[Federal Register: December 1, 2005 (Volume 70, Number 230)]
[Rules and Regulations]
[Page 72147-72166]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01de05-14]
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Part II
Department of Labor
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Office of Federal Contract Compliance Programs
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41 CFR 60-250
Affirmative Action and Nondiscrimination Obligations of Contractors and
Subcontractors Regarding Protected Veterans; Final Rule
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DEPARTMENT OF LABOR
Office of Federal Contract Compliance Programs
41 CFR Part 60-250
RIN 1215-AB24
Affirmative Action and Nondiscrimination Obligations of
Contractors and Subcontractors Regarding Protected Veterans
AGENCY: Office of Federal Contract Compliance Programs, Labor.
ACTION: Final rule.
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SUMMARY: This final rule revises the regulations implementing the
affirmative action provisions of the Vietnam Era Veterans' Readjustment
Assistance Act of 1974, as amended, 38 U.S.C. 4212 (2001) (``Section
4212'' or ``VEVRAA''). This rule makes three general revisions to the
VEVRAA regulations. First, it generally conforms the VEVRAA regulations
to the Veterans Employment Opportunities Act of 1998 (VEOA) and the
Veterans Benefits and Health Care Improvement Act of 2000 (VBHCIA).
Second, it removes references to letters of commitment because the
violations formerly incorporated into the letter of commitment are now
summarized in the Compliance Evaluation Closure Letter. Third, it
removes language about the effective date of the rule published in 1998
because that language is obsolete.
EFFECTIVE DATE: These regulations are effective January 3, 2006.
FOR FURTHER INFORMATION CONTACT: James C. Pierce, Acting Director,
Division of Policy, Planning, and Program Development, Office of
Federal Contract Compliance Programs, 200 Constitution Avenue, NW.,
Room N3422, Washington, DC 20210. Telephone: (202) 693-0102 (voice) or
(202) 693-1337 (TTY).
SUPPLEMENTARY INFORMATION:
Background
Prior to recent amendments, the affirmative action provisions of
the Vietnam Era Veterans' Readjustment Assistance Act of 1974, as
amended, 38 U.S.C. 4212 (``Section 4212'' or ``VEVRAA'') required
parties holding Government contracts or subcontracts of $10,000 or more
to ``take affirmative action to employ and advance in employment
qualified special disabled veterans and veterans of the Vietnam era.''
The Department of Labor's Office of Federal Contract Compliance
Programs (OFCCP) has published regulations implementing VEVRAA at 41
CFR part 60-250.
This final rule revises the OFCCP regulations to conform to the
requirements of the Veterans Employment Opportunities Act of 1998
(VEOA) and the Veterans Benefits and Health Care Improvement Act of
2000 (VBHCIA). Today's rule does not incorporate changes made to VEVRAA
by the Jobs for Veterans Act (JVA) that was signed by the President on
November 7, 2002. JVA amended the VEVRAA requirements applicable to
Federal contracts and subcontracts entered on or after December 1,
2003, by raising the contract amount threshold for VEVRAA coverage,
modifying the categories of protected veterans, and making changes to
job listing requirements. At a later date, OFCCP will issue regulations
implementing the JVA changes that will apply to contracts entered on or
after December 1, 2003.
Except as set forth below, the contents of part 60-250 remain
unchanged from the rule being amended. VEOA amended section 4212(a) in
two ways. First, section 7 of VEOA raised the amount of a contract
required to establish VEVRAA coverage from $10,000 to $25,000. Second,
section 7 of VEOA granted VEVRAA protection to a new group of veterans,
called ``other protected veterans''--those who have served on active
duty during a war or in a campaign or expedition for which a campaign
badge has been authorized.
VBHCIA amended VEVRAA by creating a new class of protected veteran,
called ``recently separated veteran.'' Recently separated veteran is
defined in VEVRAA as ``any veteran during the one-year period beginning
on the date of such veteran's discharge or release from active duty.''
However, the term ``recently separated veteran'' is also defined in the
Workforce Investment Act of 1998 (29 U.S.C. 2801 et seq.) (WIA) as
``any veteran who applies for participation under this chapter within
48 months after the discharge or release from active military, naval,
or air service.'' The WIA is administered by the Department of Labor's
Employment and Training Administration (ETA), which has issued
regulations implementing the WIA at 20 CFR part 660-671. Although ETA
does not refer to ``recently separated veteran'' in its regulations,
ETA uses the WIA definition of ``recently separated veteran.'' To
eliminate confusion, ``recently separated veteran'' means, for the
purposes of this rule, any veteran during the one-year period beginning
on the date of such veteran's discharge or release from active duty.
Today's rule does not carry forward several outdated provisions of
the rule being amended relating to the implementation of that rule
after it was published: (1) The effective date of that rule; (2) a
statement that the rule did not apply retroactively; and (3) a
statement that contractors needed to update their AAPs within 120 days
of the rule's effective date (January 4, 1999).
Information about the implementation of today's rule is contained
in the preamble, rather than in the rule. Today's rule will become
effective 30 days after publication and will apply prospectively.
Contractors are required to update their affirmative action programs
(AAP) to reflect the requirements of today's rule during their standard
12-month AAP review and updating cycle. A contractor that has prepared
an AAP under the old regulations may maintain that AAP for the duration
of the AAP year even if that AAP year overlaps with the effective date
of the new regulations.
The rule being amended references letters of commitment. OFCCP
discontinued the use of the letter of commitment, which was used to
resolve minor technical deficiencies, in 1998. OFCCP replaced the
letter of commitment with the compliance evaluation closure letter,
which is used by OFCCP to close a review where minor or no violations
are found. Consequently, references to letters of commitment have been
removed from Sec. Sec. 60-250.62 and 60-250.63.
We discuss specific changes in the Section-by-Section Analysis
below.
Section-by-Section Analysis
The following analysis focuses on a comparison of today's rule with
the rule being amended found at 41 CFR part 60-250. The analysis
discusses VEOA and VBHCIA where necessary to place today's rule in
context. Sections with no changes are not discussed.
Part 60-250
OFCCP is amending the Part heading by adding ``Recently Separated
Veterans'' and ``Other Protected Veterans'' to include veterans
protected under VEOA and VBHCIA. In the table of contents, the heading
for Sec. Sec. 250.62 and 250.63 are updated to correspond to the
headings in the regulatory text and the table of contents reference for
Sec. 250.85 is deleted (see discussion of those sections below).
OFCCP is amending the United States Code authority citation to
denote that the VEVRAA statutory authority being referenced is a pre-
JVA amendment. As discussed above, JVA amendments to VEVRAA apply only
to contracts entered on or after December 1, 2003. Because this
regulation draws its authority from the VEVRAA as enacted
[[Page 72149]]
before its amendment by the JVA, the date in the citation has been
added.
Subpart A--Preliminary Matters, Equal Opportunity Clause
Section 60-250.1 Purpose, Applicability and Construction
This section amends paragraphs (a) and (c)(2) by adding ``recently
separated veterans'' and ``other protected veterans'' to include
veterans protected under VEOA and VBHCIA. Additionally, paragraph (b)
is amended to state that a Government contract or subcontract of at
least $25,000 is covered by the Act.
Section 60-250.2 Definitions
This section amends paragraphs (j), (k), and (m) (the definitions
for the terms ``contractor,'' ``prime contractor,'' and
``subcontractor,'' respectively) to increase the coverage threshold
amount from $10,000 to $25,000 to conform to the requirements of the
VEOA. Paragraph (q) adds the definition of ``other protected veteran,''
the new class of veterans protected by VEOA. Paragraph (r) adds the
definition of ``recently separated veteran,'' the new class of veterans
protected under VBHCIA. With the addition of paragraphs (q) and (r), we
redesignate paragraphs (q) through (u) as paragraphs (s) through (w),
respectively.
Section 60-250.4 Coverage and Waivers
This section amends paragraphs (a)(1) and (a)(2) to increase the
contract or subcontract threshold amount from $10,000 to $25,000 to
conform to the requirements of the VEOA.
Section 60-250.5 Equal Opportunity Clause
This section adds ``recently separated veteran(s)'' and ``other
protected veteran(s)'' to paragraphs (a), (a)(1), (a)(9), and (a)(10)
to include veterans protected under VEOA and VBHCIA. Paragraph (a)(11)
raises the subcontract or purchase order threshold amount from $10,000
to $25,000 to conform to the requirements of the VEOA.
Subpart B--Discrimination Prohibited
Section 60-250.21 Prohibitions
This section adds ``recently separated veteran(s)'' and ``other
protected veteran(s)'' to paragraphs (a), (b), (c), (d)(1), (e),
(g)(1), and (i) to include veterans protected under VEOA and VBHCIA.
Section 60-250.22 Direct Threat Defense
This section replaces the reference to Sec. 60-250.2(u) with Sec.
60-250.2(w) to conform to the redesignating in Sec. 60-250.2.
Subpart C--Affirmative Action Program
Section 60-250.42 Invitation To Self-Identify
This section adds ``recently separated veteran(s)'' and ``other
protected veteran(s)'' to paragraphs (b) and (f) to include veterans
protected under VEOA and VBHCIA.
Section 60-250.43 Affirmative Action Policy
This section adds ``recently separated veteran(s)'' and ``other
protected veteran(s)'' to include veterans protected under VEOA and
VBHCIA.
Section 60-250.44 Required Contents of Affirmative Action Programs
This section adds ``recently separated veteran(s)'' and ``other
protected veteran(s)'' to paragraphs (a), (a)(2), (a)(3), (b), (e),
(f), (f)(1), (f)(3), (f)(4), (f)(5), (f)(7), (f)(8), (g)(1),
(g)(2)(ii), (g)(2)(vii), and (h)(1)(iv) to include veterans protected
under VEOA and VBHCIA.
Subpart D--General Enforcement and Complaint Procedures
Section 60-250.60 Compliance Evaluations
This section adds ``recently separated veteran'' and ``other
protected veteran'' to paragraph (a) to include veterans protected
under VEOA and VBHCIA.
The Office of the Assistant Secretary for Veterans' Employment and
Training (OASVET) has been renamed the Veterans' Employment and
Training Service (VETS). The rule is updated with the agency's current
name.
Section 60-250.61 Complaint Procedures
This section adds ``recently separated veteran'' and ``other
protected veteran'' to paragraph (b)(iii) to include veterans protected
under VEOA and VBHCIA.
Section 60-250.62 Conciliation Agreements
This section deletes paragraph (b), which referred to letters of
commitment. In 1998 OFCCP discontinued the use of the letter of
commitment, which was used to resolve minor technical deficiencies.
Discontinuing the use of the Letter of Commitment, OFCCP Order Number
ADM Notice/Other, Transmittal Number 226 (August 5, 1998). The letter
of commitment was replaced with the compliance evaluation closure
letter, which is used by OFCCP to close a compliance evaluation when
minor or no violations are found. Consequently, the reference in Sec.
60-250.62(b) to the letter of commitment is no longer necessary. The
heading for Sec. 250.62 also deletes the reference to the letter of
commitment.
Section 60-250.63 Violation of Conciliation Agreements
We have deleted paragraph (d) because it references the letter of
commitment. As discussed above, OFCCP no longer uses the letter of
commitment. Additionally, the heading to Sec. 250.63 deletes the
reference to the letter of commitment.
