As discussed in Chapter 1, covered contractors must prepare, maintain and update on an annual basis, an AAP for individuals with disabilities. COs use the on-site review to investigate problem areas they identified during the desk audit, to gather further information regarding the AAPs and their implementation, and to learn more about the contractor’s employment activities and personnel practices. To gather information related to the Section 503 AAP obligations, COs must interview contractor officials, employees and others, as appropriate. They must also identify and obtain documentation that evidences the contractor’s compliance efforts. This information is recorded in the SCER Parts B and C.
If the contractor opts to prepare a combined Section 503 and VEVRAA AAP, the CO must ensure that the combined AAP includes all the elements required under each law. When reviewing a combined AAP, COs should pay particular attention to the differences in the laws to ensure the contractor’s combined AAP captures all the required elements.
For example, Section 503 requires an annual analysis of the contractor’s utilization of individuals with disabilities and, where the contractor does not meet its goal, it must determine whether and where there are barriers to equal employment and develop action-oriented programs to correct any identified problem areas. VEVRAA, however, does not require a utilization analysis; it requires contractors to establish an annual hiring benchmark by which they can measure their progress toward achieving EEO for veterans. Under VEVRAA, there is not a requirement to identify problem areas or develop action-oriented programs. As this example illustrates, even though there is some overlap between Section 503 and VEVRAA AAPs, there are some differences that a CO must consider when reviewing Section 503 and VEVRAA AAPs for compliance.
During the desk audit, COs examine the Section 503 AAP and Itemized Listing data to ensure the submission includes the required content and determines whether the AAP and support data are acceptable. During the on-site review, COs interview contractor officials and others regarding the development and implementation of the AAP, and obtain documentation evidencing the same. COs record any problems identified during the desk audit in the SCER Part A. Any problems COs identify during the on-site review are noted in the SCER Parts B and C, as appropriate. COs must examine whether the contractor satisfied the following elements that are required parts of Section 503 AAP.
a. Equal Opportunity Policy Statement. COs must verify that the policy statement is clearly posted on bulletin boards in an accessible location. COs must examine the policy statement to determine if it is current, noting whether the person responsible for implementing the AAP is named.111
b. Review of Personnel Processes. COs may need to ask several questions to confirm a contractor’s review of personnel processes that include, but are not limited to, those stated below.
- Does the contractor periodically review personnel processes to ensure that the qualifications of individuals with disabilities for jobs, training and promotion are fully considered, and that individuals with disabilities have equal access to the personnel processes to apply for such opportunities? How often is this done?
- What procedures has the contractor designed to facilitate the periodic review?
- How does the contractor document its review of personnel processes and any actions it takes? How is that review conducted and by whom?
- Have there been requests to modify personnel practices as a reasonable accommodation? How did the contractor respond to the requests?
COs must obtain and review all relevant documentation, including procedures, reports and personnel files. COs must also determine whether the contractor’s personnel processes provide for the careful, thorough and systematic consideration of the job qualifications of applicants and employees with known disabilities for job vacancies, either for hire or promotion, and for all training opportunities.
c. Review of Physical and Mental Job Qualifications. The contractor is obligated to periodically review the physical and mental qualifications of its jobs, and to eliminate those qualifications that tend to screen out qualified individuals on the basis of disability and are not job-related and consistent with business necessity. The Section 503 AAP must contain a schedule for this periodic review. While on-site, the CO must request samples of any mental or physical job qualification standards and interview individuals responsible for their periodic review.
To assess the contractor’s review of its physical and mental job qualifications, COs should consider the following questions:
- When did the contractor write or last update the job descriptions? Do the job descriptions accurately reflect the duties of the job? Do the job descriptions require the employee or applicant to perform duties in a specific way? If so, and those requirements tend to screen out qualified individuals on the basis of disability, is there a business necessity for performing the duties in this way or are there alternate ways the duties can be performed satisfactorily?
- Are there job qualifications that would tend to screen out individuals based on disability? For example, an unassisted lifting requirement may screen out individuals with disabilities even though employees are not required to lift unassisted.
- Are those job qualifications based on business necessity? If not, are there alternative qualifications that the contractor can use?
