (ACS) was designed to 
replace the census ``long form'' of the decennial census, last sent out 
to U.S. households in 2000, to gather information regarding the 
demographic, socioeconomic and housing characteristics of the nation. 
Whereas the Census Bureau now only administers a very short survey for 
the decennial census, a more detailed view of the social and 
demographic characteristics of the population is provided by the ACS, 
which collects data from a sample of 3 million residents on a 
continuing basis.\11\
---------------------------------------------------------------------------

    \11\ A national sample of approximately 3 million addresses 
nationwide receives the ACS each year, with a portion of this total 
receiving the survey each month. For more information on the 
American Community Service visit the Census Bureau's ACS Web page at 
www.census.gov/acs.
---------------------------------------------------------------------------

    The ACS was first launched in 2005, after a decade of testing and 
development by the Census Bureau. Refinement of the questions designed 
to characterize disability status has been continuous, with the current 
set of disability-related questions incorporated into the ACS in 2008. 
Taken together, the six dichotomous (``yes'' or ``no'') disability-
related questions \12\ comprise the function-based definition of 
``disability,'' used in the ACS and by most of the other major surveys 
administered by the Federal Statistical System.
---------------------------------------------------------------------------

    \12\ The six questions are: Is this person deaf or does he/she 
have serious difficulty hearing? Is this person blind or does he/she 
have serious difficulty seeing even when wearing glasses? Because of 
a physical, mental, or emotional condition, does this person have 
serious difficulty concentrating, remembering, or making decisions? 
Does this person have serious difficulty walking or climbing stairs? 
Does this person have difficulty dressing or bathing? Because of a 
physical, mental, or emotional condition, does this person have 
difficulty doing errands alone such as visiting a doctor's office or 
shopping? 2009 American Community Survey, Questions 17-19.
---------------------------------------------------------------------------

    The definition of disability used by the ACS, however, is clearly 
not as broad as that of the Rehabilitation Act and the ADA. For 
example, since the ACS questions do not say that one should respond 
without considering mitigating measures (e.g., medication or aids), 
some individuals with disabilities that are well-controlled by 
medication (e.g., depression or epilepsy) or in remission might respond 
to the ACS in a way that leads them not to be coded as ``disabled.'' 
Likewise, since the ACS questions do not include major bodily 
functions, an individual who has a disability that substantially limits 
a major bodily function such as HIV, cancer, or diabetes but does not 
limit an activity such as hearing, seeing or walking, might respond 
that he or she does not have a disability on the ACS. Despite its 
limitations, the ACS is the best source of nationwide disability data 
available today, and, thus, an appropriate starting place for 
developing a utilization goal.
    In developing the utilization goal proposed in this section, OFCCP 
considered two general approaches. The first approach OFCCP considered 
aimed to mirror precisely the goals framework for minorities and women 
that is used by supply and service (non-construction) contractors 
subject to Executive Order (EO) 11246. Accordingly, it would require 
individual contractor establishments to set their own goals for each of 
their job groups \13\ based on the percentage of

[[Page 77070]]

individuals with disabilities available in the particular recruitment 
area from which the contractor sought to fill the jobs in the job 
group. Where there are fewer than expected incumbent disabled employees 
in a job group given their availability percentage, a contractor would 
be required to establish a goal for the specific job group that is at 
least equal to the availability percentage in the job group's 
recruitment area. See 41 CFR 60-2.12--60-2.16 for a more detailed 
description of the EO 11246 goals provisions for supply and service 
contractors.
---------------------------------------------------------------------------

    \13\ Job groups usually contain one to three jobs each. However, 
contractors with fewer than 150 employees may use the broader EEO-
1job categories in place of smaller job groups.
---------------------------------------------------------------------------

    After careful consideration of the available data and consultation 
with the U.S. Census Bureau regarding the level of geographic 
aggregation at which the data could be analyzed, OFCCP became concerned 
that replicating the supply and service goals framework might not be 
the most effective approach for the establishment of goals for 
individuals with disabilities. Supply and service contractors 
establishing goals for minorities and women typically use the Special 
EEO Tabulation of census data to assist them. The results of the 2000 
decennial census can be tabulated for 472 occupation categories and 
thousands of geographic areas. However, the ACS disability data, which 
is based on sampling, cannot be broken down into as many job titles, or 
as many geographic areas as the data for race and gender based on the 
decennial census. That is, the confidence intervals on such estimates 
are large and the estimates are not statistically significant when 
broken down to the degree of detail required by the supply and service 
goals framework. Contractors therefore would not be able to use the job 
groups established under EO 11246 to establish goals for individuals 
with disabilities, and would often be unable to utilize the geographic 
recruitment areas established under the Executive Order when 
determining the availability of individuals with the disabilities (as 
queried in the ACS). In addition, the Executive Order supply and 
service goals framework does not include consideration of discouraged 
workers in computing availability, a factor particularly important in 
the context of disability, as discussed below.
    In light of the difficulties replicating the supply and service 
goals approach in the context of disability, OFCCP considered other 
options. For a variety of reasons, OFCCP believes that the 
establishment of a single, national goal \14\ for all jobs in all 
geographic areas is a more viable approach to the establishment of a 
goal for individuals with disabilities. This approach would also allow 
for the continued use of the contractor's EO 11246 job groups, and 
require that those job groups be used to measure the representation of 
individuals with disabilities in the contractor's workforce.
---------------------------------------------------------------------------

    \14\ Disability rates by State for the civilian labor force has 
a mean of 6.32, median of 6.20, and standard deviation of 1.29. 
There are only two states, Alaska (9.0%) and Oklahoma (9.5%) that 
are outside the 95% confidence interval of this otherwise almost 
uniform distribution. This general uniformity is consistent with the 
use of a single national goal. See Table 15 in Affirmative Action 
for People with Disabilities--Volume I: Data Sources and Models, 
Economic Systems, Inc. (April 30, 2010) at 55.
---------------------------------------------------------------------------

    OFCCP proposes to set a goal for individuals with disabilities, 
based on the most recent 2009 ACS disability data for the ``civilian 
labor force'' and the ``civilian population,'' \15\ first averaged by 
EEO-1 job category, and then averaged across EEO-1 category totals. 
Specifically, we use the mean across these EEO-1 groups (5.7%) as a 
starting point for deriving a range of values upon which we will take 
comment. 5.7% is OFCCP's estimate of the percentage of the civilian 
labor force that has a disability as defined by the ACS. However, OFCCP 
acknowledges that this number does not encompass all individuals with 
disabilities as defined under the broader definition in section 503 and 
the ADAAA; therefore, 5.7% should not be construed as an affirmative 
action goal for individuals with disabilities under these authorities, 
nor to convey a false sense of precision. Even if the 5.7% represented 
a complete availability figure for all individuals with disabilities as 
defined under the ADAAA, we are concerned that such an availability 
figure does not take into account discouraged workers, or the effects 
of historical discrimination against individuals with disabilities that 
has suppressed the representation of such individuals in the workforce. 
Discouraged workers are those individuals who are not now seeking 
employment, but who might do so in the absence of discrimination or 
other employment barriers. There are undoubtedly some individuals with 
disabilities who, for a variety of reasons, would not seek employment 
even in the absence of employment barriers. However, given the acute 
disparity in the workforce participation rates of those with and 
without disabilities, it is reasonable to assume that at least a 
portion of that gap is due to a lack of equal employment opportunity.
---------------------------------------------------------------------------

    \15\ The civilian labor force is the sum of people who are 
employed and those who are unemployed and looking for work. The 
civilian population is the civilian labor force plus civilians who 
are not in the labor force, excluding those in institutions.
---------------------------------------------------------------------------

    One way one might go about estimating the size of the discouraged 
worker effect would be to compare the percent of the civilian 
population with a disability (per the ACS definition) who identified as 
having an occupation to the percent of the civilian labor force with a 
disability who identified as having an occupation. Though not currently 
seeking employment, it might be reasonable to believe that those in the 
civilian population who identify as having an occupation, but who are 
currently not in the labor force, remained interested in working should 
job opportunities become available. Using the 2009 ACS EEO-1 category 
data, the result of this comparison is 1.7%.\16\
---------------------------------------------------------------------------

    \16\ This number was derived from an updated 2009 version of 
Table 24 in Affirmative Action for People with Disabilities--Volume 
I: Data Sources and Models, Economic Systems, Inc. (April 30, 2010) 
at 64. The original table uses ACS data from 2008.
---------------------------------------------------------------------------

    Adding this figure to the 5.7% availability figure above, results 
in 7.4%.\17\ OFCCP uses this level, rounded to 7% to avoid implying a 
false level of precision, as its initial approximation of the 
availability for employment of individuals with disabilities. Because 
of the various data limitations and underlying measurement issues 
discussed above, OFCCP requests comment on using 7% as its utilization 
goal as well as on a range of values between 4% and 10%. The lower and 
upper bounds of this range are designed to take into account the 
variability across the EEO-1 categories, the potential for geographic 
variation in availability, and whether or not a discouraged worker 
effect should be taken into account.
---------------------------------------------------------------------------

    \17\ As it is derived from ACS data, the 1.7% is also a limited 
number that does not fully encompass all individuals with 
disabilities as defined in section 503 and the ADA.
---------------------------------------------------------------------------

    OFCCP also takes comment on whether there might be other approaches 
for setting a utilization goal, particularly approaches to setting 
ranges that recognize that in some geographic areas and some 
occupations, there may be fewer people with disabilities. OFCCP 
requests comment on whether and, if so, how to take into account 
discouraged workers in assessing the availability of workers with 
disabilities. OFCCP is also very interested in public comment on 
whether there are empirically-based approaches that recognize that 
there are many more people who have disabilities as characterized by 
the ADAAA than the ACS and that there is likely a discouraged worker 
effect.

[[Page 77071]]

    OFCCP recognizes that including a discouraged worker component in 
the establishment of a proposed goal is a new approach. We therefore 
invite public comment on the methodology used to calculate the 
discouraged worker effect, and on the application of the discouraged 
worker effect in the goal-setting context.
    OFCCP believes that a single-goal approach will serve the equal 
opportunity and affirmative action objectives of the Rehabilitation Act 
and this part better than the supply and service approach of EO 11246. 
It will allow contractors to use their existing job groups and not 
require the use of multiple geographic availability comparisons as 
would the supply and service goals approach. OFCCP invites public 
comment on the impact of this proposal on contractors. In particular, 
we invite small businesses with current federal prime contracts or 
subcontracts, or those interested in future prime or subcontract work 
with the federal government, to identify any impacts unique to small 
businesses and to propose potential alternatives to alleviate the 
difficulties identified.
Section-by-Section Analysis
    Paragraph (a) of the proposed rule states that the utilization goal 
for employment of individuals with disabilities is 7% for each job 
group in the contractor's workforce.
    Proposed paragraph (b) states that the purpose of this section is 
to establish a benchmark against which contractors can measure the 
representation of individuals with disabilities within each of their 
job groups. The goal serves as an equal opportunity objective that 
should be attainable by complying with all of the affirmative action 
requirements of part 60-741.
    Proposed paragraph (c) provides that the Director of OFCCP will 
periodically review and update, as appropriate, the utilization goal 
established in proposed paragraph (a) of this section.
    Proposed paragraph (d) sets out the steps that the contractor must 
use to determine whether it has met the utilization goal. Proposed 
paragraph (d)(1) states that the purpose of a utilization analysis is 
to evaluate the representation of individuals with disabilities in each 
job group within a contractor's workforce and compare the rate against 
the utilization goal set forth in Sec.  60-741.46(a).
    Proposed paragraph (d)(2) clarifies that in evaluating the 
representation of individuals with disabilities in its workforce, the 
contractor must use the same job groups it established pursuant to EO 
11246, either as prescribed in 41 CFR 60-2.12, or in accordance with 41 
CFR part 60-4. OFCCP considered permitting contractors to compare the 
individuals with disabilities in its workforce as a whole with the 
proposed 7% goal. We decided against this approach because of its 
potential for masking discrimination and segregation. For example, a 
contractor that has segregated all of its employees with disabilities 
into one or two low-paying jobs might be able to conceal this 
discrimination and satisfy the 7% goal if only a single whole-workforce 
comparison were required by this section. Nevertheless, as we are 
mindful of the burden required of contractors in making the job group-
by-job group comparisons required in this proposed paragraph, we are 
mandating the use of the EO 11246 job groups for this purpose, by 
eliminating the need for any geographic assessment, and by providing 
the single goal to which each job group will be compared.
    Proposed paragraph (d)(3) requires that the contractor evaluate its 
utilization of individuals with disabilities in each job group 
annually.
    When the percentage of employees with disabilities in one or more 
job groups is less than the utilization goal proposed in paragraph (a) 
of this section, proposed paragraph (e) requires that the contractor 
must develop and execute ``action-oriented programs'' designed to 
correct any identified problems and attain the established goal. Such 
programs may include additional efforts from among those listed in 
Sec. Sec.  60-741.44(f)(1) and (f)(2) and/or any other appropriate 
actions.
    Paragraph (f) of the proposed rule clarifies that a contractor's 
determination that it has not attained the utilization goal in one or 
more job groups does not constitute either a finding or admission of 
discrimination in violation of this part. It is also important to point 
out that such a determination, whether by OFCCP or the contractor, will 
not impede or prevent OFCCP from finding that one or more unlawful 
discriminatory practices caused the contractor's failure to meet the 
utilization goal. In such a circumstance, OFCCP will take appropriate 
enforcement measures.
    Lastly, proposed paragraph (g) states that the goal proposed in 
this section shall not be used as a quota or ceiling that limits or 
restricts the employment of individuals with disabilities.
Sub-Goal Option
    OFCCP is considering the option of including within the 7% goal for 
individuals with disabilities a sub-goal of 2% for individuals with 
certain particularly severe disabilities. The federal government 
currently monitors internal hiring with respect to a list of 
particularly severe disabilities, referred to as ``targeted 
disabilities'' in furtherance of its affirmative action obligation to 
employ and advance in employment individuals with disabilities in the 
Government pursuant to section 501 of the Rehabilitation Act. The list 
of targeted disabilities is defined in the President's July 2010 
Executive Order ``Increasing Federal Employment of Individuals with 
Disabilities,'' as set forth in Standard Form 256 (SF256). Subject to 
updating, SF 256 currently identifies the following as ``targeted/
severe disabilities:'' Total deafness, blindness, missing extremities 
(hand, foot, arm or leg), partial paralysis, complete paralysis, 
epilepsy, severe intellectual disability, psychiatric disability, and 
dwarfism.\18\ If such a sub-goal is adopted, the Director would 
similarly prescribe the language and manner in which contractors should 
invite applicants and employees to self-identify. This will ensure 
consistency in all pre-offer invitations that are made, and will 
reassure applicants that the request is routine and executed pursuant 
to obligations created by OFCCP.
---------------------------------------------------------------------------

    \18\ See OPM Form SF 256 available on-line at http://www.opm.gov/forms/pdf_fill/sf256.pdf.
---------------------------------------------------------------------------

    OFCCP invites comments from the public on this sub-goal option. If 
OFCCP adopts the use of a sub-goal, it will be included in the Final 
Rule.\19\ We are seeking public input and comment on both the concept 
of a sub-goal, as well as the disabilities to be included within that 
sub-goal. Comments on the questions below will be especially helpful.
---------------------------------------------------------------------------

    \19\ The adoption of the sub-goal option would also necessitate 
modification to the mandated text of the invitation to voluntarily 
self-identify as an individual with a disability in proposed section 
60-741.42 to include voluntary self-identification as an individual 
with a disability encompassed in the sub-goal. In addition, the 
adoption of the sub-goal option would necessitate modification to 
the data collection analysis in proposed section 60-741.44(k) to 
provide for the collection and computation of data related to 
``targeted disabilities.''
---------------------------------------------------------------------------

    1. What data or research is available that informs the design of an 
appropriate sub-goal including, but not limited to which severe 
disabilities should be covered by the sub-goal, and the appropriate 
sub-goal target?
    2. How does a sub-goal further the overall objective of increasing 
employment opportunities for individuals with severe disabilities?
    3. What data or research is available on the need for a sub-goal 
for specific disabilities?

[[Page 77072]]

Section 60-741.47 Providing Priority Consideration in Employment
    This proposed new section encourages the contractor to voluntarily 
develop and implement programs that provide priority consideration to 
individuals with disabilities in recruitment and/or hiring. While the 
current regulations do not prohibit contractors from establishing such 
priority consideration programs, they fail to highlight the 
availability to contractors of this important affirmative action tool. 
In contrast, the proposed regulation would ensure the contractor's 
awareness of, and encourage the use of, voluntary strategies that may 
be used in their efforts to take affirmative action and increase 
employment opportunities for individuals with disabilities.
    Providing priority consideration for individuals with disabilities 
does not violate the ADA or section 503, as it would not result in 
discrimination on the basis of disability. Furthermore, as explicitly 
stated in the ADA Amendments Act, neither the ADA nor the 
Rehabilitation Act provides ``the basis for a claim * * * that [an] 
individual was subject to discrimination because of the individual's 
lack of disability.'' ADAAA at sec. 6(a)(1)(g). Thus, it is permissible 
for contractors to provide priority consideration to individuals with 
disabilities when selecting candidates for training, hiring, and/or 
promotion.
    Proposed paragraph (a) encourages contractors to voluntarily 
develop and implement priority consideration programs as part of their 
affirmative action efforts. Examples of priority consideration programs 
are provided, but the contractor may, and is encouraged to, develop 
other types of programs that enhance their affirmative action efforts 
on behalf of individuals with disabilities.
    Proposed paragraph (a)(1) requires that a contractor that elects to 
utilize a priority consideration program shall include a description of 
the program in its affirmative action program. An annual report 
describing the contractor's activities and outcomes pursuant to the 
priority consideration program should also be included in the 
contractor's affirmative action program. In proposed paragraph (a)(2) 
we note that contractors may use information garnered from the 
applicant and employee self-identification required by proposed Sec.  
60-741.42 to identify individuals who may be eligible to participate in 
the contractor's priority consideration program.
    Proposed paragraph (b) prohibits contractors from using a priority 
consideration program to segregate individuals with disabilities, or to 
limit or restrict the employment opportunities of any individual with a 
disability. Similarly, in paragraph (c), the proposed rule prohibits 
discrimination against any individual with a disability who has 
received priority consideration with respect to any term, condition or 
benefit of employment. Such discrimination would constitute 
discrimination on the basis of disability prohibited by section 503 and 
this part.
Section 60-741.48 Sheltered Workshops
    This section has been relocated from Sec.  60-741.45 of the 
existing regulation. The proposed rule replaces the phrase ``qualified 
disabled individuals'' in the first sentence of the current regulation 
with ``qualified individuals with disabilities.'' This revised phrasing 
reflects the terminology used elsewhere in this part, but does not 
alter the meaning of the section.
Subpart D--General Enforcement and Complaint Procedures
Section 60-741.60 Compliance Evaluations
    This section details the form and scope of the compliance 
evaluations of the contractor's affirmative action programs conducted 
by OFCCP. The proposed rule contains several changes to this section.
    First, the proposed rule modifies the wording of paragraph (a) to 
more clearly state the section 503 obligation of the contractor to 
employ, ``advance in employment and otherwise treat qualified 
individuals without discrimination on the basis of disability in all 
employment practices.'' Next, the proposal adds a sentence to paragraph 
(a)(1)(i) regarding the temporal scope of desk audits performed by 
OFCCP. This new language merely clarifies OFCCP's long-standing policy 
that, in order to fully investigate and understand the scope of 
potential violations, OFCCP may need to examine information after the 
date of the scheduling letter in order to determine, for instance, if 
violations are continuing or have been remedied. The language does not 
represent a change in policy or new contractor obligations.
    Third, the proposed rule contains a change to the nature of 
document production under paragraph (a)(3). This paragraph, which 
specifies a ``compliance check'' as an investigative procedure OFCCP 
can use to monitor a contractor's recordkeeping, currently states that 
the contractor may provide relevant documents either on-site or off-
site ``at the contractor's option.'' The proposed regulation would 
eliminate this quoted clause and provide that OFCCP may request the 
documents to be provided either on-site or off-site.
    The proposed rule also contains a minor change to the scope of 
``focused reviews'' set forth in paragraph (a)(4). Focused reviews 
allow OFCCP to target one or more components of a contractor's 
organization or employment practices, rather than conducting a more 
comprehensive compliance review of an entire organization. Currently, 
the regulations provide that these focused reviews are ``on-site,'' 
meaning they must take place at the contractor's place of business. The 
increased use of electronic records that are easily accessible from 
multiple locations affords compliance officers greater flexibility in 
conducting focused reviews. Therefore, we propose to delete the word 
``on-site'' from this section, which will allow compliance officers to 
conduct reviews of relevant materials at any appropriate location.
    Finally, the proposed rule contains a new paragraph (c) which 
details a new procedure for pre-award compliance evaluations under 
section 503. This proposed procedure is based on the pre-award 
compliance procedures contained in the Executive Order regulations (see 
Sec.  60-1.20(d)).
Section 60-741.61 Complaint Procedures
    This section outlines the manner in which applicants or employees 
who are individuals with disabilities may file complaints alleging 
violations of section 503 or its regulations.
    The proposed rule revises the text of existing paragraph (c)(2) for 
clarity. The paragraph provides, in pertinent part, that when a written 
complaint is filed by an authorized representative on behalf of another 
person, the complaint need not identify the name of the person on whose 
behalf it is filed. However, the person's identity and contact 
information must be provided to OFCCP, which will then verify with the 
person their authorization of the complaint. The proposed rule's 
revision of this paragraph does not represent a change in policy or 
practice, but is merely a clarification of the language used to express 
the existing policy.
    The proposed rule also revises the citation to the Americans with 
Disabilities Act to reflect its recent amendment by the ADA Amendments 
Act, and replaces the term ``Deputy Assistant Secretary'' with the term 
``Director'' in paragraphs (b), (f)(1), (f)(2)

[[Page 77073]]

and (f)(3), for the reasons set forth in the discussion of Sec.  60-
741.2.
Section 60-741.62 Conciliation Agreements
    This section describes OFCCP's use of conciliation agreements as a 
means to correct violations and/or deficiencies by contractors. The 
proposed rule renumbers the current rule as paragraph (a) and adds a 
new paragraph (b) to Sec.  60-741.62. Proposed paragraph (b) 
specifically permits the establishment of benchmarks in conciliation 
agreements as one possible form of remedial action. Benchmarks may be 
established for outreach, recruitment, hiring, or other employment 
activities of the contractor, as appropriate, and will provide a 
quantifiable method for measuring the contractor's progress toward 
correcting identified violations and/or deficiencies.
Section 60-741.64 Show Cause Notice
    This section describes how OFCCP notifies a contractor when OFCCP 
believes the contractor has violated section 503 or its regulations. 
The proposed rule replaces the term ``Deputy Assistant Secretary'' in 
this section with the term ``Director,'' for the reasons set forth in 
the discussion of Sec.  60-741.2.
Section 60-741.65 Enforcement Proceedings
    This section describes the procedures for formal enforcement 
proceedings against a contractor in the event OFCCP finds a violation 
of section 503 or its regulations that has not been corrected. The 
proposed rule replaces the term ``Deputy Assistant Secretary'' in 
paragraph (a)(2) of this section with the term ``Director,'' for the 
reasons set forth in the discussion of Sec.  60-741.2. In paragraph 
(b)(2), the proposed rule replaces the term ``Associate Solicitor for 
Civil Rights'' with ``Associate Solicitor for Civil Rights and Labor-
Management'' to reflect the reorganization of the Office of the 
Solicitor.
Section 60-741.66 Sanctions and Penalties
    This section discusses the types of sanctions and penalties that 
may be assessed against a contractor if it is found to have violated 
the act or this part. The proposed rule replaces the term ``Deputy 
Assistant Secretary'' in paragraph (a) of this section with the term 
``Director,'' for the reasons set forth in the discussion of Sec.  60-
741.2.
Section 60-741.67 Notification of Agencies
    This section provides that agency heads will be notified if any 
contractors are debarred. The proposed rule replaces the term ``Deputy 
Assistant Secretary'' in this section with the term ``Director,'' for 
the reasons set forth in the discussion of Sec.  60-741.2.
Section 60-741.68 Reinstatement of Ineligible Contractors
    This section outlines the process by which a contractor that has 
been debarred may apply for reinstatement. The proposed rule adds a 
sentence at the end of paragraph (a) to clarify that the Director shall 
issue a written decision on a contractor's request for reinstatement. 
The proposed rule also replaces the term ``Deputy Assistant Secretary'' 
in paragraphs (a) and (b) of this section with the term ``Director,'' 
for the reasons set forth in the discussion of Sec.  60-741.2. The term 
``Associate Solicitor for Civil Rights'' in proposed paragraph (b) of 
this section is replaced with ``Associate Solicitor for Civil Rights 
and Labor-Management'' to reflect the reorganization of the Office of 
the Solicitor.
Section 60-741.69 Intimidation and Interference
    This section forbids the contractor from retaliating against 
individuals who have engaged in or may engage in certain specified 
protected activities, and describes the contractor's affirmative 
obligations in preventing retaliation. The proposed rule replaces the 
term ``Deputy Assistant Secretary'' in paragraph (b) of this section 
with the term ``Director,'' for the reasons set forth in the discussion 
of Sec.  60-741.2. In proposed paragraphs (a)(2) and (a)(3) the term 
``disabled persons'' is replaced with the term ``individuals with 
disabilities'' to reflect the terminology used elsewhere in this part.
Subpart E--Ancillary Matters
Section 60-741.80 Recordkeeping
    This section describes the recordkeeping requirements that apply to 
the contractor under section 503, and the consequences for the failure 
to preserve records in accordance with these requirements. The proposed 
regulation adds a sentence at the end of paragraph (a) of this section 
clarifying that the newly proposed recordkeeping requirements set forth 
in proposed Sec.  60-741.44(f)(4) (linkage agreements and other 
outreach and recruiting efforts), and in proposed Sec.  60-741.44(k) 
(collection of referral, applicant and hire data) must be maintained 
for five (5) years, for the reasons set forth in the discussion of 
those sections, supra.
Section 60-741.81 Access to Records
    This section describes a contractor's obligations to permit access 
to OFCCP during compliance evaluations and complaint investigations. 
The proposed rule adds some language clarifying the contractor's 
obligations, particularly in light of the increased use of 
electronically stored records. First, the proposed rule adds a sentence 
requiring the contractor to provide off-site access to materials if 
requested by OFCCP investigators or officials as part of an evaluation 
or investigation. This change reflects the increasing use of electronic 
records from multiple locations, and accordingly gives OFCCP greater 
flexibility in conducting its evaluations and investigations.
    Second, the proposed rule would require that the contractor specify 
to OFCCP all formats (including specific electronic formats) in which 
its records are available, and produce records to OFCCP in the 
format(s) selected by OFCCP. This change is proposed in light of 
numerous instances in which OFCCP has conducted extensive review and 
analysis of a contractor's records only to find subsequently that the 
records were available in more readily accessible formats. Specifying 
the variety of available formats upon request, and providing records to 
OFCCP in the format(s) it selects, will facilitate a more efficient 
investigation process.
    Lastly, the proposed rule revises the citation to the Americans 
with Disabilities Act to reflect its recent amendment by the ADA 
Amendments Act.
Section 60-741.83 Rulings and Interpretations
    In the current regulation, this section establishes that rulings 
and interpretations of section 503 will be made by the Deputy Assistant 
Secretary of OFCCP. The proposed rule replaces the term ``Deputy 
Assistant Secretary'' with the term ``Director,'' for the reasons set 
forth in the discussion of Sec.  60-741.2.
Section 60-741.84 Effective Date
    This section of the current regulations established an effective 
date of August 29, 1996. The proposed rule deletes this section as it 
is now obsolete.
Appendix A to Part 60-741--Guidelines on a Contractor's Duty To Provide 
Reasonable Accommodation
    The proposed rule includes several changes to Appendix A that would 
mandate activities that previously were only suggested. These changes 
primarily

[[Page 77074]]

reflect proposed revisions to Sec.  60-741.42 and the newly proposed 
Sec.  60-741.45 regarding the contractor's adoption of written 
affirmative action procedures, supra, that would alter the contractor's 
responsibilities.
    First, in paragraph 1, to conform more closely to the terminology 
used in the ADA, as amended, and this part, the term ``otherwise 
qualified'' would be changed to ``qualified.'' The proposed rule also 
adds a reference to the new requirement, in proposed Sec.  60-741.45, 
that the contractor develop, implement and disseminate procedures for 
processing requests for reasonable accommodation.
    Next, in paragraph 2, the proposed rule changes the appendix to 
reflect the revision to Sec.  60-741.42, requiring the contractor to 
invite applicants to voluntarily self-identify as an individual with a 
disability at both the pre-offer and post-offer stages of the selection 
process. The proposed rule also notes that the mandated invitation to 
self-identify also invites individuals with disabilities to request any 
reasonable accommodation that they might need.
    In the last sentence of paragraph 4, the proposed rule requires, 
rather than merely encourages, that in the event an accommodation 
constitutes an undue hardship for the contractor, the individual with a 
disability in need of the accommodation be given the option of 
providing the accommodation or paying the portion of the cost that 
constitutes the undue hardship for the contractor. In the fifth 
sentence of paragraph 5, we propose changing the language to require a 
contractor to seek the advice of the individual with a disability in 
providing reasonable accommodation.
    Lastly, the proposed rule changes the reference to ``Sec.  60-
741.2(v)'' in paragraphs 5 and 8 of the appendix to ``Sec.  60-
741.2(t).'' This is to reflect the revised alphabetical structure of 
the definitions section in the proposed rule, as discussed in Sec.  60-
741.2, supra. The references to various information resources in 
paragraph 5 is also updated, and the term ``TDD'' is replaced with 
``TTY'' to reflect current technology.
Appendix B to Part 60-741--Sample Invitation To Self-Identify
    As previously noted, this proposal eliminates Appendix B of the 
current regulations. Appendix B provides a sample invitation to self-
identify as an individual with a disability to assist the contractor in 
developing its own pre-employment self-identification invitation. Since 
Sec.  60-741.42 of the proposed regulation mandates the text that the 
contractor must use when inviting applicants and employees to 
voluntarily self-identify, there is no longer a need for a sample 
invitation.
Appendix C to Part 60-741--Review of Personnel Processes
    The proposed rule eliminates Appendix C and moves its content, with 
some edits, to proposed Sec.  60-741.44(b). See the Section-by-Section 
Analysis of Sec.  60-741.44, supra, for further discussion.
Appendix D to Part 60-741--Guidelines Regarding Positions Engaged in 
Carrying Out a Contract
    The proposed rule eliminates Appendix D as it applied only to the 
contractor's employment decisions and practices occurring prior to 
October 29, 1992.

