Good day, ladies and gentlemen, and welcome to the "Disclosure of Disability Under the ADA and its Relationship to Section 503 Regulations" conference call. At this time, all are in a listen-only mode. Later we will conduct a question and answer session and instructions will be given at that time. If anyone should require assistance during the conference you may touch star and then 0 on your touch tone phone. As a reminder this conference is being recorded. I would like to introduce the host of today''s conference, Peter Berg. Please begin sir.
Alright, thank you very much Norma. My name is Peter Berg and I am the project coordinator for technical assistance with the Great Lakes ADA Center. Welcome to the June session of the ADA audio conference series. The audio conference series is a project of the ADA National Network which is funded by the U.S. Department of Education National Institute on Disability and Rehabilitation Research. You may locate your regional ADA center by visiting www.adata.org or by calling 800-949-4232. So again, welcome to everyone. Let me go through a few slides before I turn it over to our speakers for today''s session. The audio for today''s session is being provided through your computer or via telephone for individuals that signed up for that access. 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Our first presenter for today is Naomi Levin, and she is the Branch Chief for Policy in the Office of Federal Contract Compliance Program with the U.S. Department of Labor, and when Naomi is done with her portion of today''s presentation, she will turn it over to Joyce Walker-Jones who is a senior attorney advisor with the U.S. Equal Employment Opportunity Commission. So I welcome both of our speakers and at this point would like to turn it over to Naomi.
Okay, Thank you so much Peter. I''m delighted to virtually be working with my old friend and colleague Joyce Walker-Jones. It''s a pleasure to be here with all of you and to have the opportunity to share some information about the new Section 503 regulations with you. They went into effect, you may know, March 24th of this year, but before I do that, I suspect that many of you are far more familiar with EEOC than OFCCP, so I want to start by telling you a bit about OFCCP and introduce you to OFCCP, who we are, what we do, and how we relate to EEOC to give you a whole broad picture. Next slide, please. The Office of Federal Contract Compliance Program or OFCCP, despite its name, is not a contracting office. We''re not a procurement office. We do get a lot of calls thinking we are, but we are actually a civil rights enforcement agency inside the U.S. Department of Labor and we enforce three laws prohibiting employment discrimination by federal contractors and subcontractors, and that''s where the contracting comes from. The laws we enforce are Executive Order 11246, which prohibits discrimination on the basis of race, color, religion, national origin and sex, and which requires affirmative action to ensure equal employment opportunity for minorities and women. We also enforce, as you know, Section 503 the Rehabilitation Act of 1973 and that''s going to be the focus for today, and that is, of course, the forerunner of the ADA and that prohibits discrimination on the basis of disability and it requires affirmative action to ensure equal employment opportunity for qualified individuals with disabilities. And the third law that we enforce is the Vietnam Veteran''s Readjustment Assistance Act of 1974 which we just simply call VEVRAA, and that prohibits discrimination against categories of protected veterans including disabled veterans and recently separated veterans and it too requires affirmative action to ensure equal employment opportunity for these protected veterans. Generally speaking, federal contractors or federal subcontractors are employers that do business with the federal government, so a company is a federal contractor if it provides goods or services to a federal agency, and, of course, if it''s a subcontractor, to a federal contractor, then it becomes one of our federal subcontractors if it''s doing business with the government, which it is. Whether a contractor is subject to Section 503 or to any of our other laws is determined by the dollar amount of the contract or subcontract and not by the number of employees that it has. So that''s sort of different than Title 7. In the case of Section 503, any contractor or subcontractors, and we just generally say contractor and mean both, has a contract exceeding $10,000, they''re subject to the nondiscrimination requirements of Section 503. If a contractor has a contract that''s at least $50,000 and their company in total has at least 50 employees, then they must also comply not just with nondiscrimination but with certain affirmative action obligations, so those contractors must develop and maintain written affirmative action programs or AAPs and comply with specific affirmative action requirements and each year they must update those AAPs. OFCCP is comprised of the national office, which is where I speak to you from today, and a network of six regional offices around the company, each having district and area offices in major metropolitan areas, so we''re located in the U.S., in Puerto Rico, and in Guam. Next slide, please. So that''s who we are, so what do we do? Our primary method of enforcement is by conducting compliance evaluations of the employment practices and procedures of federal contractors, even if no complaints of discrimination have been filed. So each year, we select about 400 contractor establishments or facilities across the country and we review their employment practices, including their AAPs and practices related to recruitment and hiring and testing and promotion and compensation and reasonable accommodation and pretty much just about anything else. And we do that to ensure that there has been no discrimination and to ensure that these contractors are complying with their affirmative action obligation. In addition to that, similar to EEOC, we also do investigate complaints of discrimination filed by individuals or by groups, so long as they''re filed against a contractor in our jurisdiction. Clearly, there''s some overlap in our respective jurisdictions, but EEOC on the nondiscrimination side of things as we like to say, because EEOC does not do affirmative action. We work closely with EEOC to ensure that there is no duplication of effort and to ensure that the laws that we enforce are interpreted in a consistent manner. In addition, each of us, each agency, authorizes the other to receive charges and complaints on its behalf, so that means if you are filing a charge or complaint, you don''t have to really worry about if it''s the right agency. We''ll take care of that. So if it is misfiled, that agency will transfer it to the other agency and it will be considered filed as of the date the first agency received it. If we find discrimination or if we find noncompliance with the affirmative action obligations, we''ll invite the contractor to voluntarily come into compliance with the law and enter into a legally-binding conciliation agreement providing for follow up reporting and for any other appropriate remedies. Most violations are resolved in this manner. The remedies