The Rehabilitation Act and Individuals with Disabilities: Final Rules for Section 503 Released

 September 5, 2013
Posted by M&LAdmin4

Thursday, September 5th, 2013

For individuals with disabilities, securing gainful employment can be a disheartening process. Despite campaigns designed to promote equality for individuals with disabilities – as well as attempts to educate employers as to the benefits of hiring individuals with disabilities – many employers still focus on the “disability”, rather than the “ability” of an individual.

Last week, however, the US government made an announcement that will undoubtedly have a positive influence on this frustrating job search process: on August 27th, the Office of Federal Contract Compliance Programs (OFCCP) released Final Rules that will improve the process of hiring and employment for veterans and individuals with disabilities. These long-awaited Final Rules apply to the Vietnam Era Veteran’s Readjustment Assistance Act (VEVRRA) and Section 503 of the Rehabilitation Act.

VEVRRA and the Rehabilitation Act are laws that protect veterans and individuals with disabilities against employment discrimination.

Congress established VEVRRA in the early 70’s to provide assistance to Vietnam veterans returning home from the war, and to ensure that there is no discrimination in the hiring process – it applies to Vietnam era veterans, special disabled veterans, and veterans who served active duty during a war or in a campaign that qualified for a campaign badge. (For more information on VEVRRA and the final rules for these regulations, please visit the Department of Labor’s website.)

The Rehabilitation Act of 1973 replaced the Vocational Rehabilitation Act, and protects individuals with disabilities from discrimination in federal programs, federal employment practices, and the employment practices of federal contractors. All federal contractors or subcontractors doing business with the federal government have to comply with the regulations of VEVRRA and the Rehabilitation Act.

In a statement released via email, Kathy Martinez, Assistant Secretary of the Office of Disability Employment Policy, says that the disproportionately high rate of unemployment for veterans and individuals with disabilities clearly established the need for these Final Rules to be released. She goes on to write, “for the first time, these rules provide metrics — management tools that inform decision-making and provide real accountability — to measure federal contractors’ progress toward achieving equal opportunity for people with disabilities and protected veterans.”

Section 503: How can these Final Rules increase employment opportunities for individuals with disabilities?

Specifically, Section 503 of the Rehabilitation Act “prohibits federal contractors and subcontractors from discrimination in employment against individuals with disabilities, and requires these employers to take affirmative action to recruit, hire, promote and retain these individuals.[i]” In a nutshell, the Final Rule reinforces and strengthens these existing regulations in a number of ways, three of which are very important: first, it ensures that there is a standard for the number of individuals with disabilities hired, under the new “utilization goal”. Secondly, it puts in place accountability measures, both for contractors and the OFCCP, to ensure that the utilization goals are met. Thirdly, it ensures that Section 503 is in line with the Americans with Disabilities Amendment Act of 2008 by revising the definition of “disability” and certain nondiscrimination provisions of the implementing regulations.

Utilization Goal – Under the Final Rule, contractors will have to apply a nationwide 7% utilization goal to each of their job groups. If the employer has fewer than 100 employees, this 7% will apply to their entire workforce. As is stated in the 503 Final Rule Summary, this goal “is not a quota or a ceiling that limits or restricts the employment of individuals with disabilities. Instead, the goal is a management tool that informs decision-making and provides real accountability.[ii]” As well, to ensure that contractors are meeting this utilization goal, they must conduct an annual utilization analysis – as a part of this process, and they must also conduct assessments of problem areas and develop action plans to address any identified problems.

Accountability – In addition to the utilization rule, the Final Rule requires increased accountability from contractors in relation to the number of individuals with disabilities that are hired. Contractors will be required to document and update reports which detail the number of individuals with disabilities that apply for jobs, as well as the number of individuals with disabilities that are eventually hired. The Final rule also requires that OFCCP be allowed to access these documents, and any documents relating to these regulations to conduct reviews or complete compliance checks; as a part of this regulation, contractors are required to inform the OFCCP of the format in which this information is stored, and provide the information to the OFCCP in any format which the OFCCP requests.

ADAA – The Final Rule ensures that changes rendered necessary by the Americans with Disabilities Amendment Act of 2008 are applied in Section 503. This provision of the Final Rule sees the revising of the definition of disability and other nondiscrimination provisions of the implementing regulations.

The Final Rule also implements the Invitation to Self-Identify, and the Incorporation of the EO Clause. The invitation to self identify requires that contractors “invite applicants to self-identify as individuals with disabilities at both the pre-offer and post-offer phases of the application process, as well as every five years after hire.” Contractors can then use the self-identification information to gauge whether their recruitment and outreach efforts are reaching individuals with disabilities.  The Incorporation of the EO (Equal Opportunity) Clause requires that specific language be used when incorporating the equal opportunity clause into a subcontract by reference. This will alert subcontractors as to their responsibilities as Federal contractors.

To see all of the provisions under the Section 503 Final Rule, please read the 503 Final Rule Summary.

When will these changes be applied?

The Final Rules will take effect 180 days from the date they are published in the federal registrar – that date is yet unknown. For more information on the Final Rules, please visit the Department of Labor’s Office of Federal Contract Compliance Program’s website.

If you have any questions on how the Final Rule for Section 503 can affect your family member with a disability, or would like more information on employment options for individuals with disabilities, please do not hesitate to contact us!

In addition to being able to provide relevant information on employment for individuals with disabilities, Maedi Tanham Carney is also a Certified Work Incentive Coordinator, and can provide work incentives planning and assistance directly to beneficiaries with disabilities to assist them in their employment efforts. As a CWIC, Maedi is able to conduct outreach efforts to beneficiaries with disabilities (and their families) who are potentially eligible to participate in Federal or State work incentives programs.

Thank you so much for visiting our blog today! Next week, we will be discussing divorce and special needs planning – see you then!



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