The new government-approved form that federal contractors must use to invite job applicants and employees to voluntarily self-identify as individuals with disabilities was released by the Office of Federal Contract Compliance Programs (OFCCP) on January 22, 2014. Contractors must begin using the new form effective March 24, 2014, unless they have an affirmative action plan (AAP) in place on that date, in which case they "may maintain that AAP until the end of their AAP year and delay their compliance" with the new AAP requirements until the "start of their next AAP cycle."

Pre-Offer

Under the new disability AAP rules, a contractor must invite applicants to inform the contractor whether the applicant believes that he or she is an individual with a disability. This invitation must be provided to each applicant when the applicant applies or is considered for employment. The invitation may be included with the application materials for a position, but must be separate from the application.

Post-Offer

At any time after the offer of employment, but before the applicant begins his or her duties, the contractor must invite the applicant to inform the contractor whether the applicant believes that he or she is an individual with a disability.

Survey Current Employees

The contractor also must invite each of its employees to voluntarily inform the contractor whether the employee believes that he or she is an individual with a disability. The invitation must be extended the first year the contractor becomes subject to the requirements of the new disability AAP rules and at five year intervals thereafter. At least once during the intervening years between these invitations, the contractor must remind their employees that they may voluntarily update their disability status.

Must Use OFCCP Form

The contractor must invite applicants and employees to self-identify using the language and manner prescribed by the OFCCP. The OFCCP's required "Voluntary Self- Identification of Disability" form is available on its website.

Electronically Fillable Copy

Contractors may create an electronically fillable version of the form used to invite self-identification provided that the e-form: (1) displays the OMB number and expiration date; (2) contains the text of the form without alteration; (3) uses a sans-serif font, such as Calibri or Arial; and (4) uses at least 11-pitch for font size (with the exception of the footnote and burden statement, which must be at least 10-pitch in size). "Though it may seem that specifying the size and type of font is unnecessary, OFCCP is doing so to ensure the consistency of appearance, ease of reading, and accessibility of the form. By using the OMB number and date, job applicants and employees know that the form is an officially approved government form."

Reasonable Accommodation

According to the OFCCP, "contractors are encouraged to provide additional information about reasonable accommodation at the same time they invite voluntary self-identification of disability. This may include the name and contact information of the official(s) responsible for processing requests for reasonable accommodation from applicants and employees with disabilities, and information about the contractor’s reasonable accommodation procedures. Contractors may not alter the content of the OFCCP’s voluntary self-identification form, but are encouraged to provide such reasonable accommodation information with the form."

Must Keep Confidential

Contractors must "keep all information on self- identification confidential, and must maintain it in a data analysis file (rather than in the medical files of the individual employees)." Contractors must "provide self- identification forms to OFCCP upon request" and "self- identification information may be used only in accordance" with AAP rules.

Doesn’t This Violate the ADA?

Although contrary to most HR professionals' training and experience, according to the U.S. Equal Employment Opportunity Commission, the OFCCP's requirement that contractors invite applicants to self-identify as individuals with disabilities at the pre-offer stage is not a violation of the Americans with Disabilities Act.