we can obtain include injunctive relief, which generally is stop doing what you''re not supposed to be doing and start doing what you are supposed to be doing, make whole relief which would put a victim of discrimination in the same position that they should be in if there were no discrimination. It may be back pay, rehiring, reinstatement, and providing accommodation, and in addition to that, contractors found to be in violation may also be subject to sanctions and penalties, including things such as the withholding of a progress payment on a contract, termination or cancellation of the federal contract, either in whole or in part, and debarment from eligibility for receiving future contracts. Now, we don''t use those kinds of sanctions very often, but they are available to us. In addition to conducting compliance evaluation and investigating complaints, we also do a lot of free compliance assistance for contractors. We want to help them comply with the law if they want to comply with the law. And we also educate the community-based organizations and member of the public, again, we want to facilitate understanding of the law, compliance with the law and we want people to understand and know their rights. So we will do in-person workshops around the country, we will also do a webinar like this one, we will sometimes do web chats and listening sessions, and we also have a lot of technical assistance and guidance things hosted on our website, including an entire Section 503 landing page with frequently asked questions and a summary of the rules, a link to the rules, a resource directory, and a bunch other things. So if you''re interested, you can always stop by at www.dol.gov/ofccp. And with that, next slide, let''s talk about the regulations. Okay. OFCCP revised Section 503 with a couple of specific objectives that we had in mind in doing that. First, the ADA Amendments Act of 2008 applies equally to Section 503 just as it did to the ADA, and so we needed to update our nondiscrimination regulations, we needed to update our definition of disability to come into compliance and to make sure that our regulations were consistent with the EEOC''s revised ADAA regulations. And secondly, we wanted to update and strengthen the affirmative action requirements in Section 503 that had really been largely unchanged since the 1970s, and that''s a pretty long time. We wanted to aid contractors in recruiting and hiring of qualified individuals with disabilities. That has long within a requirement of the law, but it was clear that contractors needed more assistance to know how to do that and do it well. We also wanted to increase contractor accountability for complying with the affirmative action obligations by providing them with tools that would allow them to better assess whether there are still barriers in the workplace, where there are barriers to equal employment and that''s really the only way that they can remove them or reduce them, so changes like that, we hope, would ultimately increase employment opportunities for people with disabilities. And that''s the ultimate goal. Next slide, please. And today''s webinar, of course, is largely focused on Section 503 provisions regarding voluntary self-identification. But it''s really important to understand the role that those provisions play in the overall affirmative action scheme that we have set up in the revised Section 503 regulation. So first, to determine how to best revise our regulations when we were looking at them, we did a little research. So we looked at other laws like federal sectors, that require affirmative action in employment for people with disabilities, but most notably though, we looked to our own regulations and we looked over at Executive Order 11246 that has long provided affirmative action to ensure equal opportunities for minorities and women. In comparing the Executive Order rule with the Section 503 rule, we noticed that two key features of the Executive Order rule were largely missing from the Section 503 rule. One was accountability tools. For example, a goal that contractors could use as both a target and a yardstick against which they can measure the success of their affirmative action efforts. And the other was data, demographic data, about composition of the applicant pool and the composition of the work force. Now, that kind of data is necessary in order for tools such as a goal to be used. So, for example, unless you know the demographic data composition of your work force, you can''t determine whether or not you''re meeting a goal. Where are you in the goal? How far are you? So unless you know the demographic composition of your applicant pool, you can''t really assess the effectiveness of your outreach and recruitment efforts. How do you know if you''re doing better if you can''t tell where you are and then where you''re going? This is why similar to the Executive Order in the revised Section 503 rule we require contractors to collect demographic data about disability and to use specific tools to analyze that data and assess whether they need to alter any of their employment practices in order to ensure equal employment opportunity. Next slide, please. This slide shows several of the key changes made in the revised Section 503 regulations that I''ll tell you a little bit about. Keep in mind, there are several other affirmative action requirements of Section 503 that aren''t on this brief list. Some of which are longstanding requirements and were not changed in the new Regs and some, such as a requirement to add disability to what we call the EEO tag lines that you see in job ads that say "we''re an equal opportunity employer, we don''t discriminate". Now, "disability" will be added when it says race and sex. Disability will be there as well. So that''s new. Most notably, the new regulations establish Nationwide, 7% utilization goal for qualified individuals with disabilities. The goal is based on data from the census bureau American communities'' survey. The goal for the first time provides contractors with a quantitative yardstick against which they''ll be able to measure the success of their 503 affirmative action efforts. For the most part, the goal will be applied very much like the Executive Order goal that will be applied to job groups that contractors already use when dealing with goals for minorities and women. When the 7% goal is not met, contractors must take steps such as assessing their personal processes to determine whether there are still impediments to EEO. In other words, why am I not meeting the goal? Is there something in my workplace, in my procedures, in my personal practices? If the contractor does identify problem areas, it has to develop and execute a plan to fix those problems. However, the rule is clear that simply not meeting the goal is not a violation of the law. So basically the rule requires not that contractors just meet a goal; it requires that they try to meet the goal in specific ways. The new regulations also require, for the first time, that contractor''s document and annually update several quantitative comparisons regarding the number of people with disabilities who apply for jobs and who are hired as compared to the total number of applicants and total number of applicants hired. Having that kind of data