Previously, we’ve discussed contractors’ obligations stemming from EO 11246: equal opportunity and affirmative action programs (relating to the employment of minorities and women).
Our topic du jour, though related, derives from legal different authority: Section 503 of the Rehabilitation Act. Under that act (and the implementing regulations), contractors cannot discriminate against workers with disabilities. Here we provide a quick overview of contractors’ responsibilities.
FAR clause
Most contracts over $10,000 (there are some limited exceptions) include FAR 52.222-36. It directs contractors to comply with the clause at 41 C.F.R. 60-741.5(a), which:
- prohibits a contractor from discriminating against any employee or job applicant because of a physical or mental disability in regards to positions for which they are qualified;
- obligates a contractor to take affirmative action to employ and advance individuals with disabilities and to not discriminate against individuals with disabilities in all employment practices (e.g., recruitment, hiring, promotion, pay rates, job assignments, fringe benefits, etc.);
- requires a contractor to comply with DOL’s regulations implementing the Rehabilitation Act;
- mandates a contractor to post, in a form accessible and understandable to the individual employee or applicant (e.g., Braille or large print versions), an explanation of the rights of employees and applicants;
- instructs a contractor to notify labor unions with which it has a collective bargaining agreement that the contractor is bound by the Rehabilitation Act;
- directs a contractor to flow down the clause to subcontracts exceeding $10,000;
- requires a contractor to notify, in all job ads or solicitations, that all qualified applicants will be considered and will not be discriminated against based on disability.
What is a disability?
DOL’s regulations broadly define a disability as “a physical or mental impairment that substantially limits one or more major life activities of such individual” or “a record of such an impairment” or “being regarded as having such an impairment.”
That definition, however, naturally raises the question: what is a physical or mental impairment? That term means the following:
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 any mental or psychological disorder, such as intellectual disability (formerly termed mental retardation) organic brain syndrome, emotional or mental illness, and specific learning disabilities.
Not every impairment constitutes a disability. For example, individuals currently using illegal drugs are not disabled. Neither are compulsive gamblers and kleptomaniacs.
Reasonable accommodation
DOL’s regulations require contractors to makes reasonable accommodations for individuals with disabilities. This means that a contractor must, for instance, modify or adjust the work environment under which a position is ordinarily performed to enable a disabled individual to perform the job’s essential functions. Reasonable accommodation also applies in the job application process.
The exception to reasonable accommodation is undue hardship. That is, if making a reasonable accommodation causes a significant difficulty or expense for the contractor, then the contractor can refuse the accommodation. That said, contractors must engage with the qualified individual to assess the possibility of a reasonable accommodation.
Affirmative action program
Contractors with 50 or more employees and a contract over $50,000 must compile an affirmative action program for individuals for disabilities. Contractors must update their programs annually.
What must an affirmative action program contain? In summary terms, it must contain the following: a policy statement; a review of personnel processes; physical and mental qualifications for job qualifications; procedures for processing a reasonable accommodation request; anti-harassment procedures; outreach to qualified individuals with disabilities; procedures for disseminating the policy internally; an audit and reporting system; appointment of an official to oversee the program; training; and data collection.
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Again, this post only scratches the surface contractor’s obligations relating to workers with disabilities. There are additional details and nuance that we don’t have time for here. Nonetheless, contractors should thoroughly digest and implement the requirements. In so doing, the OFCCP provides some useful compliance guidance. And, of course, feel free to contact us at 913-354-2630 with any questions about the Rehabilitation Act or other labor regulations.