- Are there positions that do not have written job descriptions? If so, how does the contractor identify and review job qualifications?
d. Provide Needed Reasonable Accommodation to Physical and Mental Limitations. Contractors must provide needed reasonable accommodation to the known physical and mental limitations of qualified individuals with disabilities unless the accommodation would cause an undue hardship. Accommodations may include, but are not limited to:
- Modifying work places and making work places and other contractor facilities used by employees accessible;
- Restructuring of nonessential functions of jobs;
- Allowing essential functions to be performed in a different way;
- Assigning nonessential functions of the job to other employees;
- Providing readers, sign language interpreters or assistive devices;
- Providing part-time work, flexible hours, or telework; and
- Reassigning employees to a vacant position.
COs should inquire whether there is a process in place by which individuals can request needed accommodations, how requests for accommodations are processed, and whether the contractor has provided accommodations as a matter of affirmative action. COs must also determine whether officials responsible for implementing the accommodation obligation are appropriately trained to address requests for accommodation. COs must also review the contractor’s accommodation request records that were not already reviewed at the desk audit to assess whether the contractor responds to requests promptly and appropriately. All accommodations made by the contractor must be effective. Generally, this means the contractor must provide the person who needs the accommodation the ability to perform essential job duties. In the case of an applicant, reasonable accommodation could include, for example, providing an alternate means for applying and being considered for employment other than through an online application system. If requests for accommodation were denied, COs must obtain documentation reflecting these decisions and the basis for the decisions to ensure that the denials were proper.
e. Develop and Implement Procedures to Prevent Harassment. COs must confirm that the contractor developed and implemented procedures to ensure that employees are not harassed because of their disability status. COs should request a copy of these procedures, interview the official responsible for implementation, and review reports or internal investigations of alleged harassment based on disability status and the contractor’s response.
f. Disseminate EEO Policy Externally and Perform Outreach and Positive Recruitment. While on-site, COs must request documentation showing that subcontractors were notified of the contractor’s affirmative action policy, requesting appropriate action on the part of the subcontractors. Additionally, COs must verify during the on-site review that the contractor engaged in outreach and positive recruitment activities, evaluated the effectiveness of each outreach or recruitment activity, and assessed the total effectiveness of all of its efforts combined. While on-site, the CO must request documentation for all its outreach activities and assessments for the three years prior to the AAP year, as well as any documentation of efforts during and after the AAP year. If the documentation and assessments show that the contractor’s efforts were not effective, the CO must determine whether the contractor has implemented alternative efforts to identify qualified individuals with disabilities.112 COs may also refer contractors to OFCCP’s ERRD or other community resource databases that could serve as a recruitment resource.
g. Disseminate EEO Policy Internally. The AAP should clearly describe the methods the contractor used to disseminate its EEO policy internally. During the on-site review, COs must verify that the contractor actually implemented these measures.113 COs must obtain documentation and verify through interviews that the internal dissemination activities identified in the AAP occurred.
h. Design and Implement an Audit and Reporting System. COs must confirm that the contractor has an audit and reporting system that, among other requirements, measures the overall effectiveness of its AAP. To do this, the CO must request documentation of the contractor’s actions to implement the audit and reporting system, as described in the AAP. COs should obtain documentation of past audit(s), any remedial actions taken and their effectiveness. The COs may conduct interviews with responsible officials and employees.
i. Designate an Official to Implement the AAP. While on-site, COs may seek an interview with the official named in the AAP to determine their specific responsibilities and the authority assigned to that individual, and how the official assesses the implementation of the AAP. COs must obtain documentation, such as a copy of the individual’s position description, copies of reports the individual has prepared and supporting documentation for any assessments the official conducted.
j. Train Personnel to Ensure that the Contractor Implements EEO and AAP Commitments. COs must interview contractor staff, managers and officials to confirm that the contractor’s personnel involved in the recruitment, screening, selection, promotion, discipline and related processes have been trained to ensure that the commitments in the AAP are implemented. Questions relevant to this determination include:
- Does the contractor provide training to personnel? What type of training does the contractor provide? When, how frequently, and by whom is this training provided?
- What are the trainer’s qualifications?
- Did the trainer use training materials? What were they?
If the trainer used written training materials, the CO must request a copy.
k. Analyze Data Collected on Applicants and Hires with Disabilities. If, during the desk audit or on-site review, COs identify problems related to the contractor’s Section 503 affirmative action obligations, COs must request the total number of applicants and hires for all jobs, total number of applicants and hires with known disabilities, total number of job openings and total number of jobs filled, going back three years from the beginning of the contractor’s current AAP year.114 For a contractor that is six months or more into the current AAP year, COs may also request records the contractor collected after the beginning of its current AAP year so that the CO can calculate the totals of applicants, hires, job openings, and jobs filled. In some instances, the contractor may have already computed these totals. These requests must also be made to verify accuracy if COs detect data integrity problems at the desk audit or during the on-site review.