will enable both contractors and OFCCP when we evaluate them to examine the impact of hiring and selection processes and to evaluate the effectiveness of their outreach and recruitment efforts. In addition, contractors have long been required, as I mentioned, to engage in outreach in requirement, but what the new regulations add is the requirement that contractors must document each outreach and recruitment effort and must do an annual written assessment of the effectiveness of each one and of the effectiveness of those totality of all of their outreach and recruitment effort. If the contractor determines the totality of its efforts were not effective, it has to identify and implement alternative efforts. And when we do an evaluation, we''ll look at those evaluations and their conclusions the contractor reached have to be reasonable, as we determine that. Also, the new regulation strengthens an already-distinct auditing requirement. Contractors are required to self-audit their employment practices and assess the effectiveness of their AAP, and the new Regs require the contractor to document what they did to comply with this requirement and to revise their affirmative action programs if the audit reveals that it''s deficient or ineffective. Next slide, and as you know, the Section 503 regulations require contractors to invite applicants and employees to voluntarily self-id as an individual with a disability. Now, let me be clear about a couple things. First, what the requirement is, is for contractors to invite voluntary self-identification. There is no requirement for applicants and employees to provide that information. Okay?, the requirement is to invite, not to rely. Second, the demographic data about disability that''s being asked is absolutely crucial for the other key changes I just talked about to work. Again, without the data about disability, contractors can''t tell if they''re meeting the goal. And without data about disability, contractors won''t be able to know if their outreach efforts are effective. Are they doing better? Are they not doing better? So that information is absolutely essential, and without that information, they won''t have a full picture of whom they''re hiring. Are they hiring people with disabilities? Also, I want to be clear that all of the data that is gotten here from this invitation is subject to very strict confidentiality requirements. It is to be kept in a separate data analysis file. Now this is separate from personnel files and it''s separate from ADA confidential medical files, and that''s because this data is to be used only for affirmative action purposes by those in the company, and that''s typically people in an HR office or in a EEO office who are responsible for the company''s affirmative action obligation. So disability, demographic data can''t be given to or used by hiring officials or managers. Okay? Next slide, let''s take this requirement apart and really examine exactly what''s really required here. At the pre-offer stage, the new regulation requires contractors to invite applicants to voluntary self-identify. Now, some contractors, as most of you know, expressed concern that inviting that self-identification at pre-offer violates the ADA''s prohibition on pre-offering inquiries about disability, but as you''ll hear very shortly from Joyce, it does not. EEOC''s regulations are clear that the ADA does not prohibit pre-offer invitations to voluntarily self-identify required to comply with Section 503. Moreover, we said this information is sort of vitally important, and the pre-offer information is particularly important to capture data about people primarily with obvious disabilities, and the reason for that is up until now, there was no way for OFCCP to determine how people with obvious disabilities were faring in the application process. Were they treated in an equal way? Were they given an equal opportunity? Or were they simply dismissed out of hand at an interview because they self-identified the second they came into the room for their interview? So this will allow us to have that information so we can tell whether these people are being treated in an -- given an equal opportunity and that people with obvious disabilities are given equal opportunity to have their application fully considered and be hired on their merits. At the post-offer stage, the old Section 503 regulations contained a post-offer invitation to self-identify, and we''ve kept that. The reason this is important, is particularly for people with hidden disabilities or less obvious disabilities, people with hidden disabilities may not feel comfortable enough pre-offer to self-identify, and we know that. But after there''s a job opportunity, particularly somebody will need a reasonable accommodation; somebody might feel much more comfortable, okay, now I''m prepared to self-identify. So we want to make sure to capture that data too so we have a full picture. So we''ve kept that same self-ID, all applicants post-offer are invited to self-identify whether they have a disability. In addition to pre and post-offer, in the new regulations, there''s also an invitation to employees, and the reason for this is disability is not an immutable characteristic like race. Someone who doesn''t have a disability when they''re hired may later become disabled and because over time, someone with a hidden disability may become more comfortable or may need an accommodation for the first time, we have an invitation to employees to self-identify the person with the disability. This invitation for employees must be issued the first year the contractor is subject to the self-identification requirement. In essence, where contractors must do a baseline of where they are with their work force of demographics data on disabilities. Again, a contractor should do this at a five-year mark if they''ve been a contractor for five years and every five years thereafter the contractor is a contractor. Between those five year intervals, at least once, the contractor must remind everyone that you may always update your disability status information at any time. And that could just be an e-mail, notice; however the contractor would like you to do that. Now, that''s the requirement, those are the different times when an invitation is provided, but we also felt in the rules that it was very important to ensure that applicants and employees were asked about disability to provide demographic information about disabilities in an appropriate and consistent way, and that it''s important that everyone understood why they''re being asked for this information, what the purpose of the inquiry was, and understood that it''s really coming from OFCCP. It''s not just a nosey employer wanting to ask information that''s, you know, perhaps they really shouldn''t have. So to do that, we decided to require that all invitations to self-identify about disability must be made using an OMB-approved form that is posted on OFCCP''s website. And So, if we can, let''s see if we can go to the forum and take a quick tour. I hope this magic technology works.
Just a quick reminder to the folks in the webinar room, please do not mouse-click on any of the links as you are doing the web tour. For screen reader users, please do not hit Enter on any of the links. Okay. Go ahead.