Regulatory Procedures

Executive Order 12866 (Regulatory Planning and Review) and Executive 
Order 13563 (Improving Regulation and Regulatory Review)

    Executive Orders 12866 and 13563 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits (while recognizing that some benefits and costs are difficult 
to quantify), reducing costs, harmonizing rules, and promoting 
flexibility. This rule has been designated a ``significant regulatory 
action,'' although not economically significant, under section 3(f) of 
Executive Order 12866. Accordingly, the rule has been reviewed by the 
Office of Management and Budget.
The Need for the Regulation
    The guiding principle and overall benefit of this proposed 
regulation is to reduce barriers to equal employment opportunity for 
individuals with disabilities and alleviate the inefficiencies in the 
job market that these barriers create. This includes facilitating the 
process of connecting job seekers with disabilities with contractor 
employers looking to hire, and helping individuals with disabilities 
succeed once they are employed. As we have stated previously in this 
NPRM, the framework articulating a contractor's responsibilities with 
respect to affirmative action, recruitment, and placement have remained 
largely unchanged since the section 503 implementing rules were first 
published. While DOL is not aware of any existing data that show the 
number or percentage of Federal contractor employees with disabilities, 
for the U.S. at large both the percentage of people with disabilities 
not in the labor force and the unemployment rate of people with 
disabilities have increased. These individuals possess valuable skills 
that are highly sought after in the job market. However, they face 
substantial obstacles in finding employment. Addressing these barriers 
is a high priority of the current Administration and, as discussed in 
the background section, has been the focus of a number of Federal 
efforts.
    To help determine how we could assist individuals with disabilities 
in their search for employment, and facilitate contractors' 
satisfaction of affirmative action obligations designed to employ more 
individuals with disabilities, OFCCP conducted multiple town hall 
meetings, webinars, and listening sessions with the public to determine 
how we could help to carry out the overall goal of increasing the 
employment opportunities for qualified individuals with disabilities 
with Federal contractors. From the information we received, we 
pinpointed specific changes that could be made to the implementing 
regulations of section 503 that would help increase employment 
opportunities for individuals with disabilities.
    The changes set forth in this proposal create four broad categories 
of benefits. First and foremost, the proposed changes will help to 
connect job-seeking individuals with disabilities with contractors 
looking to hire. Many commenters suggested that mandatory listing be a 
part of the outreach requirements. Therefore, as an initial matter, the 
proposal adds a mandatory job listing requirement and requires 
contractors to provide additional, regularly updated information to 
employment service delivery systems to ensure their job openings are 
listed accurately. This will help to ensure that individuals with 
disabilities can easily learn about all available jobs with federal 
contractors in their state. The proposal also helps to ensure that 
contractors can find qualified applicants with disabilities by 
requiring contractors to engage in recruitment efforts and enter into 
linkage agreements with several disability-focused employment sources 
(many of which are specifically listed by OFCCP in the proposed rule), 
while allowing contractors flexibility to determine the sources that 
work best for them.

[[Page 77075]]

    Second, many of the proposed changes ensure that the contractor 
understands and effectively communicates its affirmative action 
obligations to its workforce and the other entities with which it does 
business. While bringing job-seeking individuals with disabilities and 
employers together is an important first step, it is equally important 
that the contractors, their employees, and applicants with disabilities 
understand the protections and benefits of section 503. Accordingly, 
the proposed rule seeks to promote this clear communication in several 
ways, including:
     Requiring dissemination of the contractor's affirmative 
action policy in its internal policy manual and discussing the policy 
at employee orientation and training programs. These steps will 
facilitate a greater understanding of the purpose of the affirmative 
action policies among the contractor's employees, and will enhance the 
visibility and importance of affirmative action to the recruitment, 
hiring, and advancement of individuals with disabilities;
     Providing notices of rights under section 503 in 
accessible formats for those working offsite (i.e., electronically-
accessible postings) as well as those with visual impairments, so that 
all parties understand their respective rights and obligations under 
the law;
     Requiring contractors to review their personnel processes 
on an annual basis, and to document personnel actions taken with regard 
to individuals with disabilities to provide greater transparency 
between the contractor, its applicants/employees, and OFCCP as to the 
reasons for the contractor's personnel actions;
     Requiring the contractor to meet with and/or otherwise 
send notification of its AAP obligations to third parties with which it 
does business, such as union officials and subcontractors.
    Third, the proposed rule provides increased mechanisms by which the 
contractor can assess its affirmative action efforts. Until now, 
contractors had few objective measures they could use to determine how 
the time and money they were spending on AAP compliance could be used 
most effectively. To that end, the proposed rule requires contractors 
to collect data by which contractors may more accurately assess their 
efforts. This includes collecting data on referrals and applicants so 
contractors know how many individuals with disabilities they are 
reaching. Contractors will be able to use this information to 
objectively measure their recruitment efforts and determine which ones 
are most fruitful in attracting qualified disabled candidates.
    Finally, the proposed rule's changes to the manner in which OFCCP 
conducts its compliance reviews will benefit both individuals with 
disabilities and contractors. These changes include a greater emphasis 
on identifying electronic data that OFCCP can review, greater 
flexibility in where reviews take place, and a new procedure allowing 
for a pre-award compliance review. The emphasis on using electronic 
data and flexibility will allow OFCCP to complete reviews far more 
efficiently.
Discussion of Impacts
    OFCCP has separately determined the costs of compliance with those 
requirements of section 503 that fall under the scope of the Paperwork 
Reduction Act. See Analysis of Paperwork Reduction Act burden, infra. 
Additional costs outside the scope of the PRA, stemming from new or 
revised obligations in the proposed rule, are discussed below.
    To determine the number of impacted contractor establishments, 
OFCCP reviewed the FY 2009 EEO-1 data on contractor establishments \20\ 
with 50 or more employees, resulting in a total of 87,013 contractor 
establishments. This was then combined with an additional 10,518 
establishments identified through a cross-check of other contractor 
databases for a total of 97,531 establishments. Lastly, since 
contractors subject to the written affirmative action plan (AAP) 
requirement must develop AAPs for all of their facilities, even those 
with fewer than 50 employees, we added in those 73,744 contractor 
establishments with fewer than 50 employees for a final total of 
171,275 covered contractor establishments.
---------------------------------------------------------------------------

    \20\ A single firm, business or ``entity'' may have multiple 
establishments or facilities. Thus, the number of contractor 
establishments or facilities is significantly greater than the 
number of parent contractor firms, or companies. Unless otherwise 
noted, the NPRM uses the term ``contractor'' to refer to 
establishments.
---------------------------------------------------------------------------

    60-741.44(f)(3): As discussed in the Section-by-Section Analysis of 
this paragraph, the proposed rule would require the contractor to 
review the effectiveness of its outreach and recruitment efforts on an 
annual basis. The general purpose of this self-assessment is to ensure 
that the contractor thinks critically about its recruitment and 
outreach efforts, and requiring the assessment will allow contractors 
to look at their measurable accomplishments, maintain methods that are 
successful in recruiting individuals with disabilities, and reconsider 
unproductive methods. OFCCP expects that contractors will conduct this 
assessment in conjunction with the correlating assessments required 
under EO11246 and VEVRAA. We estimate that adding the proposed section 
503 review to these other similar assessments will take approximately 
30 minutes. OFCCP further estimates that 1% of the 171,275 federal 
contractor establishments are first-time contractors during an 
abbreviated AAP year, and therefore would not be able to complete an 
annual outreach and recruitment effort. 171,275 x .99 = 169,562. 
169,562 x 30 mins/60 mins = 84,781 hours.
    60-741.44(g): As discussed in the Section-by-Section Analysis of 
this paragraph, the proposed rule would require the contractor to 
discuss the policy at employee orientation and training programs. This 
paragraph requires only that contractors discuss their affirmative 
action policies at any employee orientation or management training 
programs that they already provide. Consequently, the burden imposed by 
this requirement will be minimal. Specifically, OFCCP estimates that 
contractors will have a one-time preparation burden of 20 minutes and a 
recurring burden of 5 minutes for actually presenting the additional 
information at the training session. Therefore, the average burden per 
contractor establishment would be the following: 171,275 x 20/60 = 
57,092 hours; 171,275 x 5/60 = 14,273 hours.
    60-741.44(j): As discussed in the Section-by-Section Analysis of 
this paragraph, the proposed rule would also require specific training 
for those involved in recruitment, screening, hiring, promotion, and 
related processes to ensure that they are making such decisions in 
compliance with section 503. Training on these issues will benefit 
contractors and individuals with disabilities by facilitating a greater 
understanding of the purpose of the affirmative action plan among 
decision makers for the contractor, and will enhance the visibility and 
importance of affirmative action to the recruitment, hiring, and 
advancement of individuals with disabilities. Furthermore, proactive 
training on these issues holds the real promise of reducing the number 
of section 503 violations. While this is a new requirement under 
section 503, the cost/benefit and PRA elements of this burden have 
already been partially incorporated under the equivalent provision in 
the Notice of Proposed Rulemaking (NPRM) revising the regulations 
implementing the Vietnam Era Veterans' Readjustment Assistance

[[Page 77076]]

Act, published at 76 FR 23358 (April 26, 2011). As the same person will 
likely be identified to provide/coordinate the training for both 
section 503 and 4212 regulations, the only additional section 503-
related burden would result from incorporating into the training those 
elements unique to section 503, such as the proposed reasonable 
accommodation procedures requirement. OFCCP estimates contractors would 
have a one-time development burden of 40 minutes and a recurring 
presentation burden of 20 minutes. Therefore, the burden costs for 
section 503 are calculated as follows: 171,275 x 40/60 = 114,183; 
171,275 x 20/60 = 57,092.
    60-741.45: As discussed in the Section-by-Section Analysis of this 
paragraph, the proposed rule would require contractors to develop and 
implement specific reasonable accommodation procedures to be included 
as part of their written affirmative action plan. This requirement 
benefits both contractors and the disability community by ensuring 
consistent handling of requests for reasonable accommodation made by 
both applicants and employees. Although a contractor's obligation to 
consider/make reasonable accommodation upon request is covered under 
the ADA, as amended, and the implementing regulations published by 
EEOC, the requirement to develop a specific implementation plan is 
exclusive to OFCCP and new to the section 503 regulations and therefore 
is addressed herein. The documentation-related elements of this 
provision are covered under the PRA analysis, infra. Furthermore, based 
on comments received in response to the ANPRM (75 FR 43116 (July 23, 
2010)) as well as information provided by ODEP, OFCCP estimates that 
approximately 10% of the contractor community will already have similar 
procedures in place and, therefore. the only burden will be the 
inclusion of those procedures in the AAP. Therefore, OFCCP estimates 
that initial development of procedures will affect 154,148 contractors 
and that these contractors will spend 2 hours on average to develop 
their procedures. The average non-PRA burden per contractor 
establishment would be the following: 171,275 x .90 = 154,148. 154,148 
x 2 hours = 308,296 hours.
    The estimated annualized cost to respondent contractors is based on 
Bureau of Labor Statistics data in the publication ``Employer Costs for 
Employee Compensation'' (September 2011), which lists total 
compensation for management, professional, and related occupations as 
$50.07 per hour and administrative support as $22.67 per hour. OFCCP 
estimates that 52% percent of the burden hours will be management, 
professional, and related occupations and 48% percent will be 
administrative support. We have calculated the total one-time, 
recurring, and overall estimated costs for the combined burden hours 
from the obligations described above (i.e., those that do not fall 
under the scope of the Paperwork Reduction Act) as follows:

One Time Costs:
    Mgmt. Prof.: 171,275 contractors x 3 hours x .52 x $50.07/hr = 
$13,378,153
    Adm. Supp.: 171,275 contractors x 3 hours x .48 x $22.67/hr = 
$5,591,238
    Total annualized cost estimate = $18,969,391
    Estimated annual average cost per establishment is: $18,969,391/
171,275 = $111
Recurring Costs:
    Mgmt. Prof.: 171,275 contractors x 0.9 hours x .52 x $50.07/hr = 
$4,013,446
    Adm. Supp.: 171,275 contractors x 0.9 hours x .48 x $22.67/hr = 
$1,677,371
    Total annualized cost estimate = $5,690,817
    Estimated annual average cost per establishment is: $5,690,817/
171,275 = $33

    Therefore, the overall total cost (both one-time and recurring) per 
establishment would be: $18,969,391 + $5,690,817 = $24,660,208/171,275 
= $144.
Summary of Costs
    While OFCCP seeks comments in this proposed rule regarding the 
effects of the rule and its cost estimates, OFCCP preliminarily 
estimates the overall annualized total cost for complying with those 
provisions that fall outside the Paperwork Reduction Act to be 
$24,660,208 (or $144 per contractor establishment). OFCCP estimates the 
total annual cost for complying with those provisions that fall under 
the Paperwork Reduction Act to be $54,583,152 (or $319 per contractor 
establishment). See Paperwork Reduction Act discussion, infra. OFCCP 
further estimates the total annual operations and maintenance costs 
from this rule to be $1,820,859 (or $11 per contractor establishment). 
OFCCP estimates the total annual cost of the proposed rule is 
approximately $81,064,219 (or $473 per contractor establishment).
    It should be noted however, that the above totals include both one-
time (first year only) and recurring costs as follows:
     One-Time Costs: OFCCP estimates the total one-time cost 
for complying with those provisions that fall outside the Paperwork 
Reduction Act to be $18,969,391 (or $111 per contractor establishment). 
OFCCP estimates the total one-time cost for complying with those 
provisions that fall under the Paperwork Reduction Act to be 
$10,543,855 (or $62 per contractor establishment). See Paperwork 
Reduction Act discussion, infra. OFCCP further estimates the total one-
time operations and maintenance costs from this rule to be $0. 
Therefore, OFCCP estimates the total one-time cost of the proposed rule 
to be approximately $29,513,246 (or $172 per contractor establishment).
     Recurring Costs: OFCCP estimates the total recurring cost 
for complying with those provisions that fall outside the Paperwork 
Reduction Act to be $5,690,817 (or $33 per contractor establishment). 
OFCCP estimates the total recurring cost for complying with those 
provisions that fall under the Paperwork Reduction Act to be 
$44,049,297 (or $257 per contractor establishment). See Paperwork 
Reduction Act discussion, infra. OFCCP further estimates the total 
recurring operations and maintenance costs from this rule to be 
$1,820,859 (or $11 per contractor establishment). OFCCP estimates the 
total recurring cost of the proposed rule to be approximately 
$51,550,973 (or $301 per contractor establishment).
Summary of Benefits
    In short, OFCCP believes that the societal benefits discussed in 
the Section-by-Section Analysis and in this section outweigh the 
societal costs of the proposed rule. These benefits include improved 
outreach to and recruitment of individuals with disabilities, the 
establishment of clear procedures to ensure that needed reasonable 
accommodations can be swiftly requested and promptly provided, and 
ensuring that those in the workplace understand their rights and 
respective obligations under section 503. In addition, the proposed 
rule will provide contractors with much needed tools, such as increased 
data, to measure the success of their affirmative action efforts and to 
determine whether refinements are needed to improve equal employment 
opportunity for individuals with disabilities.
    Generally, these benefits will result from proposed requirements 
that will improve human resource functions. Improving such functions 
will

[[Page 77077]]

contribute to job market efficiencies and other efficiency gains. 
Employers subject to policies that improve human resource functions 
tend to provide more training and contribute to a more qualified 
workforce.\21\ A policy that utilizes an outreach program resulting in 
more recruits raises the competition for job openings and thus raises 
efficiency by employing the highest qualified individuals. The proposed 
rule would reduce barriers to equal employment opportunity for 
individuals with disabilities and alleviate the inefficiencies in the 
job market that these barriers create. Moreover, as more individuals 
with disabilities are hired, employers naturally create mentors and 
expand networking opportunities for such individuals. Mentors are 
essential not only for recruiting purposes but also as a retention 
strategy, because they provide a support mechanism for new hires. 
Retention is a direct benefit to employers because employers will not 
lose their initial investment in recruiting and training individuals 
with disabilities. Without improved affirmative action policies, 
individuals with disabilities may have fewer job opportunities. Because 
individuals with disabilities are almost three times more likely to 
live in poverty than other groups,\22\ improving employment 
opportunities will only help such individuals move out of poverty or 
working poor status. OFCCP invites comments from stakeholders on the 
cost/benefit analysis included in this section.
---------------------------------------------------------------------------

    \21\ Holzer, H. and Neumark, D., ``Assessing Affirmative 
Action,'' Journal of Economic Literature, Vol. XXXVII (2000).
    \22\ World Institute on Disability, http://www.wid.org/about-wid.
---------------------------------------------------------------------------

Regulatory Flexibility Act and Executive Order 13272 (Consideration of 
Small Entities)

    The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601 et seq., 
requires agencies promulgating proposed rules to consider the impact 
they are likely to have on small entities. More specifically, the RFA 
requires agencies to ``review rules to assess and take appropriate 
account of the potential impact on small businesses, small governmental 
jurisdictions, and small organizations.'' If a proposed rule is 
expected to have a ``significant economic impact on a substantial 
number of small entities,'' the agency must prepare an initial 
regulatory flexibility analysis (IRFA). However, if a proposed rule is 
not expected to have a significant economic impact on a substantial 
number of small entities, the agency may so certify, and need not 
perform an IRFA.
    Based on the analysis below, in which OFCCP has estimated the 
impact on small entities that are covered contractors of complying with 
the requirements contained in this proposed rule, OFCCP certifies that 
this proposed rule will not have a significant economic impact on a 
substantial number of small entities. OFCCP invites comments on its 
analysis, and requests that commenters provide any relevant additional 
data they may have.
    In making this certification, OFCCP first determined the 
approximate number of small entities that have covered federal 
contracts and whether this is a substantial number of such entities. 
OFCCP's review of the FY 2009 EEO-1 data revealed that 20,490 small 
entities (not establishments) with between 50 and 500 employees had 
federal contracts subject to the obligations of the proposed 
regulation.\23\ The most recent data provided by the Small Business 
Administration Office of Advocacy reports that there are 27.4 million 
small entities in the United States.\24\ See Firm Size Data at 
www.sba.gov/advo/research/data.html#us. The proposed rule will 
therefore impact less than 1% \25\ of small entities nationwide.\26\ 
Although the RFA does not specifically define ``substantial number,'' 
OFCCP has determined that an impact on less that 1% of small entities 
does not constitute a substantial number. See A Guide for Government 
Agencies: How To Comply With the Regulatory Flexibility Act, Office of 
Advocacy, U.S. Small Business Administration at 20 (``The 
interpretation of the term ``substantial number'' is not likely to be 
five small firms in an industry with more than 1,000 firms.'').
---------------------------------------------------------------------------

    \23\ The EEO-1data base separately identifies contractor 
entities and the facilities that comprise them. The FPDS-NG data 
base, by contrast, identifies contractor facilities, but does not 
identify the larger entities of which they are a part.
    \24\ This figure includes 6,049,655 employer firms and 
21,351,320 non-employer firms.
    \25\ 20490 is .075% of 27.4 million and .34% of 6,049,655.
    \26\ Since federal contracts are not limited to specific 
industries, it is appropriate to assess the impact of this proposed 
rule on small entities nationwide.
---------------------------------------------------------------------------

    Having determined that a substantial number of small entities will 
not be impacted by the proposed rule, we need not assess whether the 
impact on those small entities affected would be economically 
significant. Nevertheless, we also conclude that the $331 approximate 
cost of this rule per contractor establishment is not likely to have a 
significant economic impact on the small entities subject to the 
proposed rule.
    We note, too, the significant benefits of the proposed rule to both 
individuals with disabilities and federal contractors. These benefits 
are discussed extensively in the Section-by-Section Analysis section of 
this NPRM and in the discussion of this proposal's conformity with 
Executive Order 12866. Generally, the proposed rule will benefit 
individuals with disabilities and the contractor by providing effective 
mechanisms, such as mandatory job listing requirements and linkage 
agreements with disability-related organizations that facilitate the 
ability of contractors to connect with qualified applicants with 
disabilities, who, with a workforce participation rate of just 21.8%, 
represent a largely untapped potential labor source. Tapping into this 
underutilized pool can help stabilize an aging and shrinking workforce, 
thereby maintaining (or even increasing) productivity. Increasing 
employment opportunities for individuals with disabilities will also 
likely result in a decrease in the number of individuals receiving 
Social Security Disability Insurance (SSDI) benefits and disability 
payments through contractor-sponsored insurance plans, as individuals 
with disabilities join the workforce and discontinue such payments. 
This will increase the incomes of these newly working individuals with 
disabilities, which, in turn, will likely increase the demand for goods 
and services, including those provided by small businesses.

Paperwork Reduction Act

    As part of its continuing effort to reduce paperwork and respondent 
burden, the Department of Labor conducts a pre-clearance consultation 
program to provide the general public and Federal agencies with an 
opportunity to comment on proposed and continuing collections of 
information in accordance with the Paperwork Reduction Act of 1995 
(PRA) (44 U.S.C. 3506(c)(2)(A)). This helps to ensure that the public 
understands the Department's collection instructions; respondents can 
provide the requested data in the desired format, reporting burden 
(time and financial resources) is minimized, collection instruments are 
clearly understood, and the Department can properly assess the impact 
of collection requirements on respondents.
    The Department notes that a Federal agency cannot conduct or 
sponsor a collection of information unless it is approved by OMB under 
the PRA and displays a currently valid OMB control number. The public 
is not required to

[[Page 77078]]

respond to a collection of information unless it displays a currently 
valid OMB control number. Also, notwithstanding any other provisions of 
law, no person shall be subject to penalty for failing to comply with a 
collection of information if the collection of information does not 
display a currently valid OMB control number. Until any final 
regulations become effective and OFCCP publishes a notice announcing 
OMB's approval of these proposed information collections, they will not 
take effect.
    The information collection requirements contained in the existing 
section 503 regulations, with the exception of those related to 
complaint procedures, are currently approved under OMB Control No. 
1250-0003 (Recordkeeping and Reporting Requirements-Supply and Service) 
and OMB Control No. 1250-0001 (Construction Recordkeeping and 
Reporting). The information collection requirements contained in the 
existing complaint procedures regulation are currently approved under 
OMB Control No. 1250-0002.
    The proposed rule contains information collections that are subject 
to review by the Office of Management and Budget (OMB) under the 
Paperwork Reduction Act of 1995. This proposal includes several new 
requirements shown below with their respective burden estimates.
    The information collections discussed below relate to Federal 
contractor and subcontractor responsibilities under section 503 as 
amended and its implementing regulations at 41 CFR 60-741. OFCCP 
invites the public to comment on whether each of the proposed 
collections of information:
    (1) Is necessary to the proper performance of the agency, including 
whether the information will have practical utility;
    (2) Estimates the projected burden, including the methodology and 
assumptions used, accurately; and
    (3) Is structured to minimize the burden of the collection of 
information on those who are to respond, including through the use of 
appropriate automated, electronic, mechanical, or other technological 
collection techniques or other forms of information technology (e.g, 
permitting electronic submission of responses).
    Where estimates are provided or assumptions are described, 
contractors and other members of the public are encouraged to provide 
data they have that could help OFCCP refine the estimates of amount of 
time needed to fulfill specific requirements.

