This part shall become effective August 29, 1996, and shall not
apply retroactively. Contractors presently holding Government contracts
shall update their affirmative action programs as required to comply
with this part by December 27, 1996.
Appendix A to Part 60-741--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. 60-741.1(c). Contractors are obligated to provide reasonable
accommodation and to take affirmative action. Reasonable accommodation
under section 503, like reasonable accommodation required under the ADA,
is a part of the nondiscrimination obligation. See EEOC appendix cited
in this paragraph. Affirmative action is unique to 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
an employee with a known disability 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''
individual with a disability, unless the contractor can demonstrate that
the accommodation would impose an undue hardship on the operation of its
business. As stated in Sec. 60-741.2(t), an individual with a disability
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 individual with a disability 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 of whose disability the contractor has actual knowledge. As
stated in Sec. 60-741.42 (see also Appendix B of this part), the
contractor is required to invite applicants who have been provided an
offer of employment, before they begin their employment duties, to
indicate whether they may have a disability and wish to benefit under
the contractor's affirmative action program. That section further
provides that the contractor should seek the advice of individuals who
``self-identify'' in this way as to proper placement and appropriate
accommodation. Moreover, Sec. 60-741.44(d) provides that if an employee
with a known disability 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 an individual with a
disability 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 with a disability 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 with disabilities to perform the essential functions of
the position held or desired; and (3) accommodations that enable
employees with disabilities 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., 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 individual with a disability 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 60-741.2(v) 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
individual with a disability 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, and other employers.
6. With respect to accommodations that can permit an employee with a
disability 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 brailled 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 individuals with a disability--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-
741.2(v) is job restructuring. This may involve reallocating or
redistributing those nonessential, marginal job functions which a
qualified individual with a disability cannot perform to another
position. Accordingly, if a clerical employee 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 individual with
an assistant to perform that duty; in such a case, the assistant would
be performing an essential function of the job for the individual with a
disability. Job restructuring may also involve allowing part-time or
modified work schedules. For instance, flexible or adjusted work
schedules could benefit persons who cannot work a standard schedule
because of the need to obtain medical treatment, or persons 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 individual's current position would pose an
undue hardship. Reassignment is not required for applicants. However, in
making hiring decisions, contractors are encouraged to consider known
applicants with disabilities 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 with disabilities 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
individual with a disability at the salary of the higher graded
position, and must do so if it maintains the salary of reassigned
employees who are not disabled. It should also be noted that the
contractor is not required to promote an individual with a disability 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 the 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 blind person or one with 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
disability, to demonstrate skills through alternative techniques and
utilization of adapted tools, aids and devices; and (4) ensuring an
applicant 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 60-741--Sample Invitation to Self-Identify
Note: When the invitation to self-identify is being extended prior
to an offer of employment, as is permitted in limited circumstances
under Sec. 60-741.42(a), paragraph 2(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 section 503
of the Rehabilitation Act of 1973, as amended, which requires Government
contractors to take affirmative action to employ and advance in
employment qualified individuals with disabilities. If you have a
disability and would like to be considered under the affirmative action
program, please tell us. You may inform us of your desire to benefit
under the program at this time and/or at any time in the future. This
information will assist us in placing you in an appropriate position and
in making accommodations for your disability. [The contractor should
here insert a brief provision summarizing the relevant portion of its
affirmative action program.] Submission of this information is voluntary
and refusal to provide it will not subject you to
any adverse treatment. Information you submit about your disability will
be kept confidential, except that (i) supervisors and managers may be
informed regarding restrictions on the work or duties of individuals
with disabilities, and regarding necessary accommodations; (ii) first
aid and safety personnel may be informed, when and to the extent
appropriate, if the condition might require emergency treatment; and
(iii) Government officials engaged in enforcing laws administered by
OFCCP or the Americans with Disabilities Act, may be informed. The
information provided will be used only in ways that are not inconsistent
with section 503 of the Rehabilitation Act.