Okay. I think we have to stay open. That''s something I can do. Yay, how wonderful, it worked. Okay, so on the form -- So this is what the form looks like. It has an LMB Control number and an expiration date. As you see and we''ll take a quick tour, it''s divided into what we hope are very easy to read section. The first section explains why you''ve been given this form. It says why are you being asked?, and it basically explains that the form is voluntary, and that''s because we''re a contractor, we have to reach out and hire qualified people with disabilities and to measure how well we are doing, we''re asking you to tell us if you have a disability or have ever had a disability. So that''s basically what is in the first section. It also explains that that information cannot be used against you in any way, which is also important for everybody to know. The second section, as we scroll down, it says how do I know if I have a disability? And so for that we''ve included two things. One, we''ve included the definition that is familiar to many of you: have a physical or mental impairment or medical condition that substantially limits a major life activity or have a history or record of such an impairment. Now, we have included an example list of disabilities under that. Now, this list comes from both OFCCP and EEOC regulation that are examples in the rules. So that is where that list comes from, it''s nothing new, we didn''t choose different disabilities. So we just have a list of various types of potential disabilities, about 20 of them ranging from blindness, Deafness, and cancer, to impairment requiring use of a wheelchair, PTSD, and intellectual disability. So that''s a wide-ranging list. Then the person filling out the form is asked to check one of three boxes. Yes, I have a disability or previously had a disability. No, I don''t have a disability, and then the third choice is simply, I don''t wish to answer. And that''s kind of all that''s on the form. Now, on the bottom, you are asked for a name and a date. And the reason for that is because the goal -- there are two. Because the goal is applied to job groups, we have to know who the person is to know which jobs that they are in to know if we''ve met the goal for that job group. And the second reason is, when OFCCP does a compliance evaluation, it''s going to want to verify the contracted data, so having this information allows us to know that these are real numbers from real people and not just something that was sort of perhaps made up or changed, so that''s why we need that information. Then on the second page, the first form is really where all the business happens. The second page just tells people a little about what reasonable accommodation is and if you need an accommodation, please let them know. Then you just have some things we need to say. We have to have a burden statement and just a legal citation, and that''s it. So if we can now return to the slide, that''s the tour of the form. And so let me point out a couple of things about the form we just looked at. The only thing people are asked to say is I have a disability, I do not have a disability, or I don''t want to tell you. Nobody is asked to identify the disability. Nobody is asked to describe the nature, the effect, the impairment, what the limitations are, nothing, because this is simply demographic data. This form cannot be used for purposes of requesting reasonable accommodation, so nobody is being asked to say, yes, I need, or no, I do not need an accommodation. It''s actually sort of very basic, by design. The form, just to let you know, is available on the OFCCP website in both Spanish and English and in PDF and Word format, and contractors are permitted to electronically re-create the form, provided they meet certain basic standards like making sure it''s in an accessible format. Essentially they must use no pitch no smaller than we''ve used and a sans-serif font like Calibri so it will work with assistive equipment. Next slide, please. And let me just wrap up and turn things over by providing a little contact information. If you want more information, if you want to learn more about us or other laws, you can visit our website at www.dol.gov/ofccp. We have a toll free help line number, and that''s 1-800-397-6251 or we have a TTY number as well, which is 1-877-889-5627. And finally, if you do have a question, you can reach us through email at firstname.lastname@example.org. And with that, Joyce, the floor is yours.
Thank you. Can you advance the slide to the start of my presentation, please? Good afternoon. So that was very informative. I certainly learned a lot. As Naomi said in her presentation, some individuals mistakenly believe that the 503 form inviting voluntary disability application violates the ADA. I''m here to explain why it doesn''t. Next slide please. Unlike Naomi who spent her time telling you who OFCCP is and what they do, I''m assuming that most of you will have been on presentations to learn about the ADA, specific topics on the ADA, so you generally know what we do at EEOC. I''m going to focus my presentation on just the disability-related inquiries provisions of the ADA, because those are the provisions that most directly align with 503. So I can touch on topics of what''s prohibited or permitted under the ADA. And thankfully, I don''t have to talk about 503 as some of the people from my agency have had to do. So thank you, Naomi, very, very much for being here today. So distinguishing between Section 503 and Title I. Title I is enforced by the U.S. Equal Employment Opportunity Commission. It applies to private and state employers with 15 or more employees, as well as to state and local government employees. These are -- Title I is the employment part of the ADA, employment title. Employers covered by both by the ADA and Section 503 must comply with both laws. That''s why it''s important to know that there is no conflict, that the laws work in conjunction or with each other, so there''s no conflict. There''s no conflict of federal law to say, well, I can''t comply with the ADA and 503, because employers and contractors can do that. In some instances, 503 requires contractors to take actions not required by employers. Taking actions required in 503 does not violate the ADA. Naomi talked specifically about what some of the obligations are on other 503, and one of them is data collection. So that''s an obligation that Title I, in employers covered by Title I are generally not required to maintain data, so that''s a distinction between 501 and 503. Next slide, please. So as I said, I''m going to focus on disability-related inquiries and medical examinations. Most of this, I''m sure for most of you, will just be a review. And this is the general rule concerning pre-offer disability related inquiries and medical examinations, I think, is where looking at that rule causes some confusion. Because generally, you know, the ADA provides, and no disability related inquiries of medical examinations may be made at the application stage, so you cannot ask whether someone has a disability, whether they had a disability in the past, and certainly, you can''t ask under (indistinguishable), you can''t ask about family medical history. There are some narrow exceptions, though, to that rule. An employer can ask applicants whether they would need a reasonable accommodation for the application process. They may ask a particular applicant if he needs a reasonable accommodation, if so, what type. Where the applicant has a known disability that is for a reasonably believe or requires accommodation. They can also ask if the applicant doesn''t have a known disability but voluntarily says during the application process, or more likely, during the interview, that the person has a disability. Then an employer or interviewer can ask will you need an accommodation and what type? Again, this doesn''t open the door for all kinds of questions about the person''s medical condition or disability, and there are two specific questions, and they have to be focused on, will you need an accommodation, and what type? Employers can also voluntarily invite self-identification for affirmative action purposes, so this is very much like the 503 regulations, and these rules, we set out in our pre-employment enforcement guidance that came out in 1995 which is available on our website if you go to www.eeoc.gov and you click on disability and then click on guidances, you can find our 1995 pre-employment guide. Next slide. So let''s focus a little bit on what does it mean disability related inquiries for affirmative action purposes? So as I said, employers can invite applicants or employees to self-identify for affirmative