Washington D.C. Employment Law Update : Washington D.C. Employment Lawyer & Attorney : Littler Mendelson Law Firm : Virginia, Tyson's Corner

although the ADA uses different standards than the U.S. Department of Defense and the [Department of Veterans Affairs] in determining disability, many more service-connected disabilities will also be considered disabilities under the ADA than prior to the ADA Amendments Act. In fact, some service-connected disabilities, such as deafness, blindness, partially or completely missing limbs, mobility impairments requiring the use of a wheelchair, major depressive disorder, and PTSD, will easily be concluded to be disabilities under the ADA.

In addition, the document states that, for example, it is illegal for an employer to refuse to hire a veteran because he has PTSD, because he was previously diagnosed with PTSD, or because the employer assumes he has PTSD. Similarly, an employer may not refuse to hire a veteran based on assumptions about a veteran's ability to do a job in light of the fact that the veteran has a disability rating from the U.S. Department of Veterans Affairs (VA). The ADA also limits the medical information employers may obtain and prohibits disability-based harassment and retaliation.

The second guidance document aims to educate veterans on their employment rights, including the steps they can take if they believe employers have unlawfully denied them employment or failed to provide them with a reasonable accommodation.

In a statement, EEOC Chair Jacqueline A. Berrien said: “We want veterans with disabilities to know that the EEOC has resources to assist them as they transition to, or move within the civilian workforce,” adding, “The release of these publications demonstrates our commitment to ensuring that veterans with disabilities receive the full protection of the laws we enforce, and that employers understand how to comply with those laws.”

The publication of these guidance materials comes after the EEOC held a public meeting in November 2011 that included a panel discussion on obstacles disabled veterans face when re-entering the workforce. During that meeting Claudia Gordon, Special Assistant to the Director of the Office of Federal Contract Compliance Programs (OFCCP), discussed her agency’s proposed rule that seeks to strengthen a federal contractor and subcontractor’s affirmative action requirements under the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (VEVRAA). Among other things, the proposal describes specific actions a contractor must take to satisfy its obligations, increases the contractor’s data collection obligations, and requires the contractor to establish hiring benchmarks to assist in measuring the effectiveness of its affirmative action efforts. The OFCCP expects to issue a final rule on these changes by July 2012.

In the event part 60-250 is not rescinded, the OFCCP has drafted proposed changes to mirror those it makes to part 60-300. The following are some highlights of the proposed regulatory revisions that would apply to both sections:

Definitions

• With respect to who constitutes a “protected veteran,” the proposal provides definitions for (1) special disabled veterans; (2) veterans of the Vietnam era; (3) veterans who served on active duty in the Armed Forces during a war or in a campaign or expedition for which a campaign badge has been authorized; and (4) recently separated veterans.

EO Clause

• The proposal adds additional language to the equal opportunity (EO) clause that must be included in all covered federal contracts and subcontracts. The new language clarifies the contractor’s responsibility to “list” jobs in the context of mandatory listing requirements. These listing requirements obligate the contractor to list all employment openings for the duration of the contract with an “appropriate employment service delivery system,” often referred to in the regulations as simply an “employment service.” As discussed in the proposal, in order to satisfy the listing requirement, “the contractor must provide job vacancy information to the appropriate employment service in the manner that the employment service requires in order to include the job in their database so that they may provide priority referral of veterans.” (emphasis in original)
• With respect to the specific information the contractor must provide to state employment services in each state where the contractor has establishments, the proposal requires the contractor to provide the following information on an annual basis: (1) its status as a federal contractor; (2) the contact information for the contractor hiring official at each location in the state; and (3) its request for priority referrals of protected veterans for job openings at all its locations within the state.
• The proposal adds a new paragraph to the EO clause requiring the contractor to maintain records, on an annual basis, of the total number of referrals it receives from state employment services, the number of priority referrals of protected veterans it receives, and the ratio of protected veteran referrals to total referrals. These records must be maintained for 5 years.
• The EO clause would also be revised to clarify that a contractor’s duty to provide notices of employee rights and contractor obligations must be provided in a manner that is accessible and understandable to persons with disabilities.
• With respect to employees who do not work at a physical location of the contractor, the EO clause would be revised to state that 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 are otherwise able to access the electronically posted notices.