 60-741.5

    [squ] Contractor must provide Braille, large print, or other 
versions of the EEO poster so that visually impaired individuals may 
read the notice themselves (]4 of EO Clause). Contractors may obtain 
copies of the joint EEOC-OFCCP EEO poster in accessible formats, 
upon request, from EEOC.
     [squf] OFCCP used Bureau of Labor Statistics (BLS) Data, the 
``Employment status of the civilian population by sex, age, and 
disability status, not seasonally adjusted'' for November 2010. This 
data shows 5,784,000 individuals with disabilities in the civilian 
labor force out of a total of 147,914,000. Since approximately 22% 
of the US workforce works for a federal contractor, OFCCP estimates 
that 22% of 5,784,000, or 1,272,480 disabled individuals, works for 
a federal contractor. Data on visually impaired employed individuals 
is not separated out from the total of employed individuals with 
disabilities, therefore, OFCCP estimates 10% of disabled individuals 
are visually impaired, for an estimated total of 127,248 visually 
impaired individuals working for federal contractors. This total 
would include disabled veterans who should not be counted twice. 
OFCCP had previously estimated 6,200 visually impaired disabled 
veterans. OFCCP has counted these hours in its Notice of Proposed 
Rulemaking (NPRM) revising the regulations implementing the Vietnam 
Era Veterans' Readjustment Assistance Act, published in 76 FR 23358 
(April 26, 2011). The calculations were as follows:

The FY 2008 VETS-100 report identified 62,000 Special Disabled 
Veterans (SDVs). Not all SDVs will normally request and 
accommodation, therefore the estimate is 10% of the SDVs may request 
an accommodation due to visual impairment.

    Therefore, 127,248--6200 = 121,048. OFCCP estimates that it 
takes 5 minutes for the contractor to receive the accommodation 
request and 5 minutes for recordkeeping and providing the notice in 
an alternative format, for a total of 10 minutes per request. 
Therefore, 10 minutes x 121,048 = 1,210,480 minutes/60 = 20,175 
total Federal contractor hours.
    [squ] Posting of notice for employees working at a site other 
than the contractor's physical location. (] 4 of EO Clause). OFCCP 
has counted these hours in its Notice of Proposed Rulemaking (NPRM) 
revising the regulations implementing the Vietnam Era Veterans' 
Readjustment Assistance Act, published in 76 FR 23358 (April 26, 
2011). A contractor would expend no additional hours under this 
NPRM, as the offsite notification for both section 4212 and section 
503 occurs in the same EEO poster, which contractors may obtain, 
upon request, from OFCCP or EEOC. Therefore, no additional 
contractor burden exists for this paragraph.
    [squ] Contractor must state in all solicitations and 
advertisements that it is an EEO employer of individuals with 
disabilities (]7 of EO Clause). (This is a third party disclosure 
burden.) The contractor already must state that it is an EEO 
employer due to many state and federal requirements, including the 
Executive Order 11246 EEO requirements. This revision would simply 
require the contractor to add individuals with disabilities to the 
list of categories of protected EEO groups. OFCCP estimates 5 
minutes additional burden per contractor, or 171,275 x 5 minute/60 = 
14,273 total third party disclosure hours.
    [squ] Contractor must include the entire clause verbatim in 
Federal contracts (d). (This is a third party disclosure burden.) 
OFCCP estimates 5 minutes per contractor to download and incorporate 
the required text, or 171,275 x 5 minute/60 = 14,273 total third 
party disclosure hours.

 60-741.41

    [squ] Contractor must inform employees who do not work at 
contractor's physical establishment regarding the availability of 
AAP for review. OFCCP has counted these hours in its Notice of 
Proposed Rulemaking (NPRM) revising the regulations implementing the 
Vietnam Era Veterans' Readjustment Assistance Act, published in 76 
FR 23358 (April 26, 2011). A contractor would expend no additional 
hours under this NPRM, as the offsite notification for both section 
4212 and section 503 would occur in the same notice. Therefore, no 
additional contractor burden exists for this paragraph.

 60-741.42

    [squ] .42(a) and (b)--The proposed regulation would require that 
the contractor invite all applicants to self-identify as a protected 
individual with a disability prior to and after an offer of 
employment. OFCCP provides mandatory text for the invitations to 
self-identify so that the contractor will not have the burden of 
creating these invitations. We estimate it will take 5 minutes for 
the contractor to download and save the prescribed text of the 
invitations to self-identify into a separate document that it can 
store electronically, include it in electronic applications or print 
out to include in a hard copy application package as needed. 
Therefore, 5 minute x 171,275 establishments/60 = 14,273 total 
Federal contractor hours adapting the self-identification forms for 
contractor use.
    OFCCP estimates that protected individuals with disabilities 
will have zero burden complying with this proposal in the course of 
completing their applications for employment with a contractor and 
checking the appropriate boxes in the self-identification forms. No 
written documentation is required and the applicant need only check 
a box on a form already provided.
    [squ] .42(c)--The proposed regulation would require that the 
contractor annually re-invite all employees to self-identify as an 
individual with a disability. We estimate it will take 5 minutes for 
the contractor to download and save the prescribed text of the 
invitation to self-identify into a separate document that it can 
store electronically and transmit to its employees. 5 minute x 
171,275 establishments/60 = 14,273 total Federal contractor hours 
adapting the self-identification forms for contractor use.
    OFCCP estimates that protected employees with disabilities will 
have zero burden complying with this proposal in the course of 
completing the annual resurvey. No

[[Page 77079]]

written documentation is required as the employee need only check a 
box on a form already provided.
    [squ] .42(e)--Contractor must maintain self-identification data. 
The contractor was required to maintain some self-identification 
data prior to this proposed regulation. Reviewing the entire data 
collection process required under .42, we estimate that simply 
maintaining the completed self-identification forms, whether 
collected under (a), (b), or (c) of this section, will take 1 minute 
per contractor, or 171,275 minutes/60 = 2,855 total Federal 
contractor hours. No additional contractor burden has been 
calculated for processing/analyzing the self-identification results 
as the only requirement under this paragraph is that the contractor 
maintains the data to provide to OFCCP upon request. Any burden 
imposed by the actual use/analysis of the data would be covered 
under the appropriate analysis sections such as .44(h) (Audit and 
Reporting System) and/or .44(k) (Data Collection Analysis).

 60-741.44

    [squ] .44(a) Policy statement. Contractor must provide Braille, 
large print, or other versions of AA policy statement so that 
visually impaired persons may read the policy themselves. OFCCP used 
Bureau of Labor Statistics (BLS) Data, the ``Employment status of 
the civilian population by sex, age, and disability status, not 
seasonally adjusted'' for November 2010. This data shows 5,784,000 
individuals with disabilities in the civilian labor force out of a 
total of 147,914,000. Since approximately 22% of the U.S. workforce 
works for a federal contractor, OFCCP estimates that 22% of 
5,784,000 or 1,272,480 disabled individuals works for a federal 
contractor. Data on visually impaired employed individuals is not 
separated out from the total of employed individuals with 
disabilities, therefore, OFCCP estimates 10% of disabled individuals 
are visually impaired, for an estimated total of 127,248 visually 
impaired individuals working for federal contractors. This total 
would include disabled veterans who should not be counted twice. 
OFCCP previously estimated that there are 6,200 visually impaired 
disabled veterans in its Notice of Proposed Rulemaking (NPRM) 
revising the regulations implementing the Vietnam Era Veterans' 
Readjustment Assistance Act, published in 76 FR 23358 (April 26, 
2011). The calculations were as follows:

The FY 2008 VETS-100 report identified 62,000 Special Disabled 
Veterans (SDVs). Not all SDVs will normally request an 
accommodation, therefore the estimate is 10% of the SDVs may request 
an accommodation due to visual impairment.

    Therefore, 127,248 - 6200 = 121,048. OFCCP estimates that it 
takes 5 minutes for the contractor to receive the accommodation 
request and 5 minutes for recordkeeping and providing this document 
in an alternative format, for a total of 10 minutes. Therefore, 10 
minutes x 121,048 = 1,210,480 minutes/60 minutes = 20,175 total 
Federal contractor hours complying with this paragraph.
    [squ] .44(b) Review of personnel processes. Contractor must 
review personnel processes annually, and is required to go through a 
specific analysis for doing so which would include: (1) identifying 
the vacancies and training programs for which applicants and 
employees with disabilities were considered; (2) providing a 
statement of reasons explaining the circumstances for rejecting 
individuals with disabilities for vacancies and training programs 
and a description of considered accommodations; and (3) describing 
the nature and type of accommodations for individuals with 
disabilities who were selected for hire, promotion, or training 
programs.
     [squf] The contractor needs to identify vacancies as part of 
the review. OFCCP counted these hours in its Notice of Proposed 
Rulemaking (NPRM) revising the regulations implementing the Vietnam 
Era Veterans' Readjustment Assistance Act, published in 76 FR 23358 
(April 26, 2011). A contractor would expend no additional hours 
under this NPRM, as the identified vacancies for both section 4212 
and section 503 would be identical. Therefore, no additional 
contractor burden exists for this paragraph.
     [squf] The contractor needs to identify training programs for 
individuals with disabilities applicants and employees. OFCCP 
counted these hours in its Notice of Proposed Rulemaking (NPRM) 
revising the regulations implementing the Vietnam Era Veterans' 
Readjustment Assistance Act, published in 76 FR 23358 (April 26, 
2011). A contractor would expend no additional hours under this 
NPRM, as the identified training programs for both section 4212 and 
section 503 would be identical. Therefore, no additional contractor 
burden exists for this paragraph.
     [squf] For providing a statement of reasons explaining the 
circumstances for rejecting individuals with disabilities for 
vacancies and training programs and a description of considered 
accommodations, OFCCP estimates 30 minutes per contractor per year, 
or 30 x 171,275/60 = 85,638 total Federal contractor hours.
     [squf] For describing the nature and type of accommodations for 
individuals with disabilities who were selected for hire, promotion, 
or training programs. OFCCP used Bureau of Labor Statistics (BLS) 
Data, the ``Employment status of the civilian population by sex, 
age, and disability status, not seasonally adjusted'' for November 
2010. This data shows 5,784,000 individuals with disabilities in the 
civilian labor force out of a total of 147,914,000. Since 
approximately 22% of the U.S. workforce works for a federal 
contractor, OFCCP estimates that 22% of 5,784,000 or 1,272,480 
disabled individuals works for a federal contractor. This total 
would include disabled veterans who should not be counted twice. 
OFCCP previously estimated that there are 62,000 disabled veterans 
in its Notice of Proposed Rulemaking (NPRM) revising the regulations 
implementing the Vietnam Era Veterans' Readjustment Assistance Act, 
published in 76 FR 23358 (April 26, 2011). The calculations were as 
follows:

The FY 2008 VETS-100 report identified 62,000 Special Disabled 
Veterans (SDVs). Thus, there will be a total of 62,000 inquiries. 
Therefore, 1,272,480 - 62,000 = 1,210,480. OFCCP estimates 10% of 
referrals leading to an accommodation request, and 30 minutes per 
accommodation request. Therefore, the hours would be 30 x 1,210,480 
x 10%/60 = 60,524 total Federal contractor hours.

    [squ] .44(c)(1) Physical and mental qualifications. Contractor 
must review physical and mental job qualifications annually to 
ensure that they are job-related and consistent with business 
necessity. This provision exists in the current section 503 
regulations (as well as the current section 4212 regulations); the 
only difference is that the proposed regulations call for the review 
to occur ``annually,'' rather than ``periodically.'' Therefore, all 
existing or previous contractors should have experience in 
performing the required review.
    OFCCP counted these hours in its Notice of Proposed Rulemaking 
(NPRM) revising the regulations implementing the Vietnam Era 
Veterans' Readjustment Assistance Act, published in 76 FR 23358 
(April 26, 2011). A contractor's review of physical and mental 
qualifications would occur only once for both section 4212 and 
section 503. Therefore, no additional contractor burden exists for 
this paragraph.
    [squ] .44(c) Direct Threat. Contractor must document the results 
of its annual review of physical and mental job qualifications, and 
document any employment action taken on the basis of a believed 
``direct threat.''
    OFCCP counted these hours in its Notice of Proposed Rulemaking 
(NPRM) revising the regulations implementing the Vietnam Era 
Veterans' Readjustment Assistance Act, published in 76 FR 23358 
(April 26, 2011). A contractor's documentation of its review of 
physical and mental qualifications would occur only once for both 
section 4212 and section 503. Therefore, no additional contractor 
burden exists for this paragraph.

 60-741.44(f)

    [squ] .44(f)(1)(i) Contractor must list job openings with the 
nearest Employment One-Stop Career Center.
    OFCCP counted these hours in its Notice of Proposed Rulemaking 
(NPRM) revising the regulations implementing the Vietnam Era 
Veterans' Readjustment Assistance Act, published in 76 FR 23358 
(April 26, 2011). A contractor would list the same job openings to 
comply with the section 4212 NPRM as it would for the section 503 
NPRM. Therefore, no additional contractor burden exists for this 
paragraph.
    [squ] .44(f)(1)(ii) Linkages. Contractor must enter into linkage 
agreements with:
     [squf] Either a local State Vocational Rehabilitation Service 
Agency (SVRA) or an organization in the Ticket to Work Employment 
Network Directory;
     [squf] One of the following organizations: (1) the Employer 
Assistance and Resource Network (EARN); (2) the nearest Employment 
One-Stop Career Center, established under the Workforce Investment 
Act; (3) the nearest Department of Veterans Affairs Regional 
Offices; (4) any other local disability group, organization or 
Centers for Independent Living that provide services to individuals 
with disabilities; (5) placement or career offices of educational 
institutions; or (6) private recruitment sources; and
     [squf] One or more of the disabled veterans' service 
organizations listed in the Employer

[[Page 77080]]

Resources section of the National Resource Directory (NRD), or any 
future service that replaces or complements it, other than the 
agencies listed above.
    Therefore, each contractor must enter into 3 linkage agreements. 
Linkage Agreement means an agreement describing the connection 
between the contractor and appropriate recruitment and/or training 
sources. To assist contractors, OFCCP will provide a sample linkage 
agreement on its Web page.
    The contractor has a variety of ways to establish section 503 
linkage agreements. The contractor can receive nationwide assistance 
from OFCCP Compliance Officers (COs) to help it establish the 3 
linkage agreements. Secondly, during the normal course of an OFCCP 
compliance review, the CO will contact all appropriate linkage 
resources to obtain specific information on availability of 
applicants and potential trainees for positions in the contractor's 
labor force. If possible, the CO will arrange a meeting between the 
recruitment/referral resources and the contractor.
    Where a resource indicates that it can provide applicants or 
trainees, the CO will include the contractor's commitment to utilize 
the linkage source along with other actions in the Letter of 
Commitment or in the Conciliation Agreement.
    OFCCP estimates that 30% of the contractors, or 51,383, will 
accept OFCCP assistance to help set up their linkage agreements and 
it will take these contractors on average 1.5 hours to establish one 
new linkage agreement. For the remaining 119,892 contractors, OFCCP 
estimates that establishing a new linkage agreement will take an 
average of 5.5 hours. Beyond the first year after this rule becomes 
effective, it is estimated the contractor will set up one new 
agreement a year. It is estimated that maintaining a single, ongoing 
linkage agreement will take an average of 15 minutes for all 171,275 
contractors.
    For those contractors setting up linkage agreements on their 
own, OFCCP estimates that on average, a contractor will establish 
one new agreement and maintain two ongoing agreements in a given 
year, which would be 5.5 hours + .25 hours + .25 hours = 6 hours. If 
the contractor establishes linkage agreements with OFCCP's 
assistance, we estimate an annual average of 1.5 hours per 
contractor to establish a new linkage agreement and .25 hours to 
maintain each of the two ongoing linkage agreements, which would be 
1.5 hours + .25 hours + .25 hours = 2 hours. Therefore, 6 hours x 
119,892 contractors = 719,352 hours, and 51,383 x 2 hours = 102,766 
hours, for a total of 822,118 Federal contractor hours.
    However, NRD is also used as a resource in the section 4212 
NPRM, and those burden hours are already counted under the section 
4212 NPRM and should not be counted twice. To adjust the section 503 
burden hours accordingly, OFCCP reduced the total of 822,118 hours 
by one-third, for a total of 550,819 Federal contractor hours.
    [squ] .44(f)(1)(iii) Contractor must send written notification 
of company AAP policies to subcontractors, vendors, and suppliers. 
(This is a third party disclosure burden)
    As the same provision exists in the section 4212 NPRM, and the 
creation of the notice is already counted there, OFCCP estimates 
that it would take the contractor an additional 5 minutes to revise 
the section 4212 notification to include the required reference to 
section 503. Therefore, 5 minutes per contractor x 171,275/60 
minutes = 14,273 total third party disclosure hours.
    [squ] .44(f)(3) Assessment. Contractor must document its review 
of outreach and recruitment efforts.
    OFCCP estimates that documenting this required review of 
outreach and recruitment will take 10 minutes annually. OFCCP 
further estimates that 1% of federal contractors are first-time 
contractors during an abbreviated AAP year, therefore would not be 
able to complete an annual outreach and recruitment effort. 
Therefore, reducing the 171,275 by 1% (1,713 contractors) = 169,562 
contractors, at 10 minutes each/60 = 28,260 total Federal contractor 
hours. The burden and cost of actually conducting the review does 
not fall under the PRA, and is instead set forth in the sections on 
Executive Order 12866.
    [square] .44(f)(4). Linkage Recordkeeping. Contractor must 
document (f)(1) linkage agreements and maintain these documents for 
5 years.
    Since establishing a linkage agreement includes its 
documentation, there is no additional burden for this paragraph 
beyond that already set forth in the burden calculation for 
.44(f)(1)(i) and (ii).
    [squ] .44(g). Internal dissemination of policy. Contractor is 
required to undertake efforts to internally disseminate its EEO 
policy, including, if the contractor is a party to a collective 
bargaining agreement, meeting with union officials to inform them of 
the policy. (This is a third party disclosure burden):
    The January 22, 2010, Bureau of Labor Statistics News Release 
states that in 2009, union membership was 12.3%. In its most recent 
Supply and Service (S&S) PRA Justification, OFCCP estimated 30 
minutes composition time for union notification. For this NPRM, we 
estimate 15 minutes preparation for this new notification 
requirement, as contractors party to a collective bargaining 
agreement already have a notification template in place. We also 
estimate 15 additional minutes to meet with union officials as they 
are already required to meet with union officials in S&S. The total 
third party disclosure burden hours would be 171,275 x 12.3% x 30 
minutes/60 = 10,533 total Federal contractor hours.
    The burden and cost of other requirements of .44(g) does not 
fall under the PRA, and is instead set forth in the sections on 
Executive Order 12866.
    [squ] .44(g)(3). Contractor must document internal dissemination 
efforts in (g), retain these documents as employment records subject 
to the recordkeeping requirements of Sec.  60-741.80.
    Since much of the documentation will occur during the 
preparation time, OFCCP estimates an additional 5 minutes of 
recordkeeping per contractor, which means 5 minutes x 171,275 = 
856,375 minutes/60 = 14,273 total Federal contractor hours.
    [squ] .44(h). Audit and reporting system. Contractor must 
document the actions taken to comply with audit and reporting 
system, and retain these documents as employment records subject to 
the recordkeeping requirements of Sec.  60-741.80.
    Since much of the documentation will occur when conducting the 
annual audit, OFCCP estimates an additional 5 minutes recordkeeping 
burden per contractor, which means 5 minutes x 171,275 = 856,375 
minutes/60 = 14,273 total Federal contractor hours.
    [squ] .44(i) Responsibility for implementation. Contractor must 
identify responsible official for AAP on all internal and external 
communications regarding the AAP. OFCCP counted these hours in its 
Notice of Proposed Rulemaking (NPRM) revising the regulations 
implementing the Vietnam Era Veterans' Readjustment Assistance Act, 
published in 76 FR 23358 (April 26, 2011). The same person will 
likely be identified for both section 503 and section 4212 
regulations. Therefore, no additional contractor burden exists for 
this paragraph.
    [squ] .44(j) Training. Contractor must document its training 
efforts as set forth by the regulation, and maintain these documents 
as required by 60-741.80.
    OFCCP estimates that much of the documentation will be included 
in the training preparation time. OFCCP estimates an additional 5 
minutes recordkeeping time per contractor, which means 5 minutes x 
171,275 = 856,375 minutes/60 = 14,273 total Federal contractor hours 
The burden and cost of the actual training preparation and 
conducting the training does not fall under the PRA, and is instead 
set forth in the sections on Executive Order 12866 and the 
Regulatory Flexibility Act.
    [squ] .44(k) Data collection analysis. Contractor must make 
several quantitative tabulations and comparisons using referral 
data, applicant data, hiring data, and the number of job openings; 
must maintain these records for 5 years:
    (1) The number of referrals of individuals with disabilities 
that the contractor received from applicable employment service 
delivery system(s), such as State Vocational Rehabilitation Service 
Agencies and Employment One-Stop Career Centers;
    (2) The number of referrals of individuals with disabilities 
that the contractor received from other entities, groups or 
organizations with which the contractor has a linkage agreement 
pursuant to paragraph (f)(1)(i);
    (3) The number of applicants who self-identified as individuals 
with disabilities pursuant to Sec.  60-741.42(a), or who are 
otherwise known to be individuals with disabilities;
    (4) The total number of job openings and total number of jobs 
filled;
    (5) The ratio of jobs filled to job openings;
    (6) The total number of applicants for all jobs;
    (7) The ratio of applicants with disabilities to all applicants 
(``applicant ratio'');
    (8) The number of applicants with disabilities hired;
    (9) The total number of applicants hired; and
    (10) The ratio of individuals with disabilities hired to all 
hires (``hiring ratio'').

[[Page 77081]]

The number of hires shall include all employees as defined in Sec.  
60-741.2.
    The calculations for 4, 5, 6, and 9 are already 
included in the Executive Order 11246 AAP. Therefore, there is no 
additional burden for 4, 5, 6, and 9.
    The remaining calculations, for 1, 2, 3, 7, 8, and 10, 
OFCCP estimates at 10 minutes each per contractor, or 60 minutes 
recordkeeping time per contractor. Therefore, the total burden would 
be 60 minutes x 171,275/60 = 171,275 total Federal contractor hours.

 60-741.45

    [squ] .45(a) Development and implementation. Contractor must 
develop and implement procedures for processing reasonable 
accommodation requests.
    OFCCP estimates that much of the documentation will be included 
in the development and implementation of these procedures. OFCCP 
estimates an additional 30 minutes recordkeeping time per 
contractor, which means 30 minutes x 171,275 = 5,138,250 minutes/60 
= 85,638 total Federal contractor hours. The burden and cost of the 
actual development and implementation does not fall under the PRA, 
and is instead set forth in the sections on Executive Order 12866 
and the Regulatory Flexibility Act. 1
    [squ] .45(b) Designation of responsibility. Contractor must 
designate responsible official for implementing reasonable 
accommodation procedures.
    That official should already be in place for current 
contractors. For 1% first time contractors, 171,275 x 1% = 1,713 
contractors, OFCCP estimates 5 minutes per contractor, or 1,713 x 5 
minutes = 8,565 minutes/60 = 143 total Federal contractor hours.
    [squ] .45(c) Dissemination of procedures. Contractor must 
disseminate its reasonable accommodation procedures to employees, 
including off-site employees, and applicants.
    OFCCP estimates that it would take the contractor 15 minutes to 
post the procedures on its Web site in an accessible format. 
Therefore, 15 minutes per contractor x 171,275/60 minutes = 42,819 
total Federal contractor hours.
    [squ] .45(d) Required Elements. A contractor's reasonable 
accommodation procedures must include specific required elements, 
including official contact information, processing requests for 
employees and applicants, timeframes, and a description of these 
processes. These burden hours are already included in .45(a) 
Development and Implementation.
    [squ] .45(e) Training. A contractor must train its managers and 
supervisors on reasonable accommodation.
    OFCCP estimates that much of the documentation will be included 
in the training preparation time. OFCCP estimates an additional 5 
minutes recordkeeping time per contractor, which means 5 minutes x 
171,275 = 856,375 minutes/60 = 14,273 total Federal contractor 
hours. The burden and cost of the actual training preparation and 
conducting the training does not fall under the PRA, and is instead 
set forth in the sections on Executive Order 12866.

 60-741.46

    [squ] Contractor must set a utilization goal of 7%.
    Minimum Goal. OFCCP has established a utilization goal of 7% as 
a benchmark against which the contractor must measure the 
representation of individuals with disabilities within each job 
group in its workforce.
    Since the goal is provided by OFCCP, OFCCP estimates 5 minutes 
recordkeeping time per contractor to document the goal requirement, 
which means 5 minutes x 171,275/60 = 14,273 total Federal contractor 
hours.
    Comparing incumbency to the goal: The contractor shall compare 
the percentage of its incumbent employees who are individuals with 
disabilities with the goal in paragraph (a) of this section on an 
annual basis. When making this comparison the contractor shall:
    (1) Use the job groups it established pursuant to 41 CFR 60-2.12 
or part 60-4. Supply and service contractors under OMB Information 
Collection Request OMB Control No. 1250-0003 (Recordkeeping and 
Reporting Requirements--Supply and Service) have already established 
job groups so there are no additional hours associated with 
developing job groups.
    (2) Separately state the percentage of individuals with 
disabilities it employs in each job group. This rule requires 
contractors to invite all applicants to self-identify as individuals 
with disabilities prior to employment (.42(a) and (b)). The burden 
for self-identification is listed at (.42(a) and (b)). Therefore 
contractors will know whether their applicants are individuals with 
disabilities. In addition, contractors must annually survey its 
employees so that any employee may self-identify as an individual 
with a disability. The burden hours for the survey are at (.42(c)). 
However, burden hours must be assigned to identifying the percentage 
of individuals within each job group.
     As this is a new requirement, OFCCP estimates that it 
will take 60 minutes for contractors to determine whether they have 
met the goal the first year, and 30 minutes for all subsequent 
years. Therefore, 60 x 171,275 Federal contractors/60 minutes = 
171,275 hours.; 30 x 171,275/60 = 85,638 hours.
    This task is informed by the results of several other proposed 
requirements, including the review of the effectiveness of 
contractors' outreach and recruitment efforts required by section 
60-741.44(f)(3) and the review of physical and mental job 
qualifications required by section 60-741.44(c). The burden and 
costs associated with these requirements are listed and discussed 
separately.
    Action-oriented programs. When the percentage of individuals 
with disabilities in one or more job groups is less than the goal 
established in paragraph (a) of this section, the contractor must 
develop and execute action-oriented programs designed to correct any 
identified problems areas. Entering linkage agreements with 
recruitment sources is considered action-oriented programs. This 
NPRM already requires contractors to enter into 3 linkage 
agreements, in order to increase the number of individuals with 
disabilities within their workforce. Burden hours have already been 
given for these programs under section (.44(f)(1)) and will not be 
duplicated for this action.

 60-741.60

    [squ] .60(a)(3)--Contractor must provide documents to OFCCP on-
site or off-site at OFCCP's request, not at the contractor's option.
    These hours not included in burden as they are excepted under 5 
CFR 1320.4(a)(2) (``an administrative action, investigation, or 
audit involving an agency against specific individuals or 
entities'').
    [squ] .60(c)--New procedure for pre-award compliance 
evaluations.
    These hours not included in burden as they are excepted under 5 
CFR 1320.4(a)(2) (``an administrative action, investigation, or 
audit involving an agency against specific individuals or 
entities'').

