Affirmative Action Requirements Related to Individuals with Disabilities
How does this final rule define "disability?"
Under the rule at §30.2, "disability" means, with respect to an individual: (a) a physical or mental impairment that substantially limits one or more major life activities of such individual; (b) a record of such an impairment; or (c) being regarded as having such an impairment. This definition, as with other terms defined in the regulation related to disability, are taken directly from title I of the Americans with Disabilities Act (ADA), and from the Equal Employment Opportunity Commission's regulations implementing the ADA, to the extent that the ADA, as amended, did not provide a definition.
Which disabilities are covered under the rule? Is there a list of approved disabilities?
There is no list of "approved" disabilities under the EEO regulations. Disability is defined the same way it is defined under the ADA:
- A physical or mental impairment that substantially limits one or more major life activities;
- A record of such an impairment; or
- Being regarded as having such an impairment.
Examples of disabilities include, but are not limited to: blindness, deafness, cancer, diabetes, epilepsy, autism, cerebral palsy, HIV/AIDS, schizophrenia, muscular dystrophy, bipolar disorder, major depression, multiple sclerosis, missing limbs or partially missing limbs, post-traumatic stress disorder, obsessive compulsive disorder, impairments requiring the use of a wheelchair, intellectual disability. These are merely examples; however, sponsors may refer to the EEOC's disability discrimination page for additional information.
If an apprentice receives Workers' Compensation for a back injury, would it be discrimination on the basis of disability if the individual was fired?
The answer depends on whether or not the apprentice is able to continue performing the essential functions of the job – with or without an accommodation – following the injury. If the apprentice cannot perform the essential functions of the job and if no suitable accommodation can be found, the firing may not be unlawful. If, however, no accommodation was provided by the sponsor (which could potentially include light duty or reassignment) to enable the apprentice to carry out the essential functions of the job, and the apprentice was fired because of that back injury, the firing could be considered disability discrimination.
What is a "reasonable accommodation?"
A "reasonable accommodation" includes making existing facilities used by apprentices readily accessible to and usable by individuals with disabilities and other measures, such as job restructuring; part-time or modified work schedules; reassignment to a vacant position; acquisition or modifications of equipment or devices; appropriate adjustment or modifications of examinations, training materials, or policies; the provision of qualified readers or interpreters; and other similar accommodations for individuals with disabilities.
How can a sponsor provide the right accommodations for an individual with a disability in an occupation where safety is a key component (such as a manufacturing facility)?
As with all requests for a reasonable accommodation, the sponsor should engage in an interactive process with the individual to identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations. But a sponsor may require that an individual be able to perform the essential functions of the position in question without posing a direct threat to the health or safety of the individual or others in the workplace. Thus, if an individual with a disability cannot perform a job safely, even with a reasonable accommodation, the sponsor need not hire or retain him or her for that job.
At the same time, not all disabilities include physical limitations, and not all physical limitations will be relevant to the job in question. Each situation requires a specific assessment of the individual's current ability to safely perform the essential functions of the job.
Does a sponsor have to accept someone into the program who can't perform the essential functions of the apprenticeship program in order to meet a utilization goal for individuals with disabilities?
No. The goal only applies to "qualified individuals with disabilities," and the application of a utilization goal does not require or authorize a sponsor to hire an individual who is not eligible or qualified for apprenticeship. Additionally, sponsors are not required to hire a less qualified candidate instead of the best qualified candidate for the purposes of affirmative action.
Sponsors should keep in mind, though, that just because an individual has a disability, it does not mean that he or she is incapable of performing the essential functions of the position. While some individuals with certain disabilities may not be able to perform some jobs, sponsors must make this determination on an individual basis and consider the ability of an individual with disabilities to perform the job with a reasonable accommodation.
My apprenticeship program trains ironworkers. It is a physically demanding and dangerous job. How can individuals with disabilities do this job?
Sponsors do not need to lower their minimum requirements for someone to qualify as an apprentice. However, some applicants with covered disabilities may be fully capable of doing "physically demanding and dangerous" work. For example, a returning veteran may be fully capable of doing the work of an ironworker even though he or she is living with post-traumatic stress disorder. Properly managed, this disability would not be an impediment to doing the demanding and dangerous work of an ironworker. Depending on the nature of the work, many disabilities can be accommodated within apprenticeship programs.