Section 60-250.65 Enforcement Proceedings
This rule adds a citation to the pre-JVA amendment to VEVRAA in
paragraph 60-250.65(b)(3). Paragraph (b)(3) states that references in
41 CFR part 60-30 to Executive Order 11246 shall mean the ``Vietnam Era
Veterans' Readjustment Assistance Act, as amended,'' for purposes of
hearings held pursuant to part 60-250. This citation is added because
the ``Vietnam Era Veterans' Readjustment Assistance Act, as amended,''
references all amendments to VEVRAA, including amendments by JVA. As
stated above, this rule does not incorporate amendments to VEVRAA made
by JVA. Accordingly, a U.S.C. citation, 38 U.S.C. 4212 (2001), is added
to clarify that the reference is to the pre-JVA amendment to VEVRAA.
Section 60-250.69 Intimidation and Interference
This section adds ``recently separated veterans'' and ``other
protected veterans'' to paragraphs (a)(2) and (a)(3) to include
veterans protected under VEOA and VBHCIA.
Subpart E--Ancillary Matters
Section 60-250.80 Recordkeeping
This rule removes paragraph (c) from Sec. 60-250.80. Paragraph (c)
states that the recordkeeping requirements of Sec. 60-250.80 apply
only to records made or kept on or after the date that the Office of
Management and Budget has cleared the requirements. This paragraph's
discussion of the effective date for this section is unnecessary
because the date referenced the new recordkeeping requirement contained
in the rule published in 1998.
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Section 60-250.84 Responsibilities of Local Employment Service Offices
This section adds ``recently separated veterans'' and ``other
protected veterans'' to paragraph (a) to include veterans protected
under VEOA and VBHCIA.
Section 60-250.85 Effective Date
This rule removes Sec. 60-250.85. This section's discussion of
effective dates for the rule being amended is unnecessary, as OFCCP no
longer includes effective dates in the regulations.
Appendix A to Part 60-250--Guidelines on a Contractor's Duty To Provide
Reasonable Accommodation
This appendix amends paragraphs 5 and 8 to replace the reference to
Sec. 60-250.2(r) with Sec. 60-250.2(t) to conform to the
redesignating in Sec. 60-250.2. We also update the phone numbers for
the EEOC and add a second toll free number for the Job Accommodation
Network (JAN) in paragraph 6. Lastly, we update this appendix with the
information that JAN is now operated by the Office of Disability
Employment Policy, in the Department of Labor.
Appendix B to Part 60-250--Sample Invitation To Self-Identify
Appendix B adds ``recently separated veteran(s)'' and ``other
protected veteran(s)'' to paragraphs 1, 2, and 7 to include veterans
protected under VEOA and VBHCIA. In addition, in paragraph 2 we place
the definitions of ``recently separated veteran'' and ``other protected
veteran'' after the definition of veteran of the Vietnam era.
Appendix C to Part 60-250--Review of Personnel Processes
Appendix C adds ``recently separated veteran'' and ``other
protected veteran'' to paragraphs 1, 2, and 3 to include veterans
protected under VEOA and VBHCIA.
Regulatory Procedures
Publication in Final
The Department of Labor has determined that this rulemaking need
not be published as a proposed rule, as generally required by the
Administrative Procedure Act, 5 U.S.C. 553. The three substantive
revisions in the rule are nondiscretionary ministerial actions that
merely incorporate, without change, statutory amendments into
preexisting regulations:
(1) The increase in the contract threshold amount from $10,000 to
$25,000;
(2) The addition of the group of veterans protected under VEOA; and
(3) The addition of the group of veterans protected under VBHCIA.
Because these changes are required by statute, there is good cause for
OFCCP to find that the notice and public comment procedure is
unnecessary pursuant to the Administrative Procedure Act, 5 U.S.C.
553(b)(3)(B).
This rule removes five outdated regulatory references. First, the
Department is amending its statutory authority citation to reference
VEVRAA as it stood before amendment by JVA, because this regulation
will not apply to contracts and subcontracts covered by VEVRAA as
amended by JVA. Second, the Department is deleting paragraph (c) in
Sec. 60-250.80. This paragraph's discussion of the effective date of
the recordkeeping requirements of Sec. 60-250 is unnecessary because
the date in the regulation referenced new recordkeeping requirements
contained in the rule published in 1998. Third, the Department is
deleting Sec. 60-250.85. This section's discussion of effective dates
for the rule being amended is unnecessary because the dates referenced
in this section applied to the rule published in 1998. Additionally,
information on effective dates in DOL regulations is now contained in a
rule's preamble. Fourth, the Department has replaced reference to the
``President's Committee on Employment of People with Disabilities''
with ``Office of Disability Employment Policy, Labor'' to account for
the transition of duties between the two groups. These changes are
merely housekeeping amendments that will not have an effect on
regulated entities. Consequently, there is good cause for OFCCP to find
that the notice and public comment procedure is unnecessary pursuant to
the Administrative Procedure Act, 5 U.S.C. 553(b)(3)(B).
Finally, this rule removes reference to the letter of commitment.
OFCCP discontinued the use of the letter of commitment in 1998. In the
past, a letter of commitment was used to resolve minor technical
deficiencies identified by OFCCP during a compliance review of a
Federal contractor or subcontractor. Because this is a change of agency
procedure or practice, notice and public comment are not required under
the Administrative Procedure Act, 5 U.S.C. 553(b)(3)(A).
Executive Order 12866
The Department is issuing this rule in conformance with Executive
Order 12866. This rule is not significant for purposes of Executive
Order 12866 and therefore need not be reviewed by the Office of
Management and Budget.
The Department bases its conclusion on the fact that this final
rule does not substantively change the existing obligation of Federal
contractors to apply a policy of nondiscrimination and affirmative
action in their employment of protected veterans. For example, although
the categories of protected veterans are expanded pursuant to statutory
changes, the substance of the nondiscrimination and affirmative action
obligations to be afforded protected veterans remains the same.
Executive Order 13132
OFCCP has reviewed the rule in accordance with Executive Order
13132 regarding federalism, and has determined that it does not have
``federalism implications.'' The rule will not ``have substantial
direct effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
Regulatory Flexibility Act
The rule clarifies existing requirements for Federal contractors.
In view of this fact and because the rule does not substantively change
existing obligations for Federal contractors, we certify that the rule
will not have a significant economic impact on a substantial number of
small business entities. Therefore, a regulatory flexibility analysis
under the Regulatory Flexibility Act is not required.
Unfunded Mandates Reform
Executive Order 12875--This rule does not create an unfunded
Federal mandate upon any State, local, or tribal government.
Unfunded Mandates Reform Act of 1995--This does not include any
Federal mandate that may result in increased expenditures by State,
local, and tribal governments, in the aggregate, of $100 million or
more, or increased expenditures by the private sector of $100 million
or more.
Paperwork Reduction Act
The information collection requirements contained in the existing
VEVRAA regulations, with the exception of those related to complaint
procedures, are currently approved under OMB Control No. 1215-0072
(Recordkeeping and Reporting Requirements-Supply and Service) and OMB
Control No. 1215-0163 (Construction Recordkeeping and Reporting). The
information collection requirements contained in the existing complaint
procedures regulation are currently approved under OMB Control
[[Page 72151]]
No. 1215-0131. This final rule amends the regulations implementing
VEVRAA to incorporate the changes to the contract coverage threshold
and the categories of covered veterans made by VEOA and VBHCIA. The
increase in the contract coverage threshold from $10,000 to $25,000 may
result in a decrease in the number of respondents and burden hours.
However, this final rule does not make any changes to the currently
approved information collections. Consequently, this final rule need
not be reviewed by the Office of Management and Budget under the
authority of the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et
seq.
List of Subjects in 41 CFR Part 60-250
Administrative practice and procedure, Civil rights, Employment,
Equal employment opportunity, Government contracts, Government
procurement, Individuals with disabilities, Investigations, Reporting
and recordkeeping requirements, and Veterans.
Signed at Washington, DC, this 22nd day of November, 2005.
Victoria A. Lipnic,
Assistant Secretary for Employment Standards.
Charles E. James, Sr.,
Deputy Assistant Secretary for Federal Contract Compliance.
0
Accordingly, under authority of 38 U.S.C. 4212, Title 41 of the Code of
Federal Regulations, Chapter 60, Part 60-250, is revised to read as
follows:
PART 60-250--AFFIRMATIVE ACTION AND NONDISCRIMINATION OBLIGATIONS
OF CONTRACTORS AND SUBCONTRACTORS REGARDING SPECIAL DISABLED
VETERANS, VETERANS OF THE VIETNAM ERA, RECENTLY SEPARATED VETERANS,
AND OTHER PROTECTED VETERANS
Subpart A--Preliminary Matters, Equal Opportunity Clause
Sec.
60-250.1 Purpose, applicability and construction.
60-250.2 Definitions.
60-250.3 [Reserved]
60-250.4 Coverage and waivers.
60-250.5 Equal opportunity clause.
Subpart B--Discrimination Prohibited
60-250.20 Covered employment activities.
60-250.21 Prohibitions.
60-250.22 Direct threat defense.
60-250.23 Medical examinations and inquiries.
60-250.24 Drugs and alcohol.
60-250.25 Health insurance, life insurance and other benefit plans.
Subpart C--Affirmative Action Program
60-250.40 Applicability of the affirmative action program
requirement.
60-250.41 Availability of affirmative action program.
60-250.42 Invitation to self-identify.
60-250.43 Affirmative action policy.
60-250.44 Required contents of affirmative action programs.
Subpart D--General Enforcement and Complaint Procedures
60-250.60 Compliance evaluations.
60-250.61 Complaint procedures.
60-250.62 Conciliation agreements.
60-250.63 Violation of conciliation agreements.
60-250.64 Show cause notices.
60-250.65 Enforcement proceedings.
60-250.66 Sanctions and penalties.
60-250.67 Notification of agencies.
60-250.68 Reinstatement of ineligible contractors.
60-250.69 Intimidation and interference.
60-250.70 Disputed matters related to compliance with the Act.
Subpart E--Ancillary Matters
60-250.80 Recordkeeping.
60-250.81 Access to records.
60-250.82 Labor organizations and recruiting and training agencies.
60-250.83 Rulings and interpretations.
60-250.84 Responsibilities of local employment service offices.
Appendix A to Part 60-250--Guidelines on a Contractor's Duty To
Provide Reasonable Accommodation
Appendix B to Part 60-250--Sample Invitation To Self-Identify
Appendix C to Part 60-250--Review of Personnel Processes
Authority: 29 U.S.C. 793; 38 U.S.C. 4211 (2001) (amended 2002);
38 U.S.C. 4212 (2001) (amended 2002) and 4212; E.O. 11758 (3 CFR,
1971-1975 Comp., p. 841).
Subpart A--Preliminary Matters, Equal Opportunity Clause
Sec. 60-250.1 Purpose, applicability and construction.
(a) Purpose. The purpose of the regulations in this part is to set
forth the standards for compliance with the Vietnam Era Veterans'
Readjustment Assistance Act of 1974, as amended (38 U.S.C. 4212, or
VEVRAA), which requires Government contractors and subcontractors to
take affirmative action to employ and advance in employment qualified
special disabled veterans, veterans of the Vietnam era, recently
separated veterans, and other protected veterans.
(b) Applicability. This part applies to all Government contracts
and subcontracts of $25,000 or more, for the purchase, sale or use of
personal property or nonpersonal services (including construction):
Provided, That subpart C of this part applies only as described in
Sec. 60-250.40(a). Compliance by the contractor with the provisions of
this part will not necessarily determine its compliance with other
statutes, and compliance with other statutes will not necessarily
determine its compliance with this part.
(c) Construction--(1) In general. The Interpretive Guidance on
Title I of the Americans with Disabilities Act (ADA) (42 U.S.C. 12101,
et seq.) set out as an appendix to 29 CFR part 1630 issued pursuant to
Title I may be relied upon for guidance in interpreting the parallel
provisions of this part.
