The DOL's Disability-Hiring-Quota Plan

The HR Policy Association issues the latest salvo in the ongoing debate over a proposed rule that would require federal contractors to have employees with disabilities make up 7 percent of their workforces. Its support of a proposed bill requiring the DOL to meet the same standards it proposes through its OFCCP adds fuel to the already fiery discourse.

Thursday, March 14, 2013
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The latest volley in the ongoing debate over the Office of Federal Contract Compliance Programs' "Notice of Proposed Rulemaking" for individuals with disabilities adds a reputable HR voice to the take-your-own-medicine challenge lobbed at the OFCCP and its Dec. 9, 2011 notice.

In a Feb. 15 statement, the Washington-based HR Policy Association voices strong support for legislation introduced earlier that same day by U.S. Rep. Rodney Alexander, R.-La. (called The Equal Standards in Hiring Americans Act) that would require the U.S. Department of Labor to comply with the OFCCP's proposed rule that federal contractors -- and subcontractors -- work toward having employees with disabilities make up 7 percent of their workforces.

"[The] HR Policy Association," the statement reads, "represents the most senior human executives in more than 340 of the largest companies in the United States. Collectively, these companies employ more than 10 million people, and their chief human resource officer is responsible for finding, hiring and developing the talent needed to staff their organizations."

The results of an HRPA survey of its members last year regarding the OFCCP notice, it reads, "demonstrate that the difficulty and cost that large employers would face in implementing the proposed changes [by the DOL's OFCCP, specifically revising the affirmative-action obligations of federal contractors as they apply to disabled workers] was grossly underestimated by the Labor Department. This survey," it adds, "follows the U.S. government's [prior] report revealing it failed to meet its 2 percent goal for certain targeted disabilities or its overall goal of 7 percent employment of individuals in every job group."

In a separate letter to Alexander, HRPA President and General Counsel Daniel V. Yager writes that the "HR Policy [Association] firmly believes that the approach set forth in the NPRM  imposed unachievable standards and burdensome requirements on federal contractors while undermining the goal of hiring individuals with disabilities."

"Assuming the Department of Labor finds that the NPRM is unworkable through its own efforts at compliance," Yager writes, "we would welcome the department to engage in the consensual process used for the Americans with Disabilities Act Amendments of 2008, where all stakeholders are involved in crafting a viable rule that achieves the worthy goal of increased employment for [the disabled]."

Although DOL spokesman Michael Trupo declined to comment on the specifics of the HRPA's statement or Yager's letter, the OFCCP's fact sheet in defense of its rulemaking notice does state that the most recent data from the DOL's Bureau of Labor Statistics "indicate that the unemployment rate and degree of participation in the labor force of working-age individuals with disabilities remain significantly higher than for those without disabilities" and that strengthening the existing regulations as it proposes "is an important tool for reducing barriers to equal-employment opportunity for individuals with disabilities."

It also states that "prior to issuing this NPRM, OFCCP conducted town-hall meetings, webinars and listening sessions with individuals from the contractor community, state-employment services, disability and veterans' organizations, and other interested parties [and] obtained input on the features of the current regulations that work well, as well as those that need improvement."

In announcing his bill to hold the DOL's proverbial feet to its own fire, Alexander said the legislation "does not prevent DOL from implementing [the OFCCP] rule; instead, it simply says that DOL cannot impose this rule on federal contractors unless it first certifies to Congress that each office and division within DOL is in compliance [as well]."

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Alexander also said the OFCCP's "proposed rule has created a wave of anxiety among those in the federal-contracting community, many of whom are facing severe budget cuts and are struggling to retain current employees on their payrolls."

Federal contractors, he said, "are wondering how they will know if they are in compliance with the rule since it is against the law for them to ask if an employee is disabled; they are also unsure if they will be required to lay off non-disabled employees and replace them with people with disabilities in order to satisfy the rule's requirement."

Added to these difficulties, writes Forbes contributor Bill Frezza, is the fact that the original Rehabilitation Act of 1973, which prohibits discrimination against the handicapped, and the Americans with Disabilities Act "were [both] constructed to prevent employment discrimination and expand public accommodation, so the list of qualifying disabilities was made both flexible and expansive."

Thanks to two decades of litigation, he writes, "covered handicaps now include not just physical limitations that can be objectively observed or documented by a physician, but behavioral handicaps like alcoholism, drug addiction, depression, attention-deficit and hyperactivity disorder, dyslexia, emotional disturbance and a panoply of mental illnesses."

"Inverting the law by turning it into a quota system will have little impact if so many people are covered that it is relatively easy to comply," Frezza continues. "How hard will it be to take a survey of existing employees to show that at least 7 percent of them drink too much beer, smoke pot, get depressed, are allergic to peanuts or have had the occasional panic attack, not to mention anger-management problem?

"Hence," he writes, "regulators are [now] considering an additional rule that at least 2 percent of a contractor's workforce must be made up of the 'severely disabled,' meaning total blindness, deafness or missing limbs. Hopefully, it will be some time before we hear reports of a desperate job applicant chopping off a finger to land a job."

The bill has been referred to the House Committee on Oversight and Government Reform and OFCCP's final regulations are expected in April.

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