This part is effective on January 4, 1999, and does not apply
retroactively. Contractors presently holding Government contracts shall
update their affirmative action programs as required to comply with the
regulations in this part within 120 days after January 4, 1999.
Appendix A to Part 60-250--Guidelines on a Contractor's Duty To
Provide Reasonable Accommodation
The guidelines in this appendix are in large part derived from,
and are consistent with, the discussion regarding the duty to
provide reasonable accommodation contained in the Interpretive
Guidance on Title I of the Americans with Disabilities Act (ADA) set
out as an appendix to the regulations issued by the Equal Employment
Opportunity Commission (EEOC) implementing the ADA (29 CFR part
1630). Although the following discussion is intended to provide an
independent ``free-standing'' source of guidance with respect to the
duty to provide reasonable accommodation under this part, to the
extent that the EEOC appendix provides additional guidance which is
consistent with the following discussion, it may be relied upon for
purposes of this part as well. See Sec. 60-250.1(c). Contractors are
obligated to provide reasonable accommodation and to take
affirmative action. Reasonable accommodation under VEVRAA, like
reasonable accommodation required under Section 503 and the ADA, is
a part of the nondiscrimination obligation. See EEOC appendix cited
in this paragraph. Affirmative action is unique to VEVRAA and
Section 503, and includes actions above and beyond those required as
a matter of nondiscrimination. An example of this is the requirement
discussed in paragraph 2 of this appendix that a contractor shall
make an inquiry of a special disabled veteran who is having
significant difficulty performing his or her job.
1. A contractor is required to make reasonable accommodations to
the known physical or mental limitations of an ``otherwise
qualified'' special disabled veteran, unless the contractor can
demonstrate that the accommodation would impose an undue hardship on
the operation of its business. As stated in Sec. 60-250.2(o), a
special disabled veteran is qualified if he or she satisfies all the
skill, experience, education and other job-related selection
criteria, and can perform the essential functions of the position
with or without reasonable accommodation. A contractor is required
to make a reasonable accommodation with respect to its application
process if the special disabled veteran is qualified with respect to
that process. One is ``otherwise qualified'' if he or she is
qualified for a job, except that, because of a disability, he or she
needs a reasonable accommodation to be able to perform the job's
essential functions.
2. Although the contractor would not be expected to accommodate
disabilities of which it is unaware, the contractor has an
affirmative obligation to provide a reasonable accommodation for
applicants and employees who are known to be special disabled
veterans. As stated in Sec. 60-250.42 (see also Appendix B of this
part), the contractor is required to invite applicants who have been
provided an offer of employment, before they are placed on the
contractor's payroll, to indicate whether they are covered by the
Act and wish to benefit under the contractor's affirmative action
program. That section further provides that the contractor should
seek the advice of special disabled veterans who ``self-identify''
in this way as to proper placement and appropriate accommodation.
Moreover, Sec. 60-250.44(d) provides that if an employee who is a
known special disabled veteran is having significant difficulty
performing his or her job and it is reasonable to conclude that the
performance problem may be related to the disability, the contractor
is required to confidentially inquire whether the problem is
disability related and if the employee is in need of a reasonable
accommodation.
3. An accommodation is any change in the work environment or in
the way things are customarily done that enables a special disabled
veteran to enjoy equal employment opportunities. Equal employment
opportunity means an opportunity to attain the same level of
performance, or to enjoy the same level of benefits and privileges
of employment, as are available to the average similarly situated
employee without a disability. Thus, for example, an accommodation
made to assist an employee who is a special disabled veteran in the
performance of his or her job must be adequate to enable the
individual to perform the essential functions of the position. The
accommodation, however, does not have to
be the ``best'' accommodation possible, so long as it is sufficient
to meet the job-related needs of the individual being accommodated.
There are three areas in which reasonable accommodations may be
necessary: (1) accommodations in the application process; (2)
accommodations that enable employees who are special disabled
veterans to perform the essential functions of the position held or
desired; and (3) accommodations that enable employees who are
special disabled veterans to enjoy equal benefits and privileges of
employment as are enjoyed by employees without disabilities.
