CFR | Code of Federal Regulations Pertaining to U.S. Department of Labor |
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| Title 41 | Public Contracts and Property Management |
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| Chapter 60 | Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor |
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| Part 60-250 | Affirmative Action Obligations of Contractors and Subcontractors for Disabled Veterans and Veterans of the Vietnam Era |
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| Subpart A | Preliminary Matters, Equal Opportunity Clause |
- Section Number: 60-250.2
- Section Name: Definitions.
For the purpose of this part:
(a) Act means the Vietnam Era Veterans' Readjustment Assistance Act
of 1974, as amended, 38 U.S.C. 4212 (2001).
(b) Equal opportunity clause means the contract provisions set forth
in Sec. 60-250.5, ``Equal opportunity clause.''
(c) Secretary means the Secretary of Labor, United States Department
of Labor, or his or her designee.
(d) Deputy Assistant Secretary means the Deputy Assistant Secretary
for Federal Contract Compliance of the United States Department of
Labor, or his or her designee.
(e) Government means the Government of the United States of America.
(f) United States, as used in this part, shall include the several
States, the District of Columbia, the Virgin Islands, the Commonwealth
of Puerto Rico, Guam, American Samoa, the Commonwealth of the Northern
Mariana Islands, and Wake Island.
(g) Recruiting and training agency means any person who refers
workers to any contractor, or who provides or supervises apprenticeship
or training for employment by any contractor.
(h) Contract means any Government contract or subcontract.
(i) Government contract means any agreement or modification thereof
between any contracting agency and any person for the purchase, sale or
use of personal property or nonpersonal services (including
construction). The term ``Government contract'' does not include
agreements in which the parties stand in the relationship of employer
and employee, and federally assisted contracts.
(1) Modification means any alteration in the terms and conditions of
a contract, including supplemental agreements, amendments and
extensions.
(2) Contracting agency means any department, agency, establishment
or instrumentality of the United States, including any wholly owned
Government corporation, which enters into contracts.
(3) Person, as used in this paragraph (i) and paragraph (l) of this
section, means any natural person, corporation, partnership or joint
venture, unincorporated association, state or local government, and any
agency, instrumentality, or subdivision of such a government.
(4) Nonpersonal services, as used in this paragraph (i) and
paragraph (l) of this section, includes, but is not limited to, the
following: Utility, construction, transportation, research, insurance,
and fund depository.
(5) Construction, as used in this paragraph (i) and paragraph (l) of
this section, means the construction, rehabilitation, alteration,
conversion, extension, demolition, or repair of buildings, highways, or
other changes or improvements to real property, including facilities
providing utility services. The
[[Page 172]]
term also includes the supervision, inspection, and other on-site
functions incidental to the actual construction.
(6) Personal property, as used in this paragraph (i) and paragraph
(l) of this section, includes supplies and contracts for the use of real
property (such as lease arrangements), unless the contract for the use
of real property itself constitutes real property (such as easements).
(j) Contractor means, unless otherwise indicated, a prime contractor
or subcontractor holding a contract of $25,000 or more.
(k) Prime contractor means any person holding a contract of $25,000
or more, and, for the purposes of subpart D of this part, ``General
Enforcement and Complaint Procedures,'' includes any person who has held
a contract subject to the Act.
(l) Subcontract means any agreement or arrangement between a
contractor and any person (in which the parties do not stand in the
relationship of an employer and an employee):
(1) For the purchase, sale or use of personal property or
nonpersonal services (including construction) which, in whole or in
part, is necessary to the performance of any one or more contracts; or
(2) Under which any portion of the contractor's obligation under any
one or more contracts is performed, undertaken, or assumed.
(m) Subcontractor means any person holding a subcontract of $25,000
or more and, for the purposes of subpart D of this part, ``General
Enforcement and Complaint Procedures,'' any person who has held a
subcontract subject to the Act.
(n)(1) Special disabled veteran means:
(i) 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:
(A) Rated at 30 percent or more; or
(B) Rated at 10 or 20 percent in the case of a veteran who has been
determined under 38 U.S.C. 3106 to have a serious employment handicap;
or
(ii) A person who was discharged or released from active duty
because of a service-connected disability.
(2) Serious employment handicap, as used in paragraph (n)(1) of this
section, means a significant impairment of a veteran's ability to
prepare for, obtain, or retain employment consistent with such veteran's
abilities, aptitudes and interests.
(o) Qualified special disabled veteran means a special disabled
veteran who satisfies the requisite skill, experience, education and
other job-related requirements of the employment position such veteran
holds or desires, and who, with or without reasonable accommodation, can
perform the essential functions of such position.
(p) Veteran of the Vietnam era means a person who:
(1) 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:
(i) In the Republic of Vietnam between February 28, 1961, and May 7,
1975; or
(ii) Between August 5, 1964, and May 7, 1975, in all other cases; or
(2) Was discharged or released from active duty for a service-
connected disability if any part of such active duty was performed:
(i) In the Republic of Vietnam between February 28, 1961, and May 7,
1975; or
(ii) Between August 5, 1964, and May 7, 1975, in all other cases.
(q) Other protected veteran means a person who served on active duty
during a war or in a campaign or expedition for which a campaign badge
has been authorized, under laws administered by the Department of
Defense.
(r) Recently separated veteran means any veteran during the one-year
period beginning on the date of such veteran's discharge or release from
active duty.