action purposes, whether it''s because of the federal law, state or local law that requires affirmative action or because the employer is using the information to benefit individuals with disabilities. So a private employer can decide that it wants to increase its number of applicants and it''s not a federal contractor, but it wants to increase the number of people with disabilities in its work force. If that''s what the employer is doing, that''s permissible under the ADA, provided that the employer clearly tells applicants that answering is voluntary, so they''re not required to provide this information, and that any information provided will be kept confidential and used solely in connection with affirmative action obligations or efforts. As Naomi said, and that''s very similar to the 503 protection of confidentiality, that it''s used just for affirmative action purposes and not for any other purposes, so employers cannot keep this information along with the person''s personnel records, cannot keep this information along with any files created in conjunction with the person''s request for accommodations. Employers also have to tell employees that refusal to answer will not subject the applicant to any adverse treatment. And I don''t know if any of you here were watching the news. I''ve spoken to Naomi about this. Channel 7 did just a little clip on a teenager who had applied for a job at Staples and told that he had to fill out this information. What was unclear about that, and he said -- violation of the ADA. They did not show the form, so we do not know if the person was given a 503 form. They did not say whether or not Staples made it clear that answering the questions were voluntary. So it was not a great example of, you know, journalism or media reporting. But some of you may have heard that, and that might have, you know, further confused you. So if you have any more questions after I finish -- and I''m hoping we''ll have at least a half an hour, I''m assuming that many of you will still have some questions about 503. For those of you confused by that news report, this would be the time to raise them. Next slide, please. Let''s continue on with disability-related inquiries and medical examinations. So the general rule is post-offer that means after a person has been given a conditional job offer, an employer may ask all applicants to submit to a physical -- a medical examination or they can ask them to fill out a questionnaire, as long as they do so for all entering applicants in a certain job category. And even though there are no restrictions, they can ask, you know, wide-ranging questions. They can ask if a person has a disability. They can ask if they''ve ever had a disability. An employer can ask any questions at this stage. What I always caution them, though, to remember, is they can only withdraw a conditional job offer if the information obtained or reveals that the individual''s not qualified or would pose a direct threat to helper safety. And if looking into the person is qualified, they would have to look at whether or not they would be qualified with a reasonable accommodation. So could they do the job with a reasonable accommodation despite having a disability or could the employer eliminate or reduce any direct threat by providing an accommodation? Next slide, so the general rule is that during employment, the prohibition is even stricter. So during employment, all disability-related inquiries and medical examinations must be job-related and consistent with business necessity. And this generally means that the employer, before the employer can ask about his or her medical condition, that means the employer has to have a reasonable belief based on objective evidence that the employee will be unable to do the functions due to a medical condition or that the employee will pose a direct threat due to a medical condition. And an employer may get this knowledge in various ways. The employee, him or herself, may say, I can''t do this job. You know, I''m feeling dizzy, I''m feeling weak, and if the employer has a reasonable belief that the person cannot do the physical responsibilities of the job, they can ask for more information.Or an employee may -- a supervisor may be told that another by another employee that a person has a medical condition.
Joyce, could we hold on one second? We''ve lost our captioner. If we could just pause. I apologize to folks, but we don''t want to continue and not be accessible to anyone within the platform, so we are just going to pause here and I appreciate your patience. Once again, I want to apologize. We have a technical issue with captioning. I appreciate your patience while we are working to get our captioner back into the room and get the captioning restarted. So I appreciate your patience and we''ll get started just as soon as we can here. (Pause in proceedings.) Okay, Joyce, our captioner is back with us, and thank you. Continue, please.
I''m going to wrap my portion up pretty quickly. I just went through what the general rule is during employment that allows when employers are able to ask a person about their medical condition or disability. Next slide, please. I also want to point out that there are other instances when an employer can obtain medical information from current employees, when the employee has requested reasonable accommodation and his or her disability or need for accommodation is not obvious, and this is particularly important now that the ADA amendments are in effect because more conditions are now going to be disabilities than prior to the amendment, so all of those disabilities are not going to be obvious, and an employer can still ask for some medical information or documentation to support that a person has a disability. An employer also ask for medical information when it''s required to do so by another federal law or regulation. For example, DOT medical certification requirements for interstate truck drivers. Employers can ask disability related information such as through a health or risk assessment, when it is offering -- as part of a voluntary wellness program. And I definitely won''t go into that right now, but EEOC is carefully looking at what that means. And an employer can also ask even when a person is an employee but is taking -- undertaking affirmative action. It can ask current employees to voluntarily identify whether or not they are individuals with disabilities. Next slide, please.
Joyce, hold on one minute. We''re having difficulties again with the captioner. Again, I apologize. Technology is technology, and -
We certainly don''t want to exclude any of our participants that require the access. So again, I apologize to our participants and apologize to Joyce, who has had to start and stop here. But folks, we are diligently working on getting our Captioner up and going, so we appreciate your patience. Joyce, appreciate your patience.
Okay. Just let me know when to continue.
Okay. Okay, Joyce, you can continue, and if you can just remind us which slide you''re on to make sure we get the right slide displayed.
I''m on slide 27, and the title is Additional Protections for All Applicants and Employees. So the ADA requires that all medical information be kept confidential, and that includes medical information, no matter the source. So if it''s because the -- a person requested a reasonable accommodation and submitted medical information, that is to be kept confidential. If a person voluntarily identified himself or herself as a person with a disability, that needs to be kept confidential, which means it cannot be placed in a regular personnel file and it can not be disclosed verbally or in writing, except in very narrow exceptions. And EEOC takes the position that it doesn''t matter whether or not a person, an employee, voluntarily announced say at a meeting that the person has a seizure disorder and the person or employee wanted the co-workers to know what to do. The employer, the supervisor, still cannot disclose that information to somebody that wasn''t at the meeting even though the employee voluntary disclosed that. So EEOC''s position is that all medical information, no matter what the source, including the source, name of the employee or applicant, that information must be kept confidential, except to supervisors or managers, for example, to grant necessary work restrictions or reasonable accommodations, and to personnel providing emergency medical treatment. So officials investigating compliance with the Rehabilitation Act and for workers compensation insurance purposes. So the employer can only disclose a person''s medical information in those very narrow exceptions. Next slide. And here''s where -- Naomi, are you still there?