4. The term ``undue hardship'' refers to any accommodation that
would be unduly costly, extensive, substantial, or disruptive, or
that would fundamentally alter the nature or operation of the
contractor's business. The contractor's claim that the cost of a
particular accommodation will impose an undue hardship requires a
determination of which financial resources should be considered--
those of the contractor in its entirety or only those of the
facility that will be required to provide the accommodation. This
inquiry requires an analysis of the financial relationship between
the contractor and the facility in order to determine what resources
will be available to the facility in providing the accommodation. If
the contractor can show that the cost of the accommodation would
impose an undue hardship, it would still be required to provide the
accommodation if the funding is available from another source, e.g.,
the Department of Veterans Affairs or a state vocational
rehabilitation agency, or if Federal, state or local tax deductions
or tax credits are available to offset the cost of the
accommodation. In the absence of such funding, the special disabled
veteran should be given the option of providing the accommodation or
of paying that portion of the cost which constitutes the undue
hardship on the operation of the business.
5. Section 60-250.2(r) lists a number of examples of the most
common types of accommodations that the contractor may be required
to provide. There are any number of specific accommodations that may
be appropriate for particular situations. The discussion in this
appendix is not intended to provide an exhaustive list of required
accommodations (as no such list would be feasible); rather, it is
intended to provide general guidance regarding the nature of the
obligation. The decision as to whether a reasonable accommodation is
appropriate must be made on a case-by-case basis. The contractor
generally should consult with the special disabled veteran in
deciding on the appropriate accommodation; frequently, the
individual will know exactly what accommodation he or she will need
to perform successfully in a particular job, and may suggest an
accommodation which is simpler and less expensive than the
accommodation the contractor might have devised. Other resources to
consult include the appropriate state vocational rehabilitation
services agency, the Equal Employment Opportunity Commission (1-800-
669-EEOC (voice), 1-800-800-3302 (TDD)), the Job Accommodation
Network (JAN) operated by the President's Committee on Employment of
People with Disabilities (1-800-JAN-7234), private disability
organizations (including those that serve veterans), and other
employers.
6. With respect to accommodations that can permit an employee
who is a special disabled veteran to perform essential functions
successfully, a reasonable accommodation may require the contractor
to, for instance, modify or acquire equipment. For the visually-
impaired such accommodations may include providing adaptive hardware
and software for computers, electronic visual aids, braille devices,
talking calculators, magnifiers, audio recordings and braille or
large-print materials. For persons with hearing impairments,
reasonable accommodations may include providing telephone handset
amplifiers, telephones compatible with hearing aids and
telecommunications devices for the deaf (TDDs). For persons with
limited physical dexterity, the obligation may require the provision
of goose neck telephone headsets, mechanical page turners and raised
or lowered furniture.
7. Other reasonable accommodations of this type may include
providing personal assistants such as a reader, interpreter or
travel attendant, permitting the use of accrued paid leave or
providing additional unpaid leave for necessary treatment. The
contractor may also be required to make existing facilities readily
accessible to and usable by special disabled veterans--including
areas used by employees for purposes other than the performance of
essential job functions such as restrooms, break rooms, cafeterias,
lounges, auditoriums, libraries, parking lots and credit unions.
This type of accommodation will enable employees to enjoy equal
benefits and privileges of employment as are enjoyed by employees
who do not have disabilities.
8. Another of the potential accommodations listed in Sec. 60-
250.2(r) is job restructuring. This may involve reallocating or
redistributing those nonessential, marginal job functions which a
qualified special disabled veteran cannot perform to another
position. Accordingly, if a clerical employee who is a special
disabled veteran is occasionally required to lift heavy boxes
containing files, but cannot do so because of a disability, this
task may be reassigned to another employee. The contractor, however,
is not required to reallocate essential functions, i.e., those
functions that the individual who holds the job would have to
perform, with or without reasonable accommodation, in order to be
considered qualified for the position. For instance, the contractor
which has a security guard position which requires the incumbent to
inspect identity cards would not have to provide a blind special
disabled veteran with an assistant to perform that duty; in such a
case, the assistant would be performing an essential function of the
job for the special disabled veteran. Job restructuring may also
involve allowing part-time or modified work schedules. For instance,
flexible or adjusted work schedules could benefit special disabled
veterans who cannot work a standard schedule because of the need to
obtain medical treatment, or special disabled veterans with mobility
impairments who depend on a public transportation system that is not
accessible during the hours of a standard schedule.
