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March 25 — Employers can use their company’s intranet site to support affirmative action and nondiscrimination obligations toward individuals with disabilities, a workplace-disability consultant told participants at a conference March 23.
Compliance auditors from the Labor Department's Office of Federal Contract Compliance Programs are looking for reassurances that the organization’s reasonable accommodation process is “fair and equitable across the footprint” of the company, Nadine Vogel, president of Springboard Consulting, a New Jersey-based firm focusing on disability issues in the workplace, said at a session of the Society for Human Resource Management 2015 Employment Law & Legislative Conference.
On Sept. 24, 2013, the OFCCP issued revised regulations under Section 503 of the Rehabilitation Act, which went into effect March 24, 2014. Appendix B to Part 60-741 of the regulations encourages contractors to develop written reasonable accommodation procedures in order to satisfy their obligations under the revised rules.
“The regulations don’t require that you have an accommodation process or procedure, but they strongly suggest that you probably should,” Vogel told conference participants. Additionally, she said, compliance officers can request during an audit documentation on the company’s accommodation policies and requests.
Under the regulations, construction and non-construction federal contractors are required to establish a nationwide goal of having individuals with disabilities make up 7 percent of their workforce in each job group. Establishments with fewer than 100 employees are required to set a 7 percent goal for their entire workforce.
Contractors also must use the agency's Voluntary Self-Identification of Disability form, which the Office of Management and Budget approved Jan. 22, 2014, as Form CC-305, to invite their current employees to voluntarily self-identify as individuals with a disability every five years.
On Dec. 12, 2014, the U.S. Court of Appeals for the District of Columbia Circuit found that the OFCCP had soundly interpreted Section 503 and didn’t enforce “arbitrary and capricious” new requirements on federal contractors regarding the employment of qualified individuals with disabilities (Associated Builders & Contractors, Inc. v. Shiu, 2014 BL 348998, 30 AD Cases 1793 (D.C. Cir. 2014))).
On March 12, the Associated Builders & Contractors, a national construction trade association, asked the U.S. Supreme Court to review the D.C. Circuit’s ruling (Associated Builders & Contractors, Inc. v. Shiu, U.S., No. 14-1111, review sought 3/12/15).
A company that permits employees to make reasonable accommodation requests through multiple channels, such as the human resources department, a manager or a toll-free telephone number, may run the risk of having a biased reasonable accommodation request process, Vogel said. The system may prevent consistency and fairness because some individuals will apply different standards to denying and granting accommodation requests, she added.
According to Vogel, companies should try to mitigate an employee’s sense that the individual is being treated differently because of the person’s job title, department, geographical location, or the type of disability.
She suggested that employers centralize the initial reasonable accommodation request process by adding a request form to the company’s intranet. There should be a description near the form explaining where the information is going within the company and the designated-response time to deny or accept the request, Vogel added. Managers are copied on the request.
Vogel suggested that employers upload the accommodation request form on different sections of their intranet, including the human resources self-service portal.
The consultant also recommended that employers convene a reasonable accommodation committee comprised of employees from different departments within the organization. The committee would investigate accommodation requests to determine whether they are legitimate and whether similar requests were made in the past. If an issue or question comes up, then “you have a team applying the same sets of eyes, rules and criteria,” Vogel said.
“The person that started in the mailroom two days ago will get the same fair evaluation of an accommodation request as an executive vice president who gets into a car accident and now needs an accommodation,” Vogel said.
Posting the request form on the intranet and establishing a reasonable accommodation committee will help federal contractors with tracking their accommodation requests and solutions, which compliance officers may request during an audit.
She urged employers to establish intranet and Internet sites under Web Content Accessibility Guidelines 2.0 (WCAG), which will allow greater access to the sites for individuals with disabilities.
“Employers shouldn’t just e-mail the self-identification form to current employees without explaining in advance the reasons why the company is asking them to complete the self-identification form,” Vogel said. “The employer knows why the company is sending the form, but the employees may not fully understand why they need to complete the form.”
She advised employers to stress the anonymity associated with completing the form and explain how the form reinforces the company’s branding and message around diversity.
Vogel recommended that employers develop on their intranet a section or channel housing a tool to assist workers who are considering disclosing their disability.
The portal should include hyperlinks, including one to the self-identification form and the company’s disability employee resource group, to information affirming the employer’s status as a “great company for people with disabilities to work for,” she said.
The information may make employees feel comfortable in disclosing their disability status, thus likely resulting in an increase in the percentage of persons identified as disabled working at the company, Vogel said.
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