 60-741.80

    [squ] See new 5 year recordkeeping requirements in sections 
741.44(f)(4) and 741.44(k).
    No additional burden hours as they are included in the 
individual calculations above.

 60-741.81

    [squ] Contractor must provide off-site access to documents if 
requested by OFCCP. Such records are never requested except during 
the course of a specific investigation of a particular contractor.
    Consequently, these hours are not included in burden as they are 
excepted under 5 CFR 1320.4(a)(2) (``an administrative action, 
investigation, or audit involving an agency against specific 
individuals or entities'').
    [squ] Contractor must specify to OFCCP all formats in which its 
records are available.
    These hours not included in burden as they are excepted under 5 
CFR 1320.4(a)(2) (``an administrative action, investigation, or 
audit involving an agency against specific individuals or 
entities'').
    The Department has submitted a copy of the information 
collections associated with this proposed rule to the Office of 
Management and Budget (OMB) in accordance with 44 U.S.C. 3507(d) for 
review and approval. In addition to filing comments with OFCCP, 
interested persons may submit comments about the information 
collections, including suggestions for reducing their burden, to the 
Office of Information and Regulatory Affairs, OMB, New Executive 
Office Building, 725 17th Street NW., Room 10235, Washington, DC 
20503. Attention: Desk Officer for DOL/OFCCP. To ensure proper 
consideration comments to OMB should reference ICR reference number: 
[insert the number from ROCIS when OFCCP creates the package]. Upon 
receiving OMB approval of the new information, the Department will 
submit non-substantive change requests to OMB Control Numbers 1250-
0001 and 1250-0003 in order to remove regulatory citations for any 
information collected purely under the new collection.

[[Page 77082]]



                      Table 1--Reporting, Recordkeeping, and Third Party Disclosure Burden
----------------------------------------------------------------------------------------------------------------
                                     Section of      One-time  burden     Recurring burden
        Burden description            proposed          hours per            hours per         Recurring burden
                                     regulation         contractor           contractor       hours per element
----------------------------------------------------------------------------------------------------------------
Contractor must provide Braille,         60-741.5  ...................  ...................  10 minutes per
 large print, or other versions                                                               accommodation
 of poster so that visually                                                                   request. Total
 impaired may read the notice                                                                 Hours 20,175.
 themselves (] 4 of EO Clause).
Contractor must state in all             60-741.5  5 minutes per
 solicitations and advertisements                   contractor. Total
 that it is an EEO employer of                      third party
 individuals with disabilities (]                   disclosure burden
 7 of EO Clause). [Note: Burden                     hours 14,273.
 is based on one-time action of
 adding ``individuals with
 disabilities'' to list of
 protected groups].
Contractor must cite to EEO              60-741.5  5 minutes per
 clause in Federal contracts                        contractor. Total
 using specific text provided by                    third party
 OFCCP (.5(d)) [Note: Burden is                     disclosure burden
 based on one-time action of                        hours 14,273.
 downloading & saving text
 provided by OFCCP].
Contractor must invite all              60-741.42  5 minutes per
 applicants to self-identify as                     contractor. Total
 individuals with disabilities                      Hours 14,273.
 prior to and subsequent to offer
 of employment (.42(a) and (b)).
 [Note: Burden is based on one-
 time cost of downloading OFCCP-
 prescribed mandatory invitation
 language].
Contractor must annually survey         60-741.42  5 minutes per                             ...................
 its employees so that any                          contractor. Total
 employee may self-identify as an                   Hours 14,273.
 individual with a disability
 (.42(c)). [Note: Burden is based
 on one-time cost of downloading
 OFCCP-prescribed mandatory
 invitation language].
Contractor must maintain self-          60-741.42  ...................  1 minute per         ...................
 identification data (.42(e)).                                           contractor. Total
                                                                         Hours 2,855.
Contractor must provide Braille,        60-741.44  ...................  ...................  10 minutes per
 large print, or other versions                                                               accommodation
 of AA policy statement so that                                                               request. Total
 visually impaired may read the                                                               Hours 20,175.
 notice themselves (.44(a)).
Contractor must review personnel        60-741.44  ...................  30 minutes per       30 minutes per
 processes annually, and is                                              contractor           accommodation
 required to go through a                                                (statement of        request. Subtotal
 specific analysis for doing so                                          reasons). Subtotal   Hours 60,524,
 which would include: Providing a                                        Hours 85,638.        Total Hours
 statement of reasons for                                                                     146,162.
 rejecting individuals with
 disabilities describing the
 nature and type of
 accommodations for individuals
 with disabilities (.44(b)).
Contractor must enter into              60-741.44  ...................  Total Hours          ...................
 linkage agreement with nearest                                          550,819.
 SVRA, one of the organizations
 listed in (f)(1), and an
 organization listed in the
 National Resource Directory
 (.44(f)(1)).
Contractor must send written            60-741.44  ...................  5 minutes per        ...................
 notification of company AAP                                             contractor. Total
 policies to subcontractors,                                             third party
 vendors, and suppliers                                                  disclosure burden
 (.44(f)(1)(iii)).                                                       hours 14,273.
Contractor must review outreach         60-741.44  ...................  10 minutes per       ...................
 and recruitment efforts on an                                           contractor (non
 annual basis and evaluate their                                         first time
 effectiveness; contractor must                                          contractors).
 identify and implement further                                          Total Hours 28,260.
 outreach efforts if existing
 efforts are found ineffective
 (.44(f)(3)).
If the contractor is a party to a       60-741.44  ...................  30 minutes per       ...................
 collective bargaining agreement                                         unionized
 it must meet with union                                                 contractor. Total
 officials to inform them of the                                         third party
 policy (.44(g)).                                                        disclosure burden
                                                                         hours 10,533.
Contractor must document internal       60-741.44  ...................  5 minutes per        ...................
 dissemination efforts in (g) and                                        contractor. Total
 retain these documents                                                  Hours 14,273.
 (.44(g)(4)).
Contractor must document the            60-741.44  ...................  5 minutes per        ...................
 actions taken to comply with                                            contractor. Total
 audit and reporting system and                                          Hours 14,273.
 retain these documents (.44(h)).
Contractor must document its            60-741.44  ...................  5 minutes per        ...................
 training efforts as set forth by                                        contractor. Total
 the reg, and maintain these                                             Hours 14,273.
 documents (.44(j)).

[[Page 77083]]

 
Contractor must make several            60-741.44  ...................  60 minutes per       ...................
 quantitative tabulations and                                            contractor. Total
 comparisons using referral data,                                        Hours 171,275.
 applicant data, hiring data, and
 the number of job openings; and
 must maintain these records
 (.44(k)).
Contractor is required to develop       60-741.45  ...................  30 minutes per       ...................
 and implement reasonable                                                contractor. Total
 accommodation procedures                                                hours 85,638.
 (.45(a)).
Contractor must identify                60-741.45  5 minutes per first
 responsible official for                           time contractor.
 reasonable accommodation                           Total Hours 143.
 procedures (.45(b)).
Contractor must disseminate             60-741.45  15 minutes per
 reasonable accommodation                           contractor. Total
 procedures (.45(c).                                Hours 42,819.
Contractor must train managers          60-741.45  ...................  5 minutes per        ...................
 and supervisors (.45(e)).                                               contractor. Total
                                                                         Hours 14,273.
Contractor must set hiring goals        60-741.46  5 minutes per        30 minutes per
 (.46).                                             contractor           contractor
                                                    (initial             (analysis).
                                                    documentation).      Subtotal hours
                                                    Subtotal Hours       85,638, Total
                                                    14,273.              hours 271,186.
                                                   60 minutes per
                                                    contractor (first
                                                    year analysis).
                                                    Subtotal hours
                                                    171,275.
 
    Total Recordkeeping burden          1,425,145
     hours.
                                                  --------------------------------------------------------------
    Total Reporting burden hours.
                                  ----------------
    Total Third Party burden               53,352
     hours.
                                  ----------------
    Total all hours..............       1,478,497
----------------------------------------------------------------------------------------------------------------

    The estimated annualized cost to respondent contractors is based on 
Bureau of Labor Statistics data in the publication ``Employer Costs for 
Employee Compensation'' (September 2011), which lists total 
compensation for management, professional, and related occupations as 
$50.07 per hour and administrative support as $22.67 per hour. OFCCP 
estimates that 52% percent of the burden hours will be management, 
professional, and related occupations and 48% percent will be 
administrative support. We have calculated the total one-time, 
recurring, and overall estimated annualized costs as follows:

------------------------------------------------------------------------
 
------------------------------------------------------------------------
One-Time Costs:
    Mgmt. Prof. 285,602 hours x .52 x $50.07 =..........      $7,436,048
    Adm. Supp. 285,602 hours x .48 x $22.67 =...........       3,107,807
    Operations & Maintenance Cost (see discussion below)               0
                                                         ---------------
        Total cost estimate =...........................      10,543,855
------------------------------------------------------------------------
    Estimated average cost per establishment is:                      62
     $10,543,855/171,275 =..............................
Recurring Costs:
    Mgmt. Prof. 1,192,895 hours x .52 x $50.07 =........      31,058,691
    Adm. Supp. 1,192,895 hours x .48 x $22.67 =.........      12,980,606
    Operations & Maintenance Cost (see discussion below)       1,820,859
                                                         ---------------
        Total annualized cost estimate =................      45,860,156
------------------------------------------------------------------------
    Estimated average cost per establishment is: $                   268
     45,860,156/171,275 =...............................
Total Costs:
    Mgmt. Prof. 1,478,497 hours x .52 x $50.07 =........      38,494,739
    Adm. Supp. 1,478,497 hours x .48 x $22.67 =.........      16,088,413
    Operations & Maintenance Cost (see discussion below)       1,820,859
                                                         ---------------
        Total annualized cost estimate =................      56,404,011
------------------------------------------------------------------------
    Estimated average cost per establishment is:                     329
     $56,404,011/171,275 =..............................
------------------------------------------------------------------------


[[Page 77084]]

Operations and Maintenance Costs

    OFCCP estimates that the contractor will have some operations and 
maintenance costs in addition to the time burden calculated above 
associated with this collection.

60-741.5

    Contractor must provide the EO poster for review by employees and 
applicants, including in alternative formats upon request such as 
Braille, large print, or other versions so that visually impaired 
individuals may read the notice themselves (] 4 of EO Clause). OFCCP 
does not expect the contractor to incur any cost for this element as 
the poster may be acquired from OFCCP or, in alternative formats from 
EEOC.

60-741.42

    OFCCP estimates that the contractor will have some operations and 
maintenance cost associated with the invitation to self-identify. The 
contractors must invite all applicants with the pre- and post-offer 
invitation, and must also survey its employees annually with an 
invitation to self-identify. Given the increasingly widespread use of 
electronic applications, any contractor that uses such applications 
would not incur copy costs. However, to account for contractors who may 
still choose to use paper versions, we are including printing and/or 
copying costs. Therefore, we estimate 1 page for the pre- and post-
offer invitations printed for 60 applicants per year, and 1 page for 
the employee survey invitation printed for 60 employees per year. We 
also estimate an average copying cost of .08 cents per page. The 
estimated total cost to contractors will be: pre- and post-offer--
171,275 x 1 x 60 x $.08 = $822,120; survey--171,275 x 1 x 60 x $.08 = 
$822,120; total cost $822,120 x 2 = $1,644,240

60-741.44

    Contractor must provide Braille, large print, or other versions of 
AA policy statement so that visually impaired may read the notice 
themselves (.44(a)). OFCCP estimates that the contractor will have some 
operations and maintenance costs associated with providing the AA 
policy statement. We estimate that the cost of an alternative format, 
such as Braille or audio, to be $1.00 per contractor. The estimated 
total cost to contractors will be: $1.00 x 171,275 federal contractor 
establishments = $171,275

60-741.44

    Contractor must provide its AAP to OFCCP during a desk audit. 
Contractor must provide its AAP to OFCCP during a desk audit. In light 
of the increased use of electronic formats and the proposed 
requirement, in section 60-741.81, that contractors provide records to 
OFCCP in electronic format, where available, we estimate that only 30 
percent of contractors will be submitting paper copies of their AAPs. 
Given an average copying cost of $.08 per page and an average size of 
an AAP of 7 pages, the estimated total copying cost to contractors will 
be: 7 pages x $.08 x 1,501 (5,004 FY 2009 Compliance Evaluations--30%) 
= $841 In addition, we estimate an average mailing cost of $3.00 per 
contractor. The total mailing cost for contractors will be $3.00 x 
1,501 = $ 4503. The total estimated costs would be $841+ $4503 = $5,344

                Table 3--Operations and Maintenance Costs
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Contractor must post EO poster for review by       60-741.5           $0
 employees and applicants (] 4 of EO Clause)..
Contractor must provide Braille, large print,      60-741.5            0
 or other versions of EO poster so that
 visually impaired individuals may read the
 notice themselves (] 4 of EO Clause).........
Contractor must invite all applicants and         60-741.42    1,644,240
 employees to self-identify as an individual
 with a disability (.42(a)(b)(c)).............
Contractor must provide Braille, large print,     60-741.44      171,275
 or other versions of AA policy statement so
 that visually impaired individuals may read
 the notice themselves (.44(a))...............
Copying and mailing costs of AAPs (.44).......    60-741.44       $5,344
                                               -------------------------
    Total O&M Costs...........................  ...........    1,820,859
------------------------------------------------------------------------

    These paperwork burden estimates are summarized as follows:
    Type of Review: New collection (Request for new OMB Control 
Number).
    Agency: Office of Federal Contract Compliance Programs, Department 
of Labor.
    Title: Disclosures and Recordkeeping Under Affirmative Action and 
Nondiscrimination Obligations of Contractors and Subcontractors 
Regarding Individuals With Disabilities
    OMB ICR Reference Number: [Provide from ROCIS].
    Affected Public: Business or other for-profit; individuals.
    Estimated Number of Annual Responses: 171,275.
    Frequency of Response: On occasion.
    Estimated Total Annual Burden Hours: 1,464,224.
    Estimated Total Annual Burden Cost (Start-up, capital, operations, 
and maintenance): $1,820,859.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by Section 804 of the 
Small Business Regulatory Enforcement Fairness Act of 1996. This rule 
will not result in an annual effect on the economy of $100 million or 
more; a major increase in costs or prices; or significant adverse 
effects on competition, employment, investment, productivity, 
innovation, or on the ability of the United States-based companies to 
compete with foreign-based companies in domestic and export markets.

Unfunded Mandates Reform Act of 1995

    For purposes of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 
1532, this NPRM does not include any Federal mandate that may result in 
excess of $100 million in expenditures by state, local, and tribal 
governments in the aggregate or by the private sector.

Executive Order 13132 (Federalism)

    OFCCP has reviewed this proposed rule in accordance with Executive 
Order 13132 regarding federalism, and has determined that it does not 
have ``federalism implications.'' This proposed rule will not ``have 
substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government.''

Executive Order 13084 (Consultation and Coordination With Indian Tribal 
Governments)

    This NPRM does not have tribal implications under Executive Order 
13175 that would require a tribal summary impact statement. The NPRM 
would not have substantial direct effects

[[Page 77085]]

on one or more Indian tribes, on the relationship between the Federal 
government and Indian tribes or on the distribution of power and 
responsibilities between the Federal government and Indian tribes.

Executive Order 13045 (Protection of Children)

    This NPRM would have no environmental health risk or safety risk 
that may disproportionately affect children.

Environmental Impact Assessment

    A review of this NPRM in accordance with the requirements of the 
National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321 et 
seq.; the regulations of the Council on Environmental Quality, 40 CFR 
1500 et seq.; and DOL NEPA procedures, 29 CFR part 11, indicates the 
NPRM would not have a significant impact on the quality of the human 
environment. There is, thus, no corresponding environmental assessment 
or an environmental impact statement.

Executive Order 13211 (Energy Supply)

    This NPRM is not subject to Executive Order 13211. It will not have 
a significant adverse effect on the supply, distribution, or use of 
energy.

Executive Order 12630 (Constitutionally Protected Property Rights)

    This NPRM is not subject to Executive Order 12630 because it does 
not involve implementation of a policy that has takings implications or 
that could impose limitations on private property use.

Executive Order 12988 (Civil Justice Reform Analysis)

    This NPRM was drafted and reviewed in accordance with Executive 
Order 12988 and will not unduly burden the Federal court system. The 
NPRM was: (1) Reviewed to eliminate drafting errors and ambiguities; 
(2) written to minimize litigation; and (3) written to provide a clear 
legal standard for affected conduct and to promote burden reduction.

List of Subjects in 41 CFR Parts 60-741

    Administrative practice and procedure, Civil rights, Employment, 
Equal employment opportunity, Government contracts, Government 
procurement, Individuals with disabilities, Investigations, and 
Reporting and recordkeeping requirements.

Patricia A. Shiu,
Director, Office of Federal Contract Compliance Programs.

    For the reasons set forth in the preamble, OFCCP proposes to revise 
41 CFR part 60-741 to read as follows:

PART 60-741--AFFIRMATIVE ACTION AND NONDISCRIMINATION OBLIGATIONS 
OF FEDERAL CONTRACTORS AND SUBCONTRACTORS REGARDING INDIVIDUALS 
WITH DISABILITIES

Subpart A--Preliminary Matters, Equal Opportunity Clause
Sec.
60-741.1 Purpose, applicability and construction.
60-741.2 Definitions.
60-741.3 Exceptions to the definitions of ``disability'' and 
``qualified individual.''
60-741.4 Coverage and waivers.
60-741.5 Equal opportunity clause.
Subpart B--Discrimination Prohibited
60-741.20 Covered employment activities.
60-741.21 Prohibitions.
60-741.22 Direct threat defense.
60-741.23 Medical examinations and inquiries.
60-741.24 Drugs and alcohol.
60-741.25 Health insurance, life insurance and other benefit plans.
Subpart C--Affirmative Action Program
60-741.40 General purpose and applicability of the affirmative 
action program requirement.
60-741.41 Availability of affirmative action program.
60-741.42 Invitation to self-identify.
60-741.43 Affirmative action policy.
60-741.44 Required contents of affirmative action programs.
60-741.45 Reasonable Accommodation Procedures.
60-741.46 Utilization goals.
60-741.47 Providing priority consideration in employment.
60-741.48 Sheltered workshops.
Subpart D--General Enforcement and Complaint Procedures
60-741.60 Compliance evaluations.
60-741.61 Complaint procedures.
60-741.62 Conciliation agreements.
60-741.63 Violations of conciliation agreements.
60-741.64 Show cause notices.
60-741.65 Enforcement proceedings.
60-741.66 Sanctions and penalties.
60-741.67 Notification of agencies.
60-741.68 Reinstatement of ineligible contractors.
60-741.69 Intimidation and interference.
60-741.70 Disputed matters related to compliance with the act.
Subpart E--Ancillary Matters
60-741.80 Recordkeeping.
60-741.81 Access to records.
60-741.82 Labor organizations and recruiting and training agencies.
60-741.83 Rulings and interpretations.

Appendix A to Part 60-741--Guidelines on a Contractor's Duty To Provide 
Reasonable Accommodation

    Authority: 29 U.S.C. 705 and 793; E.O. 11758 (3 CFR, 1971-1975 
Comp., p. 841).

Subpart A--Preliminary Matters, Equal Opportunity Clause


Sec.  60-741.1  Purpose, applicability, and construction.

    (a) Purpose. The purpose of this part is to set forth the standards 
for compliance with section 503 of the Rehabilitation Act of 1973, as 
amended (29 U.S.C. 793), which prohibits discrimination against 
individuals with disabilities and requires Government contractors and 
subcontractors to take affirmative action to employ and advance in 
employment qualified individuals with disabilities.
    (b) Applicability. This part applies to all Government contracts 
and subcontracts in excess of $10,000 for the purchase, sale or use of 
personal property or nonpersonal services (including construction): 
Provided, That subpart C of this part applies only as described in 
Sec.  60-741.40(a). Compliance by the contractor with the provisions of 
this part will not necessarily determine its compliance with other 
statutes, and compliance with other statutes will not necessarily 
determine its compliance with this part: Provided, That compliance 
shall also satisfy the employment provisions of the Department of 
Labor's regulations implementing section 504 of the Rehabilitation Act 
of 1973 (see 29 CFR 32.2(b)) when the contractor is also subject to 
those requirements.
    (c) Construction--(1) In general. Except as otherwise provided in 
this part, this part does not apply a lesser standard than the 
standards applied under title I of the Americans with Disabilities Act 
(ADA) of 1990, as amended, (42 U.S.C. 12101 et seq.) or the regulations 
issued by the Equal Employment Opportunity Commission pursuant to that 
title (29 CFR part 1630). The Interpretive Guidance on Title I of the 
Americans with Disabilities Act set out as an appendix to 29 CFR part 
1630 issued pursuant to that title may be relied upon for guidance in 
interpreting the parallel non-discrimination provisions of this part.
    (2) Benefits under State worker's compensation laws. Nothing in 
this part alters the standards for determining eligibility for benefits 
under State worker's compensation laws or under

[[Page 77086]]

State and Federal disability benefit programs.
    (3) Relationship to other laws. This part does not invalidate or 
limit the remedies, rights, and procedures under any Federal law or the 
law of any State or political subdivision that provides greater or 
equal protection for the rights of individuals with disabilities as 
compared to the protection afforded by this part. It may be a defense 
to a charge of violation of this part that a challenged action is 
required or necessitated by another Federal law or regulation, or that 
another Federal law or regulation prohibits an action (including the 
provision of a particular reasonable accommodation) that would 
otherwise be required by this part.


Sec.  60-741.2  Definitions.

    For the purpose of this part:
    (a) Act means the Rehabilitation Act of 1973, as amended, 29 U.S.C. 
706 and 793.
    (b) Compliance evaluation means any one or combination of actions 
OFCCP may take to examine a Federal contractor's or subcontractor's 
compliance with one or more of the requirements of section 503 of the 
Rehabilitation Act of 1973.
    (c) Contract means any Government contract or subcontract.
    (d) Contractor means, unless otherwise indicated, a prime 
contractor or subcontractor holding a contract in excess of $10,000.
    (e) Direct threat means a significant risk of substantial harm to 
the health or safety of the individual or others that cannot be 
eliminated or reduced by reasonable accommodation. The determination 
that an individual with a disability poses a direct threat shall be 
based on an individualized assessment of the individual's present 
ability to perform safely the essential functions of the job. This 
assessment shall be based on a reasonable medical judgment that relies 
on the most current medical knowledge and/or on the best available 
objective evidence. In determining whether an individual would pose a 
direct threat, the factors to be considered include:
    (1) The duration of the risk;
    (2) The nature and severity of the potential harm;
    (3) The likelihood that the potential harm will occur; and
    (4) The imminence of the potential harm.
    (f) Director means the Director, Office of Federal Contract 
Compliance Programs of the United States Department of Labor, or his or 
her designee.
    (g) Disability--(1) The term disability means, with respect to an 
individual:
    (i) A physical or mental impairment that substantially limits one 
or more major life activities of such individual;
    (ii) A record of such an impairment; or
    (iii) Being regarded as having such an impairment (as defined in 
paragraph (w) of this section).
    (2) As used in this part, the definition of ``disability'' must be 
construed in favor of broad coverage of individuals, to the maximum 
extent permitted by law. The question of whether an individual meets 
the definition under this part should not demand extensive analysis.
    (3) An impairment that substantially limits one major life activity 
need not limit other major life activities in order to be considered a 
disability.
    (4) An impairment that is episodic or in remission is a disability 
if it would substantially limit a major life activity when active.
    (5) See paragraphs (n), (p), (u), (w), and (aa) of this section, 
respectively, for definitions of ``major life activities,'' ``physical 
or mental impairment,'' ``record of such an impairment,'' ``regarded as 
having such an impairment,'' and ``substantially limits.''
    (6) See Sec.  60-741.3 for exceptions to the definition of 
``disability.''
    (h) Equal opportunity clause means the contract provisions set 
forth in Sec.  60-741.5, ``Equal opportunity clause.''
    (i) Essential functions--(1) In general. The term essential 
functions means fundamental job duties of the employment position the 
individual with a disability holds or desires. The term essential 
functions does not include the marginal functions of the position.
    (2) A job function may be considered essential for any of several 
reasons, including but not limited to the following:
    (i) The function may be essential because the reason the position 
exists is to perform that function;
    (ii) The function may be essential because of the limited number of 
employees available among whom the performance of that job function can 
be distributed; and/or
    (iii) The function may be highly specialized so that the incumbent 
in the position is hired for his or her expertise or ability to perform 
the particular function.
    (3) Evidence of whether a particular function is essential 
includes, but is not limited to:
    (i) The contractor's judgment as to which functions are essential;
    (ii) Written job descriptions prepared before advertising or 
interviewing applicants for the job;
    (iii) The amount of time spent on the job performing the function;
    (iv) The consequences of not requiring the incumbent to perform the 
function;
    (v) The terms of a collective bargaining agreement;
    (vi) The work experience of past incumbents in the job; and/or
    (vii) The current work experience of incumbents in similar jobs.
    (j) Government means the Government of the United States of 
America.
    (k) Government contract means any agreement or modification thereof 
between any contracting agency and any person for the purchase, sale or 
use of personal property or nonpersonal services (including 
construction). The term ``Government contract'' does not include 
agreements in which the parties stand in the relationship of employer 
and employee, and federally assisted contracts.
    (1) Construction, as used in paragraphs (k) and (y)(1) of this 
section, means the construction, rehabilitation, alteration, 
conversion, extension, demolition, or repair of buildings, highways, or 
other changes or improvements to real property, including facilities 
providing utility services. The term also includes the supervision, 
inspection, and other on-site functions incidental to the actual 
construction.
    (2) Contracting agency means any department, agency, establishment, 
or instrumentality of the United States, including any wholly owned 
Government corporation, which enters into contracts.
    (3) Modification means any alteration in the terms and conditions 
of a contract, including supplemental agreements, amendments, and 
extensions.
    (4) Nonpersonal services, as used in paragraphs (k) and (y)(1) of 
this section, includes, but is not limited to, the following: Utility, 
construction, transportation, research, insurance, and fund depository.
    (5) Person, as used in paragraphs (k), (q), (v), (y), and (z) of 
this section, means any natural person, corporation, partnership or 
joint venture, unincorporated association, State or local government, 
and any agency, instrumentality, or subdivision of such a government.
    (6) Personal property, as used in paragraphs (k) and (y)(1) of this 
section, includes supplies and contracts for the use of real property 
(such as lease arrangements), unless the contract for the use of real 
property itself constitutes real property (such as easements).