9. Reasonable accommodation may also include reassignment to a
vacant position. In general, reassignment should be considered only
when accommodation within the special disabled veteran's current
position would pose an undue hardship. Reassignment is not required
for applicants. However, in making hiring decisions, contractors are
encouraged to consider applicants who are known special disabled
veterans for all available positions for which they may be qualified
when the position(s) applied for is unavailable. Reassignment may
not be used to limit, segregate, or otherwise discriminate against
employees who are special disabled veterans by forcing reassignments
to undesirable positions or to designated offices or facilities.
Employers should reassign the individual to an equivalent position
in terms of pay, status, etc., if the individual is qualified, and
if the position is vacant within a reasonable amount of time. A
``reasonable amount of time'' should be determined in light of the
totality of the circumstances.
10. The contractor may reassign an individual to a lower graded
position if there are no accommodations that would enable the
employee to remain in the current position and there are no vacant
equivalent positions for which the individual is qualified with or
without reasonable accommodation. The contractor may maintain the
reassigned special disabled veteran at the salary of the higher
graded position, and must do so if it maintains the salary of
reassigned employees who are not special disabled veterans. It
should also be noted that the contractor is not required to promote
a special disabled veteran as an accommodation.
11. With respect to the application process, appropriate
accommodations may include the following: (1) Providing information
regarding job vacancies in a form accessible to special disabled
veterans who are vision or hearing impaired, e.g., by making an
announcement available in braille, in large print, or on audio tape,
or by responding to job inquiries via TDDs; (2) providing readers,
interpreters and other similar assistance during the application,
testing and interview process; (3) appropriately adjusting or
modifying employment-related examinations, e.g., extending regular
time deadlines, allowing a special disabled veteran who is blind or
has a learning disorder such as dyslexia to provide oral answers for
a written test, and permitting an applicant, regardless of the
nature of his or her ability, to demonstrate skills through
alternative techniques and utilization of adapted tools, aids and
devices; and (4) ensuring a special disabled veteran with a mobility
impairment full access to testing locations such that the
applicant's test scores accurately reflect the applicant's skills or
aptitude rather than the applicant's mobility impairment.
Appendix B to Part 60-250--Sample Invitation To Self-Identify
Note: When the invitation to self-identify is being extended to
special disabled veterans
prior to an offer of employment, as is permitted in limited
circumstances under Secs. 60-250.42(a)(1) and (2), paragraph 7(ii)
of this appendix, relating to identification of reasonable
accommodations, should be omitted. This will avoid a conflict with
the EEOC's ADA Guidance, which in most cases precludes asking a job
applicant (prior to a job offer being made) about potential
reasonable accommodations.
[Sample Invitation to Self-Identify]
1. This employer is a Government contractor subject to the
Vietnam Era Veterans' Readjustment Assistance Act of 1974, as
amended, which requires Government contractors to take affirmative
action to employ and advance in employment qualified special
disabled veterans and veterans of the Vietnam era.
2. [The following text should be used when extending an
invitation to veterans of the Vietnam era only.] If you are a
veteran of the Vietnam era, we would like to include you under our
affirmative action program. If you would like to be included under
the affirmative action program, please tell us. The term ``veteran
of the Vietnam era'' refers to a person who served on active duty
for a period of more than 180 days, and was discharged or released
therefrom with other than a dishonorable discharge, if any part of
such active duty occurred in the Republic of Vietnam between
February 28, 1961, and May 7, 1975 or between August 5, 1964, and
May 7, 1975, in all other cases. The term also refers to a person
who was discharged or released from active duty for a service-
connected disability if any part of such active duty was performed
in the Republic of Vietnam between February 28, 1961, and May 7,
1975, or between August 5, 1964, and May 7, 1975, in all other
cases.
