Federal contractor employers subject to the OFCCP’s affirmative action requirements for individuals with disabilities now have until Tuesday, July 25, 2023 to replace their disability self-identification forms with the new, updated Form CC-305.
As of this writing, the form is only available in English. The website states that “other languages” are “coming soon.”
In response to concerns that the form’s list of disabilities can be problematic on several fronts, the agency has now bolded the statement that the list is not exclusive.
Disappointingly, the agency has reversed course and doubled down on its erroneous belief that under existing law completing the form itself must be voluntary. That is new “law” that the OFCCP created with the form itself and they have all the authority they need to correct it. But they are sticking by the clear language of the form itself which informs the user that completing the form is voluntary, so contractors are still required to allow users to “skip” the form entirely, which can be challenging in online environments.
Forcing an individual to divulge their disability status, one way or the other, is clearly prohibited by the Americans with Disabilities Act (ADA) and Section 503 of the Rehabilitation Act. And that is precisely why the contractor community demanded that the agency add an “opt-out” answer to Form CC-305 (the original proposed form only had “yes” and “no” answer options). The entire point of the opt-out answer option was so contractors could require users to complete the form without impermissibly requiring them to divulge their disability status.
The agency added the opt-out answer option, but then inexplicably added language stating that completing the form itself is voluntary, weakly claiming they were just following existing law. They were not, and they cost federal contractor employers untold thousands of dollars and hours to comply. Form CC-305 has come up for re-review three times now and each time federal contractors asked the agency to correct this mistake. All three times the agency has refused, citing their misunderstanding of “existing law,” and notably not addressing why their form includes that third opt-out answer option.
The OFCCP would like to remind everyone that this is an official government document that is not to be adulterated in any way. Do not change the language. Do not change the order of the form. Do not change the formatting. Do not replace “the contractor” with your organization’s actual name. Only changes that are necessary to provide a reasonable accommodation will be allowed.
If you use the form in an on-line environment, try to make sure that the system records the user’s action if and when they skip the form. Why? Because blanks in your database are open to interpretation and the OFCCP is notoriously skeptical. They are likely to interpret blanks to mean that the individual was not presented with the form at all, then kick it back to you to prove otherwise.
If you use paper forms, your recordkeeping headaches remain the same. If someone circles one or more medical conditions listed on the form, or writes-in their own, that form becomes a “medical record” subject to separate confidentiality and recordkeeping requirements. If someone decides to use the form to request an accommodation, that form becomes an accommodation request as well.
Go Get Your New Form
The OFCCP publishes Form CC-305 in Microsoft Word and PDF formats. As noted, the new form is currently only available in English, though additional languages are “coming soon.” Keep an eye on the OFCCP’s disability form page for additional translations.
The new form is approved, so you can start using it immediately. In current OFCCP audits, use of the “old” form is still acceptable. Use of either form will be acceptable until July 25, 2023. After that, the “old” form must be retired.
If you have questions about this or any other OFCCP-related matter, please feel free to drop us a line at BCGi@Biddle.com.