2. If you are an individual with a disability, we would like to
include you under the affirmative action program. 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.
Appendix C to Part 60-741--Review of Personnel Processes
The following is a set of procedures which contractors may use to
meet the requirements of Sec. 60-741.44(b):
1. The application or personnel form of each known applicant with a
disability 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 individual
with a disability should include (i) the identification of each
promotion for which the employee with a disability was considered, and
(ii) the identification of each training program for which the
individual with a disability was considered.
3. In each case where an employee or applicant with a disability is
rejected for employment, promotion, or training, a statement of the
reason should be appended to the personnel file or application form as
well as a description of the accommodations considered. This statement
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 an individual with a disability on
the job, the application form or personnel record should contain a
description of that accommodation.
Appendix D to Part 60-741--Guidelines Regarding Positions Engaged in
Carrying Out a Contract
As stated in Sec. 60-741.4(a)(2), with respect to the contractor's
employment decisions and practices occurring before October 29, 1992,
this part 60-741 applies only to employees who were employed in, and
applicants for, positions that were engaged in carrying out a Government
contract.1 The regulatory definition has two prongs. Under
Sec. 60-741.4(a)(2)(i)(A) (``prong A''), positions are deemed to have
been engaged in carrying out a Government contract if their duties
included work that fulfilled a contractual obligation, or work that was
necessary to, or that facilitated, performance of the contract or a
provision of the contract. Alternatively, under Sec. 60-
741.4(a)(2)(i)(B) (``prong B''), positions are deemed to have been
engaged in carrying out a Government contract if, pursuant to principles
set forth in the Federal Acquisition Regulation (FAR) at 48 CFR Ch. 1,
part 31, the cost of the positions or a portion of their cost was
allocable to a contract as a direct cost, or 2 percent or more of the
cost was allocable as an indirect cost to Government contracts
considered as a group. This appendix provides guidance as to the
application of prong A of the definition.
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\1\ Prior to October 29, 1992, section 503 applied only insofar as
the contractor was ``employing persons to carry out'' a Government
contract. On that date, the act was amended to apply to all of a covered
contractor's work force, irrespective of whether particular positions
are engaged in carrying out a Government contract. Accordingly, the
guidance contained in this appendix will be relied on by OFCCP in
monitoring and enforcing compliance with section 503 only with respect
to the contractor's employment decisions and practices occurring before
October 29, 1992. (Moreover, prior to that date, section 503 covered
only contractors holding a contract ``in excess of $2500''; this figure
was amended on October 29, 1992 to ``in excess of $10,000.''
Consequently, this appendix makes reference to the $2500 threshold
level.)
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1. The regulatory definition includes positions whose duties
involved work that fulfilled a contractual obligation. Such work
includes work producing the goods or providing the services that were
the object of the contract and also work that fulfilled ancillary
contract obligations. For example, if a contract required the contractor
to keep certain cost records or to meet certain quality
control standards, employees who were engaged in such functions were
fulfilling a contractual obligation.
2. Positions are also included if their duties included work that
was necessary to or that facilitated performance of the contract. The
inclusion of work of this character is intended to reflect the practical
reality that performance of a contract generally requires the
cooperation of a variety of individuals engaged in auxiliary and related
functions beyond direct production of the goods or provision of the
services that are the object of the contract.
3. To give one example, a contract for production and sale of goods
to the Government commonly requires the work not only of the production
employees assembling the goods, but also of those engaged in functions
such as repairing the machinery used in producing the goods; maintaining
the plant and facilities; assuring quality control and security; storing
the goods after production; delivering them to the Government; hiring,
paying, and providing personnel services for the employees engaged in
contract-related work; keeping financial and accounting records;
performing related office and clerical tasks; and supervising or
managing the employees engaged in such tasks. This list is not intended
to be exhaustive, but only to illustrate that a variety of functions may
commonly be involved in carrying out a contract.