(2) Relationship to other laws. This part does not invalidate or
limit the remedies, rights, and procedures under any Federal law or the
law of any state or political subdivision that provides greater or
equal protection for the rights of special disabled veterans, veterans
of the Vietnam era, recently separated veterans, or other protected
veterans as compared to the protection afforded by this part. It may be
a defense to a charge of violation of this part that a challenged
action is required or necessitated by another Federal law or
regulation, or that another Federal law or regulation prohibits an
action (including the provision of a particular reasonable
accommodation) that would otherwise be required by this part.
Sec. 60-250.2 Definitions.
For the purpose of this part:
(a) Act means the Vietnam Era Veterans' Readjustment Assistance Act
of 1974, as amended, 38 U.S.C. 4212 (2001).
(b) Equal opportunity clause means the contract provisions set
forth in Sec. 60-250.5, ``Equal opportunity clause.''
(c) Secretary means the Secretary of Labor, United States
Department of Labor, or his or her designee.
(d) Deputy Assistant Secretary means the Deputy Assistant Secretary
for Federal Contract Compliance of the United States Department of
Labor, or his or her designee.
(e) Government means the Government of the United States of
America.
(f) United States, as used in this part, shall include the several
States, the District of Columbia, the Virgin Islands, the Commonwealth
of Puerto Rico, Guam, American Samoa, the Commonwealth of the Northern
Mariana Islands, and Wake Island.
(g) Recruiting and training agency means any person who refers
workers to any contractor, or who provides or supervises apprenticeship
or training for employment by any contractor.
(h) Contract means any Government contract or subcontract.
[[Page 72152]]
(i) Government contract means any agreement or modification thereof
between any contracting agency and any person for the purchase, sale or
use of personal property or nonpersonal services (including
construction). The term ``Government contract'' does not include
agreements in which the parties stand in the relationship of employer
and employee, and federally assisted contracts.
(1) Modification means any alteration in the terms and conditions
of a contract, including supplemental agreements, amendments and
extensions.
(2) Contracting agency means any department, agency, establishment
or instrumentality of the United States, including any wholly owned
Government corporation, which enters into contracts.
(3) Person, as used in this paragraph (i) and paragraph (l) of this
section, means any natural person, corporation, partnership or joint
venture, unincorporated association, state or local government, and any
agency, instrumentality, or subdivision of such a government.
(4) Nonpersonal services, as used in this paragraph (i) and
paragraph (l) of this section, includes, but is not limited to, the
following: Utility, construction, transportation, research, insurance,
and fund depository.
(5) Construction, as used in this paragraph (i) and paragraph (l)
of this section, means the construction, rehabilitation, alteration,
conversion, extension, demolition, or repair of buildings, highways, or
other changes or improvements to real property, including facilities
providing utility services. The term also includes the supervision,
inspection, and other on-site functions incidental to the actual
construction.
(6) Personal property, as used in this paragraph (i) and paragraph
(l) of this section, includes supplies and contracts for the use of
real property (such as lease arrangements), unless the contract for the
use of real property itself constitutes real property (such as
easements).
(j) Contractor means, unless otherwise indicated, a prime
contractor or subcontractor holding a contract of $25,000 or more.
(k) Prime contractor means any person holding a contract of $25,000
or more, and, for the purposes of subpart D of this part, ``General
Enforcement and Complaint Procedures,'' includes any person who has
held a contract subject to the Act.
(l) Subcontract means any agreement or arrangement between a
contractor and any person (in which the parties do not stand in the
relationship of an employer and an employee):
(1) For the purchase, sale or use of personal property or
nonpersonal services (including construction) which, in whole or in
part, is necessary to the performance of any one or more contracts; or
(2) Under which any portion of the contractor's obligation under
any one or more contracts is performed, undertaken, or assumed.
(m) Subcontractor means any person holding a subcontract of $25,000
or more and, for the purposes of subpart D of this part, ``General
Enforcement and Complaint Procedures,'' any person who has held a
subcontract subject to the Act.
(n)(1) Special disabled veteran means:
(i) A veteran who is entitled to compensation (or who but for the
receipt of military retired pay would be entitled to compensation)
under laws administered by the Department of Veterans Affairs for a
disability:
(A) Rated at 30 percent or more; or
(B) Rated at 10 or 20 percent in the case of a veteran who has been
determined under 38 U.S.C. 3106 to have a serious employment handicap;
or
(ii) A person who was discharged or released from active duty
because of a service-connected disability.
(2) Serious employment handicap, as used in paragraph (n)(1) of
this section, means a significant impairment of a veteran's ability to
prepare for, obtain, or retain employment consistent with such
veteran's abilities, aptitudes and interests.
(o) Qualified special disabled veteran means a special disabled
veteran who satisfies the requisite skill, experience, education and
other job-related requirements of the employment position such veteran
holds or desires, and who, with or without reasonable accommodation,
can perform the essential functions of such position.
(p) Veteran of the Vietnam era means a person who:
(1) Served on active duty for a period of more than 180 days, and
was discharged or released therefrom with other than a dishonorable
discharge, if any part of such active duty occurred:
(i) In the Republic of Vietnam between February 28, 1961, and May
7, 1975; or
(ii) Between August 5, 1964, and May 7, 1975, in all other cases;
or
(2) Was discharged or released from active duty for a service-
connected disability if any part of such active duty was performed:
(i) In the Republic of Vietnam between February 28, 1961, and May
7, 1975; or
(ii) Between August 5, 1964, and May 7, 1975, in all other cases.
(q) Other protected veteran means a person who served on active
duty during a war or in a campaign or expedition for which a campaign
badge has been authorized, under laws administered by the Department of
Defense.
(r) Recently separated veteran means any veteran during the one-
year period beginning on the date of such veteran's discharge or
release from active duty.
(s) Essential functions--(1) In general. The term essential
functions means fundamental job duties of the employment position the
special disabled veteran holds or desires. The term essential functions
does not include the marginal functions of the position.
(2) A job function may be considered essential for any of several
reasons, including but not limited to the following:
(i) The function may be essential because the reason the position
exists is to perform that function;
(ii) The function may be essential because of the limited number of
employees available among whom the performance of that job function can
be distributed; and/or
(iii) The function may be highly specialized so that the incumbent
in the position is hired for his or her expertise or ability to perform
the particular function.
(3) Evidence of whether a particular function is essential
includes, but is not limited to:
(i) The contractor's judgment as to which functions are essential;
(ii) Written job descriptions prepared before advertising or
interviewing applicants for the job;
(iii) The amount of time spent on the job performing the function;
(iv) The consequences of not requiring the incumbent to perform the
function;
(v) The terms of a collective bargaining agreement;
(vi) The work experience of past incumbents in the job; and/or
(vii) The current work experience of incumbents in similar jobs.
(t) Reasonable accommodation--(1) The term reasonable accommodation
means:
(i) Modifications or adjustments to a job application process that
enable a qualified applicant who is a special disabled veteran to be
considered for the position such applicant desires;\1\
---------------------------------------------------------------------------
\1\ A contractor's duty to provide a reasonable accommodation
with respect to applicants who are special disabled veterans is not
limited to those who ultimately demonstrate that they are qualified
to perform the job in issue. Special disabled veteran applicants
must be provided a reasonable accommodation with respect to the
application process if they are qualified with respect to that
process (e.g., if they present themselves at the correct location
and time to fill out an application).
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[[Page 72153]]
(ii) Modifications or adjustments to the work environment, or to
the manner or circumstances under which the position held or desired is
customarily performed, that enable a qualified special disabled veteran
to perform the essential functions of that position; or
(iii) Modifications or adjustments that enable the contractor's
employee who is a special disabled veteran to enjoy equal benefits and
privileges of employment as are enjoyed by the contractor's other
similarly situated employees who are not special disabled veterans.
(2) Reasonable accommodation may include but is not limited to:
(i) Making existing facilities used by employees readily accessible
to and usable by special disabled veterans; and
(ii) 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
special disabled veterans.
(3) To determine the appropriate reasonable accommodation it may be
necessary for the contractor to initiate an informal, interactive
process with the qualified special disabled veteran in need of the
accommodation.\2\ This process should identify the precise limitations
resulting from the disability and potential reasonable accommodations
that could overcome those limitations. (Appendix A of this part
provides guidance on a contractor's duty to provide reasonable
accommodation.)
---------------------------------------------------------------------------
\2\ Contractors must engage in such an interactive process with
a special disabled veteran, whether or not a reasonable
accommodation ultimately is identified that will make the person a
qualified individual. Contractors must engage in the interactive
process because, until they have done so, they may be unable to
determine whether a reasonable accommodation exists that will result
in the person being qualified.
---------------------------------------------------------------------------
(u) Undue hardship--(1) In general. Undue hardship means, with
respect to the provision of an accommodation, significant difficulty or
expense incurred by the contractor, when considered in light of the
factors set forth in paragraph (u)(2) of this section.
(2) Factors to be considered. In determining whether an
accommodation would impose an undue hardship on the contractor, factors
to be considered include:
(i) The nature and net cost of the accommodation needed, taking
into consideration the availability of tax credits and deductions, and/
or outside funding;
(ii) The overall financial resources of the facility or facilities
involved in the provision of the reasonable accommodation, the number
of persons employed at such facility, and the effect on expenses and
resources;
(iii) The overall financial resources of the contractor, the
overall size of the business of the contractor with respect to the
number of its employees, and the number, type and location of its
facilities;
(iv) The type of operation or operations of the contractor,
including the composition, structure and functions of the work force of
such contractor, and the geographic separateness and administrative or
fiscal relationship of the facility or facilities in question to the
contractor; and
(v) The impact of the accommodation upon the operation of the
facility, including the impact on the ability of other employees to
perform their duties and the impact on the facility's ability to
conduct business.
(v) Qualification standards means the personal and professional
attributes including the skill, experience, education, physical,
medical, safety and other requirements established by the contractor as
requirements which an individual must meet in order to be eligible for
the position held or desired.
(w) Direct threat means a significant risk of substantial harm to
the health or safety of the individual or others that cannot be
eliminated or reduced by reasonable accommodation. The determination
that a special disabled veteran poses a direct threat shall be based on
an individualized assessment of the individual's present ability to
perform safely the essential functions of the job. This assessment
shall be based on a reasonable medical judgment that relies on the most
current medical knowledge and/or on the best available objective
evidence. In determining whether an individual would pose a direct
threat, the factors to be considered include:
(1) The duration of the risk;
(2) The nature and severity of the potential harm;
(3) The likelihood that the potential harm will occur; and
(4) The imminence of the potential harm.
Sec. 60-250.3 [Reserved]
Sec. 60-250.4 Coverage and waivers.
(a) General--(1) Contracts and subcontracts of $25,000 or more.
Contracts and subcontracts of $25,000 or more, are covered by this
part. No contracting agency or contractor shall procure supplies or
services in less than usual quantities to avoid the applicability of
the equal opportunity clause.
(2) Contracts for indefinite quantities. With respect to indefinite
delivery-type contracts (including, but not limited to, open end
contracts, requirement-type contracts, Federal Supply Schedule
contracts, ``call-type'' contracts, and purchase notice agreements),
the equal opportunity clause shall be included unless the contracting
agency has reason to believe that the amount to be ordered in any year
under such contract will be less than $25,000. The applicability of the
equal opportunity clause shall be determined at the time of award for
the first year, and annually thereafter for succeeding years, if any.