[[Page 77087]]

    (l) Individual with a disability--See definition of ``disability'' 
in paragraph (g) of this section.
    (m) Linkage agreement means an agreement describing the connection 
between contractors and appropriate recruitment and/or training 
sources. A linkage agreement is to be used by the contractor as a 
source of potential applicants with disabilities, as required in Sec.  
60-741.44(f). The contractor's representative that signs the linkage 
agreement should be the company official responsible for the 
contractor's affirmative action program and/or has hiring authority.
    (n) Major life activities--(1) In general. Major life activities 
include, but are not limited to, caring for oneself, performing manual 
tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, 
reaching, lifting, bending, speaking, breathing, learning, reading, 
concentrating, thinking, communicating, interacting with others, and 
working.
    (2) Major bodily functions. For purposes of paragraph (n)(1) of 
this section, a major life activity also includes the operation of a 
major bodily function, including, but not limited to, functions of the 
immune system, special sense organs and skin, normal cell growth, 
digestive, genitourinary, bowel, bladder, neurological, brain, 
respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, 
musculoskeletal, and reproductive functions. The operation of a major 
bodily function includes the operation of an individual organ within a 
body system.
    (3) In determining other examples of major life activities, the 
term ``major'' shall not be interpreted strictly to create a demanding 
standard for disability. Whether an activity is a ``major life 
activity'' is not determined by reference to whether it is of ``central 
importance to daily life.''
    (o) Mitigating measures--(1) In general. The term mitigating 
measures includes, but is not limited to:
    (i) Medication, medical supplies, equipment, or appliances, low-
vision devices (which do not include ordinary eyeglasses or contact 
lenses), prosthetics including limbs and devices, hearing aids and 
cochlear implants or other implantable hearing devices, mobility 
devices, or oxygen therapy equipment and supplies;
    (ii) Use of assistive technology;
    (iii) Reasonable accommodations or ``auxiliary aids or services'' 
(as defined by 42 U.S.C. 12103(1));
    (iv) Learned behavioral or adaptive neurological modifications; or
    (v) Psychotherapy, behavioral therapy, or physical therapy.
    (2) Ordinary eyeglasses or contact lenses. The term ordinary 
eyeglasses or contact lenses means lenses that are intended to fully 
correct visual acuity or to eliminate refractive error.
    (3) Low-vision devices. The term low-vision devices means devices 
that magnify, enhance, or otherwise augment a visual image, but not 
including ordinary eyeglasses or contact lenses.
    (4) Auxiliary aids and services. The term auxiliary aids and 
services includes--
    (i) Qualified interpreters or other effective methods of making 
aurally delivered materials available to individuals with hearing 
impairments;
    (ii) Qualified readers, taped texts, or other effective methods of 
making visually delivered materials available to individuals with 
visual impairments;
    (iii) Acquisition or modification of equipment or devices; and
    (iv) Other similar services and actions.
    (p) Physical or mental impairment means:
    (1) Any physiological disorder, or condition, cosmetic 
disfigurement, or anatomical loss affecting one or more body systems 
such as neurological, musculoskeletal, special sense organs, 
respiratory (including speech organs), cardiovascular, reproductive, 
digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin, 
and endocrine; or
    (2) Any mental or psychological disorder, such as an intellectual 
disability (formerly termed mental retardation), organic brain 
syndrome, emotional or mental illness, and specific learning 
disabilities.
    (q) Prime contractor means any person holding a contract in excess 
of $10,000, and, for the purposes of subpart D of this part, ``General 
Enforcement and Complaint Procedures,'' includes any person who has 
held a contract subject to the act.
    (r) Qualification standards means the personal and professional 
attributes including the skill, experience, education, physical, 
medical, safety, and other requirements established by the contractor 
as requirements which an individual must meet in order to be eligible 
for the position held or desired.
    (s) Qualified individual means an individual who satisfies the 
requisite skill, experience, education, and other job-related 
requirements of the employment position such individual holds or 
desires, and who, with or without reasonable accommodation, can perform 
the essential functions of such position. See Sec.  60-741.3 for 
exceptions to this definition.
    (t) Reasonable accommodation--(1) In general. The term reasonable 
accommodation means modifications or adjustments:
    (i) To a job application process that enable a qualified applicant 
with a disability to be considered for the position such applicant 
desires; \1\ or
---------------------------------------------------------------------------

    \1\ A contractor's duty to provide a reasonable accommodation 
with respect to applicants with disabilities is not limited to those 
who ultimately demonstrate that they are qualified to perform the 
job in issue. Applicants with disabilities must be provided a 
reasonable accommodation with respect to the application process if 
they are qualified with respect to that process (e.g., if they 
present themselves at the correct location and time to fill out an 
application).
---------------------------------------------------------------------------

    (ii) To the work environment, or to the manner or circumstances 
under which the position held or desired is customarily performed, that 
enable a qualified individual with a disability to perform the 
essential functions of that position; or
    (iii) That enable the contractor's employee with a disability to 
enjoy equal benefits and privileges of employment as are enjoyed by the 
contractor's other similarly situated employees without disabilities.
    (2) Reasonable accommodation may include but is not limited to:
    (i) Making existing facilities used by employees readily accessible 
to and usable by individuals with disabilities; and
    (ii) Job restructuring; part-time or modified work schedules; 
reassignment to a vacant position; acquisition or modifications of 
equipment or devices; appropriate adjustments or modifications of 
examinations, training materials, or policies; the provision of 
qualified readers or interpreters; and other similar accommodations for 
individuals with disabilities.
    (3) To determine the appropriate reasonable accommodation it may be 
necessary for the contractor to initiate an informal, interactive 
process with the qualified individual with a disability in need of the 
accommodation.\2\ This process should identify the precise limitations 
resulting from the disability and potential reasonable accommodations 
that could overcome those limitations. (Appendix A of this part 
provides guidance on a contractor's duty to provide reasonable 
accommodation.)
---------------------------------------------------------------------------

    \2\ Before providing a reasonable accommodation, the contractor 
is strongly encouraged to verify with the individual with a 
disability that the accommodation will effectively meet the 
individual's needs.
---------------------------------------------------------------------------

    (4) Individuals who meet the definition of ``disability'' solely 
under the ``regarded as'' prong of the definition of ``disability'' as 
defined in paragraph (w)(1) of this section are not entitled to receive 
reasonable accommodation.

[[Page 77088]]

    (u) Record of such impairment means has a history of, or has been 
misclassified as having, a mental or physical impairment that 
substantially limits one or more major life activities. An individual 
shall be considered to have a record of a disability if the individual 
has a history of an impairment that substantially limited one or more 
major life activities when compared to most people in the general 
population, or was misclassified as having had such an impairment.
    (v) Recruiting and training agency means any person who refers 
workers to any contractor, or who provides or supervises apprenticeship 
or training for employment by any contractor.
    (w) Regarded as having such an impairment--(1) Except as provided 
in paragraph (w)(4) of this section, an individual is ``regarded as 
having such an impairment'' if the individual is subjected to an action 
prohibited under subpart B (Discrimination Prohibited) of these 
regulations because of an actual or perceived physical or mental 
impairment, whether or not the impairment substantially limits or is 
perceived to substantially limit a major life activity. Prohibited 
actions include but are not limited to refusal to hire, demotion, 
placement on involuntary leave, termination, exclusion for failure to 
meet a qualification standard, harassment, or denial of any other term, 
condition, or privilege of employment.
    (2) Except as provided in paragraph (w)(4) of this section, an 
individual is ``regarded as having such an impairment'' any time a 
contractor takes a prohibited action against the individual because of 
an actual or perceived impairment, even if the contractor asserts, or 
may or does ultimately establish a defense to such action.
    (3) Establishing that an individual is ``regarded as having such an 
impairment'' does not, by itself, establish liability for unlawful 
discrimination in violation of this part. Such liability is established 
only when an individual proves that a contractor discriminated on the 
basis of disability as prohibited by this part.
    (4) Impairments that are transitory and minor. Paragraph (w)(1) of 
this section shall not apply to an impairment that is shown by the 
contractor to be transitory and minor. The contractor must demonstrate 
that the impairment is both ``transitory'' and ``minor.'' Whether the 
impairment at issue is or would be ``transitory and ``minor'' is to be 
determined objectively. The fact that a contractor subjectively 
believed the impairment was transitory and minor is not sufficient to 
defeat an individual's coverage under paragraph (w)(1) of this section.
    (i) An impairment is transitory if it has an actual or expected 
duration of six months or less.
    (ii) [Reserved]
    (x) Secretary means the Secretary of Labor, United States 
Department of Labor, or his or her designee.
    (y) Subcontract means any agreement or arrangement between a 
contractor and any person (in which the parties do not stand in the 
relationship of an employer and an employee):
    (1) For the purchase, sale or use of personal property or 
nonpersonal services (including construction) which, in whole or in 
part, is necessary to the performance of any one or more contracts; or
    (2) Under which any portion of the contractor's obligation under 
any one or more contracts is performed, undertaken, or assumed.
    (z) Subcontractor means any person holding a subcontract in excess 
of $10,000 and, for the purposes of subpart D of this part, ``General 
Enforcement and Complaint Procedures,'' any person who has held a 
subcontract subject to the act.
    (aa) Substantially limits--(1) In general. The term ``substantially 
limits'' shall be construed broadly in favor of expansive coverage, to 
the maximum extent permitted by law. ``Substantially limits'' is not 
meant to be a demanding standard and should not demand extensive 
analysis.
    (i) An impairment is substantially limiting within the meaning of 
this section if it substantially limits the ability of an individual to 
perform a major life activity as compared to most people in the general 
population. An impairment need not prevent, or significantly or 
severely restrict, the individual from performing a major life activity 
in order to be considered ``substantially limiting.'' Nonetheless, not 
every impairment will constitute a disability within the meaning of 
this section.
    (ii) The comparison of an individual's performance of a major life 
activity to the performance of the same major life activity by most 
people in the general population usually will not require scientific, 
medical, or statistical analysis. However, nothing in this section is 
intended to prohibit the presentation of scientific, medical, or 
statistical evidence to make such a comparison where appropriate.
    (iii) In determining whether an individual is substantially limited 
in a major life activity, it may be useful in appropriate cases to 
consider, as compared to most people in the general population, the 
condition under which the individual performs the major life activity; 
the manner in which the individual performs the major life activity; 
and/or the duration of time it takes the individual to perform the 
major life activity, or for which the individual can perform the major 
life activity. This may include consideration of facts such as the 
difficulty, effort, or time required to perform a major life activity; 
pain experienced when performing a major life activity; the length of 
time a major life activity can be performed; and/or the way an 
impairment affects the operation of a major bodily function.
    (2) Non-applicability to the ``regarded as'' prong. Whether an 
individual's impairment substantially limits a major life activity is 
not relevant to a determination of whether the individual is regarded 
as having a disability within the meaning of Sec.  60-741.2(g)(1)(iii).
    (3) Ameliorative effects of mitigating measures. Except as provided 
in paragraph (aa)(3)(i) of this section, the determination of whether 
an impairment substantially limits a major life activity shall be made 
without regard to the ameliorative effects of mitigating measures as 
defined in Sec.  60-741.2(o).
    (i) The ameliorative effects of the mitigating measures of ordinary 
eyeglasses or contact lenses shall be considered when determining 
whether an impairment substantially limits a major life activity. See 
Sec.  60-741.2(o)(2) for a definition of ``ordinary eyeglasses or 
contact lenses.''
    (ii) Non-ameliorative effects of mitigating measures. The non-
ameliorative effects of mitigating measures, such as negative side 
effects of medication or burdens associated with following a particular 
treatment regimen, may be considered when determining whether an 
individual's impairment substantially limits a major life activity.
    (4) In determining whether an individual is substantially limited 
the focus is on how a major life activity is substantially limited, and 
not on the outcomes an individual can achieve. For example, someone 
with a learning disability may achieve a high level of academic 
success, but may nevertheless be substantially limited in the major 
life activity of learning because of the additional time or effort he 
or she must spend to read, write, or learn compared to most people in 
the general population.
    (5) Predictable assessments. The determination of whether an 
impairment substantially limits a major life activity requires an 
individualized

[[Page 77089]]

assessment. However, the principles set forth in this section are 
intended to provide for generous coverage through a framework that is 
predictable, consistent, and workable for all individuals and 
contractors with rights and responsibilities under this part. 
Therefore, the individualized assessment of some types of impairments 
will, in virtually all cases, result in a determination of coverage 
under Sec. Sec.  60-741.2(g)(1)(i) or (ii). Given their inherent 
nature, these types of impairments will, as a factual matter, virtually 
always be found to impose a substantial limitation on a major life 
activity. With respect to these types of impairments, the necessary 
individualized assessment should be particularly simple and 
straightforward.
    (i) Examples of predictable assessments. Applying the principles 
set forth in this section it should easily be concluded that the 
following types of impairments will, at a minimum, substantially limit 
the major life activities indicated: Deafness substantially limits 
hearing; blindness substantially limits seeing; an intellectual 
disability (formerly termed mental retardation) substantially limits 
brain function; partially or completely missing limbs or mobility 
impairments requiring the use of a wheelchair substantially limit 
musculoskeletal function; autism substantially limits brain function; 
cancer substantially limits normal cell growth; cerebral palsy 
substantially limits brain function; diabetes substantially limits 
endocrine function; epilepsy substantially limits neurological 
function; Human Immunodeficiency Virus (HIV) infection substantially 
limits immune function; multiple sclerosis (MS) substantially limits 
neurological function; muscular dystrophy substantially limits 
neurological function; and major depressive disorder, bipolar disorder, 
post-traumatic stress disorder (PTSD), obsessive compulsive disorder, 
and schizophrenia substantially limit brain function. The types of 
impairments described in this section may also substantially limit 
additional major life activities not explicitly listed above.
    (ii) [Reserved]
    (bb) Undue hardship--(1) In general. Undue hardship means, with 
respect to the provision of an accommodation, significant difficulty or 
expense incurred by the contractor, when considered in light of the 
factors set forth in paragraph (bb)(2) of this section.
    (2) Factors to be considered. In determining whether an 
accommodation would impose an undue hardship on the contractor, factors 
to be considered include:
    (i) The nature and net cost of the accommodation needed, taking 
into consideration the availability of tax credits and deductions, and/
or outside funding;
    (ii) The overall financial resources of the facility or facilities 
involved in the provision of the reasonable accommodation, the number 
of persons employed at such facility, and the effect on expenses and 
resources;
    (iii) The overall financial resources of the contractor, the 
overall size of the business of the contractor with respect to the 
number of its employees, and the number, type and location of its 
facilities;
    (iv) The type of operation or operations of the contractor, 
including the composition, structure and functions of the work force of 
such contractor, and the geographic separateness and administrative or 
fiscal relationship of the facility or facilities in question to the 
contractor; and
    (v) The impact of the accommodation upon the operation of the 
facility, including the impact on the ability of other employees to 
perform their duties and the impact on the facility's ability to 
conduct business.
    (cc) United States, as used herein, shall include the several 
States, the District of Columbia, the Virgin Islands, the Commonwealth 
of Puerto Rico, Guam, American Samoa, the Commonwealth of the Northern 
Mariana Islands, and Wake Island.


Sec.  60-741.3  Exceptions to the definitions of ``disability'' and 
``qualified individual.''

    (a) Current illegal use of drugs--(1) In general. The terms 
``disability'' and ``qualified individual'' do not include individuals 
currently engaging in the illegal use of drugs, when the contractor 
acts on the basis of such use.
    (2) ``Drug'' defined. The term drug means a controlled substance, 
as defined in schedules I through V of Section 202 of the Controlled 
Substances Act (21 U.S.C. 812).
    (3) ``Illegal use of drugs'' defined. The term illegal use of drugs 
means the use of drugs, the possession or distribution of which is 
unlawful under the Controlled Substances Act, as updated pursuant to 
that act. Such term does not include the use of a drug taken under 
supervision by a licensed health care professional, or other uses 
authorized by the Controlled Substances Act or other provisions of 
Federal law.
    (4) Construction. (i) Nothing in paragraph (a)(1) of this section 
shall be construed to exclude from the definition of disability or 
qualified individual an individual who:
    (A) Has successfully completed a supervised drug rehabilitation 
program and is no longer engaging in the illegal use of drugs, or has 
otherwise been rehabilitated successfully and is no longer engaging in 
the illegal use of drugs;
    (B) Is participating in a supervised rehabilitation program and is 
no longer engaging in such use; or
    (C) Is erroneously regarded as engaging in such use, but is not 
engaging in such use.
    (ii) In order to be protected by section 503 and this part, an 
individual described in paragraph (a)(4)(i) of this section must, as 
appropriate, satisfy the requirements of the definition of disability 
and qualified individual.
    (5) Drug testing. It shall not be a violation of this part for the 
contractor to adopt or administer reasonable policies or procedures, 
including but not limited to drug testing, designed to ensure that an 
individual described in paragraphs (a)(4)(i)(A) and (B) of this section 
is no longer engaging in the illegal use of drugs. (See Sec.  60-
741.24(b)(1).)
    (b) Alcoholics--(1) In general. The terms disability and qualified 
individual do not include an individual who is an alcoholic whose 
current use of alcohol prevents such individual from performing the 
essential functions of the employment position such individual holds or 
desires or whose employment, by reason of such current alcohol abuse, 
would constitute a direct threat to property or to the health or safety 
of the individual or others.
    (2) Duty to provide reasonable accommodation. Nothing in paragraph 
(b)(1) of this section shall relieve the contractor of its obligation 
to provide a reasonable accommodation for an individual described in 
paragraph (b)(1) of this section when such an accommodation will enable 
the individual to perform the essential functions of the employment 
position such individual holds or desire, or when the accommodation 
will eliminate or reduce the direct threat to the health or safety of 
the individual or others posed by such individual, provided that such 
individual satisfies the requisite skill, experience, education, and 
other job-related requirements of such position.
    (c) Contagious disease or infection--(1) In general. The terms 
disability and qualified individual do not include an individual who 
has a currently contagious disease or infection and who, by reason of 
such disease or infection, would constitute a direct threat to the 
health or safety of the individual or others or who, by reason

[[Page 77090]]

of the currently contagious disease or infection, is unable to perform 
the essential functions of the employment position such individual 
holds or desires.
    (2) Duty to provide reasonable accommodation. Nothing in paragraph 
(c)(1) of this section shall relieve the contractor of its obligation 
to provide a reasonable accommodation for an individual described in 
paragraph (c)(1) of this section when such an accommodation will enable 
the individual to perform the essential functions of the employment 
position such individual holds or desires, or when the accommodation 
will eliminate or reduce the direct threat to the health or safety of 
the individual or others posed by such individual, provided that such 
individual satisfies the requisite skill, experience, education, and 
other job-related requirements of such position.
    (d) Homosexuality and bisexuality. Homosexuality and bisexuality 
are not impairments and so are not disabilities as defined in this 
part.
    (e) Other conditions. The term disability does not include:
    (1) Transvestism, transsexualism, pedophilia, exhibitionism, 
voyeurism, gender identity disorders not resulting from physical 
impairments, or other sexual behavior disorders;
    (2) Compulsive gambling, kleptomania, or pyromania; or
    (3) Psychoactive substance use disorders resulting from current 
illegal use of drugs.


Sec.  60-741.4  Coverage and waivers.

    (a) Coverage--(1) Contracts and subcontracts in excess of $10,000. 
Contracts and subcontracts in excess of $10,000 are covered by this 
part. No contracting agency or contractor shall procure supplies or 
services in less than usual quantities to avoid the applicability of 
the equal opportunity clause.
    (2) Contracts and subcontracts for indefinite quantities. With 
respect to indefinite delivery-type contracts and subcontracts 
(including, but not limited to, open end contracts, requirement-type 
contracts, Federal Supply Schedule contracts, ``call-type'' contracts, 
and purchase notice agreements), the equal opportunity clause shall be 
included unless the contracting agency has reason to believe that the 
amount to be ordered in any year under such contract will not be in 
excess of $10,000. The applicability of the equal opportunity clause 
shall be determined at the time of award for the first year and 
annually thereafter for succeeding years, if any. Notwithstanding the 
above, the equal opportunity clause shall be applied to such contract 
whenever the amount of a single order exceeds $10,000. Once the equal 
opportunity clause is determined to be applicable, the contract shall 
continue to be subject to such clause for its duration, regardless of 
the amounts ordered, or reasonably expected to be ordered in any year.
    (3) Employment activities within the United States. This part 
applies only to employment activities within the United States and not 
to employment activities abroad. The term employment activities within 
the United States includes actual employment within the United States, 
and decisions of the contractor made within the United States, 
pertaining to the contractor's applicants and employees who are within 
the United States, regarding employment opportunities abroad (such as 
recruiting and hiring within the United States for employment abroad, 
or transfer of persons employed in the United States to contractor 
establishments abroad).
    (4) Contracts with State or local governments. The requirements of 
the equal opportunity clause in any contract or subcontract with a 
State or local government (or any agency, instrumentality or 
subdivision thereof) shall not be applicable to any agency, 
instrumentality or subdivision of such government which does not 
participate in work on or under the contract or subcontract.
    (b) Waivers--(1) Specific contracts and classes of contracts. The 
Director may waive the application to any contract of the equal 
opportunity clause in whole or part when he or she deems that special 
circumstances in the national interest so require. The Director may 
also grant such waivers to groups or categories of contracts: where it 
is in the national interest; where it is found impracticable to act 
upon each request individually; and where such waiver will 
substantially contribute to convenience in administration of the act. 
When a waiver has been granted for any class of contracts, the Director 
may withdraw the waiver for a specific contract or group of contracts 
to be awarded, when in his or her judgment such action is necessary or 
appropriate to achieve the purposes of the act. The withdrawal shall 
not apply to contracts awarded prior to the withdrawal, except that in 
procurements entered into by formal advertising, or the various forms 
of restricted formal advertising, such withdrawal shall not apply 
unless the withdrawal is made more than 10 calendar days before the 
date set for the opening of the bids.
    (2) National security. Any requirement set forth in the regulations 
of this part shall not apply to any contract whenever the head of the 
contracting agency determines that such contract is essential to the 
national security and that its award without complying with such 
requirements is necessary to the national security. Upon making such a 
determination, the head of the contracting agency will notify the 
Director in writing within 30 days.
    (3) Facilities not connected with contracts. (i) Upon the written 
request of the contractor, the Director may waive the requirements of 
the equal opportunity clause with respect to any of a contractor's 
facilities if the Director finds that the contractor has demonstrated 
that:
    (A) The facility is in all respects separate and distinct from 
activities of the contractor related to the performance of a contract; 
and
    (B) Such a waiver will not interfere with or impede the 
effectuation of the act.
    (ii) The Director's findings as to whether the facility is separate 
and distinct in all respects from activities of the contractor related 
to the performance of a contract shall include consideration of the 
following factors:
    (A) Whether any work at the facility directly or indirectly 
supports or contributes to the satisfaction of the work performed on a 
Government contract;
    (B) The extent to which the facility benefits, directly or 
indirectly, from a Government contract;
    (C) Whether any costs associated with operating the facility are 
charged to a Government contract;
    (D) Whether working at the facility is a prerequisite for 
advancement in job responsibility or pay, and the extent to which 
employees at facilities connected to a Government contract are 
recruited for positions at the facility;
    (E) Whether employees or applicants for employment at the facility 
may perform work related to a Government contract at another facility, 
and the extent to which employees at the facility are interchangeable 
with employees at facilities connected to a Government contract; and
    (F) Such other factors that the Director deems are necessary or 
appropriate for considering whether the facility is in all respects 
separate and distinct from the activities of the contractor related to 
the performance of a contract.
    (iii) The Director's findings as to whether granting a waiver will 
interfere with or impede the effectuation of the act shall include 
consideration of the following factors:

[[Page 77091]]

    (A) Whether the waiver will be used as a subterfuge to circumvent 
the contractor's obligations under the act;
    (B) The contractor's compliance with the act or any other Federal, 
State or local law requiring equal opportunity for disabled persons;
    (C) The impact of granting the waiver on OFCCP enforcement efforts; 
and
    (D) Such other factors that the Director deems are necessary or 
appropriate for considering whether the granting of the waiver would 
interfere with or impede the effectuation of the act.
    (iv) A contractor granted a waiver under paragraph (b)(3) of this 
section shall:
    (A) Promptly inform the Director of any changed circumstances not 
reflected in the contractor's waiver request; and
    (B) Permit the Director access during normal business hours to the 
contractor's places of business for the purpose of investigating 
whether the facility granted a waiver meets the standards and 
requirements of paragraph (b)(3) of this section, and for inspecting 
and copying such books and accounts and records, including computerized 
records, and other material as may be relevant to the matter under 
investigation.
    (v)(A) A waiver granted under paragraph (b)(3) of this section 
shall terminate on one of the following dates, whichever is earliest:
    (1) Two years after the date the waiver was granted.
    (2) When the facility performs any work that directly supports or 
contributes to the satisfaction of the work performed on a Government 
contract.
    (3) When the Director determines, based on information provided by 
the contractor under this section or upon any other relevant 
information, that the facility does not meet the requirements of 
paragraph (b)(3) of this section.
    (B) When a waiver terminates in accordance with paragraph 
(b)(3)(v)(A) of this section the contractor shall ensure that the 
facility complies with this part on the date of termination, except 
that compliance with Sec. Sec.  60-741.40 through 60-741.45, if 
applicable, must be attained within 120 days of such termination.
    (vi) False or fraudulent statements or representations made by a 
contractor under paragraph (b)(3) of this section are prohibited and 
may subject the contractor to sanctions and penalties under this part 
and criminal prosecution under 18 U.S.C. 1001.


Sec.  60-741.5  Equal opportunity clause.

