Back in November, 2022, the OFCCP proposed some relatively minor but potentially important changes to it’s mandatory disability self-identification form for federal contractor employers, fondly known as “Form CC-305.”
As an “information collection” under the Paperwork Reduction Act (PRA), the revisions must ultimately be approved by the White House Office of Management and Budget (OMB), specifically the Office of Information and Regulatory Affairs (OIRA). Since the agency started the PRA process before the expiration date on the current Form CC-305, that expiration date is “tolled,” e.g., put on hold, until the new form is approved.
Contractors should continue to use the current form, available on the OFCCP’s website here, until the agency announces and makes available the new form.
The changes the OFCCP proposed were largely received positively by the federal contracting community, which feels generally disadvantaged by the agency’s current self-ID form and the strict requirements regarding its use. The agency fixed a few issues with the last round of updates to the form, but several remain.
For one, many people continue to take issue with the list of conditions printed on the form. Some argue that the list is confusing because it includes conditions that may not always qualify as a “disability” under the relevant legal definition of that term. Others feel that the form does not go far enough to inform the user that the list is non-exclusive. And yet others were concerned that the list unnecessarily prompted people to divulge information about their specific condition, causing recordkeeping headaches.
The OFCCP overhauled the list of examples of conditions the agency believes typically do fall into the definition of “disability” under Section 503 of the Rehabilitation Act (which tacks closely to the definition in the Americans with Disabilities Act and is enforced under ADA principles and caselaw). The proposed list is more robust, covering a wider range of types of conditions, and likely strengthening the perception that the OFCCP wants to project—that disability is probably more common than you think.
The agency also proposes to de-italicize the phrase, “Disabilities include, but are not limited to:,” but not remove it. Instead, the new form will bold the phrase to highlight it better.
Perhaps the most significant change to the form is one this author has been advocating for since the very first iteration of this problematic document. The agency is proposing to remove the statement, “Completing this form is voluntary,” and to replace it with the statement, “Identifying yourself as an individual with a disability is voluntary.” And while the latter may be more wordy, it is at least in line with the law.
The ADA clearly requires that divulging information about your disability status be completely voluntary, no matter what your status is. And when the OFCCP decided to standardize the disability self-ID process with a required form, contractors were not happy but diligently started working to integrate the new form into their largely online recruiting and employment application processes. And the vast majority found the form relatively easy to integrate, with one small wrinkle.
The OFCCP misstated the law on the original form and instead of informing users that providing information about their disability status is voluntary, they printed, “Completing this form is voluntary.” According to the OFCCP, this meant that users had to have the option to skip the form entirely, despite the contracting community’s insistence that an “I don’t wish to answer” option be added to the form specifically so that online users could be required to complete the form (making it much easier for contractors to prove they are administering the form as required) without violating the law by requiring anyone to actually divulge their disability status.
The OFCCP has insisted, and continues to insist, that users must be allowed to skip the form in online systems, much like a person could crumple up and throw away a physical copy of the form. Why that is so important to the agency is anyone’s guess, but it is not required by law or even by the OFCCP’s regulations.
The OFCCP’s insistence that the online versions of the form be “skippable” has only ever existed as what we refer to as “sub-regulatory guidance.” While the agency’s implementing regulations can have the force and effect of law, their sub-regulatory guidance cannot and is un-enforceable. The only thing the agency could enforce were those words on the form itself, “Completing this form is voluntary.”
With those words gone, the OFCCP’s Form CC-305 will no longer have to be “skippable.” The agency is adamant that they still want users to have the option to skip the form entirely, though, and most platforms have now been modified to allow that option, so this is shutting the barn door long after the last horse left. But it is good to have an official government form that actually reflects the law correctly, so let’s chalk that one up as a win.
The revised self-ID form is now with OIRA for final consideration. When that office will act is anyone’s guess, but we shouldn’t have much longer to wait now. The OFCCP made thoughtful revisions that largely achieve their goal of making the form more user-friendly both for the people who have to fill it out and the employers who have to administer it.
Could it be better still? Sure. The authorization will be good for three years, at which point there will be another opportunity to make further improvements.
When the new form is approved, you will hear about it, and can begin making the switch once the OFCCP publishes the revised document. Until then, consider letting your Applicant Tracking System and/or Human Resources Information Management System vendors know that updates are coming. The OFCCP typically provides contractors some time to make the transition, so it won’t have to be done overnight. But your vendors are going to be flooded with change requests as soon as the revised form is published, so maybe get in early and secure yourself a place toward the front of that line.
If you have questions about this or any other OFCCP compliance-related matter, feel free to reach out to us at BCGi@Biddle.com.