Notwithstanding the above, the equal opportunity clause shall be
applied to such contract whenever the amount of a single order is
$25,000 or more. Once the equal opportunity clause is determined to be
applicable, the contract shall continue to be subject to such clause
for its duration, regardless of the amounts ordered, or reasonably
expected to be ordered in any year.
(3) Employment activities within the United States. This part
applies only to employment activities within the United States and not
to employment activities abroad. The term ``employment activities
within the United States'' includes actual employment within the United
States, and decisions of the contractor made within the United States
pertaining to the contractor's applicants and employees who are within
the United States, regarding employment opportunities abroad (such as
recruiting and hiring within the United States for employment abroad,
or transfer of persons employed in the United States to contractor
establishments abroad).
(4) Contracts with state or local governments. The requirements of
the equal opportunity clause in any contract or subcontract with a
state or local government (or any agency, instrumentality or
subdivision thereof) shall not be applicable to any agency,
instrumentality or subdivision of such government which does not
participate in work on or under the contract or subcontract.
(b) Waivers--(1) Specific contracts and classes of contracts. The
Deputy Assistant Secretary may waive the application to any contract of
the equal opportunity clause in whole or part when he or she deems that
special circumstances in the national interest so
[[Page 72154]]
require. The Deputy Assistant Secretary may also grant such waivers to
groups or categories of contracts: Where it is in the national
interest; where it is found impracticable to act upon each request
individually; and where such waiver will substantially contribute to
convenience in administration of the Act. When a waiver has been
granted for any class of contracts, the Deputy Assistant Secretary may
withdraw the waiver for a specific contract or group of contracts to be
awarded, when in his or her judgment such action is necessary or
appropriate to achieve the purposes of the Act. The withdrawal shall
not apply to contracts awarded prior to the withdrawal, except that in
procurements entered into by formal advertising, or the various forms
of restricted formal advertising, such withdrawal shall not apply
unless the withdrawal is made more than 10 calendar days before the
date set for the opening of the bids.
(2) National security. Any requirement set forth in the regulations
of this part shall not apply to any contract whenever the head of the
contracting agency determines that such contract is essential to the
national security and that its award without complying with such
requirements is necessary to the national security. Upon making such a
determination, the head of the contracting agency will notify the
Deputy Assistant Secretary in writing within 30 days.
(3) Facilities not connected with contracts. The Deputy Assistant
Secretary may waive the requirements of the equal opportunity clause
with respect to any of a contractor's facilities which he or she finds
to be in all respects separate and distinct from activities of the
contractor related to the performance of the contract, provided that he
or she also finds that such a waiver will not interfere with or impede
the effectuation of the Act. Such waivers shall be considered only upon
the request of the contractor.
Sec. 60-250.5 Equal opportunity clause.
(a) Government contracts. Each contracting agency and each
contractor shall include the following equal opportunity clause in each
of its covered Government contracts or subcontracts (and modifications,
renewals, or extensions thereof if not included in the original
contract):
Equal Opportunity for Special Disabled Veterans, Veterans of the
Vietnam Era, Recently Separated Veterans, and Other Protected
Veterans.
1. The contractor will not discriminate against any employee or
applicant for employment because he or she is a special disabled
veteran, veteran of the Vietnam era, recently separated veteran, or
other protected veteran in regard to any position for which the
employee or applicant for employment is qualified. The contractor
agrees to take affirmative action to employ, advance in employment
and otherwise treat qualified individuals without discrimination
based on their status as a special disabled veteran, veteran of the
Vietnam era, recently separated veteran, or other protected veteran
in all employment practices, including the following:
i. Recruitment, advertising, and job application procedures;
ii. Hiring, upgrading, promotion, award of tenure, demotion,
transfer, layoff, termination, right of return from layoff and
rehiring;
iii. Rates of pay or any other form of compensation and changes
in compensation;
iv. Job assignments, job classifications, organizational
structures, position descriptions, lines of progression, and
seniority lists;
v. Leaves of absence, sick leave, or any other leave;
vi. Fringe benefits available by virtue of employment, whether
or not administered by the contractor;
vii. Selection and financial support for training, including
apprenticeship, and on-the-job training under 38 U.S.C 3687,
professional meetings, conferences, and other related activities,
and selection for leaves of absence to pursue training;
viii. Activities sponsored by the contractor including social or
recreational programs; and
ix. Any other term, condition, or privilege of employment.
2. The contractor agrees to immediately list all employment
openings which exist at the time of the execution of this contract
and those which occur during the performance of this contract,
including those not generated by this contract and including those
occurring at an establishment of the contractor other than the one
wherein the contract is being performed, but excluding those of
independently operated corporate affiliates, at an appropriate local
employment service office of the state employment security agency
wherein the opening occurs. Listing employment openings with the
U.S. Department of Labor's America's Job Bank shall satisfy the
requirement to list jobs with the local employment service office.
3. Listing of employment openings with the local employment
service office pursuant to this clause shall be made at least
concurrently with the use of any other recruitment source or effort
and shall involve the normal obligations which attach to the placing
of a bona fide job order, including the acceptance of referrals of
veterans and nonveterans. The listing of employment openings does
not require the hiring of any particular job applicants or from any
particular group of job applicants, and nothing herein is intended
to relieve the contractor from any requirements in Executive orders
or regulations regarding nondiscrimination in employment.
4. Whenever the contractor becomes contractually bound to the
listing provisions in paragraphs 2 and 3 of this clause, it shall
advise the state employment security agency in each state where it
has establishments of the name and location of each hiring location
in the state: Provided, That this requirement shall not apply to
state and local governmental contractors. As long as the contractor
is contractually bound to these provisions and has so advised the
state agency, there is no need to advise the state agency of
subsequent contracts. The contractor may advise the state agency
when it is no longer bound by this contract clause.
5. The provisions of paragraphs 2 and 3 of this clause do not
apply to the listing of employment openings which occur and are
filled outside of the 50 states, the District of Columbia, the
Commonwealth of Puerto Rico, Guam, and the Virgin Islands.
6. As used in this clause: i. All employment openings includes
all positions except executive and top management, those positions
that will be filled from within the contractor's organization, and
positions lasting three days or less. This term includes full-time
employment, temporary employment of more than three days' duration,
and part-time employment.
ii. Executive and top management means any employee: (a) Whose
primary duty consists of the management of the enterprise in which
he or she is employed or of a customarily recognized department or
subdivision thereof; and (b) who customarily and regularly directs
the work of two or more other employees therein; and (c) who has the
authority to hire or fire other employees or whose suggestions and
recommendations as to the hiring or firing and as to the advancement
and promotion or any other change of status of other employees will
be given particular weight; and (d) who customarily and regularly
exercises discretionary powers; and (e) who does not devote more
than 20 percent, or, in the case of an employee of a retail or
service establishment who does not devote as much as 40 percent, of
his or her hours of work in the work week to activities which are
not directly and closely related to the performance of the work
described in (a) through (d) of this paragraph 6. ii.; Provided,
that (e) of this paragraph 6.ii. shall not apply in the case of an
employee who is in sole charge of an independent establishment or a
physically separated branch establishment, or who owns at least a
20-percent interest in the enterprise in which he or she is
employed.
iii. Positions that will be filled from within the contractor's
organization means employment openings for which no consideration
will be given to persons outside the contractor's organization
(including any affiliates, subsidiaries, and parent companies) and
includes any openings which the contractor proposes to fill from
regularly established ``recall'' lists. The exception does not apply
to a particular opening once an employer decides to consider
applicants outside of his or her own organization.
7. The contractor agrees to comply with the rules, regulations,
and relevant orders of the Secretary of Labor issued pursuant to the
Act.
8. In the event of the contractor's noncompliance with the
requirements of this
[[Page 72155]]
clause, actions for noncompliance may be taken in accordance with
the rules, regulations, and relevant orders of the Secretary of
Labor issued pursuant to the Act.
9. The contractor agrees to post in conspicuous places,
available to employees and applicants for employment, notices in a
form to be prescribed by the Deputy Assistant Secretary for Federal
Contract Compliance, provided by or through the contracting officer.
Such notices shall state the rights of applicants and employees as
well as the contractor's obligation under the law to take
affirmative action to employ and advance in employment qualified
employees and applicants who are special disabled veterans, veterans
of the Vietnam era, recently separated veterans, or other protected
veterans. The contractor must ensure that applicants or employees
who are special disabled veterans are informed of the contents of
the notice (e.g., the contractor may have the notice read to a
visually disabled individual, or may lower the posted notice so that
it might be read by a person in a wheelchair).
10. The contractor will notify each labor organization or
representative of workers with which it has a collective bargaining
agreement or other contract understanding, that the contractor is
bound by the terms of the Vietnam Era Veterans' Readjustment
Assistance Act of 1974, as amended, and is committed to take
affirmative action to employ and advance in employment qualified
special disabled veterans, veterans of the Vietnam era, recently
separated veterans, and other protected veterans.
11. The contractor will include the provisions of this clause in
every subcontract or purchase order of $25,000 or more, unless
exempted by the rules, regulations, or orders of the Secretary
issued pursuant to the Vietnam Era Veterans' Readjustment Assistance
Act of 1974, as amended, so that such provisions will be binding
upon each subcontractor or vendor. The contractor will take such
action with respect to any subcontract or purchase order as the
Deputy Assistant Secretary for Federal Contract Compliance may
direct to enforce such provisions, including action for
noncompliance.
[End of Clause]
(b) Subcontracts. Each contractor shall include the equal
opportunity clause in each of its subcontracts subject to this part.
(c) Adaption of language. Such necessary changes in language may be
made to the equal opportunity clause as shall be appropriate to
identify properly the parties and their undertakings.
(d) Inclusion of the equal opportunity clause in the contract. It
is not necessary that the equal opportunity clause be quoted verbatim
in the contract. The clause may be made a part of the contract by
citation to 41 CFR 60-250.5(a).
(e) Incorporation by operation of the Act. By operation of the Act,
the equal opportunity clause shall be considered to be a part of every
contract and subcontract required by the Act and the regulations in
this part to include such a clause, whether or not it is physically
incorporated in such contract and whether or not there is a written
contract between the agency and the contractor.
(f) Duties of contracting agencies. Each contracting agency shall
cooperate with the Deputy Assistant Secretary and the Secretary in the
performance of their responsibilities under the Act. Such cooperation
shall include insuring that the equal opportunity clause is included in
all covered Government contracts and that contractors are fully
informed of their obligations under the Act and this part, providing
the Deputy Assistant Secretary with any information which comes to the
agency's attention that a contractor is not in compliance with the Act
or this part, responding to requests for information from the Deputy
Assistant Secretary, and taking such actions for noncompliance as are
set forth in Sec. 60-250.66 as may be ordered by the Secretary or the
Deputy Assistant Secretary.
Subpart B--Discrimination Prohibited
Sec. 60-250.20 Covered employment activities.
The prohibition against discrimination in this part applies to the
following employment activities:
(a) Recruitment, advertising, and job application procedures;
(b) Hiring, upgrading, promotion, award of tenure, demotion,
transfer, layoff, termination, right of return from layoff, and
rehiring;
(c) Rates of pay or any other form of compensation and changes in
compensation;
(d) Job assignments, job classifications, organizational
structures, position descriptions, lines of progression, and seniority
lists;
(e) Leaves of absence, sick leave, or any other leave;
(f) Fringe benefits available by virtue of employment, whether or
not administered by the contractor;
(g) Selection and financial support for training, including
apprenticeships, professional meetings, conferences and other related
activities, and selection for leaves of absence to pursue training;
(h) Activities sponsored by the contractor including social and
recreational programs; and
(i) Any other term, condition, or privilege of employment.