    (a) Government contracts. Each contracting agency and each 
contractor shall include the following equal opportunity clause in each 
of its covered Government contracts or subcontracts (and modifications, 
renewals, or extensions thereof if not included in the original 
contract):

EQUAL OPPORTUNITY FOR WORKERS WITH DISABILITIES

    1. The contractor will not discriminate against any employee or 
applicant for employment because of physical or mental disability in 
regard to any position for which the employee or applicant for 
employment is qualified. The contractor agrees to take affirmative 
action to employ and advance in employment individuals with 
disabilities, and to treat qualified individuals without 
discrimination on the basis of their physical or mental disability 
in all employment practices, including the following:
    i. Recruitment, advertising, and job application procedures;
    ii. Hiring, upgrading, promotion, award of tenure, demotion, 
transfer, layoff, termination, right of return from layoff and 
rehiring;
    iii. Rates of pay or any other form of compensation and changes 
in compensation;
    iv. Job assignments, job classifications, organizational 
structures, position descriptions, lines of progression, and 
seniority lists;
    v. Leaves of absence, sick leave, or any other leave;
    vi. Fringe benefits available by virtue of employment, whether 
or not administered by the contractor;
    vii. Selection and financial support for training, including 
apprenticeship, professional meetings, conferences, and other 
related activities, and selection for leaves of absence to pursue 
training;
    viii. Activities sponsored by the contractor including social or 
recreational programs; and
    ix. Any other term, condition, or privilege of employment.
    2. The contractor agrees to comply with the rules, regulations, 
and relevant orders of the Secretary of Labor issued pursuant to the 
act.
    3. In the event of the contractor's noncompliance with the 
requirements of this clause, actions for noncompliance may be taken 
in accordance with the rules, regulations, and relevant orders of 
the Secretary of Labor issued pursuant to the act.
    4. The contractor agrees to post in conspicuous places, 
available to employees and applicants for employment, notices in a 
form to be prescribed by the Director, Office of Federal Contract 
Compliance Programs, provided by or through the contracting officer. 
Such notices shall state the rights of applicants and employees as 
well as the contractor's obligation under the law to take 
affirmative action to employ and advance in employment qualified 
employees and applicants with disabilities. The contractor must 
ensure that applicants or employees with disabilities are provided 
the notice in a form that is accessible and understandable to the 
individual applicant or employee (e.g., providing Braille or large 
print versions of the notice, or posting a copy of the notice at a 
lower height for easy viewing by a person using a wheelchair). With 
respect to employees who do not work at a physical location of the 
contractor, a contractor will satisfy its posting obligations by 
posting such notices in an electronic format, provided that the 
contractor provides computers that can access the electronic posting 
to such employees, or the contractor has actual knowledge that such 
employees otherwise are able to access the electronically posted 
notices. Electronic notices for employees must be posted in a 
conspicuous location and format on the company's intranet or sent by 
electronic mail to employees. An electronic posting must be used by 
the contractor to notify job applicants of their rights if the 
contractor utilizes an electronic application process. Such 
electronic applicant notice must be conspicuously stored with, or as 
part of, the electronic application.
    5. The contractor will notify each labor organization or 
representative of workers with which it has a collective bargaining 
agreement or other contract understanding, that the contractor is 
bound by the terms of section 503 of the Rehabilitation Act of 1973, 
as amended, and is committed to take affirmative action to employ 
and advance in employment, and shall not discriminate against, 
individuals with physical or mental disabilities.
    6. The contractor will include the provisions of this clause in 
every subcontract or purchase order in excess of $10,000, unless 
exempted by the rules, regulations, or orders of the Secretary 
issued pursuant to section 503 of the act, as amended, so that such 
provisions will be binding upon each subcontractor or vendor. The 
contractor will take such action with respect to any subcontract or 
purchase order as the Director, Office of Federal Contract 
Compliance Programs may direct to enforce such provisions, including 
action for noncompliance.
    7. The contractor must, in all solicitations or advertisements 
for employees placed by or on behalf of the contractor, state that 
all qualified applicants will receive consideration for employment 
and will not be discriminated against on the basis of disability.
[End of Clause]
    (b) Subcontracts. Each contractor shall include the equal 
opportunity clause in each of its subcontracts subject to this part.
    (c) Adaption of language. Such necessary changes in language may be 
made to the equal opportunity clause as shall be appropriate to 
identify properly the parties and their undertakings.
    (d) Inclusion of the equal opportunity clause in the contract. It 
shall be necessary to include the equal opportunity clause verbatim in 
the contract.
    (e) Incorporation by operation of the act. By operation of the act, 
the equal opportunity clause shall be considered to be a part of every 
contract and subcontract required by the act and the

[[Page 77092]]

regulations in this part to include such a clause, whether or not it is 
physically incorporated in such contract and whether or not there is a 
written contract between the agency and the contractor.
    (f) Duties of contracting agencies. Each contracting agency shall 
cooperate with the Director and the Secretary in the performance of 
their responsibilities under the act. Such cooperation shall include 
insuring that the equal opportunity clause is included in all covered 
Government contracts and that contractors are fully informed of their 
obligations under the act and this part, providing the Director with 
any information which comes to the agency's attention that a contractor 
is not in compliance with the act or this part, responding to requests 
for information from the Director, and taking such actions for 
noncompliance as are set forth in Sec.  60-741.66 as may be ordered by 
the Secretary or the Director.

Subpart B--Discrimination Prohibited


Sec.  60-741.20  Covered employment activities.

    The prohibition against discrimination in this part applies to the 
following employment activities:
    (a) Recruitment, advertising, and job application procedures;
    (b) Hiring, upgrading, promotion, award of tenure, demotion, 
transfer, layoff, termination, right of return from layoff, and 
rehiring;
    (c) Rates of pay or any other form of compensation and changes in 
compensation;
    (d) Job assignments, job classifications, organizational 
structures, position descriptions, lines of progression, and seniority 
lists;
    (e) Leaves of absence, sick leave, or any other leave;
    (f) Fringe benefits available by virtue of employment, whether or 
not administered by the contractor;
    (g) Selection and financial support for training, including 
apprenticeships, professional meetings, conferences and other related 
activities, and selection for leaves of absence to pursue training;
    (h) Activities sponsored by the contractor including social and 
recreational programs; and
    (i) Any other term, condition, or privilege of employment.


Sec.  60-741.21  Prohibitions.

    (a) The term discrimination includes, but is not limited to, the 
acts described in this section and Sec.  60-741.23.
    (1) Disparate treatment. It is unlawful for the contractor to deny 
an employment opportunity or benefit or otherwise to discriminate 
against a qualified individual on the basis of disability.
    (2) Limiting, segregating and classifying. Unless otherwise 
permitted by this part, it is unlawful for the contractor to limit, 
segregate, or classify a job applicant or employee in a way that 
adversely affects his or her employment opportunities or status on the 
basis of disability. For example, the contractor may not segregate 
employees into separate work areas or into separate lines of 
advancement on the basis of disability.
    (3) Contractual or other arrangements--(i) In general. It is 
unlawful for the contractor to participate in a contractual or other 
arrangement or relationship that has the effect of subjecting the 
contractor's own qualified applicant or employee with a disability to 
the discrimination prohibited by this part.
    (ii) Contractual or other arrangement defined. The phrase 
contractual or other arrangement or relationship includes, but is not 
limited to, a relationship with: An employment or referral agency; a 
labor organization, including a collective bargaining agreement; an 
organization providing fringe benefits to an employee of the 
contractor; or an organization providing training and apprenticeship 
programs.
    (iii) Application. This paragraph (a)(3) applies to the contractor, 
with respect to its own applicants or employees, whether the contractor 
offered the contract or initiated the relationship, or whether the 
contractor accepted the contract or acceded to the relationship. The 
contractor is not liable for the actions of the other party or parties 
to the contract which only affect that other party's employees or 
applicants.
    (4) Standards, criteria or methods of administration. It is 
unlawful for the contractor to use standards, criteria, or methods of 
administration, that are not job-related and consistent with business 
necessity, and that:
    (i) Have the effect of discriminating on the basis of disability; 
or
    (ii) Perpetuate the discrimination of others who are subject to 
common administrative control.
    (5) Relationship or association with an individual with a 
disability. It is unlawful for the contractor to exclude or deny equal 
jobs or benefits to, or otherwise discriminate against, a qualified 
individual because of the known disability of an individual with whom 
the qualified individual is known to have a family, business, social, 
or other relationship or association.
    (6) Not making reasonable accommodation. (i) It is unlawful for the 
contractor to fail to make reasonable accommodation to the known 
physical or mental limitations of an otherwise qualified applicant or 
employee with a disability as defined in Sec. Sec.  60-741.2(g)(1)(i) 
or (ii), unless such contractor can demonstrate that the accommodation 
would impose an undue hardship on the operation of its business.
    (ii) It is unlawful for the contractor to deny employment 
opportunities to an otherwise qualified job applicant or employee with 
a disability based on the need of such contractor to make reasonable 
accommodation to such an individual's physical or mental impairments.
    (iii) A qualified individual with a disability is not required to 
accept an accommodation, aid, service, opportunity, or benefit which 
such qualified individual chooses not to accept. However, if such 
individual rejects a reasonable accommodation, aid, service, 
opportunity or benefit that is necessary to enable the individual to 
perform the essential functions of the position held or desired, and 
cannot, as a result of that rejection, perform the essential functions 
of the position, the individual will not be considered a qualified 
individual with a disability.
    (iv) A contractor is not required to provide reasonable 
accommodation to an individual who satisfies only the ``regarded as 
having such an impairment'' prong of the definition of ``disability,'' 
as defined in Sec.  60-741.2(w)(1).
    (7) Qualification standards, tests and other selection criteria--
(i) In general. It is unlawful for the contractor to use qualification 
standards, employment tests, or other selection criteria that screen 
out or tend to screen out an individual with a disability or a class of 
individuals with disabilities, on the basis of disability, unless the 
standard, test, or other selection criterion, as used by the 
contractor, is shown to be job-related for the position in question and 
is consistent with business necessity. Selection criteria that concern 
an essential function may not be used to exclude an individual with a 
disability if that individual could satisfy the criteria with provision 
of a reasonable accommodation. Selection criteria that exclude or tend 
to exclude an individual with a disability or a class of individuals 
with disabilities on the basis of disability but concern only marginal 
functions of the job would not be consistent with business necessity. 
The contractor may not refuse to hire an applicant with a disability 
because the applicant's disability prevents him or her from performing 
marginal functions.

[[Page 77093]]

    (ii) Qualification standards and tests related to uncorrected 
vision. It is unlawful for the contractor to use qualification 
standards, employment tests, or other selection criteria based on an 
individual's uncorrected vision unless the standard, test, or other 
selection criteria, as used by the contractor, is shown to be job-
related for the position in question and consistent with business 
necessity. An individual challenging a contractor's application of a 
qualification standard, test, or other criterion based on uncorrected 
vision need not be an individual with a disability, but must be 
adversely affected by the application of the standard, test, or other 
criterion.
    (iii) The Uniform Guidelines on Employee Selection Procedures, 41 
CFR part 60-3, do not apply to the Rehabilitation Act and are similarly 
inapplicable to this part.
    (8) Administration of tests. It is unlawful for the contractor to 
fail to select and administer tests concerning employment in the most 
effective manner to ensure that, when a test is administered to a job 
applicant or employee who has a disability that impairs sensory, 
manual, or speaking skills, the test results accurately reflect the 
skills, aptitude, or whatever other factor of the applicant or employee 
that the test purports to measure, rather than reflecting the impaired 
sensory, manual, or speaking skills of such employee or applicant, 
except where such skills are the factors that the test purports to 
measure.
    (9) Compensation. In offering employment or promotions to 
individuals with disabilities, it is unlawful for the contractor to 
reduce the amount of compensation offered because of any income based 
upon a disability-related pension or other disability-related benefit 
the applicant or employee receives from another source. Nor may the 
contractor reduce the amount of compensation offered to an individual 
with a disability because of the actual or anticipated cost of a 
reasonable accommodation the individual needs or may request.
    (b) Claims of No Disability. Nothing in this part shall provide the 
basis for a claim that an individual without a disability was subject 
to discrimination because of the lack of disability, or because an 
individual with a disability was granted an accommodation that was 
denied to an individual without a disability.


Sec.  60-741.22  Direct threat defense.

    The contractor may use as a qualification standard the requirement 
that an individual be able to perform the essential functions of the 
position held or desired without posing a direct threat to the health 
or safety of the individual or others in the workplace. (See Sec.  60-
741.2(e) defining direct threat.)


Sec.  60-741.23  Medical examinations and inquiries.

    (a) Prohibited medical examinations or inquiries. Except as stated 
in paragraphs (b) and (c) of this section, it is unlawful for the 
contractor to require a medical examination of an applicant or employee 
or to make inquiries as to whether an applicant or employee is an 
individual with a disability or as to the nature or severity of such 
disability.
    (b) Permitted medical examinations and inquiries--(1) Acceptable 
pre-employment inquiry. The contractor may make pre-employment 
inquiries into the ability of an applicant to perform job-related 
functions, and/or may ask an applicant to describe or to demonstrate 
how, with or without reasonable accommodation, the applicant will be 
able to perform job-related functions.
    (2) Employment entrance examination. The contractor may require a 
medical examination (and/or inquiry) after making an offer of 
employment to a job applicant and before the applicant begins his or 
her employment duties, and may condition an offer of employment on the 
results of such examination (and/or inquiry), if all entering employees 
in the same job category are subjected to such an examination (and/or 
inquiry) regardless of disability.
    (3) Examination of employees. The contractor may require a medical 
examination (and/or inquiry) of an employee that is job-related and 
consistent with business necessity. The contractor may make inquiries 
into the ability of an employee to perform job-related functions.
    (4) Other acceptable examinations and inquiries. The contractor may 
conduct voluntary medical examinations and activities, including 
voluntary medical histories, which are part of an employee health 
program available to employees at the work site. These medical 
examinations and activities do not have to be job-related and 
consistent with business necessity.
    (5) Medical examinations conducted in accordance with paragraph 
(b)(2) of this section do not have to be job-related and consistent 
with business necessity. However, if certain criteria are used to 
screen out an applicant or applicants or an employee or employees with 
disabilities as a result of such examinations or inquiries, the 
contractor must demonstrate that the exclusionary criteria are job-
related and consistent with business necessity, and that performance of 
the essential job functions cannot be accomplished with reasonable 
accommodations as required in this part.
    (c) Invitation to self-identify. The contractor shall invite the 
applicant to self-identify as an individual with a disability as 
specified in Sec.  60-741.42.
    (d) Confidentiality and use of medical information. (1) Information 
obtained under this section regarding the medical condition or history 
of any applicant or employee shall be collected and maintained on 
separate forms and in separate medical files and treated as a 
confidential medical record, except that:
    (i) Supervisors and managers may be informed regarding necessary 
restrictions on the work or duties of the applicant or employee and 
necessary accommodations;
    (ii) First aid and safety personnel may be informed, when 
appropriate, if the disability might require emergency treatment; and
    (iii) Government officials engaged in enforcing the laws 
administered by OFCCP, including this part, or enforcing the Americans 
with Disabilities Act, as amended, shall be provided relevant 
information on request.
    (2) Information obtained under this section regarding the medical 
condition or history of any applicant or employee shall not be used for 
any purpose inconsistent with this part.


Sec.  60-741.24  Drugs and alcohol.

    (a) Specific activities permitted. The contractor:
    (1) May prohibit the illegal use of drugs and the use of alcohol at 
the workplace by all employees;
    (2) May require that employees not be under the influence of 
alcohol or be engaging in the illegal use of drugs at the workplace;
    (3) May require that all employees behave in conformance with the 
requirements established under the Drug-Free Workplace Act of 1988 (41 
U.S.C. 701 et seq.);
    (4) May hold an employee who engages in the illegal use of drugs or 
who is an alcoholic to the same qualification standards for employment 
or job performance and behavior to which the contractor holds its other 
employees, even if any unsatisfactory performance or behavior is 
related to the employee's drug use or alcoholism;
    (5) May require that its employees employed in an industry subject 
to such regulations comply with the standards established in the 
regulations (if any) of the Departments of Defense and Transportation, 
and of the Nuclear

[[Page 77094]]

Regulatory Commission, and other Federal agencies regarding alcohol and 
the illegal use of drugs; and
    (6) May require that employees employed in sensitive positions 
comply with the regulations (if any) of the Departments of Defense and 
Transportation, and of the Nuclear Regulatory Commission, and other 
Federal agencies that apply to employment in sensitive positions 
subject to such regulations.
    (b) Drug testing--(1) General policy. For purposes of this part, a 
test to determine the illegal use of drugs is not considered a medical 
examination. Thus, the administration of such drug tests by the 
contractor to its job applicants or employees is not a violation of 
Sec.  60-741.23. Nothing in this part shall be construed to encourage, 
prohibit, or authorize the contractor to conduct drug tests of job 
applicants or employees to determine the illegal use of drugs or to 
make employment decisions based on such test results.
    (2) Transportation employees. Nothing in this part shall be 
construed to encourage, prohibit, or authorize the otherwise lawful 
exercise by contractors subject to the jurisdiction of the Department 
of Transportation of authority to test employees in, and applicants 
for, positions involving safety-sensitive duties for the illegal use of 
drugs or for on-duty impairment by alcohol; and remove from safety-
sensitive positions persons who test positive for illegal use of drugs 
or on-duty impairment by alcohol pursuant to paragraph (b)(1) of this 
section.
    (3) Any information regarding the medical condition or history of 
any employee or applicant obtained from a test to determine the illegal 
use of drugs, except information regarding the illegal use of drugs, is 
subject to the requirements of Sec. Sec.  60-741.23(b)(5) and (c).


Sec.  60-741.25  Health insurance, life insurance, and other benefit 
plans.

    (a) An insurer, hospital, or medical service company, health 
maintenance organization, or any agent or entity that administers 
benefit plans, or similar organizations may underwrite risks, classify 
risks, or administer such risks that are based on or not inconsistent 
with State law.
    (b) The contractor may establish, sponsor, observe, or administer 
the terms of a bona fide benefit plan that are based on underwriting 
risks, classifying risks, or administering such risks that are based on 
or not inconsistent with State law.
    (c) The contractor may establish, sponsor, observe, or administer 
the terms of a bona fide benefit plan that is not subject to State laws 
that regulate insurance.
    (d) The contractor may not deny an individual with a disability 
equal access to insurance or subject an individual with a disability to 
different terms or conditions of insurance based on disability alone, 
if the disability does not pose increased risks.
    (e) The activities described in paragraphs (a), (b), and (c) of 
this section are permitted unless these activities are used as a 
subterfuge to evade the purposes of this part.

Subpart C--Affirmative Action Program


Sec.  60-741.40  General purpose and applicability of the affirmative 
action program requirement.

    (a) General purpose. An affirmative action program is a management 
tool designed to ensure equal employment opportunity and foster 
employment opportunities for individuals with disabilities. An 
affirmative action program institutionalizes the contractor's 
commitment to equality in every aspect of employment and is more than a 
paperwork exercise. Rather, an affirmative action program is dynamic in 
nature and includes measurable objectives, quantitative analyses, and 
internal auditing and reporting systems that measure the contractor's 
progress toward achieving equal employment opportunity for individuals 
with disabilities.
    (b) Applicability of the affirmative action program. (1) The 
requirements of this subpart apply to every Government contractor that 
has 50 or more employees and a contract of $50,000 or more.
    (2) Contractors described in paragraph (b)(1) of this section 
shall, within 120 days of the commencement of a contract, prepare and 
maintain an affirmative action program at each establishment. The 
affirmative action program shall set forth the contractor's policies 
and procedures in accordance with this part. This program may be 
integrated into or kept separate from other affirmative action 
programs.
    (3) The affirmative action program shall be reviewed and updated 
annually by the official designated by the contractor pursuant to Sec.  
60-741.44(i).
    (c) Submission of program to OFCCP. The contractor shall submit the 
affirmative action program within 30 days of a request from OFCCP, 
unless the request provides for a different time. The contractor also 
shall make the affirmative action program promptly available on-site 
upon OFCCP's request.


Sec.  60-741.41  Availability of affirmative action program.

    The full affirmative action program shall be available to any 
employee or applicant for employment for inspection upon request. The 
location and hours during which the program may be obtained shall be 
posted at each establishment. In the event that the contractor has 
employees who do not work at a physical establishment, the contractor 
shall inform such employees about the availability of the affirmative 
action program by other means.


Sec.  60-741.42  Invitation to self-identify.

    (a) Pre-offer. (1) As part of the contractor's affirmative action 
obligation, the contractor shall invite applicants to inform the 
contractor whether the applicant believes that he or she is an 
individual with a disability as defined in Sec.  60-741.2(g)(i) or (ii) 
of this part. This invitation shall be provided to each applicant when 
the applicant applies or is considered for employment, whichever comes 
first. The invitation may be included in the application materials for 
a position, but must be separable or detachable from the application.
    (2) The contractor shall invite an applicant to self-identify as 
required in paragraph (a) of this section using the language and manner 
prescribed by the Director and published on the OFCCP Web site.
    (b) Post-offer. (1) At any time after the offer of employment, but 
before the applicant begins his or her job duties, the contractor shall 
invite the applicant to inform the contractor whether the applicant 
believes that he or she is an individual with a disability as defined 
in Sec.  60-741.2(g)(i) or (ii) of this part.
    (2) The contractor shall invite an applicant to self-identify as 
required in paragraph (b) of this section using the language and manner 
prescribed by the Director and published on the OFCCP Web site.
    (c) Survey of employees. The contractor shall invite each of its 
employees to inform the contractor, in an anonymous manner, whether he 
or she believes themselves to be an individual with a disability as 
defined in Sec.  60-741.2(g)(i) or (ii) of this part. This survey shall 
be conducted annually, using the language and manner prescribed by the 
Director and published on the OFCCP Web site.
    (d) The contractor may not compel or coerce an individual to self-
identify as an individual with a disability.
    (e) The contractor shall keep all information on self-
identification confidential, and shall maintain it in a data analysis 
file (rather than in the

[[Page 77095]]

medical files of individual employees) in accordance with Sec.  60-
741.23(d). The contractor shall provide self-identification information 
to OFCCP upon request. Self-identification information may be used only 
in accordance with this part.
    (f) Nothing in this section shall relieve the contractor of its 
obligation to take affirmative action with respect to those applicants 
or employees of whose disability the contractor has knowledge.
    (g) Nothing in this section shall relieve the contractor from 
liability for discrimination in violation of section 503 or this part.


Sec.  60-741.43  Affirmative action policy.

    Under the affirmative action obligations imposed by the act, 
contractors shall not discriminate because of physical or mental 
disability and shall take affirmative action to employ and advance in 
employment qualified individuals with disabilities at all levels of 
employment, including the executive level. Such action shall apply to 
all employment activities set forth in Sec.  60-741.20.


Sec.  60-741.44  Required contents of affirmative action programs.

    Acceptable affirmative action programs shall contain, but not 
necessarily be limited to the following elements:
    (a) Policy statement. The contractor shall include an equal 
opportunity policy statement in its affirmative action program, and 
shall post the policy statement on company bulletin boards. The 
contractor must ensure that applicants and employees with disabilities 
are provided the notice in a form that is accessible and understandable 
to the individual with a disability (e.g., providing Braille or large 
print versions of the notice, or posting a copy of the notice at a 
lower height for easy viewing by a person using a wheelchair). The 
policy statement shall indicate the chief executive officer's support 
for the contractor's affirmative action program, provide for an audit 
and reporting system (see paragraph (h) of this section) and assign 
overall responsibility for the implementation of affirmative action 
activities required under this part (see paragraph (i) of this 
section). Additionally, the policy shall state, among other things that 
the contractor will: Recruit, hire, train, and promote persons in all 
job titles, and ensure that all other personnel actions are 
administered without regard to disability; and ensure that all 
employment decisions are based only on valid job requirements. The 
policy shall state that employees and applicants shall not be subjected 
to harassment, intimidation, threats, coercion, or discrimination 
because they have engaged in or may engage in any of the following 
activities:
    (1) Filing a complaint;
    (2) Assisting or participating in an investigation, compliance 
evaluation, hearing, or any other activity related to the 
administration of section 503 or any other Federal, State, or local law 
requiring equal opportunity for individuals with disabilities;
    (3) Opposing any act or practice made unlawful by section 503 or 
its implementing regulations in this part, or any other Federal, State 
or local law requiring equal opportunity for individuals with 
disabilities; or
    (4) Exercising any other right protected by section 503 or its 
implementing regulations in this part.
    (b) Review of personnel processes. The contractor must ensure that 
its personnel processes provide for careful, thorough, and systematic 
consideration of the job qualifications of applicants and employees 
with known disabilities for job vacancies filled either by hiring or 
promotion, and for all training opportunities offered or available. The 
contractor shall ensure that its personnel processes do not stereotype 
individuals with disabilities in a manner which limits their access to 
all jobs for which they are qualified. In addition, the contractor 
shall ensure that its use of information and communication technology 
is accessible to applicants and employees with disabilities.\3\ The 
contractor shall review such processes on at least an annual basis and 
make any necessary modifications to ensure that these obligations are 
carried out. A description of the review and any necessary 
modifications to personnel processes or development of new processes 
shall be included in any affirmative action programs required under 
this part. The contractor must design procedures that facilitate a 
review of the implementation of this requirement by the contractor and 
the Government. These procedures shall, at a minimum, include the 
following steps:
---------------------------------------------------------------------------

    \3\ There are a variety of resources that may assist contractors 
in assessing and ensuring the accessibility of its information and 
communication technology. These include the Web Content 
Accessibility Guidelines (WCAG 2.0) of the World Wide Web Consortium 
Web Accessibility Initiative, online at http://www.w3.org/WAI/intro/wcag.php, and the regulations implementing the accessibility 
requirements for federal agencies prescribed in section 508 of the 
Rehabilitation Act. Information on section 508 may be found online 
at http://www.section508.gov/index.cfm. This web site also provides 
information about various State accessibility requirements and 
initiatives.
---------------------------------------------------------------------------

    (1) For each applicant with a disability, the contractor must be 
able to identify:
    (i) Each vacancy for which the applicant was considered; and
    (ii) Each training program for which the applicant was considered.
    (2) For each employee who is an individual with a disability, the 
contractor must be able to identify:
    (i) Each promotion for which the employee was considered; and
    (ii) Each training program for which the employee was considered.
    (3) In each case where an applicant or employee who is an 
individual with a disability is rejected for employment, promotion or 
training, the contractor shall prepare a statement of the reason as 
well as a description of any accommodation considered. The statement of 
the reason for rejection (if the reason is medically related), and the 
description of accommodation(s) considered, shall be treated as 
confidential medical records in accordance with Sec.  60-741.23(d). 
These materials shall be available to the applicant or employee 
concerned upon request.
    (4) Where applicants or employees are selected for hire, promotion, 
or training and the contractor undertakes any accommodation which makes 
it possible to place an individual with a disability on the job, the 
contractor shall make a record containing a description of the 
accommodation. The record shall be treated as a confidential medical 
record in accordance with Sec.  60-741.23(d).
    (c) Physical and mental qualifications. (1) The contractor shall 
provide in its affirmative action program, and shall adhere to a 
schedule for the annual review of all physical and mental job 
qualification standards to ensure that, to the extent qualification 
standards tend to screen out individuals on the basis of disability, 
they are job-related for the position in question and are consistent 
with business necessity. The contractor shall document the methods used 
to complete the annual review, the results of the annual review, and 
any actions taken in response. These documents shall be retained as 
employment records subject to the recordkeeping requirements of Sec.  
60-741.80.
    (2) Whenever the contractor applies physical or mental 
qualification standards in the selection of applicants or employees for 
employment or other change in employment status such as promotion, 
demotion, or training, to the extent that qualification standards tend 
to screen out individuals on the basis of