4. Whether a particular position was engaged in carrying out a
contract depends on the facts as to the nature of the duties that were
actually performed and their relationship to contract performance. A
position is included if its duties included work that furthered or
contributed to the performance of the contract. The work need not have
been essential or indispensable to performance of the contract. It is
sufficient that it was useful or that it benefitted or contributed to
carrying out the contract.
5. Nor is it material that the work was not required by an express
contract term. For example, a contract to provide transportation
services may not have explicitly incorporated terms requiring
maintenance and repair of the means of transportation to keep them in
safe operating condition. Such work, however, was implicitly necessary
to carry out the contract.
6. It is irrelevant that the contractor could have performed the
contract some other way, without making use of a particular function or
particular employees, if the way the contractor chose to carry out the
contract does in fact make use of them. For example, if a contractor
employed three quality control inspectors, or used three quality control
processes, to monitor the manufacture of goods for sale to the
Government, all three were involved in carrying out the contract,
notwithstanding any claim that two would have been sufficient. If a
contractor manufactured goods at its plant in St. Louis for delivery in
Chicago, employees who transported the goods were carrying out the
contract, regardless whether the contractor could have made the goods
locally at its plant in Chicago. If a contractor employed security
guards or watchmen to protect its plant producing goods for the
Government from vandalism or theft of equipment, because in its business
judgment it was prudent to do so, employees who were engaged in those
tasks were contributing to performance of the contract and were covered.
7. If a position's regular duties included work that contributed to
the performance of the contract, and the contract met the act's dollar
threshold for coverage, it is irrelevant that such work was only a
portion of the position's total duties or that it took only a small
amount of time. For example, a Government agency may have contracted to
lease a photocopying machine under terms that obligated the leasing
company to provide repair and maintenance service. The technician
assigned to provide such service was ``carrying out the contract''
regardless whether he or she provided similar service for numerous
private customers and spent only a small fraction of his or her time
working on the agency's machine. Similarly, individuals who worked on an
assembly line manufacturing automobiles, a portion of which were sold
under contract to the Government, while the bulk were sold commercially,
were covered. That 95% of the vehicles they produced were sold elsewhere
does not negate the fact that the individuals were carrying out the
contract to make vehicles for the Government.
8. A group of employees may also have performed duties that
simultaneously contributed to performance of both Government and non-
Government contracts. In this situation, if the contract exceeded $2500
and the duties of the position in fact contributed to carrying out the
contract, the position was covered. For example, the Government may have
contracted with airline carriers to provide transportation to Federal
employees performing official duties. The contract was performed through
the work of employees including the flight crew, the ground maintenance
crew, the baggage handlers, the ticketing agents, the airport and gate
staff, and other corporate personnel. Federal employees probably
typically formed only a small percentage of an airline's passengers.
Nonetheless, the pilots who flew the planes and the other staff were
carrying out the terms of the contract.
9. These principles are illustrated by the final decision of the
Department in OFCCP v. Monongahela Railroad Co., 85-OFC-2
(Administrative Law Judge Recommended Decision, April 2, 1986), aff'd,
(Deputy Under Secretary for Employment Standards, March 11, 1987).
Monongahela involved the interpretation of the term ``necessary'' in the
context of the definition of the term ``subcontract'' under this part
60-741. ``Subcontract'' is defined in relevant part as any agreement for
the furnishing of supplies or services ``which in whole or in part is
necessary to the performance of any one or more [Government]
contracts.'' The decision held that a railroad company's transport of
coal that was used by a power company to generate electricity was
``necessary'' to the performance of the power company's obligation to
supply the Government with power and that the railroad company was
therefore a covered ``subcontractor''. The decision reached this result
even though numerous other carriers also transported coal to the power
company, the coal that the carrier delivered was used to generate
electricity for the Government and for nongovernmental customers alike,
and the power company sold only a small fraction (less than 1%) of its
output to the Government. That is, the decision found that the crucial
factor is whether the activity contributes to the performance of a
Government contract, regardless of whether the contractor could have
performed the contract some other way, and regardless of whether the
activity contributes as well, and predominantly, to carrying out non-
Government contracts.