[The following text should be used when extending an invitation
to special disabled veterans only.] If you are a special disabled
veteran, we would like to include you in our affirmative action
program. If you would like to be included under the affirmative
action program, please tell us. This information will assist us in
placing you in an appropriate position and in making accommodations
for your disability. The term ``special disabled veteran'' refers to
a veteran who is entitled to compensation (or who, but for the
receipt of military retired pay, would be entitled to compensation)
under laws administered by the Department of Veterans Affairs for a
disability rated at 30 percent or more, or rated at 10 or 20 percent
in the case of a veteran who has been determined by the Department
of Veterans Affairs to have a serious employment handicap. The term
also refers to a person who was discharged or released from active
duty because of a service-connected disability.
[The following text should be used when extending an invitation
to both veterans of the Vietnam era and special disabled veterans.]
If you are a veteran of the Vietnam era or a special disabled
veteran, we would like to include you under our affirmative action
program. If you would like to be included under the affirmative
action program, please tell us. [The contractor should include here
the definitions of ``veteran of the Vietnam era'' and ``special
disabled veteran'' found in the two preceding paragraphs.]
3. You may inform us of your desire to benefit under the program
at this time and/or at any time in the future.
4. Submission of this information is voluntary and refusal to
provide it will not subject you to any adverse treatment. The
information provided will be used only in ways that are not
inconsistent with the Vietnam Era Veterans' Readjustment Assistance
Act of 1974, as amended.
5. The information you submit will be kept confidential, except
that (i) supervisors and managers may be informed regarding
restrictions on the work or duties of special disabled veterans, and
regarding necessary accommodations; (ii) first aid and safety
personnel may be informed, when and to the extent appropriate, if
you have a condition that might require emergency treatment; and
(iii) Government officials engaged in enforcing laws administered by
OFCCP, or enforcing the Americans with Disabilities Act, may be
informed.
6. [The contractor should here insert a brief provision
summarizing the relevant portion of its affirmative action program.]
7. [The following text should be used only when extending an
invitation to special disabled veterans, either by themselves or in
combination with veterans of the Vietnam era. Paragraph 7(ii) should
be omitted when the invitation to self-identify is being extended
prior to an offer of employment.] If you are a special disabled
veteran it would assist us if you tell us about (i) any special
methods, skills, and procedures which qualify you for positions that
you might not otherwise be able to do because of your disability so
that you will be considered for any positions of that kind, and (ii)
the accommodations which we could make which would enable you to
perform the job properly and safely, including special equipment,
changes in the physical layout of the job, elimination of certain
duties relating to the job, provision of personal assistance
services or other accommodations. This information will assist us in
placing you in an appropriate position and in making accommodations
for your disability.
Appendix C to Part 60-250--Review of Personnel Processes
The following is a set of procedures which contractors may use
to meet the requirements of Sec. 60-250.44(b):
1. The application or personnel form of each known applicant who
is a special disabled veteran or veteran of the Vietnam era should
be annotated to identify each vacancy for which the applicant was
considered, and the form should be quickly retrievable for review by
the Department of Labor and the contractor's personnel officials for
use in investigations and internal compliance activities.
2. The personnel or application records of each known special
disabled veteran or veteran of the Vietnam era should include (i)
the identification of each promotion for which the covered veteran
was considered, and (ii) the identification of each training program
for which the covered veteran was considered.
3. In each case where an employee or applicant who is a special
disabled veteran or a veteran of the Vietnam era is rejected for
employment, promotion, or training, the contractor should prepare a
statement of the reason as well as a description of the
accommodations considered (for a rejected special disabled veteran).
The statement of the reason for rejection (if the reason is
medically related), and the description of the accommodations
considered, should be treated as confidential medical records in
accordance with Sec. 60-250.23(d). These materials should be
available to the applicant or employee concerned upon request.
4. Where applicants or employees are selected for hire,
promotion, or training and the contractor undertakes any
accommodation which makes it possible for him or her to place a
special disabled veteran on the job, the contractor should make a
record containing a description of the accommodation. The record
should be treated as a confidential medical record in accordance
with Sec. 60-250.23(d).
[63 FR 59655, Nov. 4, 1998]