[[Page 77096]]

disability, the standards shall be related to the specific job or jobs 
for which the individual is being considered and consistent with 
business necessity. The contractor has the burden to demonstrate that 
it has complied with the requirements of paragraph (c)(2) of this 
section.
    (3) The contractor may use as a defense to an allegation of a 
violation of paragraph (c)(2) of this section that an individual poses 
a direct threat to the health or safety of the individual or others in 
the workplace. (See Sec.  60-741.2(e) defining direct threat.) Once the 
contractor believes that a direct threat exists, the contractor shall 
create a statement of reasons supporting its belief, addressing each of 
the criteria for ``direct threat'' listed in Sec.  60-741.2(e). This 
statement shall be treated as a confidential medical record in 
accordance with Sec.  60-741.23(d), and shall be retained as an 
employment record subject to the recordkeeping requirements of Sec.  
60-741.80.
    (d) Reasonable accommodation to physical and mental limitations. As 
is provided in Sec.  60-741.21(a)(6), as a matter of nondiscrimination, 
the contractor must make reasonable accommodation to the known physical 
or mental limitations of an otherwise qualified individual with a 
disability unless it can demonstrate that the accommodation would 
impose an undue hardship on the operation of its business. As a matter 
of affirmative action, the contractor must ensure that its electronic 
or online job application systems are compatible with assistive 
technology commonly used by individuals with disabilities, such as 
screen reading and speech recognition software. Also as a matter of 
affirmative action, if an employee with a known disability is having 
significant difficulty performing his or her job and it is reasonable 
to conclude that the performance problem may be related to the known 
disability, the contractor shall confidentially notify the employee of 
the performance problem and inquire whether the problem is related to 
the employee's disability. If the employee responds affirmatively, the 
contractor shall confidentially inquire whether the employee is in need 
of a reasonable accommodation.
    (e) Harassment. The contractor must develop and implement 
procedures to ensure that its employees are not harassed on the basis 
of disability.
    (f) External dissemination of policy, outreach, and positive 
recruitment. (1) Required outreach efforts. The contractor shall 
undertake the outreach and positive recruitment activities listed 
below:
    (i) The contractor shall promptly list all employment openings with 
the Employment One-Stop Career Center (One-Stops) nearest the 
contractor's establishment. The contractor must provide the information 
about each job vacancy in the manner and format required by the 
appropriate One-Stop. The term all employment openings as used in this 
paragraph includes all full-time, part-time, and temporary positions 
except executive and senior management positions, positions that will 
be filled from within the contractor's organization, and positions 
lasting three days or less.
    (ii) The contractor shall establish linkage agreements enlisting 
the assistance and support of either the local State Vocational 
Rehabilitation Service Agency (SVRA) office nearest the contractor's 
establishment or a local Employment Network (EN) organization (other 
than the contractor if the contactor is an EN) listed in the Social 
Security Administration's Ticket to Work Employment Network Directory 
(http://www.yourtickettowork.com/endir); and at least one of the 
following persons and organizations in recruiting and developing 
training opportunities for individuals with disabilities to fulfill its 
commitment to provide meaningful employment opportunities to such 
individuals:
    (A) Entities funded by the Department of Labor that provide 
recruitment or training services for individuals with disabilities, 
such as the services currently provided through The Employer Assistance 
and Resource Network (EARN) (http://www.earnworks.com);
    (B) The Employment One-Stop Career Center (One-Stops) nearest the 
contractor's establishment (any linkage agreement with the One-Stop 
must be in addition to the job listing requirement in paragraph 
(f)(1)(i));
    (C) The Department of Veterans Affairs Regional Office nearest the 
contractor's establishment (http://www.va.gov/landing2_locations.htm);
    (D) Local disability groups, organizations, or Centers for 
Independent Living (CIL) near the contractor's establishment;
    (E) Placement or career offices of educational institutions; and
    (F) Private recruitment sources, such as professional organizations 
or employment placement services.
    (iii) The contractor shall also consult the Employer Resources 
section of the National Resource Directory (http://www.nationalresourcedirectory.gov/employment/employer_resources), or 
any future service that replaces or complements it, and establish a 
linkage agreement with one or more of the disabled veterans' service 
organizations listed on the directory, other than the agencies listed 
in (f)(1)(ii)(A) through (E) of this section, for such purposes as 
advice, technical assistance, and referral of potential employees. 
Technical assistance from the resources described in this paragraph may 
consist of advice on proper placement, recruitment, training, and 
accommodations contractors may undertake, but no such resource 
providing technical assistance shall have authority to approve or 
disapprove the acceptability of affirmative action programs.
    (iv) The contractor must send written notification of company 
policy related to its affirmative action efforts to all subcontractors, 
including subcontracting vendors and suppliers, requesting appropriate 
action on their part.
    (2) Suggested outreach efforts. The contractor should consider 
taking the actions listed below to fulfill its commitment to provide 
meaningful employment opportunities to individuals with disabilities:
    (i) Formal briefing sessions should be held, preferably on company 
premises, with representatives from recruiting sources. Contractor 
facility tours, clear and concise explanations of current and future 
job openings, position descriptions, worker specifications, 
explanations of the company's selection process, and recruiting 
literature should be an integral part of the briefing. At any such 
briefing sessions, the company official in charge of the contractor's 
affirmative action program should be in attendance when possible. 
Formal arrangements should be made for referral of applicants, follow 
up with sources, and feedback on disposition of applicants.
    (ii) The contractor's recruitment efforts at all educational 
institutions should incorporate special efforts to reach students who 
are individuals with disabilities.
    (iii) An effort should be made to participate in work-study 
programs for students, trainees, or interns with disabilities. Such 
programs may be found through outreach to State and local schools and 
universities, and through EARN.
    (iv) Individuals with disabilities should be made available for 
participation in career days, youth motivation programs, and related 
activities in their communities.
    (v) The contractor should take any other positive steps it deems 
necessary to attract individuals with disabilities not currently in the 
work force who have requisite skills and can be

[[Page 77097]]

recruited through affirmative action measures. These persons may be 
located through State and local agencies supported by the U.S. 
Department of Education's Rehabilitation Services Administration (RSA) 
(http://www2.ed.gov/about/offices/list/osers/rsa), local Ticket-to-Work 
Employment Networks (http://www.yourtickettowork.com), or local 
chapters of groups or organizations that provide services for 
individuals with disabilities.
    (vi) The contractor, in making hiring decisions, shall consider 
applicants who are known to have disabilities for all available 
positions for which they may be qualified when the position(s) applied 
for is unavailable.
    (3) Assessment of external outreach and recruitment efforts. The 
contractor shall, on an annual basis, review the outreach and 
recruitment efforts it has taken over the previous twelve months to 
evaluate their effectiveness in identifying and recruiting qualified 
individuals with disabilities. The contractor shall document each 
evaluation, including at a minimum the criteria it used to evaluate the 
effectiveness of each effort and the contractor's conclusion as to 
whether each effort was effective. Among these criteria shall be the 
data collected pursuant to paragraph (k) of this section for the 
current year and the two most recent previous years. The contractor's 
conclusion as to the effectiveness of its outreach efforts shall be 
reasonable as determined by OFCCP in light of these regulations. If the 
contractor concludes the totality of its efforts were not effective in 
identifying and recruiting qualified individuals with disabilities, it 
shall identify and implement alternative efforts listed in paragraphs 
(f)(1) or (f)(2) of this section in order to fulfill its obligations.
    (4) Recordkeeping obligation. The contractor shall document all 
linkage agreements and all other activities it undertakes to comply 
with the obligations of this section, and retain these documents for a 
period of five (5) years.
    (g) Internal dissemination of policy. (1) A strong outreach program 
will be ineffective without adequate internal support from supervisory 
and management personnel and other employees. In order to assure 
greater employee cooperation and participation in the contractor's 
efforts, the contractor shall develop the internal procedures listed in 
paragraph (g)(2) of this section for communication of its obligation to 
engage in affirmative action efforts to employ and advance in 
employment qualified individuals with disabilities. It is not 
contemplated that the contractor's activities will be limited to those 
listed. These procedures shall be designed to foster understanding, 
acceptance and support among the contractor's executive, management, 
supervisory, and other employees and to encourage such persons to take 
the necessary actions to aid the contractor in meeting this obligation.
    (2) The contractor shall implement and disseminate this policy 
internally as follows:
    (i) Include it in the contractor's policy manual;
    (ii) Discuss the policy thoroughly in any employee orientation and 
management training programs;
    (iii) If the contractor is a party to a collective bargaining 
agreement, it shall meet with union officials and/or employee 
representatives to inform them of the contractor's policy and request 
their cooperation;
    (3) The contractor shall document those activities it undertakes to 
comply with the obligations of paragraph (g) of this section and retain 
these documents as employment records subject to the recordkeeping 
requirements of Sec.  60-741.80.
    (4) The contractor is encouraged to additionally implement and 
disseminate this policy internally by taking optional steps, such as 
the following:
    (i) If the contractor has a company newspaper, magazine, annual 
report, or other paper or electronic publication distributed to 
employees, it should publicize its affirmative action policy in these 
publications, and include in these publications, where appropriate, 
features on employees with disabilities and articles on the 
accomplishments of individuals with disabilities, with their consent;
    (ii) The contractor should discuss its affirmative action policies 
at employee meetings regarding personnel practices or equal employment 
opportunity;
    (iii) The contractor should discuss its affirmative action policies 
with executive, management, and supervisory personnel at meetings 
regarding personnel practices or equal employment opportunity.
    (h) Audit and reporting system. (1) The contractor shall design and 
implement an audit and reporting system that will:
    (i) Measure the effectiveness of the contractor's affirmative 
action program;
    (ii) Indicate any need for remedial action;
    (iii) Determine the degree to which the contractor's objectives 
have been attained;
    (iv) Determine whether known individuals with disabilities have had 
the opportunity to participate in all company sponsored educational, 
training, recreational, and social activities;
    (v) Measure the contractor's compliance with the affirmative action 
program's specific obligations; and
    (vi) Document the actions taken to comply with the obligations of 
paragraphs (h)(1)(i) through (v) of this section, and retain these 
documents as employment records subject to the recordkeeping 
requirements of Sec.  60-741.80.
    (2) Where the affirmative action program is found to be deficient, 
the contractor shall undertake necessary action to bring the program 
into compliance.
    (i) Responsibility for implementation. An official of the 
contractor shall be assigned responsibility for implementation of the 
contractor's affirmative action activities under this part. His or her 
identity shall appear on all internal and external communications 
regarding the company's affirmative action program. This official shall 
be given necessary senior management support and staff to manage the 
implementation of this program.
    (j) Training. In addition to the training set forth in paragraph 
(g)(2)(ii) of this section, all personnel involved in the recruitment, 
screening, selection, promotion, disciplinary, and related processes 
shall be trained to ensure that the commitments in the contractor's 
affirmative action program are implemented. This training shall 
include, but not be limited to: the benefits of employing individuals 
with disabilities, appropriate sensitivity toward applicants and 
employees with disabilities, and the legal responsibilities of the 
contractor and its agents regarding individuals with disabilities, 
including the obligation to provide reasonable accommodation to 
qualified individuals with disabilities. The contractor shall create 
contemporaneous records documenting the specific subject matter(s) 
covered in the training, who conducted the training, who received the 
training, and when the training took place. The contractor shall retain 
these documents, and any written or electronic materials used for the 
training required by this section, as employment records subject to the 
recordkeeping requirements of Sec.  60-741.80.
    (k) Data Collection Analysis. The contractor shall document and 
maintain the following computations or comparisons pertaining to 
applicants and hires on an annual basis:

[[Page 77098]]

    (1) The number of referrals of individuals with disabilities that 
the contractor received from applicable employment service delivery 
system(s), such as State Vocational Rehabilitation Service Agencies and 
Employment One-Stop Career Centers;
    (2) The number of referrals of individuals with disabilities that 
the contractor received from other entities, groups, or organizations 
with which the contractor has a linkage agreement pursuant to paragraph 
(f)(1)(i).
    (3) The number of applicants who self-identified as individuals 
with disabilities pursuant to Sec.  60-741.42(a), or who are otherwise 
known to be individuals with disabilities;
    (4) The total number of job openings and total number of jobs 
filled;
    (5) The ratio of jobs filled to job openings;
    (6) The total number of applicants for all jobs;
    (7) The ratio of applicants with disabilities to all applicants 
(``applicant ratio'');
    (8) The number of applicants with disabilities hired;
    (9) The total number of applicants hired; and
    (10) The ratio of individuals with disabilities hired to all hires 
(``hiring ratio''). The number of hires shall include all employees.


Sec.  60-741.45  Reasonable accommodation procedures.

    (a) Development and implementation. The contractor shall develop 
and implement written procedures for processing requests for reasonable 
accommodation. Contractors that are not required to develop an 
affirmative action program pursuant to this subpart are encouraged to 
voluntarily develop and implement written reasonable accommodation 
procedures to assist the contractor in meeting its nondiscrimination 
obligations under subpart B of this part.
    (1) The contractor's reasonable accommodation procedures shall be 
included in the contractor's affirmative action program, and shall be 
developed and implemented in compliance with section 503 and this part.
    (2) Minimum required elements that shall be addressed or contained 
in the reasonable accommodation procedures are described in paragraph 
(d) of this section. Inclusion of these elements in all reasonable 
accommodation procedures will ensure that applicants and employees are 
informed as to how to request a reasonable accommodation and are aware 
of how such a request will be processed by the contractor. It will also 
ensure that all of the contractor's supervisors and managers know what 
to do should they receive a request for reasonable accommodation, and 
that all requests for accommodation are processed swiftly and within 
established timeframes.
    (b) Designation of responsibility. The contractor shall designate 
an official to be responsible for the implementation of the reasonable 
accommodation procedures. The responsible official may be the same 
official who is responsible for the implementation of the contractor's 
affirmative action program. The responsible official must have the 
authority, resources, support, and access to top management that is 
needed to ensure the effective implementation of the reasonable 
accommodation procedures.
    (c) Dissemination of procedures. (1) The contractor shall 
disseminate its reasonable accommodation procedures to all employees. 
Notice of the reasonable accommodation procedures may be provided by 
their inclusion in an employee handbook that is disseminated to all 
employees and/or by email or electronic posting on a company Web page 
where work-related notices are ordinarily posted. Notice of the 
reasonable accommodation procedures shall be provided to employees who 
work off-site in the same manner that notice of other work-related 
matters is ordinarily provided to these employees.
    (2) The contractor shall inform all applicants of its reasonable 
accommodation procedures regarding the application process. See 
paragraph (d)(2)(iii) of this section.
    (d) Required elements of reasonable accommodation procedures. The 
specific requirements of a contractor's reasonable accommodation 
procedures may vary depending upon the size, structure, and resources 
of the contractor. However, the contractor's reasonable accommodation 
procedures shall, at a minimum, include the following elements:
    (1) Responsible official contact information. The name, title/
office, and contact information (telephone number and email address) of 
the official designated as responsible for implementing the reasonable 
accommodation procedures pursuant to paragraph (b) of this section. 
This information should be updated when changes occur.
    (2) Requests for reasonable accommodation. The reasonable 
accommodation procedures shall specify that a request for reasonable 
accommodation may be oral or written and shall explain that there are 
no required words that must be used by the requester to effectuate a 
request for accommodation. The procedures shall also state that 
requests for reasonable accommodation may be made by an applicant, 
employee, or by a third party on his or her behalf.
    (i) Recurring requests. The reasonable accommodation procedures 
shall provide that in instances of a recurring need for an 
accommodation (e.g., a hearing impaired employee's need for a sign 
language interpreter) the requester will not be required to repeatedly 
submit or renew their request for accommodation each time an 
interpreter is needed. In the absence of a reasonable belief that the 
individual's recurring need for the accommodation has changed, 
requiring the repeated submission of a request for the accommodation 
could be considered harassment on the basis of disability in violation 
of this part.
    (ii) Submission of request. The reasonable accommodation procedures 
shall identify to whom an employee (or a third party acting on his or 
her behalf) must submit an accommodation request. At a minimum, this 
shall include any supervisor or management official in the employee's 
chain of command, and the official responsible for the implementation 
of the reasonable accommodation procedures.
    (iii) Requests made by applicants. The reasonable accommodation 
procedures shall include procedures to ensure that all applicants, 
including those using the contractor's online or other electronic 
application system, are made aware of the contractor's reasonable 
accommodation obligation and are invited to request any reasonable 
accommodation needed to participate fully in the application process. 
All applicants shall also be provided with contact information for 
contractor staff able to assist the applicant, or his or her 
representative, in making a request for accommodation. The contractor's 
procedures shall provide that reasonable accommodation requests by or 
on behalf of an applicant are processed expeditiously, using timeframes 
tailored to the application process.
    (3) Written confirmation of receipt. The reasonable accommodation 
procedures shall specify that written confirmation of receipt of a 
request will be provided to the requester, either by letter or email. 
The written confirmation shall include the date the accommodation 
request was received, and be signed by the authorized decision maker or 
his or her designee.
    (4) Timeframe for processing requests. (i) The reasonable 
accommodation procedures shall indicate that requests for accommodation 
will be processed as

[[Page 77099]]

expeditiously as possible. Oral requests must be considered received on 
the date they are initially made, even if a reasonable accommodation 
request form has not been completed. A contractor may set its own 
timeframes for completing the processing of requests. However, if 
supporting medical documentation is not needed, that timeframe shall 
not be longer than 5 to 10 business days. If supporting medical 
documentation is needed, or if special equipment must be ordered, that 
timeframe shall not exceed 30 calendar days, except in the event of 
extenuating circumstances beyond the control of the contractor. The 
procedures shall explain what constitutes extenuating circumstances.
    (ii) Delay in responding to request. If the contractor's processing 
of an accommodation request will exceed established timeframes, written 
notice shall be provided to the requester. The notice shall include the 
reason(s) for the delay and a projected date of response. The notice 
shall also be dated and signed by the authorized decision maker or his 
or her designee.
    (5) Description of process. The contractor's reasonable 
accommodation procedures shall contain a description of the steps the 
contractor takes when processing a reasonable accommodation request, 
including the process by which the contractor renders a final 
determination on the accommodation request. If specific information 
must be provided to the contractor in order to obtain a reasonable 
accommodation, the description shall identify this information. For 
example, the contractor's reasonable accommodation procedures may state 
that to obtain a reasonable accommodation, the contractor must be 
informed of the existence of a disability, the disability-related 
limitation(s) or workplace barrier(s) that needs to be accommodated, 
and, if known, the desired reasonable accommodation. The description 
shall also indicate that, if the need for accommodation is not obvious, 
or if additional information is needed, the contractor may initiate an 
interactive process with the requester.
    (6) Supporting medical documentation. The reasonable accommodation 
procedures shall explain the circumstances, if any, under which medical 
documentation may be requested and reviewed by the contractor.
    (i) The procedures shall explain that any request for medical 
documentation may not be open ended and must be limited to 
documentation of the individual's disability and the functional 
limitations for which reasonable accommodation is sought.
    (ii) The procedures shall also explain that the submission of 
medical documentation is not required when the disability for which a 
reasonable accommodation is sought is known or readily observable and 
the need for accommodation is known or obvious.
    (7) Denial of reasonable accommodation. The contractor's reasonable 
accommodation procedures shall specify that any denial or refusal to 
provide a requested reasonable accommodation will be provided in 
writing. The written denial shall include the reason for the denial and 
must be dated and signed by the authorized decision maker or his or her 
designee. A statement of the requester's right to file a discrimination 
complaint with OFCCP shall also accompany or be included in the written 
denial. If the contractor provides an internal appeal or 
reconsideration process, the written denial shall inform the requester 
about this process. The written denial shall also include a clear 
statement that participation in the internal appeal or reconsideration 
process does not toll the time for filing a complaint with OFCCP or 
EEOC.
    (8) Confidentiality. The contractor's reasonable accommodation 
procedures shall indicate that all requests for reasonable 
accommodation, related documentation (such as request confirmation 
receipts, requests for additional information, and decisions regarding 
accommodation requests), and any medical or disability-related 
information provided to the contractor will be treated as a 
confidential medical record and maintained in a separate medical file, 
in accordance with section 503 and this part.
    (e) Training. The contractor shall provide annual training for its 
supervisors and managers regarding the implementation of the reasonable 
accommodation procedures. Training shall also be provided whenever 
significant changes are made to the reasonable accommodation 
procedures. Training regarding the reasonable accommodation procedures 
may be provided in conjunction with other required equal employment 
opportunity or affirmative action training.


Sec.  60-741.46  Utilization goals.

    (a) Goal. OFCCP has established a utilization goal of 7% for 
employment of individuals with disabilities for each job group in the 
contractor's workforce.
    (b) Purpose. The purpose of the utilization goal is to establish a 
benchmark against which the contractor must measure the representation 
of individuals within each job group in its workforce. The utilization 
goal serves as an equal employment opportunity objective that should be 
attainable by complying with all aspects of the affirmative action 
requirements of this part.
    (c) Periodic review of goal. The Director of OFCCP shall 
periodically review and update, as appropriate, the utilization goal 
established in paragraph (a) of this section.
    (d) Utilization analysis--(1) Purpose. The utilization analysis is 
designed to evaluate the representation of individuals with 
disabilities in each job group within the contractor's workforce with 
the utilization goal established in paragraph (a) of this section. If 
individuals with disabilities are employed in a job group at a rate 
less than the utilization goal, the contractor must take specific 
measures to address this disparity.
    (2) Grouping jobs for analysis. The contractor must use the same 
job groups established for utilization analyses under Executive Order 
11246, either in accordance with 41 CFR 60-2.12, or in accordance with 
41 CFR part 60-4, as appropriate.
    (3) Annual evaluation. The contractor shall evaluate its 
utilization of individuals with disabilities in each job group 
annually.
    (e) Action-oriented programs. When the percentage of individuals 
with disabilities in one or more job groups is less than the 
utilization goal established in paragraph (a) of this section, the 
contractor must develop and execute action-oriented programs designed 
to correct any identified problems areas. These action-oriented 
programs may include alternative or additional efforts from among those 
listed in Sec. Sec.  60-741.44 (f)(1) and (f)(2), and/or other actions 
designed to correct the identified problem areas and attain the 
established goal.
    (f) A contractor's determination that it has not attained the 
utilization goal established in paragraph (a) of this section in one or 
more job groups does not constitute either a finding or admission of 
discrimination in violation of this part.
    (g) The utilization goal established in paragraph (a) of this 
section shall not be used as a quota or ceiling that limits or 
restricts the employment of individuals with disabilities.


Sec.  60-741.47  Providing priority consideration in employment.

    (a) The contractor is encouraged to voluntarily develop and 
implement programs that provide priority consideration to individuals 
with

[[Page 77100]]

disabilities in recruitment and/or hiring. Examples of priority 
consideration programs include, but are not limited to, assigning a 
weighted value or additional ``points'' to job applicants who self-
identify as being an individual with a disability, and developing a job 
training program focused on the specific needs of individuals with 
certain disabilities such as traumatic brain injury (TBI) or 
developmental disabilities and utilizing linkage agreements to recruit 
program trainees.
    (1) If a contractor elects to implement a priority consideration 
program for individuals with disabilities, a description of the program 
and the policies governing the program, including the name and title of 
the official responsible for the program, shall be included in the 
contractor's written affirmative action program. An annual report 
describing the contractor's activities pursuant to the priority 
consideration program and identifying the outcomes achieved should also 
be included in the contractor's affirmative action program.
    (2) Disability-related information from the applicant and/or 
employee self-identification request required by Sec.  60-741.42 may be 
used to identify individuals with disabilities who are eligible to 
benefit from a priority consideration program.
    (b) The contractor shall not use a priority consideration program 
to segregate individuals with disabilities or to limit or restrict the 
employment opportunities of any individual with a disability.
    (c) The contractor shall not discriminate against an individual 
with a disability that has received priority consideration with respect 
to any term, condition, or benefit of employment, including, but not 
limited to, employment acts such as compensation, promotion, and 
termination, that are listed in Sec.  60-741.20.


Sec.  60-741.48  Sheltered workshops.

    Contracts with sheltered workshops do not constitute affirmative 
action in lieu of employment and advancement of qualified individuals 
with disabilities in the contractor's own work force. Contracts with 
sheltered workshops may be included within an affirmative action 
program if the sheltered workshop trains employees for the contractor 
and the contractor is obligated to hire trainees at full compensation 
when such trainees become ``qualified individuals with disabilities.''

Subpart D--General Enforcement and Complaint Procedures


Sec.  60-741.60  Compliance evaluations.

    (a) OFCCP may conduct compliance evaluations to determine if the 
contractor is taking affirmative action to employ, advance in 
employment, and otherwise treat qualified individuals without 
discrimination on the basis of disability in all employment practices. 
A compliance evaluation may consist of any one or any combination of 
the following investigative procedures:
    (1) Compliance review. A comprehensive analysis and evaluation of 
the hiring and employment practices of the contractor, the written 
affirmative action program, and the results of the affirmative action 
efforts undertaken by the contractor. A compliance review may proceed 
in three stages:
    (i) A desk audit of the written affirmative action program and 
supporting documentation to determine whether all elements required by 
the regulations in this part are included, whether the affirmative 
action program meets agency standards of reasonableness, and whether 
the affirmative action program and supporting documentation satisfy 
agency standards of acceptability. OFCCP may extend the temporal scope 
of the desk audit beyond that set forth in the scheduling letter if 
OFCCP deems it necessary to carry out its investigation of potential 
violations of this part. The desk audit is conducted at OFCCP offices;
    (ii) An on-site review is conducted at the contractor's 
establishment to investigate unresolved problem areas identified in the 
affirmative action program and supporting documentation during the desk 
audit, to verify that the contractor has implemented the affirmative 
action program and has complied with those regulatory obligations not 
required to be included in the affirmative action program, and to 
examine potential instances or issues of discrimination. An on-site 
review normally will involve an examination of the contractor's 
personnel and employment policies, inspection and copying of documents 
related to employment actions, and interviews with employees, 
supervisors, managers, hiring officials; and
    (iii) Where necessary, an off-site analysis of information supplied 
by the contractor or otherwise gathered during or pursuant to the on-
site review;
    (2) Off-site review of records. An analysis and evaluation of the 
affirmative action program (or any part thereof) and supporting 
documentation, and other documents related to the contractor's 
personnel policies and employment actions that may be relevant to a 
determination of whether the contractor has complied with the 
requirements of section 503 and its regulations;
    (3) Compliance check. A determination of whether the contractor has 
maintained records consistent with Sec.  60-741.80; OFCCP may request 
the documents be provided either on-site or off-site; or
    (4) Focused review. A review restricted to one or more components 
of the contractor's organization or one or more aspects of the 
contractor's employment practices.
    (b) Where deficiencies are found to exist, reasonable efforts shall 
be made to secure compliance through conciliation and persuasion 
pursuant to Sec.  60-741.62.
    (c) Pre-award compliance evaluations. Each agency will include in 
the invitation for bids for each formally advertised nonconstruction 
contract or state at the outset of negotiations for each negotiated 
contract, that if the award, when let, should total $10 million or 
more, the prospective contractor and its known first-tier 
subcontractors with subcontracts of $10 million or more will be subject 
to a compliance evaluation before the award of the contract unless 
OFCCP has conducted an evaluation and found them to be in compliance 
with section 503 within the preceding 24 months. The awarding agency 
will notify OFCCP and request appropriate action and findings in 
accordance with this subsection. Within 15 days of the notice, OFCCP 
will inform the awarding agency of its intention to conduct a pre-award 
compliance evaluation. If OFCCP does not inform the awarding agency 
within that period of its intention to conduct a pre-award compliance 
evaluation, clearance shall be presumed and the awarding agency is 
authorized to proceed with the award. If OFCCP informs the awarding 
agency of its intention to conduct a pre-award compliance evaluation, 
OFCCP will be allowed an additional 20 days after the date that it so 
informs the awarding agency to provide its conclusions. If OFCCP does 
not provide the awarding agency with its conclusions within that 
period, clearance will be presumed and the awarding agency is 
authorized to proceed with the award.


Sec.  60-741.61  Complaint procedures.