Sec. 60-250.21 Prohibitions.
The term ``discrimination'' includes, but is not limited to, the
acts described in this section and Sec. 60-250.23.
(a) Disparate treatment. It is unlawful for the contractor to deny
an employment opportunity or benefit or otherwise to discriminate
against a qualified individual because of that individual's status as a
special disabled veteran, veteran of the Vietnam era, recently
separated veteran, or other protected veteran.
(b) Limiting, segregating and classifying. Unless otherwise
permitted by this part, it is unlawful for the contractor to limit,
segregate, or classify a job applicant or employee in a way that
adversely affects his or her employment opportunities or status on the
basis of that individual's status as a special disabled veteran,
veteran of the Vietnam era, recently separated veteran, or other
protected veteran. For example, the contractor may not segregate
qualified special disabled veterans, veterans of the Vietnam era,
recently separated veterans, or other protected veterans into separate
work areas or into separate lines of advancement.
(c) Contractual or other arrangements. (1) In general. It is
unlawful for the contractor to participate in a contractual or other
arrangement or relationship that has the effect of subjecting the
contractor's own qualified applicant or employee who is a special
disabled veteran, veteran of the Vietnam era, recently separated
veteran, or other protected veteran to the discrimination prohibited by
this part.
(2) Contractual or other arrangement defined. The phrase
``contractual or other arrangement or relationship'' includes, but is
not limited to, a relationship with: an employment or referral agency;
a labor organization, including a collective bargaining agreement; an
organization providing fringe benefits to an employee of the
contractor; or an organization providing training and apprenticeship
programs.
(3) Application. This paragraph (c) applies to the contractor, with
respect to its own applicants or employees, whether the contractor
offered the contract or initiated the relationship, or whether the
contractor accepted the contract or acceded to the relationship. The
contractor is not liable for the actions of the other party or parties
to the contract which only affect that other party's employees or
applicants.
(d) Standards, criteria or methods of administration. It is
unlawful for the contractor to use standards, criteria, or methods of
administration, that are not job-related and consistent with business
necessity, and that:
(1) Have the effect of discriminating on the basis of status as a
special disabled veteran, veteran of the Vietnam
[[Page 72156]]
era, recently separated veteran, or other protected veteran; or
(2) Perpetuate the discrimination of others who are subject to
common administrative control.
(e) Relationship or association with a special disabled veteran,
veteran of the Vietnam era, recently separated veteran, or other
protected veteran. It is unlawful for the contractor to exclude or deny
equal jobs or benefits to, or otherwise discriminate against, a
qualified individual because of the known special disabled veteran,
Vietnam era veteran, recently separated veteran, or other protected
veteran status of an individual with whom the qualified individual is
known to have a family, business, social or other relationship or
association.
(f) Not making reasonable accommodation. (1) It is unlawful for the
contractor to fail to make reasonable accommodation to the known
physical or mental limitations of an otherwise qualified applicant or
employee who is a special disabled veteran, unless such contractor can
demonstrate that the accommodation would impose an undue hardship on
the operation of its business.
(2) It is unlawful for the contractor to deny employment
opportunities to an otherwise qualified job applicant or employee who
is a special disabled veteran based on the need of such contractor to
make reasonable accommodation to such an individual's physical or
mental impairments.
(3) A qualified special disabled veteran is not required to accept
an accommodation, aid, service, opportunity or benefit which such
qualified individual chooses not to accept. However, if such individual
rejects a reasonable accommodation, aid, service, opportunity or
benefit that is necessary to enable the individual to perform the
essential functions of the position held or desired, and cannot, as a
result of that rejection, perform the essential functions of the
position, the individual will not be considered a qualified special
disabled veteran.
(g) Qualification standards, tests and other selection criteria
(1) In general. It is unlawful for the contractor to use
qualification standards, employment tests or other selection criteria
that screen out or tend to screen out individuals on the basis of their
status as special disabled veterans, veterans of the Vietnam era,
recently separated veterans, or other protected veterans, unless the
standard, test or other selection criterion, as used by the contractor,
is shown to be job-related for the position in question and is
consistent with business necessity. Selection criteria that concern an
essential function may not be used to exclude a special disabled
veteran if that individual could satisfy the criteria with provision of
a reasonable accommodation. Selection criteria that exclude or tend to
exclude individuals on the basis of their status as special disabled
veterans, veterans of the Vietnam era, recently separated veterans, or
other protected veterans but concern only marginal functions of the job
would not be consistent with business necessity. The contractor may not
refuse to hire an applicant who is a special disabled veteran because
the applicant's disability prevents him or her from performing marginal
functions. When considering a special disabled veteran, veteran of the
Vietnam era, recently separated veteran, or other protected veteran for
an employment opportunity, the contractor may not rely on portions of
such veteran's military record, including his or her discharge papers,
which are not relevant to the qualification requirements of the
opportunity in issue.
(2) The Uniform Guidelines on Employee Selection Procedures, 41 CFR
part 60-3, do not apply to 38 U.S.C. 4212 and are similarly
inapplicable to this part.
(h) Administration of tests. It is unlawful for the contractor to
fail to select and administer tests concerning employment in the most
effective manner to ensure that, when a test is administered to a job
applicant or employee who is a special disabled veteran with a
disability that impairs sensory, manual, or speaking skills, the test
results accurately reflect the skills, aptitude, or whatever other
factor of the applicant or employee that the test purports to measure,
rather than reflecting the impaired sensory, manual, or speaking skills
of such employee or applicant, except where such skills are the factors
that the test purports to measure.
(i) Compensation. In offering employment or promotions to special
disabled veterans, veterans of the Vietnam era, recently separated
veterans, or other protected veterans, it is unlawful for the
contractor to reduce the amount of compensation offered because of any
income based upon a disability-related and/or military-service-related
pension or other disability-related and/or military-service-related
benefit the applicant or employee receives from another source.
Sec. 60-250.22 Direct threat defense.
The contractor may use as a qualification standard the requirement
that an individual be able to perform the essential functions of the
position held or desired without posing a direct threat to the health
or safety of the individual or others in the workplace. (See Sec. 60-
250.2(w) defining direct threat.)
Sec. 60-250.23 Medical examinations and inquiries.
(a) Prohibited medical examinations or inquiries. Except as stated
in paragraphs (b) and (c) of this section, it is unlawful for the
contractor to require a medical examination of an applicant or employee
or to make inquiries as to whether an applicant or employee is a
special disabled veteran or as to the nature or severity of such a
veteran's disability.
(b) Permitted medical examinations and inquiries. (1) Acceptable
pre-employment inquiry. The contractor may make pre-employment
inquiries into the ability of an applicant to perform job-related
functions, and/or may ask an applicant to describe or to demonstrate
how, with or without reasonable accommodation, the applicant will be
able to perform job-related functions.
(2) Employment entrance examination. The contractor may require a
medical examination (and/or inquiry) after making an offer of
employment to a job applicant and before the applicant begins his or
her employment duties, and may condition an offer of employment on the
results of such examination (and/or inquiry), if all entering employees
in the same job category are subjected to such an examination (and/or
inquiry) regardless of their status as a special disabled veteran.
(3) Examination of employees. The contractor may require a medical
examination (and/or inquiry) of an employee that is job-related and
consistent with business necessity. The contractor may make inquiries
into the ability of an employee to perform job-related functions.
(4) Other acceptable examinations and inquiries. The contractor may
conduct voluntary medical examinations and activities, including
voluntary medical histories, which are part of an employee health
program available to employees at the work site.
(5) Medical examinations conducted in accordance with paragraphs
(b)(2) and (b)(4) of this section do not have to be job-related and
consistent with business necessity. However, if certain criteria are
used to screen out an applicant or applicants or an employee or
employees who are special disabled veterans as a result of such
examinations or inquiries, the contractor must demonstrate that the
exclusionary criteria are job-related and
[[Page 72157]]
consistent with business necessity, and that performance of the
essential job functions cannot be accomplished with reasonable
accommodations as required in this part.
(c) Invitation to self-identify. The contractor shall invite
applicants to self-identify as being covered by the Act, as specified
in Sec. 60-250.42.
(d) Confidentiality and use of medical information. (1) Information
obtained under this section regarding the medical condition or history
of any applicant or employee shall be collected and maintained on
separate forms and in separate medical files and treated as a
confidential medical record, except that:
(i) Supervisors and managers may be informed regarding necessary
restrictions on the work or duties of the applicant or employee and
necessary accommodations;
(ii) First aid and safety personnel may be informed, when
appropriate, if the disability might require emergency treatment; and
(iii) Government officials engaged in enforcing the laws
administered by OFCCP, including this part, or enforcing the Americans
with Disabilities Act, shall be provided relevant information on
request.
(2) Information obtained under this section regarding the medical
condition or history of any applicant or employee shall not be used for
any purpose inconsistent with this part.
Sec. 60-250.24 Drugs and alcohol.
(a) Specific activities permitted. The contractor:
(1) May prohibit the illegal use of drugs and the use of alcohol at
the workplace by all employees;
(2) May require that employees not be under the influence of
alcohol or be engaging in the illegal use of drugs at the workplace;
(3) May require that all employees behave in conformance with the
requirements established under the Drug-Free Workplace Act of 1988 (41
U.S.C. 701 et seq.);
(4) May hold an employee who engages in the illegal use of drugs or
who is an alcoholic to the same qualification standards for employment
or job performance and behavior to which the contractor holds its other
employees, even if any unsatisfactory performance or behavior is
related to the employee's drug use or alcoholism;
(5) May require that its employees employed in an industry subject
to such regulations comply with the standards established in the
regulations (if any) of the Departments of Defense and Transportation,
and of the Nuclear Regulatory Commission, and other Federal agencies
regarding alcohol and the illegal use of drugs; and
(6) May require that employees employed in sensitive positions
comply with the regulations (if any) of the Departments of Defense and
Transportation, and of the Nuclear Regulatory Commission, and other
Federal agencies that apply to employment in sensitive positions
subject to such regulations.
(b) Drug testing. (1) General policy. For purposes of this part, a
test to determine the illegal use of drugs is not considered a medical
examination. Thus, the administration of such drug tests by the
contractor to its job applicants or employees is not a violation of
Sec. 60-250.23. Nothing in this part shall be construed to encourage,
prohibit, or authorize the contractor to conduct drug tests of job
applicants or employees to determine the illegal use of drugs or to
make employment decisions based on such test results.
(2) Transportation employees. Nothing in this part shall be
construed to encourage, prohibit, or authorize the otherwise lawful
exercise by contractors subject to the jurisdiction of the Department
of Transportation of authority to test employees in, and applicants
for, positions involving safety-sensitive duties for the illegal use of
drugs or for on-duty impairment by alcohol; and remove from safety-
sensitive positions persons who test positive for illegal use of drugs
or on-duty impairment by alcohol pursuant to paragraph (b)(1) of this
section.
(3) Any information regarding the medical condition or history of
any employee or applicant obtained from a test to determine the illegal
use of drugs, except information regarding the illegal use of drugs, is
subject to the requirements of Sec. Sec. 60-250.23(b)(5) and (c).
Sec. 60-250.25 Health insurance, life insurance and other benefit
plans.
(a) An insurer, hospital, or medical service company, health
maintenance organization, or any agent or entity that administers
benefit plans, or similar organizations may underwrite risks, classify
risks, or administer such risks that are based on or not inconsistent
with state law.
(b) The contractor may establish, sponsor, observe or administer
the terms of a bona fide benefit plan that are based on underwriting
risks, classifying risks, or administering such risks that are based on
or not inconsistent with state law.