So I thought it might be helpful to look at some common ADA compliance questions, and I''m glad that Naomi is here, because she can jump in and correct me if I''m wrong or if she wants to further explain or maybe even better explain. Next slide, please. So here''s -- and these are some of the questions we''ve been getting as our staff, my co-workers go out to do presentations. Will a contractor be in violation of the ADA if it uses the new OFCCP voluntary self-identification of disability form in the way required by the Section 503 regulations? Does providing the form to applicants as required by OFCCP violate the general ADA rule prohibiting pre-offer disability-related inquiries? and Does maintaining the submitted forms in a data analysis file as required by the OFCCP violate the ADA rule on nondisclosure of confidential medical information? Now this is where webinar differs because if I were in the room with you, I would ask for volunteers who want to answer that. But I''m hoping certainly, that by this point that most of you know the answers to this question. But let''s go on to the next slide. No, contractors do not violate the ADA by following required steps under the OFCCP Section 503 to invite voluntary self-identification using the OFCCP form pre-offer, post-offer, and during employment. Contractors also do not violate the ADA by confidentiality handling the forms and the information collected as the Section 503 regulations instruct. Naomi spent some time earlier telling you about what the requirements are. And she also said, I believe, that the OFCCP confidential requirements are consistent with ADA''s confidential requirements.
Do you want to add anything to that, Naomi?
Next slide, please. Next slide, please. There was a recently district court decision where the contractor filed suit saying that the data collection requirement is not truly voluntary because employers must ask applicants for the information, and the court held that, no, that the requirement, inviting applicants to voluntarily self-identify, that''s, you know, they must ask what the decision to disclose is still strictly the applicant''s decision. So the court held that -- held that the data collection requirement under the new Section 503 requirements does not violate the ADA in that it was not mandating that a person disclose his or her medical information. Do you want to add anything?
That case is on appeal. That group is a group of construction contractors and they will also seeking to be exempt from 503 and challenging the goal and at least that the DC level they lost on all counts and have appealed. So that''s where it is right now. That''s at the circuit level.
Thank you. Next slide, please. Are contractors still required to otherwise comply with the ADA prohibition on pre-offer disability-related inquiries and medical examinations? Again, you should know this answer, but in the interest of getting through the presentation so that we can go to questions, let''s go to the answer on the next slide. Yes, a contractor is required to adhere to the steps mandated in OFCCP''s regulations, but otherwise must comply with all the ADA requirements. For example, a contractor would be liable under the ADA if it made pre-offer disability-related inquiries on an application form or in a job interview, so an employer or contractor couldn''t come back and say, oh, I was confused, which was what they insinuated in the news report of Staples, that Staples gave the person the OFCCP form as a part of the application process, but again it wasn''t really clear that that happened, but that was certainly what they thought. So the ADA still says that you can''t make any pre-disability related inquiries on the application form. You certainly can''t on the application form ask whether or not the person has a disability. So you cannot ask the questions that Naomi showed you that were on the 503 form. Tan employer can''t co-opt those and put them on an application form. They can''t -- an employer can''t insist that somebody take a pre-offer medical examination. And an employer will be liable if it discloses a confidential medical information, putting the OFCCP form in a regular personnel file, otherwise disclosing the information on the form or any other medical information for the applicant for employees. So that means they can''t take the OFCCP form and look at it when somebody requests a reasonable accommodation. As Naomi said, the OFCCP form is strictly used for affirmative action purposes and not for any other personnel action. Next slide, please. Will a contractor violate the ADA if for nondiscriminatory and nonretaliatory reason, it does not require an applicant with a disability? When I was looking through my slides just a few minutes ago, I realized that the answer is not there, but hopefully you know that the answer is no. It does not mandate -- the ADA doesn''t say that employers have to give preferential treatment to a person with a disability. The ADA is still an equal opportunity statute about leveling the playing field. So an employer could for reasons - that the person that does not have a disability would be more qualified and have more years of experience, and if that''s the reason why the employer hired a person that did not have a disability, that would not constitute disability discrimination under the ADA because a -- simply because a person with a disability was not hired. Next slide, please. Again, I -- we talked about this, Naomi talked about this, and when she talked about OFCCP requirements, but what if an employer wanted to develop and implement voluntary programs that go over and beyond what OFCCP requires. Can an employer do this? Next slide. Yes. Nothing in the new OFCCP rules for contractor data collection is intended to negate any Affirmative Action Program. And she gave you the information. If you have any more questions, I don''t know, Naomi, do you want to add anything else to that?
Only to point out that a number of contractors have been engaging in affirmative action programs that go above and beyond and are continuing to do that. We have heard from a couple that they have set goals much higher than 7% for themselves. So there are some good things, we are working on trying to get some of that information together to share it with other contractors so they can learn from one another.
Good, and this is similar to the ADA. The ADA does not prohibit employers from going above and beyond what the requirements of Title I are. One of the examples we often use is that an employer can decide someone or grant someone''s request for reasonable accommodation even if an employer doesn''t verify that the person has a disability. So that is something that, you know, employers can always go over and beyond. They don''t have to call it a reasonable accommodation. In fact, there''s some reasons why it''s probably better not to call it a reasonable accommodation For example, if a person wants a new chair because they have a bad back, the employer doesn''t have to verify first that the person has the accommodation. If the employer wants to buy a chair, they can buy the chair. Next slide please. So that''s my contact information directly. It is also on the first page of the slide. Like other government agencies where they have a team of people to answer questions, each presenter from the EEOC has to take his or her own questions following a presentation, so if you have questions that -- something I said wasn''t clear, and that''s certainly quite possible, or if you just have some other questions, maybe specifically about what we talked about today, but maybe even after something else under the ADA, feel free to contact me at my e-mail address. That''s usually the best way. Or if you want a quick response and you''re lucky enough to catch me sitting at my desk, you can call my direct number. Thank you.
Thank you very much, Joyce and Naomi, for all of that great information. In a moment, I''m going to ask Norma to come on and give instructions for participants on the telephone how they can ask questions, and a quick reminder for folks in the webinar room, you can submit and also folks joining us using your mobile devices, questions may be submitted in the chat area, and Norma if you could give instructions to our telephone participants on how they can ask questions at this time please.
Thank you ladies and gentlemen at this time if you have a question, press star then one on your touch tone phone. If your question has been answered or you would like to remove yourself from the queue, you may press the pound key. Again at this time, if you have a question please press star then one.
