Transcript Enter Title Here

Preparing for the new Sections 503 and 4212:
What should members focus on
Nita Beecher
Employment Law & Litigation Group
October 5, 2012
Overview of new Sections 503 and 4212
• Definitional Changes
• Workforce Composition Goals / Benchmarks
• Self-identification Early & Often
• Outreach, Outreach, Outreach
• New Reasonable Accommodation Process
• Data Collection, Analysis & Recordkeeping
• Transparency and Accountability
• Training
• Annual Report
• Priority Consideration
MERCER
April 25, 2020
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Definitional changes
Section 503 / Disability
Section 4212 / Veterans
Adopts ADAAA definitions
• VEVRAA >>>“Section 4212”
►disability
► Covered veteran >>> “protected
►major life activities
veteran”
►physical or mental impairment
► Other protected veteran >>>
“active duty wartime or campaign
►regarded as
►substantially limits
►record of such an impairment
badge veteran”
►Vets 100/100A categories not
changed
►direct threat
►mitigating measures
MERCER
April 25, 2020
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Benchmarks & Workforce Composition Goals
Section 503 / Disability
Section 4212 / Veterans
Workforce composition goal
►not hiring goal
►Single, nationwide utilization goal
►7%
►in each job group
►Possible 2% sub-goal for
individuals with more significant
disabilities
Goal established by contractor
considering:
►% vets in civilian labor force
►# vets who participated in
ESDS/Department of Veterans’
Employment & Training Service
►referral, applicant & hiring ratios
► effectiveness of contractor's
external outreach & recruitment
efforts
►any other factors affecting
availability of qualified protected
veterans
MERCER
April 25, 2020
3
Self-Identification (Early and Often)
Section 503 / Disability
Section 4212 / Veterans
►Pre-offer
►Pre-offer
►Post-offer
►Post offer
►Annual survey of employees
►Note: 7% workforce
composition goal is only
obtainable IF
applicants/employees with
disabilities are willing to
self-identify-will they?
MERCER
April 25, 2020
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Outreach, Outreach, Outreach
Section 503 / Disability
Section 4212 / Veterans
Must provide job vacancy information Same PLUS:
to the appropriate ESDS “in the
►Must specifically request priority
manner required by the service”
referrals of protected veterans
job openings
►Must provide information re:
staffing or temp agencies used
• Linkage agreements
►Cannot rely on 3rd party to do it
►Local Vets Rep
correctly
►National Resource Directory
Linkage agreements
►One more from list
►1 Stop Career Center
►State Voc Rehab Service Agency
►National Resource Directory
►One more from list
MERCER
April 25, 2020
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Specific Reasonable Accommodation Process
Section 503 / Disability
Section 4212 / Veterans
Rationale for rejections and information
regarding accommodations:
► Written reasons for each decision
to reject for hire, promotion or
All reasonable accommodation
training
requests must be processed within 10
business days (if no supporting
►Description of accommodations
medical documentation)
• considered for rejection
► If medical documentation / or if
• provided for disabled vets
special equipment must be ordered
selected for hire, promotion
not exceed 30 days, absent
or training
extenuating circumstances
Must seek advice of applicants
regarding accommodations, when
Any denial or refusal to provide a
applicable
reasonable accommodation must be
provided IN WRITING
If undue hardship, disabled vet may
cover cost of the accommodation
Rest same as 4212
Written accommodation policy
w/specific elements
MERCER
April 25, 2020
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Data Collection, Analysis & Recordkeeping Obligations
Section 503 / Disability
Section 4212 / Veterans
Must maintain similar quantitative
Must maintain quantitative
measurements & comparisons for vets:
measurements & comparisons for
►priority referrals of vets /all referrals
persons w/ disabilities:
from ESDS
►referrals w/ disabilities from ESDS
►applicant ratio: vet apps/ total
& other linkage entities/ referrals
applicants
applicant ratio: apps w/
►hiring ratio: vet hires / total hires
disabilities to total applicants
►job fill ratio - same
►hiring ratio: hires w/ disabilities to
For “direct threat” – same
total hires
►job fill ratio of openings to filled
Maintain records- same
openings
For “direct threat” – a statement of
the reasons supporting the belief
of the direct threat
Maintain records for 5 years
MERCER
April 25, 2020
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Transparency & Accountability
Section 503 / Disability
Section 4212 / Veterans
EO Clause verbatim in subcontracts &
purchase orders
► Very long; impractical
Retain records for 5 years
Send written notification of AA policies
& efforts to subcontractors, including
vendors & suppliers, to request
compliance by them
ID official responsible for contractor’s
affirmative action activities on ALL
internal and external communications
re: affirmative action
CEO must publicly & personally support
contractor’s affirmative action
obligations
Post notice for employees working
offsite
MERCER
• Same
April 25, 2020
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More Training, More Sensitivity
Section 503 / Disability
Section 4212 / Veterans
Contractors would be required to ANNUALLY
provide training to all supervisors and
managers on the accommodation procedures
► Most onerous training obligation of state or
federal EEO laws
Must provide ADDITIONAL training to all
personnel involved in the recruitment,
screening, selection, promotion, disciplinary,
and related processes on
► The benefits of employing individuals with
disabilities
► Appropriate sensitivity toward applicants
employees with disabilities, and
► The legal responsibilities of contractor and
its agents regarding individuals with
disabilities
Must record who attended; keep 5 years
• No mention of supervisor/manager
MERCER
training on accommodation
procedures
• All other training requirements are the
same, but for veterans
April 25, 2020
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Annual Report & Priority Consideration
Section 503 / Disability
Section 4212 / Veterans
Required to submit
► annual report containing
measurements and computations
► % applicants, new hires, & total
workforce who are individuals with
disabilities for each EEO-1 category
► even if not selected for audit
• No change
OFCCP encouragement to voluntarily
develop & implement programs
► priority consideration in recruitment
and/or hiring
• Still required to submit VETS
100/100A
• Local employment service offices
already give priority referral to
protected veterans for jobs listed by
a Federal contractor
• OFCCP will now expect/ measure
hiring from priority referrals
Unclear whether such preference
programs would be lawful
► OFCCP cites no legal authority
MERCER
April 25, 2020
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Sample of current OFCCP vets/disabled requests
Veterans
Disabled
• State job postings during review
• 3 years VETS-100/VETS-100A
reports
• Self-id forms
• Executed contracts/purchase orders
with correct language
• Posting where employees can view
AAP
• Invitation to vets to self-id and
posting
• List of employees self identifying as
vets
• List of applicants id’d as vets,
whose hired and if not why not
• Leave and accommodation policies
• Job descriptions with medical and
physical requirements
• Info on review of medical and
physical requirements
• Employees or applicants denied
promotion or hire due to medical or
physical job requirements
• Onllne accessibility
• Accommodation request list (name,
date of hire, request, granted and if
not why not
• Disability leave list
• Maternity leave list
• Disabled applicant list
MERCER
April 25, 2020
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