(c) The contractor may establish, sponsor, observe, or administer
the terms of a bona fide benefit plan that is not subject to state laws
that regulate insurance.
(d) The contractor may not deny a qualified special disabled
veteran equal access to insurance or subject a qualified special
disabled veteran to different terms or conditions of insurance based on
disability alone, if the disability does not pose increased risks.
(e) The activities described in paragraphs (a), (b) and (c) of this
section are permitted unless these activities are used as a subterfuge
to evade the purposes of this part.
Subpart C--Affirmative Action Program
Sec. 60-250.40 Applicability of the affirmative action program
requirement.
(a) The requirements of this subpart apply to every Government
contractor that has 50 or more employees and a contract of $50,000 or
more.
(b) Contractors described in paragraph (a) of this section shall,
within 120 days of the commencement of a contract, prepare and maintain
an affirmative action program at each establishment. The affirmative
action program shall set forth the contractor's policies and procedures
in accordance with this part. This program may be integrated into or
kept separate from other affirmative action programs.
(c) The affirmative action program shall be reviewed and updated
annually.
(d) The contractor shall submit the affirmative action program
within 30 days of a request from OFCCP, unless the request provides for
a different time. The contractor also shall make the affirmative action
program promptly available on-site upon OFCCP's request.
Sec. 60-250.41 Availability of affirmative action program.
The full affirmative action program shall be available to any
employee or applicant for employment for inspection upon request. The
location and hours during which the program may be obtained shall be
posted at each establishment.
Sec. 60-250.42 Invitation to self-identify.
(a) Special disabled veterans. The contractor shall invite
applicants to inform the contractor whether the applicant believes that
he or she is a special disabled veteran who may be covered by the Act
and wishes to benefit under the affirmative action program. Such
invitation shall be extended after making an offer of employment to a
job applicant and before the applicant begins his or her employment
duties, except that the contractor may invite
[[Page 72158]]
special disabled veterans to self-identify prior to making a job offer
when:
(1) The invitation is made when the contractor actually is
undertaking affirmative action for special disabled veterans at the
pre-offer stage; or
(2) The invitation is made pursuant to a Federal, State or local
law requiring affirmative action for special disabled veterans.
(b) Veterans of the Vietnam era, recently separated veterans and
other protected veterans. The contractor shall invite applicants to
inform the contractor whether the applicant believes that he or she is
a veteran of the Vietnam era, recently separated veteran or other
protected veteran who may be covered by the Act and wishes to benefit
under the affirmative action program. Such invitation may be made at
any time before the applicant begins his or her employment duties.
(c) The invitations referenced in paragraphs (a) and (b) of this
section shall state that a request to benefit under the affirmative
action program may be made immediately and/or at any time in the
future. The invitations also shall summarize the relevant portions of
the Act and the contractor's affirmative action program. Furthermore,
the invitations shall state that the information is being requested on
a voluntary basis, that it will be kept confidential, that refusal to
provide it will not subject the applicant to any adverse treatment, and
that it will not be used in a manner inconsistent with the Act. (An
acceptable form for such an invitation is set forth in Appendix B of
this part. Because a contractor usually may not seek advice from a
special disabled veteran regarding placement and accommodation until
after a job offer has been extended, the invitation set forth in
Appendix B of this part contains instructions regarding modifications
to be made if it is used at the pre-offer stage.)
(d) If an applicant so identifies himself or herself as a special
disabled veteran, the contractor should also seek the advice of the
applicant regarding proper placement and appropriate accommodation,
after a job offer has been extended. The contractor also may make such
inquiries to the extent they are consistent with the Americans with
Disabilities Act of 1990 (ADA), 42 U.S.C. 12101, (e.g., in the context
of asking applicants to describe or demonstrate how they would perform
the job). The contractor shall maintain a separate file in accordance
with Sec. 60-250.23(d) on persons who have self-identified as special
disabled veterans.
(e) The contractor shall keep all information on self
identification confidential. The contractor shall provide the
information to OFCCP upon request. This information may be used only in
accordance with this part.
(f) Nothing in this section shall relieve the contractor of its
obligation to take affirmative action with respect to those applicants
or employees who are known to the contractor to be special disabled
veterans, veterans of the Vietnam era, recently separated veterans, or
other protected veterans.
(g) Nothing in this section shall relieve the contractor from
liability for discrimination under the Act.
Sec. 60-250.43 Affirmative action policy.
Under the affirmative action obligations imposed by the Act
contractors shall not discriminate because of status as a special
disabled veteran, veteran of the Vietnam era, recently separated
veteran, or other protected veteran and shall take affirmative action
to employ and advance in employment qualified special disabled
veterans, veterans of the Vietnam era, recently separated veterans, and
other protected veterans at all levels of employment, including the
executive level. Such action shall apply to all employment activities
set forth in Sec. 60-250.20.
Sec. 60-250.44 Required contents of affirmative action programs.
Acceptable affirmative action programs shall contain, but not
necessarily be limited to, the following ingredients:
(a) Policy statement. The contractor shall include an equal
opportunity policy statement in its affirmative action program, and
shall post the policy statement on company bulletin boards. The
contractor must ensure that applicants and employees who are special
disabled veterans are informed of the contents of the policy statement
(for example, the contractor may have the statement read to a visually
disabled individual, or may lower the posted notice so that it may be
read by a person in a wheelchair). The policy statement should indicate
the chief executive officer's attitude on the subject matter, provide
for an audit and reporting system (see paragraph (h) of this section)
and assign overall responsibility for the implementation of affirmative
action activities required under this part (see paragraph (i) of this
section). Additionally, the policy should state, among other things,
that the contractor will: Recruit, hire, train and promote persons in
all job titles, and ensure that all other personnel actions are
administered, without regard to special disabled veteran, Vietnam era
veteran, recently separated veteran, or other protected veteran status;
and ensure that all employment decisions are based only on valid job
requirements. The policy shall state that employees and applicants
shall not be subjected to harassment, intimidation, threats, coercion
or discrimination because they have engaged in or may engage in any of
the following activities:
(1) Filing a complaint;
(2) Assisting or participating in an investigation, compliance
evaluation, hearing, or any other activity related to the
administration of the affirmative action provisions of the Vietnam Era
Veterans' Readjustment Assistance Act of 1974, as amended (VEVRAA) or
any other Federal, state or local law requiring equal opportunity for
special disabled veterans, veterans of the Vietnam era, recently
separated veterans, or other protected veterans;
(3) Opposing any act or practice made unlawful by VEVRAA or its
implementing regulations in this part or any other Federal, state or
local law requiring equal opportunity for special disabled veterans,
veterans of the Vietnam era, recently separated veterans, or other
protected veterans; or
(4) Exercising any other right protected by VEVRAA or its
implementing regulations in this part.
(b) Review of personnel processes. The contractor shall ensure that
its personnel processes provide for careful, thorough, and systematic
consideration of the job qualifications of applicants and employees who
are known special disabled veterans, veterans of the Vietnam era,
recently separated veterans, or other protected veterans for job
vacancies filled either by hiring or promotion, and for all training
opportunities offered or available. The contractor shall ensure that
when a special disabled veteran, veteran of the Vietnam era, recently
separated veteran, or other protected veteran is considered for
employment opportunities, the contractor relies only on that portion of
the individual's military record, including his or her discharge
papers, that is relevant to the requirements of the opportunity in
issue. The contractor shall ensure that its personnel processes do not
stereotype special disabled veterans, veterans of the Vietnam era,
recently separated veterans, and other protected veterans in a manner
which limits their access to all jobs for which they are qualified. The
contractor shall periodically review such processes and make any
necessary modifications to ensure that these obligations are carried
out. A description of the review and any necessary modifications to
personnel processes or development of new
[[Page 72159]]
processes shall be included in any affirmative action programs required
under this part. The contractor must design procedures that facilitate
a review of the implementation of this requirement by the contractor
and the Government. (Appendix C of this part is an example of an
appropriate set of procedures. The procedures in Appendix C of this
part are not required and contractors may develop other procedures
appropriate to their circumstances.)
(c) Physical and mental qualifications. (1) The contractor shall
provide in its affirmative action program, and shall adhere to, a
schedule for the periodic review of all physical and mental job
qualification standards to ensure that, to the extent qualification
standards tend to screen out qualified special disabled veterans, they
are job-related for the position in question and are consistent with
business necessity.
(2) Whenever the contractor applies physical or mental
qualification standards in the selection of applicants or employees for
employment or other change in employment status such as promotion,
demotion or training, to the extent that qualification standards tend
to screen out qualified special disabled veterans, the standards shall
be related to the specific job or jobs for which the individual is
being considered and consistent with business necessity. The contractor
shall have the burden to demonstrate that it has complied with the
requirements of this paragraph (c)(2).
(3) The contractor may use as a defense to an allegation of a
violation of paragraph (c)(2) of this section that an individual poses
a direct threat to the health or safety of the individual or others in
the workplace. (See Sec. 60-250.2(w) defining direct threat.)
(d) Reasonable accommodation to physical and mental limitations. As
is provided in Sec. 60-250.21(f), as a matter of nondiscrimination the
contractor must make reasonable accommodation to the known physical or
mental limitations of an otherwise qualified special disabled veteran
unless it can demonstrate that the accommodation would impose an undue
hardship on the operation of its business. As a matter of affirmative
action, if an employee who is known to be a special disabled veteran is
having significant difficulty performing his or her job and it is
reasonable to conclude that the performance problem may be related to
the known disability, the contractor shall confidentially notify the
employee of the performance problem and inquire whether the problem is
related to the employee's disability; if the employee responds
affirmatively, the contractor shall confidentially inquire whether the
employee is in need of a reasonable accommodation.
(e) Harassment. The contractor must develop and implement
procedures to ensure that its employees are not harassed because of
their status as a special disabled veteran, veteran of the Vietnam era,
recently separated veteran, or other protected veteran.
(f) External dissemination of policy, outreach and positive
recruitment. The contractor shall undertake appropriate outreach and
positive recruitment activities such as those listed in paragraphs
(f)(1) through (f)(8) of this section that are reasonably designed to
effectively recruit qualified special disabled veterans, veterans of
the Vietnam era, recently separated veterans, and other protected
veterans. It is not contemplated that the contractor will necessarily
undertake all the activities listed in paragraphs (f)(1) through (f)(8)
of this section or that its activities will be limited to those listed.
The scope of the contractor's efforts shall depend upon all the
circumstances, including the contractor's size and resources and the
extent to which existing employment practices are adequate.
(1) The contractor should enlist the assistance and support of the
following persons and organizations in recruiting, and developing on-
the-job training opportunities for, qualified special disabled
veterans, veterans of the Vietnam era, recently separated veterans, and
other protected veterans, to fulfill its commitment to provide
meaningful employment opportunities to such veterans:
(i) The Local Veterans' Employment Representative or his or her
designee in the local employment service office nearest the
contractor's establishment;
(ii) The Department of Veterans Affairs Regional Office nearest the
contractor's establishment;
(iii) The veterans' counselors and coordinators (``Vet-Reps'') on
college campuses;
(iv) The service officers of the national veterans' groups active
in the area of the contractor's establishment; and
(v) Local veterans' groups and veterans' service centers near the
contractor's establishment.
(2) Formal briefing sessions should be held, preferably on company
premises, with representatives from recruiting sources. Plant tours,
clear and concise explanations of current and future job openings,
position descriptions, worker specifications, explanations of the
company's selection process, and recruiting literature should be an
integral part of the briefing. Formal arrangements should be made for
referral of applicants, follow up with sources, and feedback on
disposition of applicants.