How can a sponsor know if an apprentice or applicant has a disability and should therefore be counted as an individual with a disability in its workforce analysis?
The identification of individuals within the apprenticeship workforce that have a disability is done through self-identification, and the sponsor should not be attempting to identify individuals with disabilities who do not self-identify. If an apprentice has an obvious visible disability (i.e., someone is blind or missing a limb), or if an apprentice requests a reasonable accommodation, a sponsor may include that individual as an individual with a disability within its workforce analysis. Otherwise, a sponsor should be relying only on self-identification as the method for capturing disability within its apprenticeship workforce.
Under the final rule, there is an obligation to invite individuals to self-identify as a person with a disability. How does that work?
The final rule, at §30.11, requires that sponsors invite applicants to self-identify at two separate stages: (1) to all candidates before apprenticeship offers are made ("pre-offer"); and (2) to those who have accepted apprenticeship offers before they begin their apprenticeship ("post-offer").
In order for current sponsors to come into compliance with the rule and to ensure that all apprentices have an opportunity to self-identify as an individual with a disability, all sponsors will also need to invite each current apprentice to inform the sponsor whether he or she is an individual with a disability. Additionally, sponsors must remind all apprentices yearly that they may voluntarily update their disability status.
OA will provide technical assistance to sponsors about how to implement the self-identification procedure.
If an applicant or apprentice chooses not to self-identify, or leaves the form blank, can sponsors ask the individual for this information?
No. Sponsors can only use the form to ask whether or not an apprentice or apprenticeship applicant has a disability. However, health changes over time, so sponsors will be required to remind apprentices that they can review and change their disability self-identification form annually.
Does the final rule include a national utilization goal for individuals with disabilities?
Yes, the final rule (§30.7) includes a national aspirational utilization goal of seven percent for individuals with disabilities that applies to all covered sponsors. This goal provides a benchmark against which the sponsor can measure the representation of individuals with disabilities in the sponsor's apprentice workforce by major occupation group.
What happens if a sponsor does not meet the seven percent goal?
Failure to meet the disability goal is not a violation of the regulations and will not lead to a fine, penalty or sanction. The regulations specifically provide that the disability goal is not to be used as a quota or a ceiling that limits or restricts the employment of individuals with disabilities. It further states that a sponsor's determination that it failed to meet the disability goal does not constitute either a finding or admission of discrimination in violation of the regulation. However, when the percentage of individuals with disabilities in one or more major occupations groups is less than the utilization goal, the sponsor must take steps to determine whether and where impediments to equal employment exist and develop action-oriented programs to correct them.
If the number of apprentices in a program is less than 15 (the minimum for coverage by the Americans with Disabilities Act), is the sponsor still required to compare its workforce against the seven percent goal?
Yes. Any sponsor that is required to maintain an affirmative action program must include all of its current apprentices in its calculations of whether seven percent of the apprentices within each major occupation group in the program are individuals with disabilities.
I have only eight apprentices. How does the goal that seven percent of them be individuals with disabilities apply in such a situation? Seven percent of eight apprentices is half a person.
The seven percent utilization goal for individuals with disabilities is a management tool to help inform decision-making and promote accountability. The goal does not require a sponsor to accept a person with a disability into the program. Instead, the goal establishes an obligation for sponsors to examine their minimum program qualifications and other personnel processes to determine if non-job-related impediments to hiring individuals with disabilities exist. If such barriers do exist, sponsors need to undertake additional outreach and recruitment efforts to ensure individuals with disabilities are aware of the opportunity to apply for apprenticeships.
For example, requiring all apprentices to have a driver's license would exclude individuals who have a disability that prevents them from driving a car. Such a qualification should only be used if driving is job-related and consistent with business necessity.
Does a sponsor have to provide an accommodation to someone who identifies as an individual with a disability?
Self-identifying as an individual with a disability does not automatically entitle that individual to an accommodation, but the sponsor must provide a reasonable accommodation to an apprentice who requests one or where the need for such an accommodation is clear.
- General Questions
- Nondiscrimination/Equal Employment Opportunity Provisions
- Complaint Information
- Affirmative Action Program Requirements
- Sponsor Workforce and Utilization Analyses
- Targeted Outreach, Recruitment, Selection and Retention
- Affirmative Action Requirements Related to Individuals with Disabilities