    (a) Coordination with other agencies. Pursuant to section 107(b) of 
the Americans with Disabilities Act of 1990, as amended (ADA), OFCCP 
and the Equal Employment Opportunity Commission (EEOC) have promulgated

[[Page 77101]]

regulations setting forth procedures governing the processing of 
complaints falling within the overlapping jurisdiction of both the act 
and title I of the ADA to ensure that such complaints are dealt with in 
a manner that avoids duplication of effort and prevents the imposition 
of inconsistent or conflicting standards. Complaints filed under this 
part will be processed in accordance with those regulations, which are 
found at 41 CFR part 60-742, and with this part.
    (b) Place and time of filing. Any applicant for employment with a 
contractor or any employee of a contractor may, personally, or by an 
authorized representative, file a written complaint with the Director 
alleging a violation of the act or the regulations in this part. The 
complaint may allege individual or class-wide violation(s). Complaints 
may be submitted to the OFCCP, 200 Constitution Avenue NW., Washington, 
DC 20210, or to any OFCCP regional, district, or area office. Such 
complaint must be filed within 300 days of the date of the alleged 
violation, unless the time for filing is extended by OFCCP for good 
cause shown.
    (c) Contents of complaints. (1) In general. A complaint must be 
signed by the complainant or his or her authorized representative and 
must contain the following information:
    (i) Name and address (including telephone number) of the 
complainant;
    (ii) Name and address of the contractor who committed the alleged 
violation;
    (iii) The facts showing that the individual has a disability, a 
record or history of a disability, or was regarded by the contractor as 
having a disability;
    (iv) A description of the act or acts considered to be a violation, 
including the pertinent dates (in the case of an alleged continuing 
violation, the earliest and most recent date that the alleged violation 
occurred should be stated); and
    (v) Other pertinent information available which will assist in the 
investigation and resolution of the complaint, including the name of 
any known Federal agency with which the employer has contracted.
    (2) Third party complaints. When a written complaint is filed by an 
authorized representative, that complaint need not identify by name the 
person on whose behalf it is filed. However, the authorized 
representative must nonetheless provide the name, address and telephone 
number of the person on whose behalf the complaint is filed to OFCCP, 
along with the other information specified in paragraph (c)(1) of this 
section. OFCCP shall verify the authorization of such complaint with 
the person on whose behalf the complaint is filed. Any such person may 
request that OFCCP keep his or her identity confidential during the 
investigation of the complaint, and OFCCP will protect the individual's 
confidentiality wherever that is possible given the facts and 
circumstances in the complaint.
    (d) Incomplete information. Where a complaint contains incomplete 
information, OFCCP shall seek the needed information from the 
complainant. If the information is not furnished to OFCCP within 60 
days of the date of such request, the case may be closed.
    (e) Investigations. The Department of Labor shall institute a 
prompt investigation of each complaint.
    (f) Resolution of matters. (1) If the complaint investigation finds 
no violation of the act or this part, or if the Director decides not to 
refer the matter to the Solicitor of Labor for enforcement proceedings 
against the contractor pursuant to Sec.  60-741.65(a)(l), the 
complainant and contractor shall be so notified. The Director, on his 
or her own initiative, may reconsider his or her determination or the 
determination of any of his or her designated officers who have 
authority to issue Notifications of Results of Investigation.
    (2) The Director will review all determinations of no violation 
that involve complaints that are not also cognizable under title I of 
the Americans with Disabilities Act.
    (3) In cases where the Director decides to reconsider the 
determination of a Notification of Results of Investigation, the 
Director shall provide prompt notification of his or her intent to 
reconsider, which is effective upon issuance, and his or her final 
determination after reconsideration to the person claiming to be 
aggrieved, the person making the complaint on behalf of such person, if 
any, and the contractor.
    (4) If the investigation finds a violation of the act or this part, 
OFCCP shall invite the contractor to participate in conciliation 
discussions pursuant to Sec.  60-741.62.


Sec.  60-741.62  Conciliation agreements.

    (a) If a compliance evaluation, complaint investigation, or other 
review by OFCCP finds a material violation of the act or this part, and 
if the contractor is willing to correct the violations and/or 
deficiencies, and if OFCCP determines that settlement on that basis 
(rather than referral for consideration of formal enforcement) is 
appropriate, a written conciliation agreement will be required. The 
agreement shall provide for such remedial action as may be necessary to 
correct the violations and/or deficiencies noted, including, where 
appropriate (but not necessarily limited to) such make whole remedies 
as back pay and retroactive seniority. The agreement shall also specify 
the time period for completion of the remedial action; the period shall 
be no longer than the minimum period necessary to complete the action.
    (b) Remedial benchmarks. The remedial action referenced in 
paragraph (a) may include the establishment of benchmarks for the 
contractor's outreach, recruitment, hiring, or other employment 
activities. The purpose of such benchmarks is to create a quantifiable 
method by which the contractor's progress in correcting identified 
violations and/or deficiencies can be measured.


Sec.  60-741.63  Violations of conciliation agreements.

    (a) When OFCCP believes that a conciliation agreement has been 
violated, the following procedures are applicable:
    (1) A written notice shall be sent to the contractor setting forth 
the violation alleged and summarizing the supporting evidence. The 
contractor shall have 15 days from receipt of the notice to respond, 
except in those cases in which OFCCP asserts that such a delay would 
result in irreparable injury to the employment rights of affected 
employees or applicants.
    (2) During the 15-day period the contractor may demonstrate in 
writing that it has not violated its commitments.
    (b) In those cases in which OFCCP asserts that a delay would result 
in irreparable injury to the employment rights of affected employees or 
applicants, enforcement proceedings may be initiated immediately 
without proceeding through any other requirement contained in this 
chapter.
    (c) In any proceedings involving an alleged violation of a 
conciliation agreement, OFCCP may seek enforcement of the agreement 
itself and shall not be required to present proof of the underlying 
violations resolved by the agreement.


Sec.  60-741.64  Show cause notices.

    When the Director has reasonable cause to believe that the 
contractor has violated the act or this part, he or she may issue a 
notice requiring the contractor to show cause, within 30 days, why 
monitoring, enforcement proceedings, or other appropriate action to 
ensure compliance should not be

[[Page 77102]]

instituted. The issuance of such a notice is not a prerequisite to 
instituting enforcement proceedings (see Sec.  60-741.65).


Sec.  60-741.65  Enforcement proceedings.

    (a) General. (1) If a compliance evaluation, complaint 
investigation, or other review by OFCCP finds a violation of the act or 
this part, and the violation has not been corrected in accordance with 
the conciliation procedures in this part, or OFCCP determines that 
referral for consideration of formal enforcement (rather than 
settlement) is appropriate, OFCCP may refer the matter to the Solicitor 
of Labor with a recommendation for the institution of enforcement 
proceedings to enjoin the violations, to seek appropriate relief, and 
to impose appropriate sanctions, or any combination of these outcomes. 
OFCCP may seek back pay and other make whole relief for aggrieved 
individuals identified during a complaint investigation or compliance 
review. Such individuals need not have filed a complaint as a 
prerequisite to OFCCP seeking such relief on their behalf. Interest on 
back pay shall be calculated from the date of the loss and compounded 
quarterly at the percentage rate established by the Internal Revenue 
Service (IRS) for the underpayment of taxes.
    (2) In addition to the administrative proceedings set forth in this 
section, the Director may, within the limitations of applicable law, 
seek appropriate judicial action to enforce the contractual provisions 
set forth in Sec.  60-741.5, including appropriate injunctive relief.
    (b) Hearing practice and procedure. (1) In administrative 
enforcement proceedings the contractor shall be provided an opportunity 
for a formal hearing. All hearings conducted under the act and this 
part shall be governed by the Rules of Practice for Administrative 
Proceedings to Enforce Equal Opportunity Under Executive Order 11246 
contained in 41 CFR part 60-30 and the Rules of Evidence set out in the 
Rules of Practice and Procedure for Administrative Hearings Before the 
Office of Administrative Law Judges contained in 29 CFR part 18, 
subpart B: Provided, That a final administrative order shall be issued 
within one year from the date of the issuance of the recommended 
findings, conclusions, and decision of the Administrative Law Judge, or 
the submission of any exceptions and responses to exceptions to such 
decision (if any) whichever is later.
    (2) Complaints may be filed by the Solicitor, the Associate 
Solicitor for Civil Rights and Labor-Management, Regional Solicitors 
and Associate Regional Solicitors.
    (3) For the purposes of hearings pursuant to this part, references 
in 41 CFR part 60-30 to ``Executive Order 11246'' shall mean section 
503 of the Rehabilitation Act of 1973, as amended; references to 
``equal opportunity clause'' shall mean the equal opportunity clause 
published at Sec.  60-741.5; and references to ``regulations'' shall 
mean the regulations contained in this part.


Sec.  60-741.66  Sanctions and penalties.

    (a) Withholding progress payments. With the prior approval of the 
Director so much of the accrued payment due on the contract or any 
other contract between the Government contractor and the Federal 
Government may be withheld as necessary to correct any violations of 
the provisions of the act or this part.
    (b) Termination. A contract may be canceled or terminated, in whole 
or in part, for failure to comply with the provisions of the act or 
this part.
    (c) Debarment. A contractor may be debarred from receiving future 
contracts for failure to comply with the provisions of the act or this 
part subject to reinstatement pursuant to Sec.  60-741.68. Debarment 
may be imposed for an indefinite period, or may be imposed for a fixed 
period of not less than six months, but no more than three years.
    (d) Hearing opportunity. An opportunity for a formal hearing shall 
be afforded to a contractor before the imposition of any sanction or 
penalty.


Sec.  60-741.67  Notification of agencies.

    The Director shall ensure that the heads of all agencies are 
notified of any debarments taken against any contractor.


Sec.  60-741.68  Reinstatement of ineligible contractors.

    (a) Application for reinstatement. A contractor debarred from 
further contracts for an indefinite period under the act may request 
reinstatement in a letter filed with the Director at any time after the 
effective date of the debarment; a contractor debarred for a fixed 
period may make such a request following the expiration of six months 
from the effective date of the debarment. In connection with the 
reinstatement proceedings, all debarred contractors shall be required 
to show that they have established and will carry out employment 
policies and practices in compliance with the act and this part. 
Additionally, in determining whether reinstatement is appropriate for a 
contractor debarred for a fixed period, the Director also shall 
consider, among other factors, the severity of the violation which 
resulted in the debarment, the contractor's attitude towards 
compliance, the contractor's past compliance history, and whether the 
contractor's reinstatement would impede the effective enforcement of 
the act or this part. Before reaching a decision, the Director may 
conduct a compliance evaluation of the contractor and may require the 
contractor to supply additional information regarding the request for 
reinstatement. The Director shall issue a written decision on the 
request.
    (b) Petition for review. Within 30 days of its receipt of a 
decision denying a request for reinstatement, the contractor may file a 
petition for review of the decision with the Secretary. The petition 
shall set forth the grounds for the contractor's objections to the 
Director's decision. The petition shall be served on the Director and 
the Associate Solicitor for Civil Rights and Labor-Management and shall 
include the decision as an appendix. The Director may file a response 
within 14 days to the petition. The Secretary shall issue the final 
agency decision denying or granting the request for reinstatement. 
Before reaching a final decision, the Secretary may issue such 
additional orders respecting procedure as he or she finds appropriate 
in the circumstances, including an order referring the matter to the 
Office of Administrative Law Judges for an evidentiary hearing where 
there is a material factual dispute that cannot be resolved on the 
record before the Secretary.


Sec.  60-741.69  Intimidation and interference.

    (a) The contractor shall not harass, intimidate, threaten, coerce, 
or discriminate against any individual because the individual has 
engaged in or may engage in any of the following activities:
    (1) Filing a complaint;
    (2) Assisting or participating in any manner in an investigation, 
compliance evaluation, hearing, or any other activity related to the 
administration of the act or any other Federal, State, or local law 
requiring equal opportunity for individuals with disabilities;
    (3) Opposing any act or practice made unlawful by the act or this 
part or any other Federal, State, or local law requiring equal 
opportunity for individuals with disabilities; or
    (4) Exercising any other right protected by the act or this part.
    (b) The contractor shall ensure that all persons under its control 
do not engage in such harassment, intimidation, threats, coercion, or 
discrimination. The sanctions and penalties contained in

[[Page 77103]]

this part may be exercised by the Director against any contractor who 
violates this obligation.


Sec.  60-741.70  Disputed matters related to compliance with the act.

    The procedures set forth in the regulations in this part govern all 
disputes relative to the contractor's compliance with the act and this 
part. Any disputes relating to issues other than compliance, including 
contract costs arising out of the contractor's efforts to comply, shall 
be determined by the disputes clause of the contract.

Subpart E--Ancillary Matters


Sec.  60-741.80  Recordkeeping.

    (a) General requirements. Any personnel or employment record made 
or kept by the contractor shall be preserved by the contractor for a 
period of two years from the date of the making of the record or the 
personnel action involved, whichever occurs later. However, if the 
contractor has fewer than 150 employees or does not have a Government 
contract of at least $150,000, the minimum record retention period 
shall be one year from the date of the making of the record or the 
personnel action involved, whichever occurs later. Such records 
include, but are not necessarily limited to, records relating to 
requests for reasonable accommodation; the results of any physical 
examination; job advertisements and postings; applications and resumes; 
tests and test results; interview notes; and other records having to do 
with hiring, assignment, promotion, demotion, transfer, lay-off or 
termination, rates of pay or other terms of compensation, and selection 
for training or apprenticeship. In the case of involuntary termination 
of an employee, the personnel records of the individual terminated 
shall be kept for a period of two years from the date of the 
termination, except that contractors that have fewer than 150 employees 
or that do not have a Government contract of at least $150,000 shall 
keep such records for a period of one year from the date of the 
termination. Where the contractor has received notice that a complaint 
of discrimination has been filed, that a compliance evaluation has been 
initiated, or that an enforcement action has been commenced, the 
contractor must preserve all personnel records relevant to the 
complaint, compliance evaluation, or action until final disposition of 
the complaint, compliance evaluation or action. The term ``personnel 
records relevant to the complaint, compliance evaluation, or action'' 
will include, for example, personnel or employment records relating to 
the aggrieved person and to all other employees holding positions 
similar to that held or sought by the aggrieved person and application 
forms or test papers completed by an unsuccessful applicant and by all 
other candidates for the same position as that for which the aggrieved 
person applied and was rejected. Records required by Sec. Sec.  60-
741.44(f)(4) and 60-741.44(k) shall be maintained by all contractors 
for a period of five years from the date of the making of the record.
    (b) Failure to preserve records. Failure to preserve complete and 
accurate records as required by paragraph (a) of this section 
constitutes noncompliance with the contractor's obligations under the 
act and this part. Where the contractor has destroyed or failed to 
preserve records as required by this section, there may be a 
presumption that the information destroyed or not preserved would have 
been unfavorable to the contractor: Provided, That this presumption 
shall not apply where the contractor shows that the destruction or 
failure to preserve records results from circumstances that are outside 
of the contractor's control.
    (c) The requirements of this section shall apply only to records 
made or kept on or after August 29, 1996.


Sec.  60-741.81  Access to records.

    Each contractor must permit access during normal business hours to 
its places of business for the purpose of conducting on-site compliance 
evaluations and complaint investigations and inspecting and copying 
such books, accounts, and records, including electronic records, and 
any other material OFCCP deems relevant to the matter under 
investigation and pertinent to compliance with the act or this part. 
Contractors must also provide OFCCP access to these materials, 
including electronic records, off-site for purposes of conducting 
compliance evaluations and complaint investigations. Upon request, the 
contractor must provide OFCCP information about all format(s), 
including specific electronic formats, in which its records and other 
information are available. The contractor must provide records and 
other information in any available format(s) requested by OFCCP. 
Information obtained in this manner shall be used only in connection 
with the administration of the act, the Americans with Disabilities Act 
of 1990, as amended (ADA), and in furtherance of the purposes of the 
act and the ADA.


Sec.  60-741.82  Labor organizations and recruiting and training 
agencies.

    (a) Whenever performance in accordance with the equal opportunity 
clause or any matter contained in the regulations in this part may 
necessitate a revision of a collective bargaining agreement, the labor 
organizations which are parties to such agreement shall be given an 
adequate opportunity to present their views to OFCCP.
    (b) OFCCP shall use its best efforts, directly or through 
contractors, subcontractors, local officials, vocational rehabilitation 
facilities, and all other available instrumentalities, to cause any 
labor organization, recruiting and training agency, or other 
representative of workers who are employed by a contractor to cooperate 
with, and to assist in, the implementation of the purposes of the act.


Sec.  60-741.83  Rulings and interpretations.

    Rulings under or interpretations of the act and this part shall be 
made by the Director.

Appendix A to Part 60-741--Guidelines on a Contractor's Duty To Provide 
Reasonable Accommodation

    The guidelines in this appendix are in large part derived from, 
and are consistent with, the discussion regarding the duty to 
provide reasonable accommodation contained in the Interpretive 
Guidance on title I of the Americans with Disabilities Act, as 
amended (ADA), set out as an appendix to the regulations issued by 
the Equal Employment Opportunity Commission (EEOC) implementing the 
ADA (29 CFR part 1630). Although the following discussion is 
intended to provide an independent ``free-standing'' source of 
guidance with respect to the duty to provide reasonable 
accommodation under this part, to the extent that the EEOC appendix 
provides additional guidance which is consistent with the following 
discussion, it may be relied upon for purposes of this part as well. 
See Sec.  60-741.1(c). Contractors are obligated to provide 
reasonable accommodation and to take affirmative action. Reasonable 
accommodation under section 503, like reasonable accommodation 
required under the ADA, is a part of the nondiscrimination 
obligation. See EEOC appendix cited in this paragraph. Affirmative 
action is unique to section 503, and includes actions above and 
beyond those required as a matter of nondiscrimination. An example 
of this is the requirement discussed in paragraph 2 of this appendix 
that a contractor shall make an inquiry of an employee with a known 
disability who is having significant difficulty performing his or 
her job.
    1. A contractor is required to make reasonable accommodations to 
the known physical or mental limitations of a qualified individual 
with a disability, unless the contractor can demonstrate that the 
accommodation would impose an undue

[[Page 77104]]

hardship on the operation of its business. As stated in Sec.  60-
741.2(s), an individual with a disability is qualified if he or she 
satisfies all the skill, experience, education, and other job-
related selection criteria, and can perform the essential functions 
of the position with or without reasonable accommodation. A 
contractor is required to make a reasonable accommodation with 
respect to its application process if the individual with a 
disability is qualified with respect to that process. One is 
qualified within the meaning of section 503 if he or she is 
qualified for a job, except that, because of a disability, he or she 
needs a reasonable accommodation to be able to perform the job's 
essential functions. Additionally, as provided in Sec.  60-741.45, 
the contractor is required to develop, implement and disseminate to 
applicants and employees procedures for processing requests for 
reasonable accommodation. This will help ensure consistent and 
expeditious processing of all accommodation requests.
    2. Although the contractor would not be expected to accommodate 
disabilities of which it is unaware, the contractor has an 
affirmative obligation to provide reasonable accommodation for 
applicants and employees whose disabilities the contractor has 
actual knowledge. As stated in Sec.  60-741.42, as part of the 
contractor's affirmative action obligation, the contractor is 
required to invite applicants to inform the contractor whether the 
applicant believes that he or she is an individual with a disability 
both prior to an offer of employment, and after an offer of 
employment but before he or she begins his/her employment duties. 
That invitation also informs the applicant of the contractor's 
reasonable accommodation obligation and invites applicants with 
disabilities to request any accommodation they might need. Moreover, 
Sec.  60-741.44(d) provides that if an employee with a known 
disability is having significant difficulty performing his or her 
job and it is reasonable to conclude that the performance problem 
may be related to the disability, the contractor is required to 
confidentially inquire whether the problem is disability related and 
if the employee is in need of a reasonable accommodation.
    3. An accommodation is any change in the work environment or in 
the way things are customarily done that enables an individual with 
a disability to enjoy equal employment opportunities. Equal 
employment opportunity means an opportunity to attain the same level 
of performance, or to enjoy the same level of benefits and 
privileges of employment as are available to the average similarly 
situated employee without a disability. Thus, for example, an 
accommodation made to assist an employee with a disability in the 
performance of his or her job must be adequate to enable the 
individual to perform the essential functions of the position. The 
accommodation, however, does not have to be the ``best'' 
accommodation possible, so long as it is sufficient to meet the job-
related needs of the individual being accommodated. There are three 
areas in which reasonable accommodations may be necessary: (1) 
Accommodations in the application process; (2) accommodations that 
enable employees with disabilities to perform the essential 
functions of the position held or desired; and (3) accommodations 
that enable employees with disabilities to enjoy equal benefits and 
privileges of employment as are enjoyed by employees without 
disabilities.
    4. The term ``undue hardship'' refers to any accommodation that 
would be unduly costly, extensive, substantial, or disruptive, or 
that would fundamentally alter the nature or operation of the 
contractor's business. The contractor's claim that the cost of a 
particular accommodation will impose an undue hardship requires a 
determination of which financial resources should be considered--
those of the contractor in its entirety or only those of the 
facility that will be required to provide the accommodation. This 
inquiry requires an analysis of the financial relationship between 
the contractor and the facility in order to determine what resources 
will be available to the facility in providing the accommodation. If 
the contractor can show that the cost of the accommodation would 
impose an undue hardship, it would still be required to provide the 
accommodation if the funding is available from another source (e.g., 
a State vocational rehabilitation agency) or if Federal, State, or 
local tax deductions or tax credits are available to offset the cost 
of the accommodation. In the absence of such funding, the individual 
with a disability must be given the option of providing the 
accommodation or of paying that portion of the cost which 
constitutes the undue hardship on the operation of the business.
    5. The definition for ``reasonable accommodation'' in Sec.  60-
741.2(t) lists a number of examples of the most common types of 
accommodations that the contractor may be required to provide. There 
are a number of specific accommodations that may be appropriate for 
particular situations. The discussion in this appendix is not 
intended to provide an exhaustive list of required accommodations 
(as no such list would be feasible); rather, it is intended to 
provide general guidance regarding the nature of the obligation. The 
decision as to whether a reasonable accommodation is appropriate 
must be made on a case-by-case basis. The contractor generally 
should consult with the individual with a disability in deciding on 
the appropriate accommodation; frequently, the individual will know 
exactly what accommodation he or she will need to perform 
successfully in a particular job, and may suggest an accommodation 
which is simpler and less expensive than the accommodation the 
contractor might have devised. Other resources to consult include 
the appropriate State vocational rehabilitation services agency, the 
Equal Employment Opportunity Commission (1-(800) 669-4000 (voice) or 
1-(800) 669-6820 (TTY)), the Job Accommodation Network (JAN)--a 
service of the U.S. Department of Labor's Office of Disability 
Employment Policy (1-(800) 526-7234 (voice) or 1-(877) 781-9403 
(TTY)), private disability organizations, and other employers.
    6. With respect to accommodations that can permit an employee 
with a disability to perform essential functions successfully, a 
reasonable accommodation may require the contractor to, for 
instance, modify or acquire equipment. For those visually-impaired, 
such accommodations may include providing adaptive hardware and 
software for computers, electronic visual aids, Braille writers, 
talking calculators, magnifiers, audio recordings, and Braille or 
large print materials. For persons with hearing impairments, 
reasonable accommodations may include providing telephone handset 
amplifiers, telephones compatible with hearing aids, and TTY 
machines. For persons with limited physical dexterity, the 
obligation may require the provision of telephone headsets, 
mechanical page turners, and raised or lowered furniture.
    7. Other reasonable accommodations of this type may include 
providing personal assistants such as a reader, interpreter, or 
travel attendant, permitting the use of accrued paid leave or 
providing additional unpaid leave for necessary treatment. The 
contractor may also be required to make existing facilities readily 
accessible to and usable by individuals with disabilities--including 
areas used by employees for purposes other than the performance of 
essential job functions--such as restrooms, break rooms, cafeterias, 
lounges, auditoriums, libraries, parking lots, and credit unions. 
This type of accommodation will enable employees to enjoy equal 
benefits and privileges of employment as are enjoyed by employees 
who do not have disabilities.
    8. Another of the potential accommodations listed in Sec.  60-
741.2(t) is job restructuring. This may involve reallocating or 
redistributing those nonessential, marginal job functions which a 
qualified individual with a disability cannot perform to another 
position. Accordingly, if a clerical employee is occasionally 
required to lift heavy boxes containing files, but cannot do so 
because of a disability, this task may be reassigned to another 
employee. The contractor, however, is not required to reallocate 
essential functions, i.e., those functions that the individual who 
holds the job would have to perform, with or without reasonable 
accommodation, in order to be considered qualified for the position. 
For instance, the contractor that has a security guard position 
which requires the incumbent to inspect identity cards would not 
have to provide a blind individual with an assistant to perform that 
duty; in such a case, the assistant would be performing an essential 
function of the job for the individual with a disability. Job 
restructuring may also involve allowing part-time or modified work 
schedules. For instance, flexible or adjusted work schedules could 
benefit individuals with disabilities who cannot work a standard 
schedule because of the need to obtain medical treatment, or 
individuals with mobility impairments who depend on a public 
transportation system that is not accessible during the hours of a 
standard schedule.
    9. Reasonable accommodation may also include reassignment to a 
vacant position. In general, reassignment should be considered only 
when accommodation within the individual's current position would 
pose an undue hardship. Reassignment is not required for applicants. 
However, in making hiring decisions, contractors are encouraged to 
consider known applicants with

[[Page 77105]]

disabilities for all available positions for which they may be 
qualified when the position(s) applied for is unavailable. 
Reassignment may not be used to limit, segregate, or otherwise 
discriminate against employees with disabilities by forcing 
reassignments to undesirable positions or to designated offices or 
facilities. Employers should reassign the individual to an 
equivalent position in terms of pay, status, etc., if the individual 
is qualified, and if the position is vacant within a reasonable 
amount of time. A reasonable amount of time should be determined in 
light of the totality of the circumstances.
    10. The contractor may reassign an individual to a lower graded 
position if there are no accommodations that would enable the 
employee to remain in the current position and there are no vacant 
equivalent positions for which the individual is qualified with or 
without reasonable accommodation. The contractor may maintain the 
reassigned individual with a disability at the salary of the higher 
graded position, and must do so if it maintains the salary of 
reassigned employees who are not disabled. It should also be noted 
that the contractor is not required to promote an individual with a 
disability as an accommodation.
    11. With respect to the application process, appropriate 
accommodations may include the following: (1) Providing information 
regarding job vacancies in a form accessible to those with vision or 
hearing impairments (e.g., by making an announcement available in 
Braille, in large print, or on audio tape, or by responding to job 
inquiries via TTY); (2) providing readers, interpreters and other 
similar assistance during the application, testing and interview 
process; (3) appropriately adjusting or modifying employment-related 
examinations (e.g., extending regular time deadlines, allowing a 
blind person or one with a learning disorder such as dyslexia to 
provide oral answers for a written test, and permitting an 
applicant, regardless of the nature of his or her disability to 
demonstrate skills through alternative techniques and utilization of 
adapted tools, aids and devices); and (4) ensuring an applicant with 
a mobility impairment full access to testing locations such that the 
applicant's test scores accurately reflect the applicant's skills or 
aptitude rather than the applicant's mobility impairment.

[FR Doc. 2011-31371 Filed 12-8-11; 8:45 am]
BILLING CODE 4510-45-P