(s) Essential functions--(1) In general. The term essential
functions means fundamental job duties of the employment position the
special disabled veteran holds or desires. The term essential functions
does not include the marginal functions of the position.
(2) A job function may be considered essential for any of several
reasons, including but not limited to the following:
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(i) The function may be essential because the reason the position
exists is to perform that function;
(ii) The function may be essential because of the limited number of
employees available among whom the performance of that job function can
be distributed; and/or
(iii) The function may be highly specialized so that the incumbent
in the position is hired for his or her expertise or ability to perform
the particular function.
(3) Evidence of whether a particular function is essential includes,
but is not limited to:
(i) The contractor's judgment as to which functions are essential;
(ii) Written job descriptions prepared before advertising or
interviewing applicants for the job;
(iii) The amount of time spent on the job performing the function;
(iv) The consequences of not requiring the incumbent to perform the
function;
(v) The terms of a collective bargaining agreement;
(vi) The work experience of past incumbents in the job; and/or
(vii) The current work experience of incumbents in similar jobs.
(t) Reasonable accommodation--(1) The term reasonable accommodation
means:
(i) Modifications or adjustments to a job application process that
enable a qualified applicant who is a special disabled veteran to be
considered for the position such applicant desires;\1\
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\1\ A contractor's duty to provide a reasonable accommodation with
respect to applicants who are special disabled veterans is not limited
to those who ultimately demonstrate that they are qualified to perform
the job in issue. Special disabled veteran applicants must be provided a
reasonable accommodation with respect to the application process if they
are qualified with respect to that process (e.g., if they present
themselves at the correct location and time to fill out an application).
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(ii) Modifications or adjustments to the work environment, or to the
manner or circumstances under which the position held or desired is
customarily performed, that enable a qualified special disabled veteran
to perform the essential functions of that position; or
(iii) Modifications or adjustments that enable the contractor's
employee who is a special disabled veteran to enjoy equal benefits and
privileges of employment as are enjoyed by the contractor's other
similarly situated employees who are not special disabled veterans.
(2) Reasonable accommodation may include but is not limited to:
(i) Making existing facilities used by employees readily accessible
to and usable by special disabled veterans; and
(ii) Job restructuring; part-time or modified work schedules;
reassignment to a vacant position; acquisition or modifications of
equipment or devices; appropriate adjustment or modifications of
examinations, training materials, or policies; the provision of
qualified readers or interpreters; and other similar accommodations for
special disabled veterans.
(3) To determine the appropriate reasonable accommodation it may be
necessary for the contractor to initiate an informal, interactive
process with the qualified special disabled veteran in need of the
accommodation.\2\ This process should identify the precise limitations
resulting from the disability and potential reasonable accommodations
that could overcome those limitations. (Appendix A of this part provides
guidance on a contractor's duty to provide reasonable accommodation.)
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\2\ Contractors must engage in such an interactive process with a
special disabled veteran, whether or not a reasonable accommodation
ultimately is identified that will make the person a qualified
individual. Contractors must engage in the interactive process because,
until they have done so, they may be unable to determine whether a
reasonable accommodation exists that will result in the person being
qualified.
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(u) Undue hardship--(1) In general. Undue hardship means, with
respect to the provision of an accommodation, significant difficulty or
expense incurred by the contractor, when considered in light of the
factors set forth in paragraph (u)(2) of this section.
(2) Factors to be considered. In determining whether an
accommodation would impose an undue hardship on the contractor, factors
to be considered include:
[[Page 174]]
(i) The nature and net cost of the accommodation needed, taking into
consideration the availability of tax credits and deductions, and/or
outside funding;
(ii) The overall financial resources of the facility or facilities
involved in the provision of the reasonable accommodation, the number of
persons employed at such facility, and the effect on expenses and
resources;
(iii) The overall financial resources of the contractor, the overall
size of the business of the contractor with respect to the number of its
employees, and the number, type and location of its facilities;
(iv) The type of operation or operations of the contractor,
including the composition, structure and functions of the work force of
such contractor, and the geographic separateness and administrative or
fiscal relationship of the facility or facilities in question to the
contractor; and
(v) The impact of the accommodation upon the operation of the
facility, including the impact on the ability of other employees to
perform their duties and the impact on the facility's ability to conduct
business.
(v) Qualification standards means the personal and professional
attributes including the skill, experience, education, physical,
medical, safety and other requirements established by the contractor as
requirements which an individual must meet in order to be eligible for
the position held or desired.
(w) Direct threat means a significant risk of substantial harm to
the health or safety of the individual or others that cannot be
eliminated or reduced by reasonable accommodation. The determination
that a special disabled veteran poses a direct threat shall be based on
an individualized assessment of the individual's present ability to
perform safely the essential functions of the job. This assessment shall
be based on a reasonable medical judgment that relies on the most
current medical knowledge and/or on the best available objective
evidence. In determining whether an individual would pose a direct
threat, the factors to be considered include:
(1) The duration of the risk;
(2) The nature and severity of the potential harm;
(3) The likelihood that the potential harm will occur; and
(4) The imminence of the potential harm.
(x) Compliance evaluation means any one or combination of actions
OFCCP may take to examine a Federal contractor's or subcontractor's
compliance with one or more of the requirements of the Vietnam Era
Veterans' Readjustment Assistance Act.
[70 FR 72151, Dec. 1, 2005; 71 FR 6214, Feb. 7, 2006]
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