The Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) has submitted a request to the White House Office of Management and Budget (OMB) for approval of proposed changes to the much criticized Form CC-305—the disability self-identification form that federal contractor employers are required to use when inviting applicants and employees to disclose their disability status.
The good news is that the proposed revised form will no longer say, “Completing this form is voluntary.” Providing information about your disability status must be voluntary, but the form includes an opt-out answer to allow users to complete the form without divulging their disability status one way or the other. However, that language on the current form created new law and prohibited federal contractor employers from requiring applicants or employees to complete the form. Presumably, the removal of that language would, for example, allow ATS systems to treat the form as required.
The proposed revised form also removes the unnecessary and confusing accommodation notice, a footnote reference, and consolidates the form to a single page (will fit on one side of a standard 8 ½ x 11 sheet of paper). Unfortunately, that may be where the good news ends.
Despite the OFCCP’s supporting statement that the changes are nonmaterial and intended to increase response rates, the proposed form (download link) is not much of an improvement over the agency’s current form (download link). While the agency does successfully address some of the original form’s shortcomings discussed above, unfortunately it introduces others.
For example, the agency expanded the “Why are you being asked to complete this form” section with additional verbiage which is just more for end users to read. Moreover, those changes actually misstate the law in two important respects.
First, the proposed form now states that the employer is “required by law to reach out to, hire, and provide equal opportunity to qualified people with disabilities.” While the OFCCP’s regulations do set a disability utilization goal of 7% in each AAP job group at every contractor establishment, the agency’s regulations do not actually require federal contractor employees to hire individuals with disabilities.
This new language could give people the mistaken impression that federal contractors are required to engage in disability hiring initiatives in which disability status is taken into account in the selection process. While this might be allowed, because neither Section 503 of the Rehabilitation Act or the Americans with Disabilities Act prohibit discrimination of non-disabled persons, it is not actually required.
Which brings us to the second, and somewhat related, problematic statement. The proposed form states that individuals’ disability status will be maintained in a confidential file (true) and will “not be seen by selecting officials or anyone else involved in making personnel decisions.” That last part is not necessarily true. Selecting officials can have access to disability information so long as it is not used against disabled persons. As noted above, however, it absolutely can be used to benefit individuals with disabilities, such as with a disability hiring initiative in which disabled persons are preferred.
As we have seen, the language the OFCCP chooses to use on this required form can have the effect of creating new law. If this language remains on the final approved form, contractors might be prohibited from engaging in disability hiring initiatives. It is unlikely that is what the OFCCP intends, so the agency should clarify.
The OFCCP also misses the mark with regard to the bulleted list of conditions that the agency has identified as commonly meeting the definition of “disability.” The agency drops some examples from the current form and adds several others, but the main problem was not whether and to what extent the conditions listed would qualify an individual as having a disability under the law (though that is an issue). Rather, the problem was providing a list of conditions in the first place.
Despite language stating that the list is not exclusive, many contractors have reported that users are confused by the list, often believing that if their particular condition is not listed, they must check “No.” And with paper forms, users would often either circle the condition(s) that applied to them, or would write-in their specific conditions, adding an additional recordkeeping and training headache for federal contractor personnel who receive the paper forms. If the OFCCP insists on providing examples, the form should clearly state that the examples are not the only conditions that qualify as disabilities, and should explicitly instruct users that they are not required to disclose their specific condition(s) on this form.
The OFCCP should also take into consideration the time and expense involved in updating applicant tracking systems (ATS) and other online programs when even small changes are made to the required form. Unfortunately, unscrupulous ATS vendors are likely to view any changes to the form as a “customization” for which individual clients will be charged a hefty fee, despite every federal contractor employer being subject to the same requirements. If the OFCCP is going to update Form CC-305, one would hope that the changes would more substantially address contractors’ issues with the required form.
Contractors have until December 2, 2019 to submit comments to the OFCCP regarding the proposed revisions. Comments should be submitted electronically on the regulations.gov website here.
Note that the OFCCP’s current Form CC-305 is set to expire on January 1, 2020. However, now that the OFCCP has initiated the approval process for a revised form, the current form will remain in effect, and the expiration date will be automatically extended, until the OMB review and approval process is complete.