Citing persistently high unemployment rates, last Friday the Department of Labor's Office of Federal Contract Compliance Programs issued proposed rules setting disabled persons hiring goals for federal contractors. The proposed rule establishes a goal of seven percent of the employer's overall workforce. This is the first time that OFCCP has set a disability hiring goal for contractors.

OFCCP justified the rule by noting that previous affirmative action requirements have made little contribution to contractors' use of disabled workers. While carefully noting that the hiring goal is not a quota, the agency noted that contractors failing to meet this threshold would be required to take additional steps to boost the recruitment and hiring of disabled individuals.

In the past, federal contractors' affirmative action plans for disabled workers have been generic in character, and have not attracted the kind of regulatory scrutiny applicable to plans for hiring of women and minorities. In addition to the aspirational hiring goal, the proposed rules would require a rigorous annual self-evaluation by contractors, and the establishment of linkage agreements with agencies serving disabled persons.

In order to meet these requirements, federal contractors will be required to request that employees and applicants self-identify disabled status (the new ADAAA definitions of disability are incorporated into the OFCCP rules). Many disabilities are not readily apparent, and many employees choose not to disclose their medical condition. In addition, under the Americans with Disabilities Act, employers have an incentive not to ask about employees' health status. The new rule would seek more active self-identification, but would not involve disclosure of the specific disabling condition.

If finalized, the proposed rules would require greatly increased attention to recruitment, retention and promotion of persons with disabilities. OFCCP is accepting comments on the proposed rules through February 7, 2012.