(3) The contractor's recruitment efforts at all educational
institutions should incorporate special efforts to reach students who
are special disabled veterans, veterans of the Vietnam era, recently
separated veterans, or other protected veterans. An effort should be
made to participate in work-study programs with Department of Veterans
Affairs rehabilitation facilities which specialize in training or
educating disabled veterans.
(4) The contractor should establish meaningful contacts with
appropriate veterans' service organizations which serve special
disabled veterans, veterans of the Vietnam era, recently separated
veterans, or other protected veterans for such purposes as advice,
technical assistance, and referral of potential employees. Technical
assistance from the resources described in this paragraph may consist
of advice on proper placement, recruitment, training and accommodations
contractors may undertake, but no such resource providing technical
assistance shall have authority to approve or disapprove the
acceptability of affirmative action programs.
(5) Special disabled veterans, veterans of the Vietnam era,
recently separated veterans, and other protected veterans should be
made available for participation in career days, youth motivation
programs, and related activities in their communities.
(6) The contractor should send written notification of company
policy to all subcontractors, vendors and suppliers, requesting
appropriate action on their part.
(7) The contractor should take positive steps to attract qualified
special disabled veterans, veterans of the Vietnam era, recently
separated veterans, and other protected veterans not currently in the
work force who have requisite skills and can be recruited through
affirmative action measures. These persons may be located through the
local chapters of organizations of and for Vietnam era veterans,
veterans with disabilities, recently separated veterans, and other
protected veterans.
(8) The contractor, in making hiring decisions, should consider
applicants who are known special disabled veterans, veterans of the
Vietnam era, recently separated veterans, or other protected veterans
for all available positions for which they may be
[[Page 72160]]
qualified when the position(s) applied for is unavailable.
(g) Internal dissemination of policy. (1) A strong outreach program
will be ineffective without adequate internal support from supervisory
and management personnel and other employees. In order to assure
greater employee cooperation and participation in the contractor's
efforts, the contractor shall develop internal procedures such as those
listed in paragraph (g)(2) of this section for communication of its
obligation to engage in affirmative action efforts to employ and
advance in employment qualified special disabled veterans, veterans of
the Vietnam era, recently separated veterans, and other protected
veterans. It is not contemplated that the contractor will necessarily
undertake all the activities listed in paragraph (g)(2) of this section
or that its activities will be limited to those listed. These
procedures shall be designed to foster understanding, acceptance and
support among the contractor's executive, management, supervisory and
other employees and to encourage such persons to take the necessary
actions to aid the contractor in meeting this obligation. The scope of
the contractor's efforts shall depend upon all the circumstances,
including the contractor's size and resources and the extent to which
existing practices are adequate.
(2) The contractor should implement and disseminate this policy
internally as follows:
(i) Include it in the contractor's policy manual;
(ii) Inform all employees and prospective employees of its
commitment to engage in affirmative action to increase employment
opportunities for qualified special disabled veterans, veterans of the
Vietnam era, recently separated veterans, and other protected veterans.
The contractor should periodically schedule special meetings with all
employees to discuss policy and explain individual employee
responsibilities;
(iii) Publicize it in the company newspaper, magazine, annual
report and other media;
(iv) Conduct special meetings with executive, management, and
supervisory personnel to explain the intent of the policy and
individual responsibility for effective implementation, making clear
the chief executive officer's attitude;
(v) Discuss the policy thoroughly in both employee orientation and
management training programs;
(vi) Meet with union officials and/or employee representatives to
inform them of the contractor's policy, and request their cooperation;
(vii) Include articles on accomplishments of special disabled
veterans, veterans of the Vietnam era, recently separated veterans, and
other protected veterans in company publications; and
(viii) When employees are featured in employee handbooks or similar
publications for employees, include special disabled veterans.
(h) Audit and reporting system. (1) The contractor shall design and
implement an audit and reporting system that will:
(i) Measure the effectiveness of the contractor's affirmative
action program;
(ii) Indicate any need for remedial action;
(iii) Determine the degree to which the contractor's objectives
have been attained;
(iv) Determine whether known special disabled veterans, veterans of
the Vietnam era, recently separated veterans, and other protected
veterans have had the opportunity to participate in all company
sponsored educational, training, recreational and social activities;
and
(v) Measure the contractor's compliance with the affirmative action
program's specific obligations.
(2) Where the affirmative action program is found to be deficient,
the contractor shall undertake necessary action to bring the program
into compliance.
(i) Responsibility for implementation. An official of the
contractor shall be assigned responsibility for implementation of the
contractor's affirmative action activities under this part. His or her
identity should appear on all internal and external communications
regarding the company's affirmative action program. This official shall
be given necessary top management support and staff to manage the
implementation of this program.
(j) Training. All personnel involved in the recruitment, screening,
selection, promotion, disciplinary, and related processes shall be
trained to ensure that the commitments in the contractor's affirmative
action program are implemented.
Subpart D--General Enforcement and Complaint Procedures
Sec. 60-250.60 Compliance evaluations.
(a) OFCCP may conduct compliance evaluations to determine if the
contractor is taking affirmative action to employ, advance in
employment and otherwise treat qualified individuals without
discrimination based on their status as a special disabled veteran,
veteran of the Vietnam era, recently separated veteran, or other
protected veteran in all employment practices. A compliance evaluation
may consist of any one or any combination of the following
investigative procedures:
(1) Compliance review. A comprehensive analysis and evaluation of
the hiring and employment practices of the contractor, the written
affirmative action program, and the results of the affirmative action
efforts undertaken by the contractor. A compliance review may proceed
in three stages:
(i) A desk audit of the written affirmative action program and
supporting documentation to determine whether all elements required by
the regulations in this part are included, whether the affirmative
action program meets agency standards of reasonableness, and whether
the affirmative action program and supporting documentation satisfy
agency standards of acceptability. The desk audit is conducted at OFCCP
offices;
(ii) An on-site review, conducted at the contractor's establishment
to investigate unresolved problem areas identified in the affirmative
action program and supporting documentation during the desk audit, to
verify that the contractor has implemented the affirmative action
program and has complied with those regulatory obligations not required
to be included in the affirmative action program, and to examine
potential instances or issues of discrimination. An on-site review
normally will involve an examination of the contractor's personnel and
employment policies, inspection and copying of documents related to
employment actions, and interviews with employees, supervisors,
managers, hiring officials; and
(iii) Where necessary, an off-site analysis of information supplied
by the contractor or otherwise gathered during or pursuant to the on-
site review;
(2) Off-site review of records. An analysis and evaluation of the
affirmative action program (or any part thereof) and supporting
documentation, and other documents related to the contractor's
personnel policies and employment actions that may be relevant to a
determination of whether the contractor has complied with the
requirements of the Executive Order and regulations;
(3) Compliance check. A determination of whether the contractor has
maintained records consistent with Sec. 60-250.80; at the contractor's
option
[[Page 72161]]
the documents may be provided either on-site or off-site; or
(4) Focused review. An on-site review restricted to one or more
components of the contractor's organization or one or more aspects of
the contractor's employment practices.
(b) Where deficiencies are found to exist, reasonable efforts shall
be made to secure compliance through conciliation and persuasion
pursuant to Sec. 60-250.62.
(c) VETS-100 Report. During a compliance evaluation, OFCCP may
verify whether the contractor has complied with its obligation,
pursuant to 41 CFR part 61-250, to file its annual Veterans' Employment
Report (VETS-100 Report) with the Veterans' Employment and Training
Service (VETS). If the contractor has not filed its report, OFCCP will
request a copy from the contractor. If the contractor fails to provide
a copy of the report to OFCCP, OFCCP will notify VETS.
Sec. 60-250.61 Complaint procedures.
(a) Place and time of filing. Any applicant for employment with a
contractor or any employee of a contractor may, personally, or by an
authorized representative, file a written complaint alleging a
violation of the Act or the regulations in this part. The complaint may
allege individual or class-wide violation(s). Such complaint must be
filed within 300 days of the date of the alleged violation, unless the
time for filing is extended by OFCCP for good cause shown. Complaints
may be submitted to the OFCCP, 200 Constitution Avenue, NW.,
Washington, DC 20210, or to any OFCCP regional, district, or area
office. Complaints may also be submitted to the Veterans' Employment
and Training Service of the Department of Labor directly, or through
the Local Veterans' Employment Representative (LVER) or his or her
designee at the local employment service office. Such parties will
assist veterans in preparing complaints, promptly refer such complaints
to OFCCP, and maintain a record of all complaints which they receive
and forward. OFCCP shall inform the party forwarding the complaint of
the progress and results of its complaint investigation. The state
employment security agency shall cooperate with the Deputy Assistant
Secretary in the investigation of any complaint.
(b) Contents of complaints. (1) In general. A complaint must be
signed by the complainant or his or her authorized representative and
must contain the following information:
(i) Name and address (including telephone number) of the
complainant;
(ii) Name and address of the contractor who committed the alleged
violation;
(iii) Documentation showing that the individual is a special
disabled veteran, veteran of the Vietnam era, recently separated
veteran, or other protected veteran. Such documentation must include a
copy of the veteran's form DD-214, and, where applicable, a copy of the
veteran's Benefits Award Letter, or similar Department of Veterans
Affairs certification, updated within one year prior to the date the
complaint is filed, indicating the veteran's level (by percentage) of
disability, and whether the veteran has been determined by the
Department of Veterans Affairs to have a serious employment handicap
under 38 U.S.C. 3106;
(iv) A description of the act or acts considered to be a violation,
including the pertinent dates (in the case of an alleged continuing
violation, the earliest and most recent date that the alleged violation
occurred should be stated); and
(v) Other pertinent information available which will assist in the
investigation and resolution of the complaint, including the name of
any known Federal agency with which the employer has contracted.
(2) Third party complaints. A complaint filed by an authorized
representative need not identify by name the person on whose behalf it
is filed. The person filing the complaint, however, shall provide OFCCP
with the name, address and telephone number of the person on whose
behalf it is made, and the other information specified in paragraph
(b)(1) of this section. OFCCP shall verify the authorization of such a
complaint by the person on whose behalf the complaint is made. Any such
person may request that OFCCP keep his or her identity confidential,
and OFCCP will protect the individual's confidentiality wherever that
is possible given the facts and circumstances in the complaint.
(c) Incomplete information. Where a complaint contains incomplete
information, OFCCP shall seek the needed information from the
complainant. If the information is not furnished to OFCCP within 60
days of the date of such request, the case may be closed.
(d) Investigations. The Department of Labor shall institute a
prompt investigation of each complaint.
(e) Resolution of matters. (1) If the complaint investigation finds
no violation of the Act or this part, or if the Deputy Assistant
Secretary decides not to refer the matter to the Solicitor of Labor for
enforcement proceedings against the contractor pursuant to Sec. 60-
250.65(a)(1), the complainant and contractor shall be so notified. The
Deputy Assistant Secretary, on his or her own initiative, may
reconsider his or her determination or the determination of any of his
or her designated officers who have authority to issue Notifications of
Results of Investigation.
(2) The Deputy Assistant Secretary will review all determinations
of no violation that involve complaints that are not also cognizable
under Title I of the Americans with Disabilities Act.
(3) In cases where the Deputy Assistant Secretary decides to
reconsider the determination of a Notification of Results of
Investigation, the Deputy Assistant Secretary shall provide prompt
notification of his or her intent to reconsider, which is effective
upon issuance, and his or her final determination after
reconsideration, to the person claiming to be aggrieved, the person
making the complaint on behalf of such person, if any, and the
contractor.