While we''re waiting to see if we have any questions by phone, we have a couple of questions along this line I think directed towards you, Naomi, and the question is, are state and local government entities that receive federal grant funding considered contractors covered by these regulations?
Grants are not contracts. So, no. If you''re just a grantee, no, you''re not a federal contractor.
Very good. Let me get the one other question that was e-mailed in prior to today''s session, and this, I think, may be more for Joyce and comes from someone with a center for independent living, where they have that 51 percent of the staff and 51% of board members be persons with disabilities. So not covered by the 503 requirements, but how does the disclosure requirement in terms of the ADA apply to their needs to meet that 51% threshold?
I assume this would be during the application process so they would want to know who of the applicants have a disability? Again, they cannot ask on the application form, but they can certainly ask people to voluntarily self-identify. So it would be the same as, you know, getting the 503 form. We don''t -- the ADA doesn''t require that a specific form be used. But, you know, they could model it after the 503 form or they could create a form where maybe they are hiring people, they want to hire people with specific disabilities, and certainly since it seems that their goal is to have more employees with disabilities than without, then they are voluntarily creating an Affirmative Action Program to benefit employees with disabilities and this would not violate the ADA. And the thing that everybody has to remember, that people without disabilities are not a protected status, so a person couldn''t claim that I was not hired for a job because I did not have a disability. They could claim I was not hired for a job because of race, sex, or age, and on those bases they favored someone over the person who was not hired, but just not being hired because you don''t have a disability is not actionable under the ADA.
Okay. Great, Joyce. And Naomi, a quick follow-up before we check our telephones, the question about who is a federal contractor, the person asked for protection in advocacy services and whether or not they would be considered federal contractors under Section 503.
People always hate it when you say the answer is "it depends," but this is one of those occasions when the answer is "it depends". Some do have federal contracts and some may have grants and some nothing, so it''s always a question of fact for us as to whether or not somebody actually has a contract. I mean, one way to know, if you do have a contract rather than a grant, you should -- your contract should contain an EO clause, an equal opportunity clause with either an awful lot of writing in or a citation to the 503 Regs. and the Executive Order regulation to tell you that this is a federal contract you have. So if that''s not there, it''s likely that you''re not a contractor. But again, sometimes it can be left out. If you have a specific question about a specific arrangement, if reading through your document doesn''t tell you for sure if it''s a contract or a grant, we would always tell people to contact and we can always put you in contact with the closest field office, the closest regional office to you, and they will help you make that determination of jurisdiction. But the pivotal question is, is that a federal contract where you''ve been hired by the government to provide goods or services or whether it''s just grant money being provided and we have both answers for advocacy groups.
Okay. Excellent. Again, another follow-up question. Let''s go to our -- Norma, do we have any questions on the telephone at this time?
Yes, Thank you. I have a question from Lavina Hess. Your line is open.
Yes, I have -- I''m an ADA consultant. Here is my question. My question is, if a person has epileptic seizures but he is qualified to work but they will not hire him because he has epileptic seizures, is that considered discriminatory? Is that under the ADA? Because to me, that sounds discriminatory because you''ll hire with disabilities, that includes any person with a -- that is -- what I just told you, that disability of having seizures. They are not hiring. And I''ve noticed that and I''ve learned that a long time ago.
This is Joyce in EEOC. If that is the reason that they are not hiring the person - They say, I''m not hiring you because you have epileptic seizures and they cannot show that the person poses a direct threat or can''t do the job, yes, that would be discriminatory. So if it''s a job that, you know, involves working around certain tools or large equipment or working at certain heights or working, you know, around high temperatures, the employer would have to show that, I can''t hire this person with a disability, because there is no accommodation that would allow this person to safely work. But flat-out saying, I won''t hire you because you have seizures, is discriminatory. And I don''t know from your question whether or not the employer found this information out because the applicant voluntarily disclosed this during the pre-offer stage or if the applicant discloses or was detected during a post offer, a medical examination -- I assume the person is not employed. So it''s one of those two categories. What I said is the employer can''t ask. If the applicant discloses during an application or in an interview, I have a seizure disorder, the employer can then ask -- depending on the job, not just generally -- do you need accommodations for the job and what type. If the employer discovers this during the post-offer, then they can''t withdraw the job because they''ve already determined at that point that the person was qualified, If they gave the person a conditional job offer, then that meant that they looked at the person''s experience and education and all the other prerequisites for the job, so it''s going to look suspicious if they only withdraw the job offer after the medical exam reveals that the person had a disability, so then the employers have to show that the person wasn''t qualified.
Thank you, Joyce. Norma, do we have another question on the telephone at this time?
At this time, I have no other callers in the queue. But ladies and gentlemen, if you have a question, press star, then one.
All right. Let''s go back to questions that are being submitted in the chat area. This question is for Naomi. Does the OFCCP have any plans to place on the OFCCP website complaints and settlement agreements similar to the way the EEOC does?
That''s interesting. We haven''t done that and that we -- our volume of complaints is far less than EEOCs and we also coordinate the complaints that we investigate when we get them and which ones go to EEOC. So we have not done that, and we have an awful lot of conciliation agreements that we obtain as a result of these compliance evaluations that I don''t believe are posted either. Once -- we do get some bigger settlements, and we do post press releases regarding those settlements with companies. We''ve been getting a number of questions now relating to one of those that was done recently, where people are asking whether or not they''re a part of the protected class, because it was class relief for people who were not hired. So we do that, but we don''t generally post the exact settlements themselves as opposed to press releases. But we do post a complaint form. If you wanted to make a complaint, you can do that by going online, on our website, and file a complaint form electronically, so we do do that, but we don''t post the conciliation agreement.
Very good. Another question, I think, for you, Naomi, the question submitted asked, if a coworker identifies someone as having a disability, could an employer use that, could an employer use that information as part of their reporting obligations?