COs may use these data to inform their determinations on the effectiveness of the contractor’s outreach and positive recruitment activities, and whether the contractor’s personnel processes allow for the careful, systematic and thorough consideration of the job qualifications of qualified individuals with disabilities. Some relevant questions might include:
- How does the contractor use the totals of applicants, hires, job openings and jobs filled as a criterion when determining the effectiveness of its outreach efforts?
- If the totality of its outreach efforts were not effective in identifying and recruiting individuals with disabilities, what alternative efforts did the contractor implement (see examples at 41 CFR 60-741.44(f)(2))?
- Does the data indicate any potential problem with the personnel processes utilized by the contractor when considering job qualifications of applicants and employees with disabilities for job vacancies filled either by hiring or promotion?
111. FCCM 1G01.
112. For examples of outreach and recruitment activities, see 41 CFR 60-741.44(f)(2).
113. 41 CFR 60-741.44(g).
114. 41 CFR 741.44(k).
COs must confirm that the contractor posted a notice, available to both employees and applicants for employment, stating that the Section 503 AAP is available to any employee or applicant for employment to inspect, upon request. When the contractor conducts personnel-related business through the Internet, such as recruiting and disseminating employment notices, COs should strongly encourage the contractor to post the AAP notice electronically. The notice must include the location and hours during which the AAP may be obtained. An example of possible acceptable language is, “The AAP is available in the personnel office during regular business hours.” Confidential information or information that would allow for the identification of individuals with disabilities must not be made available for inspection as part of the Section 503 AAP.115
115. 41 CFR 60-741.41.
Contractors must offer each applicant the opportunity to self-identify as an individual with a disability under Section 503 at both the pre-offer and post-offer phases of the hiring process.116 Within the first year of being subject to Section 503, contractors must also extend the invitation to self-identify to all of its employees and at five-year intervals thereafter. In the intervening years, contractors are required to remind employees, at least once, that they may voluntarily update their disability status at any time.117 This data on applicants and employees with disabilities will be used by contractors to perform other components in their AAPs, such as the utilization analysis and the annual assessment of the effectiveness of outreach and positive recruitment efforts. Contractors are required to keep all information on self-identification confidential and maintain it in a data analysis file, rather than in the medical or personnel files of individual employees.118
a. Voluntary Self-Identification of Disability Form. Under Section 503, the invitation to self-identify must be made by the contractor using the Voluntary Self-Identification of Disability form (Form CC-305) that is authorized by the OMB.119 Some contractors may prefer to create an electronically fillable version of the form used to invite self-identification. Electronically fillable versions are permitted, provided that the electronic version meets certain requirements. The e-form must:
- Display the OMB number and expiration date;
- Contain the text of the form without alteration;
- Use a sans-serif font, such as Calibri or Arial; and
- Use at least 11-pitch for font size (with the exception of the footnote and burden statement, which must be at least 10-pitch in size).
OFCCP specifies the minimum size and type of font to ensure the consistency of appearance, ease of reading and the general accessibility of the form. By using the OMB number and date, job applicants and employees know that the form is an officially approved government form.
Some contractors may find that it is necessary to make nonsubstantive changes to the self-identification form to ensure that the form is accessible to employees and job applicants with disabilities. Contractors seeking to ensure that the form they use is accessible are allowed to alter the margins of the form, change the color of the section headings, remove or change the color of the border surrounding the text of the form, or make other similar nonsubstantive changes. Contractors may also use HTML to make the form accessible. However, contractors may NOT:
- Alter the content (i.e., text or wording) of the form;
- Alter the order of the content on the form; or
- Alter the form or make changes that diminish the general accessibility of the form.
b. On-site Verification of Contractors’ Invitations to Self-Identify. During an on-site review, COs must request a sample of completed self-identification invitations to verify that the contractor uses the OMB-approved form. COs also must review any memoranda, emails or other form of communication that contractors use to invite employees and applicants to self-identify, or that contractors use to discuss or encourage self-identification. In examining these documents, COs must determine whether the contractor’s invitation to self-identify is completely voluntary, and whether the contractor is following the required process to invite applicants at the pre-offer and post-offer phases of the hiring process. In addition, COs must determine whether the contractor extended this invitation to employees within the first year of being subject to Section 503 and at least every five years thereafter, with a reminder notice at least once during the years between employee invitations.
