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OFCCP Publishes New Section 503 and VEVRAA FAQs Allowing Inclusion of EO Clauses in One Paragraph

Summary of article. The U. S. Department of Labor's ("DOL") Office of Federal Contract Compliance Programs ("OFCCP") recently added a number of new Frequently Asked Questions ("FAQs") regarding the new regulations which go into effect on March 24, 2014 for, respectively, Section 503 of the Rehabilitation Act of 1973 ("Section 503") and the Vietnam Era Veterans' Readjustment Assistance Act ("VEVRAA"). These FAQs, as well as the other FAQs previously published by the OFCCP can be found at http://www.dol.gov/ofccp/regs/compliance/faqs/503\_faq.htm and http://www.dol.gov/ofccp/regs/compliance/faqs/VEVRAA\_faq.htm. Of particular note is that the new FAQs: 1) state that the agency will allow all of the Equal Opportunity ("EO") clauses to be included in one paragraph; and 2) provide sample EO clauses. This is a significant change from the OFCCP's prior position that the Section 503 and VEVRAA clauses must be included verbatim as set forth in the respective regulations.

New Section 503 and VEVRAA FAQs. The agency published eight new FAQs. Six of the FAQs pertain to both sets of regulations; two FAQs pertain only to the new Section 503 regulations.

* Equal Opportunity ("EO") Clause. The OFCCP, reversing the statements it has made in its webinars on this topic, now states that a contractor may include all of the EO clauses in one paragraph, provided certain criteria are met.****

o In response to the question whether contractors that elect to incorporate the required Equal Opportunity (EO) clauses by reference may incorporate by reference the clause required by 41 CFR § 60-300.5(a) so that it is combined with the "incorporation by reference" clause required by 41 CFR § 60-741.5(a), the OFCCP responded that contractors may combine these two EO "incorporation by reference" clauses, provided that the combined clause is set in bold text and the prescribed content of both clauses is preserved.

The agency provided the following example of how this might be done:

This contractor and subcontractor shall abide by the requirements of 41 CFR §§ 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals on the basis of protected veteran status or disability, and require affirmative action by covered prime contractors and subcontractors to employ and advance in employment qualified protected veterans and individuals with disabilities.


o In response to the question whether Federal contractors are permitted to combine all of the Equal Opportunity (EO) clauses required by 41 CFR § 60-300.5(a), 41 CFR § 60-741.5(a), and 41 CFR § 60-1.4(a) (or for construction contractors, 41 CFR § 60-4.3[a]) into a single, consolidated "incorporation by reference" clause, the agency stated that contractors may combine all of their required EO clauses into a single "incorporation by reference" clause, provided that the entire combined clause is set in bold text and the prescribed content of the veteran and disability EO "incorporation by reference" clauses is preserved.

The OFCCP provided the following example of how this might be done for a supply and service contractor:

This contractor and subcontractor shall abide by the requirements of 41 CFR §§ 60-1.4(a), 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, national origin, protected veteran status or disability.


* EEO Poster. The agency answered two questions regarding the EEO poster.

o EEO Poster in large print or Braille. In response to the question whether contractors must maintain Braille and/or large print versions of the EEO poster at all locations so that the form is accessible and understandable to individuals with disabilities and disabled veterans, the OFCCP responded as follows:

Providing the 'EEO is the Law' poster in an alternate format, such as large print or Braille, is a form of reasonable accommodation. Therefore, contractors must make the poster available in such an alternate format only when an applicant or employee requests the poster in an alternate format, or when the contractor knows that an applicant or employee is unable to read the poster because of a disability. Contractors may also provide the poster to an applicant or employee with a disability in other alternate formats, such as on disc or in an audio recording, so long as the format provided enables the individual with a disability to access the contents of the poster.

o EEO Poster as part of an electronic application. In response to the question whether the requirement that contractors "conspicuously store" the "EEO is the Law" poster with, or as part of, an electronic application, means that an actual physical or electronic copy of the poster must be individually stored with each application, the agency responded that although including a copy of the poster with every electronic application will satisfy the requirement, the regulations do not require contractors to do this. The OFCCP stated that, rather, a contractor may choose to satisfy this requirement in any way that ensures that every electronic applicant has the opportunity to view the poster during the application process, such as by displaying a prominent link to the poster, along with a brief explanation of what the link connects to, as part of their electronic application.

* Federal Acquisition Regulation. In response to the question regarding when the Federal Acquisition Regulation ("FAR") be updated to reflect the new Section 503 and VEVRAA requirements, the OFCCP responded that it is not yet clear when these FAR revisions will be completed and the new FAR will be published, and that interested parties may want to check with the Federal Acquisition Regulatory Council at https://acquisition.gov/far/.

* Data analysis files for disability self-identification forms. The OFCCP responded as follows to the question, "[C]an a contractor's existing human resources information system (HRIS) and/or applicant tracking system (ATS) serve as the 'data analysis file' in which disability self-identification must be stored?": Contractors may use their existing human resources information systems or applicant tracking systems as the data analysis file repositories for the disability data collected pursuant to the new regulations, provided that the following criteria are met:

o the disability-related data must be stored securely, apart from other personnel information, so that confidentiality is maintained;

o access to this data must be limited solely to contractor personnel who have a need to know the information for the purpose of complying with OFCCP's regulations; and

o disability self-identification data must not be kept with the employee's confidential medical file.

* Reasonable Accommodation and Utilization Goals. The below two FAQs were posted only for the Section 503 FAQs.

o Section 503 Appendix B (Developing Reasonable Accommodation Procedures). In response to the question whether, during an OFCCP audit, how many of these "best practices" contractors be held accountable for adopting and implementing, the OFCCP responded as follows:

§ Contractors are not obligated to adopt and implement any of the practices found in Appendix B, unless they are required elsewhere in the regulations.

§ Contractors are required to provide needed reasonable accommodations but they are not required to adopt the procedures as discussed in Appendix B.

§ While not required to adopt written procedures, OFCCP certainly encourages contractors to do so. Such procedures would assist contractors in meeting their reasonable accommodation obligations.

o Utilization Goals. The OFCCP stated that there is no minimum job group size for the 7% goal in Section 503, but the agency recognizes that small contractors may have difficulty applying the goal to their job groups based solely on their size. For this reason, the new Section 503 regulations allow contractors with 100 or fewer employees the option of applying the goal to their entire workforce instead of to their EO 11246 job groups.

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This article was prepared expressly for OutSolve, LLC by:

Celia M. Joseph, Esquire

FISHER & PHILLIPS LLP

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Suite 650

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cjoseph@laborlawyers.com

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