Here''s what we have said. We''ve indicated under the executive order, we have long taken the position that if somebody does not self-identify, if you know their race and gender, you may identify them in your reporting, but you''re not permitted to guess. We''ve taken the same position under 503. We stated that in the preamble to the rule -- I''m not even sure if it''s an FAQ. It''s certainly in a preamble to the rule -- taking that same position. So you have to have actual knowledge, so somebody telling somebody else that someone has a hidden disability would not be enough. If somebody had asked for an accommodation so you know they have a disability or if it''s a disability that is readily apparent, then you can include them in your reporting, but just somebody gossiping and telling you, somebody has HIV or somebody has diabetes and you don''t have any actual knowledge of that would not be sufficient. So your report can''t include guessing, it can''t include gossip or rumor, only actual knowledge and information.
Okay. Very good. And then another question that was submitted in the chat area, again, Naomi, what are your thoughts on federal contractors that choose to fill out the self-ID for applicants or employees that choose not to complete that self-identification form?
That sort of doesn''t really matter what I think. When you do rule-making, you have to sort of balance interests and concerns, and that was certainly one, as I said, we were using as a model the Executive Order and where we could we tried to model or emulate the positions we have taken there, and contractors had expressed a concern about not being able to include people in reporting when we know the information, but people for whatever reason did not choose to complete self-identification information, and so that''s a longstanding position developed over a number of years that OFCCP has taken. In the rule, we indicated we believe that that was an appropriate balanced position to take based on contractors'' concerns about -- concerns about people not wanting to self-identify, even where there are readily apparent disabilities, and people''s concerns, rightfully so, about privacy and controlling their own information. And so that''s the position that OFCCP took as a result of the rule-making process.
All right. And got one, Joyce, for you, we don''t want you to feel left out, a question about -- someone had a question about direct threat and the difference between direct threat under Title I and Title II where, you know, Title II talks about direct threat to the health and safety of others.
EEOC''s direct threat Title I also means direct threat to the health and safety of others, and it''s a pretty stringent standard. The threat has to be, you know, a severe risk of harm. It can''t be speculative. It can''t be -- Naomi, do you remember --
I always said that risk of a paper cut is not going to be anywhere near enough to make significant risk of substantial alarm.
And it can''t be -- back to my example of someone with epilepsy, if you''re interviewing someone for a desk job and the person has a seizure, they can''t say, I''m not going to hire that person. That''s probably not going to meet the test of direct threat, even though the person could hurt himself if he fell out of a chair. But most of these are -- these kinds of suspicions a lot of times are based on fears and stereotypes about what a condition is. So a lot of the fear is that everybody with epilepsy or seizure disorder will have a grand mal seizure without warning.
And fall down the steps. Many people don''t have grand mal seizures, and many people get some sort of warning or aura and for example, can put themselves in a safe place where they won''t be standing near stairs, will be sitting in a chair or on the floor until something passes. It is a direct threat, it''s a high standard. It''s there for good reason. But it''s certainly not every risk of some injury is going to make it at all.
And I think we''ve got time for one last question here. And for Naomi, how does OFCCP make a determination, you know, how and when compliance reviews will take place?
That''s an interesting question. We use what we -- we use a neutral process as opposed to a random process, and without going into all the details, because I don''t actually even know all the details of the process, let me explain the difference. Random is basically, you put everybody eligible in essentially a hat and pull out names. A neutral process means that we use criteria -- and they can change over time -- to select contractors. So we can''t just target somebody. Do you see those people down the street? I hate this company. Let''s go get them. Instead, it might be things having to do with size, it might be an industry. We pick a number, there''s a number of criteria that go into forming that list that''s called a neutral list, and also, if you have been subject to a compliance valuation, you can''t have another until 24 months after we close the first one, so not coming back and back and back at you. So that''s how they''re chosen. There is definitely a process, and we develop two lists in the course of a year and it''s been split up by our field offices and sent out to each region with different contractors on it.
Okay. And then Naomi, one other quick question, there was some additional follow-up on the state and local government that are having to comply with Section 503-first, the questioner asked about examples of where state or local government may be compliant. You know, such as, I guess, a public university that is contracted to do, you know, research on behalf of a federal agency would be one such example.
I don''t think -- let me think. So for one thing if it is a state - It''s only the entity that holds the contract that is subject, which is different from the companies at large. So usually, if a company has 50,000 dollar or more contracts and the whole company has more than 50 employees, the whole company is subject to our jurisdiction. So the contract may be held by one facility in southern California, but everything, the facilities in, you know, New York, the facilities in Michigan -- they''re all covered. With state and local, it''s only the agency, the state entity that has the contract that is subject to our rules, not the entire state government or the entire city government.
All right. That makes sense. Thanks for that clarification. And we have, unfortunately, reached the bottom of the hour. If you have additional questions or did not have an opportunity to have your question asked, both Naomi and Joyce have provided their contact information in the presentation, so you may follow up with them if you have additional questions. I want to thank both Naomi and Joyce for joining us today, for taking the time to put together and coordinate their presentation and for their time in delivering the presentation today. That''s what makes the audio conference the successful program that it is, by having such great speakers as the two we had today. I want to go over just a couple of quick reminders, that our next audio conference session will take place on July 15th, it is our very popular ADA anniversary, 24-year update, and we will be joined by one of Joyce''s cohorts from the EEOC, Sharon Rennert as well as representatives from the U.S. Department of Justice, Katie Wolfe and Sally Conway and again, that session will take place on July 15th. You can get more information by visiting www.ada-audio.org or by calling 877-232-1990. For participants wishing to receive a certificate of participation or certificates of attendance for today''s session, please e-mail your request to certificate@ADAconferences.org, and please indicate how you participated in the session, whether you were in the webinar or whether you participated by telephone and what that telephone number was. So one again, a big thanks to both Naomi and Joyce for presenting today and thank you for all of you participating and joining us in today''s session. For those in the webinar room, simply close your webinar browser to exit the webinar room and for those on the telephone, simply hang up. Thank you all and have a great day.