Affirmative Action and Nondiscrimination Obligations of
Contractors and Subcontractors Regarding Individuals With Disabilities [11/04/1998]
Volume 63, Number 213, Page 59657-59659-----------------------------------------------------------------------
DEPARTMENT OF LABOR
Office of Federal Contract Compliance Programs
41 CFR Part 60-741
RIN 1215-AB19
Affirmative Action and Nondiscrimination Obligations of
Contractors and Subcontractors Regarding Individuals With Disabilities
AGENCY: Office of Federal Contract Compliance Programs, Labor.
ACTION: Final rule.
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SUMMARY: This final rule amends Appendix C to the regulations
implementing Section 503 of the Rehabilitation Act of 1973, as amended
(Section 503). Appendix C contains procedures that Government
contractors may use to review their personnel processes to ensure that
the processes are fair to disabled applicants and employees. The
existing Appendix recommends that contractors attach or include a
description of accommodations considered or used for special disabled
veterans to application forms or personnel records. As amended, the
Appendix recommends that the description of accommodations be
maintained in separate confidential medical files. The amendments make
Appendix C to the Rehabilitation Act rules consistent with Appendix C
to OFCCP's rules implementing the Vietnam Era Veterans' Readjustment
Assistance Act, which also are published elsewhere in this issue of the
Federal Register.
[[Page 59658]]
EFFECTIVE DATE: These regulations are effective January 4, 1999.
FOR FURTHER INFORMATION CONTACT: James I. Melvin, Director, Division of
Policy, Planning and Program Development, 202-693-0102 (voice), 1-800-
326-2577 (TDD). Copies of this final rule, including copies in
alternative formats, may be obtained by calling OFCCP at 202-693-0102
(voice) or 1-800-326-2577 (TDD). The alternative formats available are:
Large print, electronic file on computer disk, and audio-tape. The rule
also is available on the Internet at http://www.dol.gov/dol/esa.
SUPPLEMENTARY INFORMATION:
Rulemaking History
This final rule amends the regulations implementing Section 503.
The Act, and OFCCP's implementing regulations, 41 CFR Part 60-741,
require parties holding a Federal Government contract or subcontract in
excess of $10,000 to ``take affirmative action to employ and advance in
employment qualified individuals with disabilities.'' The Section 503
Rules last were revised on May 1, 1996, 61 FR 19336.
On September 24, 1996, OFCCP published a notice of proposed
rulemaking (NPRM), 61 FR 50080, proposing to revise the regulations
implementing the Vietnam Era Veterans' Readjustment Assistance Act of
1974, as amended (VEVRAA). VEVRAA, and OFCCP's regulations at 41 CFR
Part 60-250, require Government contractors and subcontractors to take
affirmative action to employ and advance in employment qualified
special disabled veterans and veterans of the Vietnam era.
OFCCP has modeled its regulations implementing VEVRAA on those
implementing Section 503. This reflects the close similarity between
the statutes in terms of their substantive protections and
jurisdictional requirements. The September 24, 1996, VEVRAA NPRM was
modeled after the May 1, 1996, Section 503 final rule.
Appendix C, Review of Personnel Processes, in the VEVRAA NPRM
proposed a set of procedures that contractors could use to facilitate a
review by the contractor and the Government of the contractor's
personnel processes. The review is required by Sec. 60-250.44(b), and
is intended to ensure that the contractor's personnel processes provide
for careful consideration of the qualifications of applicants and
employees who are known to be special disabled veterans or veterans of
the Vietnam era, for all employment and training opportunities.
Paragraphs 3 and 4 of Appendix C proposed to recommend that contractors
attach or include a description of accommodations considered or used
for special disabled veterans to application forms or personnel
records. Appendix C to the VEVRAA NPRM repeated the substance of
Appendix C to the May 1, 1996, Section 503 final rule.
The Equal Employment Opportunity Commission (EEOC) submitted a
comment in which it asserted that in most instances descriptions of
accommodations considered or used for special disabled veterans
constitute medical information that must be maintained in separate
files and treated as confidential medical records. Accordingly, the
EEOC recommended that Appendix C be revised by changing paragraphs 3
and 4 to indicate that contractors should maintain descriptions of
accommodations considered or used in separate confidential medical
files. OFCCP agreed with the EEOC's recommendation and, in its VEVRAA
final rule published elsewhere in this issue of the Federal Register,
revised paragraphs 3 and 4 of Appendix C.