Recognizing that contractors may have different practices and information technology capabilities, OFCCP permits a range of options for documenting compliance with the invitation to self-disclose disability requirement.
- Paper Invitations. A contractor that invites voluntary self-identification of disability by using paper copies of the OFCCP self-identification form must retain either the hard copies of the completed self-identification forms or electronic copies (e.g., pdf, scanned, etc.) of the completed paper forms. The contractor must also retain any log, spreadsheet or database that it may have developed to record the data from the self-identification forms.
- Electronic Invitations. A contractor that electronically invites voluntary self-identification of disability must either:
- Retain electronic copies (e.g., pdf, scanned, etc.) of the electronically completed self-identification forms, as well as any log, spreadsheet or database it may have developed to record the data from the self-identification forms;
- Retain hard copies of the electronically completed self-identification forms, as well as any log, spreadsheet or database it may have developed to record the data from the self-identification forms; or
- Retain a detailed log, spreadsheet or database of the data collected from each electronically completed form, without copies of each individually completed form, if the electronic system does not store completed forms. However, the contractor must also be able to demonstrate how they delivered and/or displayed the voluntary invitation to self-identify. This demonstration allows COs to verify that contractors met their obligation to use the OMB-approved form.
Depending on the focus of the on-site review, COs may examine the application or personnel file, or both, of each individual who self-identifies as having a disability; and review employment data indicating whether the contractor hired these individuals and, if not, the reason for nonselection. COs will also examine whether the individual requested a reasonable accommodation for application or employment and, if so, review the appropriate accommodation records to determine whether the contractor handled the accommodation request appropriately. If the contractor denied an accommodation request, COs must determine whether the denial was proper and whether, if needed, the contractor provided a suitable alternative accommodation without undue delay. If any concerns are identified, COs will also interview the affected applicants, employees and others, as appropriate.
116. See 41 CFR 741.42 (a-b).
117. See 41 CFR 741.42 (c).
118. See 41 CFR 741.42 (e).
119. The form, with OMB Control Number 1250-0005, is available in several languages at http://www.dol.gov/ofccp/regs/compliance/sec503/Self_ID_Forms/SelfIDForms.htm (last checked September 10, 2019).
a. Disability-Related Questions and Medical Examinations. Aside from disability inquiries undertaken as a matter of affirmative action pursuant to federal, state, or local law, such as the invitation for voluntary self-identification, Section 503 prohibits contractors from asking applicants disability-related questions or questions that are likely to elicit information about a disability prior to a conditional offer of employment. The law also prohibits contractors from conducting or requiring medical examinations of applicants until after a conditional job offer is made. Once the contractor makes a conditional job offer, the contractor may ask disability-related questions and require medical examinations, regardless of whether they are related to the job, as long as this is done for all entering employees in the same job. COs must determine whether the contractor improperly made disability-related inquiries or inquiries likely to elicit information about a disability on the job application itself or during the selection process, and whether the contractor administered medical examinations prematurely. On-site, a CO must obtain a copy of the application and forms related to the application process. COs should also ask whether the application process includes medical exams, at what stage the exams are used, and how the exams are used.
Mandatory disability-related inquires and medical examinations of employees, such as return to work exams and periodic physicals, are permissible only when, and to the extent that, they are job-related and consistent with business necessity. The CO may ask the contractor whether, under what circumstances, and how it uses exams to determine whether an employee is fit for duty to return to work. The contractor may not use information obtained as a result of such a lawful inquiry or exam in a way that discriminates on the basis of disability. Drug tests for the illegal use of drugs are not medical exams.
b. Confidentiality Requirement. The contractor must keep any information about disability (other than completed voluntary self-identification forms) or information related to medical exams in a separate, confidential medical file and not with personnel or data analysis files.120 However, government officials investigating compliance with EEO laws may have access; the contractor may inform supervisors and managers of necessary restrictions or needed reasonable accommodations, and the contractor may inform first aid and safety personnel of any needs. COs must make an assessment of acceptability of the contractor’s system for maintaining confidentiality of medical information, including inspecting where the records are kept, who has access to the records and why, and measures that ensure confidentiality of the records.
120. Self-identification information must be kept in a separate data analysis file. 41 CFR 60-741.42(e).