On December 9, 2011, the Office of Federal Contract Compliance Programs (“OFCCP”) issued a notice of proposed rulemaking (76 Fed. Reg. pgs. 77056-77105) which would substantially increase the obligations of federal contractors and subcontractors concerning affirmative action, data collection, reporting and related obligations with respect to the employment of individuals with disabilities. The proposed regulations also, for the first time, would establish a single, nationwide utilization goal for individuals with disabilities for each job group in the contractor's workforce. The proposed rules substantively address the definition of disability, the impact of mitigating measures, identification and self-identification of individuals with disabilities, review of personnel processes as well as physical and mental job qualification standards, reasonable accommodation procedures and extensive data gathering and record retention requirements.

Federal government contractors and subcontractors who are subject to OFCCP jurisdiction under Section 504 of the Rehabilitation Act of 1973 by virtue of the dollar value of their contracts or subcontracts, and particularly those who meet the higher threshold coverage standards and are obligated to create and apply affirmative action plans under the Rehabilitation Act should carefully review all provisions of the proposed regulations. Contractors are encouraged to directly, or through organizations which represent their interests, address comments concerning the proposed rules to OFCCP. Comments must be received by OFCCP on or before February 7, 2012.

In addition to the substance of the proposed rules, contractors should carefully review OFCCP's time and cost estimates for compliance, included in the Notice of Proposed Rulemaking, as required by the Paperwork Reduction Act, Executive Orders and legislation relating to regulatory flexibility. Contractors should consider submitting comments as to OFCCP's estimated administrative cost and time involved with compliance activities, and whether the estimates are realistic.  Among the substantive changes contained in the proposed rule are the following:

• Revisions to the definition of "disability" and its component parts;
• New requirements regarding the assessment of when an impairment constitutes a disability;
• Treatment of impairments that are episodic or in remission as disabilities;
• The impact of mitigating measures on a determination of disabled status;
• Revisions to the definition of "reasonable accommodation";
• Mandatory inclusion, verbatim, of a revised equal opportunity clause in all covered government contracts and subcontracts;
• Revisions to the direct threat defense;
• Expanded self-identification and annual contractor survey of employees;
• Expanded written affirmative action plan requirements, including expanded outreach, linkage and applicant referral and recordkeeping obligations;
• A 7% disabled (or a possible range of values between 4% and 10%) utilization goal, nationwide, for each job group in the contractor's workforce;
• Priority consideration for individuals with disabilities in recruitment and/or hiring actions;
• Development and implementation of new reasonable accommodation procedures; and
• New data collection and analysis obligations with respect to personnel actions concerning individuals with disabilities.

OFCCP compliance reviews, general enforcement and complaint procedures for disability based affirmative action and related obligations would parallel those presently in place for race, ethnicity and gender plans reviewed by OFCCP under Executive Order 11246.