Prohibited Discrimination

• The proposal includes a new clause qualifying that an individual who rejects a reasonable accommodation made by the contractor may still be considered a qualified disabled veteran if the individual subsequently provides and/or pays for a reasonable accommodation.

Affirmative Action Program

• To take telecommuting and flextime employees into consideration, the proposal includes a provision explaining that “in instances where the contractor has employees who do not work at the contractor’s 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.”
• The proposed regulations make “significant, substantive changes” to the contractor’s obligations and the process through which applicants are invited to self-identify as veterans. According to the OFCCP, “these changes are proposed in order to collect enhanced data pertaining to protected veterans, which will allow the contractor and OFCCP to identify and monitor the contractor’s employment practices with respect to protected veterans.” The proposed change would require the contractor to invite all applicants to self-identify as a “protected veteran” prior to the offer of employment. In response to concerns that requiring the contractor to invite applicants to self-identify as a protected veteran would violate the ADA’s general prohibition against pre-offer disability-related inquiries because some protected veterans will be special disabled veterans, the OFCCP states that: “This concern is misplaced, as the ADA and Section 503 regulations permit the contractor to conduct a pre-offer inquiry into disability status if it is ‘made pursuant to a Federal, state or local law requiring affirmative action for individuals with disabilities.”
• With respect to a contractor’s affirmative action policy, the proposed rule requires that the contractor must review its personnel processes at least annually to ensure that its obligations are being met. The OFCCP contends that the current rule’s requirement that the contractor review these standards “periodically” is vague and subject to confusion. The proposal mandates that contractors take certain specific steps, at a minimum, as part of this review process. These steps are those currently outlined in Appendix C to the regulation. Such steps include: (1) identifying the vacancies and training programs for which protected veteran applicants and employees were considered; (2), providing a statement of reasons explaining the circumstances for rejecting protected veterans for vacancies and training programs and a description of considered accommodations; and (3) describing the nature and type of accommodations for special disabled veterans who were selected for hire, promotion, or training programs.
• According to the agency, “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.” For example, the proposal would require a contractor to engage in a minimum number of outreach and recruitment efforts, as outlined in the revised regulations. Among other efforts, the contractor would be required to enter into linkage agreements and establish ongoing relationships with the Local Veterans’ Employment Representative in the local employment service office nearest the contractor’s establishment and at least one of several other listed organizations and agencies for purposes of recruitment and developing training opportunities. In addition, the contractor would be required to consult the Employer Resources section of the National Resource Directory, an online database. The proposed rule would require 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 protected veterans, and document its review.
• The proposal would mandate certain practices for employers to communicate affirmative action obligations to employees.
• The proposed regulation would require that the contractor maintain several quantitative measurements and comparisons regarding protected veterans who have been referred by state employment services, have applied for positions with the contractor, and/or have been hired by the contractor.
• The proposed regulation would also “require for the first time that the contractor establish annual hiring benchmarks, expressed as the percentage of total hires who are protected veterans that the contractor seeks to hire in the following year.”

The proposed revisions to the regulations also includes three appendices: (A) Guidelines On A Contractor’s Duty To Provide Reasonable Accommodation; (B) a sample Invitation to Self-Identify; and (C) Review of Personnel Processes.

Comments on this proposal are due within 60 days of its publication in the Federal Register, which is scheduled for April 26, 2011. All comments must include the identification number: 1250-AA00, and may be submitted electronically through the federal eRulemaking portal, via facsimile to: (202) 693-1304 (for comments of six pages or less), or by mail to: Debra A. Carr, Director, Division of Policy, Planning, and Program Development, Office of Federal Contract Compliance Programs, Room C-3325, 200 Constitution Avenue, N.W., Washington, D.C. 20210.

For more information on this proposal, see Littler’s ASAP: OFCCP Issues Proposed Regulations Requiring Significantly Broader Veterans Affirmative Action Obligations for Federal Contractors and Subcontractors by Joshua Roffman and Alissa Horvitz.