The EEOC's comment applies equally to Appendix C to the Section 503
rules. Just as descriptions of accommodations considered or used for
special disabled veterans often constitute medical information, so,
too, do descriptions of accommodations considered or used for
individuals with disabilities often constitute medical information.
Accordingly, OFCCP has decided to revise paragraphs 3 and 4 of the
corresponding Appendix C to 41 CFR Part 60-741.
Regulatory Revision
Pursuant to this revision, paragraphs 3 and 4 to Appendix C
specify:
3. Where the contractor prepares a statement of the reason why an
individual with a disability was rejected and a description of
accommodations considered, those materials should be treated as
confidential medical records.
4. Where the contractor makes a record of accommodations undertaken
in order to place an individual with a disability on the job, the
record should be treated as a confidential medical record.
Regulatory Procedures
Executive Order 12866
The Department is issuing this rule in conformance with Executive
Order 12866. This rule has been determined not to be significant for
purposes of Executive Order 12866 and therefore need not be reviewed by
OMB. This rule does not meet the criteria of Section 3(f)(1) of
Executive Order 12866 and therefore the information enumerated in
Section 6(a)(3)(C) of that Order is not required.
This conclusion is based on the fact that this rule does not
substantively change the existing obligation of Federal contractors to
apply a policy of nondiscrimination and affirmative action in their
employment of qualified individuals with disabilities. As discussed in
more detail below, the rule is interpretive in nature and does not
require particular actions by contractors.
Regulatory Flexibility Act
The rule is interpretive and does not substantively change existing
obligations for Federal contractors. Accordingly, we certify that the
rule will not have a significant economic impact on a substantial
number of small business entities. Therefore, a regulatory flexibility
analysis under the Regulatory Flexibility Act, 5 U.S.C. 605(b), is not
required.
Unfunded Mandates Reform
Executive Order 12875
This rule will not create an unfunded Federal mandate upon any
State, local or tribal government.
Unfunded Mandates Reform Act of 1995
This rule will not include any Federal mandate that may result in
increased expenditures by State, local, and tribal governments, in the
aggregate, of $100 million or more, or increased expenditures by the
private sector of $100 million or more.
Paperwork Reduction Act
We have reviewed this rule and we have not identified any changes
in paperwork under the Paperwork Reduction Act.
Notice and Comment Rulemaking
The Department believes that notice and comment rulemaking are not
required under the Administrative Procedure Act, 5 U.S.C. 553(b)(A),
because this rule is interpretive rather than substantive in nature.
The Section 503 regulations specifically provide as follows:
Appendix C of this part is an example of an appropriate set of
procedures. The procedures in Appendix C of this part are not required
and contractors may develop other procedures appropriate to their
circumstances. 41 CFR 60-741.44(b) (emphasis added).
Because contractors are not required to follow Appendix C, no
penalty can attach for failure to follow the
[[Page 59659]]
Appendix. Accordingly, the rule is not substantive in nature and notice
and comment rulemaking is not required. See, e.g., American President
Lines, Ltd. v. FMC, 316 F.2d 419 (DC Cir. 1963).
List of Subjects in 41 CFR Part 60-741
Administrative practice and procedure, Civil rights, Employment,
Equal employment opportunity, Government contracts, Government
procurement, Individuals with disabilities, Investigations, and
Reporting and recordkeeping requirements.
Signed at Washington, D.C., this 26th day of October, 1998.
Alexis M. Herman,
Secretary of Labor.
Bernard E. Anderson,
Assistant Secretary for Employment Standards.
Shirley J. Wilcher,
Deputy Assistant Secretary for Federal Contract Compliance.
For the reasons set forth above, 41 CFR Part 60-741 is amended as
follows:
PART 60-741--[AMENDED]
1. The authority citation for part 60-741 continues to read as
follows:
Authority: 29 U.S.C. 706 and 793; E.O. 11758 (3 CFR, 1971-1975
Comp., p. 841).
2. In Appendix C to part 60-741, the introductory text is
republished and paragraphs 3 and 4 are revised to read as follows:
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):
* * * * *
3. In each case where an employee or applicant who is an
individual with a disability 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. 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. 60-741.23(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 an
individual with a disability 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. 60-741.23(d).
[FR Doc. 98-29042 Filed 11-3-98; 8:45 am]
BILLING CODE 4510-27-P
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