10. Although the act broadly reached all positions that contributed
to or facilitated the performance of the Government contract, its
coverage was not limitless. First, positions were covered only if they
bore an appropriate relationship to a covered contract. The contract
must have been for the purchase, sale, or use of personal property or
nonpersonal services, must have been for an amount in excess of $2500,
and must not have been otherwise exempt.
11. Second, the breadth of coverage depended to a large extent on
how the contractor chose to organize its work force to perform its
contract obligations. A contractor who segregated contract from
noncontract work necessarily employed fewer persons to carry out its
contracts than one who did not. To continue the example given above, if
a plant with several assembly lines produced automobiles, some of which
were shipped to the Government and others sold commercially, the
application of section 503 would have been limited if the Government
contract automobiles were made on only one of the assembly lines. In
that case, employees who were on the other lines, which never produced
automobiles for the Government, were outside the act. If, however, the
contractor did not segregate the contract from noncontract production,
the employees on each of the lines were covered.
12. Third, while the relationship between the work of a position and
the performance of the contract need not have been direct, the
relationship must have been real and not hypothetical. For example, a
firm may have done substantial business with both the Government and
private customers. Individuals who were employed to plan and design new
facilities that were intended for use with non-Government work would not
be deemed to have been covered merely because of the possibility that at
some point in the future the facilities would be used to carry out
Government contracts. Again, a firm may have been partly unionized and
partly non-unionized. Assume the Government contract was performed
exclusively in the non-union part of the work force. An individual who
was assigned to represent management in dealing with the union would not
have been covered simply because the arrangements he or she made with
the union might subsequently influence the personnel practices followed
for the nonunion employees as well.
13. Coverage depended on the regular or assigned duties and
responsibilities of the position. A person that held a position did not
go in and out of coverage as she performed first contract and then
noncontract work if, throughout the period, one of the duties of the
position was to perform contract-related work as the need or occasion
arose. For example, the photocopy machine technician who was assigned
responsibility to repair machines leased to the Government and to
private firms was covered throughout the contract term, including the
period before he or she first repaired the Government's machine.
Discrimination against the employee was not permissible simply because
the discrimination was effected on a day when the technician was
servicing a private firm. Likewise, workers who were on an assembly line
whose products were shipped at times to the Government and at times to
private customers were covered, as were employees of the airline carrier
whose duties included at times helping to transport Federal employees
pursuant to a contract.
14. On the other hand, a person whose duties were permanently
changed may have gained or lost coverage as a result. For example, an
engineer who had been working on developing weapons under a contract
with the military, and who accordingly was covered, may have been
transferred to work on development of civilian aircraft for private
customers. If the new position did not include any contract-related
duties, the individual lost protection under the act at the time of the
transfer.
15. It is the position's regular or assigned duties that were
controlling. If a portion, however small, of a position's regular duties
was necessary to or facilitated carrying out a Government contract, the
position was covered. On the other hand, the isolated and unanticipated
performance, outside the position's regular duties, of a contract-
related task will not result in a finding of coverage.
For example, suppose another employee of the photocopy machine company,
whose regular duties were in no way contract-related, was unexpectedly
needed to substitute for the technician who repaired the machine leased
to the Government. Assuming substitution in such situations was not one
of the employee's regular or foreseeable duties, his or her isolated
performance of the task on a particular occasion would not result in a
finding of coverage. In some cases, there will be a formal written
position description that will serve as evidence of the position's
actual duties and responsibilities. In other cases, there may not be a
written position description, or the position description may be
inaccurate or incomplete. In all cases, however, it should be possible
to identify the position's actual duties, and to make a determination of
coverage on that basis.
16. The fact that a position is deemed not to have been engaged in
carrying out a Government contract does not affect the individual's
rights under the Americans with Disabilities Act of 1990.