(4) If the investigation finds a violation of the Act or this part,
OFCCP shall invite the contractor to participate in conciliation
discussions pursuant to Sec. 60-250.62.
Sec. 60-250.62 Conciliation agreements.
If a compliance evaluation, complaint investigation or other review
by OFCCP finds a material violation of the Act or this part, and if the
contractor is willing to correct the violations and/or deficiencies,
and if OFCCP determines that settlement on that basis (rather than
referral for consideration of formal enforcement) is appropriate, a
written conciliation agreement shall be required. The agreement shall
provide for such remedial action as may be necessary to correct the
violations and/or deficiencies noted, including, where appropriate (but
not necessarily limited to) such make whole remedies as back pay and
retroactive seniority. The agreement shall also specify the time period
for completion of the remedial action; the period shall be no longer
than the minimum period necessary to complete the action.
Sec. 60-250.63 Violation of conciliation agreements.
(a) When OFCCP believes that a conciliation agreement has been
violated, the following procedures are applicable:
(1) A written notice shall be sent to the contractor setting forth
the violation alleged and summarizing the supporting evidence. The
contractor shall have 15 days from receipt of the notice to
[[Page 72162]]
respond, except in those cases in which OFCCP asserts that such a delay
would result in irreparable injury to the employment rights of affected
employees or applicants.
(2) During the 15-day period the contractor may demonstrate in
writing that it has not violated its commitments.
(b) In those cases in which OFCCP asserts that a delay would result
in irreparable injury to the employment rights of affected employees or
applicants, enforcement proceedings may be initiated immediately
without proceeding through any other requirement contained in this
chapter.
(c) In any proceedings involving an alleged violation of a
conciliation agreement OFCCP may seek enforcement of the agreement
itself and shall not be required to present proof of the underlying
violations resolved by the agreement.
Sec. 60-250.64 Show cause notices.
When the Deputy Assistant Secretary has reasonable cause to believe
that the contractor has violated the Act or this part, he or she may
issue a notice requiring the contractor to show cause, within 30 days,
why monitoring, enforcement proceedings or other appropriate action to
ensure compliance should not be instituted. The issuance of such a
notice is not a prerequisite to instituting enforcement proceedings
(see Sec. 60-250.65).
Sec. 60-250.65 Enforcement proceedings.
(a) General. (1) If a compliance evaluation, complaint
investigation or other review by OFCCP finds a violation of the Act or
this part, and the violation has not been corrected in accordance with
the conciliation procedures in this part, or OFCCP determines that
referral for consideration of formal enforcement (rather than
settlement) is appropriate, OFCCP may refer the matter to the Solicitor
of Labor with a recommendation for the institution of enforcement
proceedings to enjoin the violations, to seek appropriate relief, and
to impose appropriate sanctions, or any of the above in this sentence.
OFCCP may seek back pay and other make whole relief for aggrieved
individuals identified during a complaint investigation or compliance
evaluation. Such individuals need not have filed a complaint as a
prerequisite to OFCCP seeking such relief on their behalf. Interest on
back pay shall be calculated from the date of the loss and compounded
quarterly at the percentage rate established by the Internal Revenue
Service for the underpayment of taxes.
(2) In addition to the administrative proceedings set forth in this
section, the Deputy Assistant Secretary may, within the limitations of
applicable law, seek appropriate judicial action to enforce the
contractual provisions set forth in Sec. 60-250.5, including
appropriate injunctive relief.
(b) Hearing practice and procedure. (1) In administrative
enforcement proceedings the contractor shall be provided an opportunity
for a formal hearing. All hearings conducted under the Act and this
part shall be governed by the Rules of Practice for Administrative
Proceedings to Enforce Equal Opportunity Under Executive Order 11246
contained in 41 CFR part 60-30 and the Rules of Evidence set out in the
Rules of Practice and Procedure for Administrative Hearings Before the
Office of Administrative Law Judges contained in 29 CFR part 18,
subpart B: Provided, That a final administrative order shall be issued
within one year from the date of the issuance of the recommended
findings, conclusions and decision of the Administrative Law Judge, or
the submission of exceptions and responses to exceptions to such
decision (if any), whichever is later.
(2) Complaints may be filed by the Solicitor, the Associate
Solicitor for Civil Rights, Regional Solicitors and Associate Regional
Solicitors.
(3) For the purposes of hearings pursuant to this part, references
in 41 CFR part 60-30 to ``Executive Order 11246'' shall mean the
Vietnam Era Veterans'' Readjustment Assistance Act of 1974, as amended
(38 U.S.C. 4212 (2001)); to ``equal opportunity clause'' shall mean the
equal opportunity clause published at Sec. 60-250.5; and to
``regulations'' shall mean the regulations contained in this part.
Sec. 60-250.66 Sanctions and penalties.
(a) Withholding progress payments. With the prior approval of the
Deputy Assistant Secretary, so much of the accrued payment due on the
contract or any other contract between the Government contractor and
the Federal Government may be withheld as necessary to correct any
violations of the provisions of the Act or this part.
(b) Termination. A contract may be canceled or terminated, in whole
or in part, for failure to comply with the provisions of the Act or
this part.
(c) Debarment. A contractor may be debarred from receiving future
contracts for failure to comply with the provisions of the Act or this
part subject to reinstatement pursuant to Sec. 60-250.68. Debarment
may be imposed for an indefinite period, or may be imposed for a fixed
period of not less than six months but no more than three years.
(d) Hearing opportunity. An opportunity for a formal hearing shall
be afforded to a contractor before the imposition of any sanction or
penalty.
Sec. 60-250.67 Notification of agencies.
The Deputy Assistant Secretary shall ensure that the heads of all
agencies are notified of any debarments taken against any contractor.
Sec. 60-250.68 Reinstatement of ineligible contractors.
(a) Application for reinstatement. A contractor debarred from
further contracts for an indefinite period under the Act may request
reinstatement in a letter filed with the Deputy Assistant Secretary at
any time after the effective date of the debarment; a contractor
debarred for a fixed period may make such a request following the
expiration of six months from the effective date of the debarment. In
connection with the reinstatement proceedings, all debarred contractors
shall be required to show that they have established and will carry out
employment policies and practices in compliance with the Act and this
part. Additionally, in determining whether reinstatement is appropriate
for a contractor debarred for a fixed period, the Deputy Assistant
Secretary also shall consider, among other factors, the severity of the
violation which resulted in the debarment, the contractor's attitude
towards compliance, the contractor's past compliance history, and
whether the contractor's reinstatement would impede the effective
enforcement of the Act or this part. Before reaching a decision, the
Deputy Assistant Secretary may conduct a compliance evaluation of the
contractor and may require the contractor to supply additional
information regarding the request for reinstatement. The Deputy
Assistant Secretary shall issue a written decision on the request.
(b) Petition for review. Within 30 days of its receipt of a
decision denying a request for reinstatement, the contractor may file a
petition for review of the decision with the Secretary. The petition
shall set forth the grounds for the contractor's objections to the
Deputy Assistant Secretary's decision. The petition shall be served on
the Deputy Assistant Secretary and the Associate Solicitor for Civil
Rights and shall include the decision as an appendix. The Deputy
Assistant Secretary may file a response within 14 days to the petition.
The Secretary shall issue the final agency decision denying or granting
the request for reinstatement. Before reaching a final decision, the
Secretary may issue such additional
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orders respecting procedure as he or she finds appropriate in the
circumstances, including an order referring the matter to the Office of
Administrative Law Judges for an evidentiary hearing where there is a
material factual dispute that cannot be resolved on the record before
the Secretary.
Sec. 60-250.69 Intimidation and interference.
(a) The contractor shall not harass, intimidate, threaten, coerce,
or discriminate against, any individual because the individual has
engaged in or may engage in any of the following activities:
(1) Filing a complaint;
(2) Assisting or participating in any manner in an investigation,
compliance evaluation, hearing, or any other activity related to the
administration of the Act or any other Federal, state or local law
requiring equal opportunity for special disabled veterans, veterans of
the Vietnam era, recently separated veterans, or other protected
veterans;
(3) Opposing any act or practice made unlawful by the Act or this
part or any other Federal, state or local law requiring equal
opportunity for special disabled veterans, veterans of the Vietnam era,
recently separated veterans, or other protected veterans, or
(4) Exercising any other right protected by the Act or this part.
(b) The contractor shall ensure that all persons under its control
do not engage in such harassment, intimidation, threats, coercion or
discrimination. The sanctions and penalties contained in this part may
be exercised by the Deputy Assistant Secretary against any contractor
who violates this obligation.
Sec. 60-250.70 Disputed matters related to compliance with the Act.
The procedures set forth in the regulations in this part govern all
disputes relative to the contractor's compliance with the Act and this
part. Any disputes relating to issues other than compliance, including
contract costs arising out of the contractor's efforts to comply, shall
be determined by the disputes clause of the contract.
Subpart E--Ancillary Matters
Sec. 60-250.80 Recordkeeping
(a) General requirements. Any personnel or employment record made
or kept by the contractor shall be preserved by the contractor for a
period of two years from the date of the making of the record or the
personnel action involved, whichever occurs later. However, if the
contractor has fewer than 150 employees or does not have a Government
contract of at least $150,000, the minimum record retention period
shall be one year from the date of the making of the record or the
personnel action involved, whichever occurs later. Such records
include, but are not necessarily limited to, records relating to
requests for reasonable accommodation; the results of any physical
examination; job advertisements and postings; applications and resumes;
tests and test results; interview notes; and other records having to do
with hiring, assignment, promotion, demotion, transfer, lay-off or
termination, rates of pay or other terms of compensation, and selection
for training or apprenticeship. In the case of involuntary termination
of an employee, the personnel records of the individual terminated
shall be kept for a period of two years from the date of the
termination, except that contractors that have fewer than 150 employees
or that do not have a Government contract of at least $150,000 shall
keep such records for a period of one year from the date of the
termination. Where the contractor has received notice that a complaint
of discrimination has been filed, that a compliance evaluation has been
initiated, or that an enforcement action has been commenced, the
contractor shall preserve all personnel records relevant to the
complaint, compliance evaluation or action until final disposition of
the complaint, compliance evaluation or action. The term personnel
records relevant to the complaint, compliance evaluation or action
would include, for example, personnel or employment records relating to
the aggrieved person and to all other employees holding positions
similar to that held or sought by the aggrieved person, and application
forms or test papers completed by an unsuccessful applicant and by all
other candidates for the same position as that for which the aggrieved
person applied and was rejected.
(b) Failure to preserve records. Failure to preserve complete and
accurate records as required by paragraph (a) of this section
constitutes noncompliance with the contractor's obligations under the
Act and this part. Where the contractor has destroyed or failed to
preserve records as required by this section, there may be a
presumption that the information destroyed or not preserved would have
been unfavorable to the contractor: Provided, That this presumption
shall not apply where the contractor shows that the destruction or
failure to preserve records results from circumstances that are outside
of the contractor's control.
Sec. 60-250.81 Access to records.
Each contractor shall permit access during normal business hours to
its places of business for the purpose of conducting on-site compliance
evaluations and complaint investigations and inspecting and copying
such books and accounts and records, including computerized records,
and other material as may be relevant to the matter under investigation
and pertinent to compliance with the Act or this part. Information
obtained in this manner shall be used only in connection with the
administration of the Act and in furtherance of the purposes of the
Act.
Sec. 60-250.82 Labor organizations and recruiting and training
agencies.
(a) Whenever performance in accordance with the equal opportunity
clause or any matter contained in the regulations in this part may
necessitate a revision of a collective bargaining agreement, the labor
organizations which are parties to such agreement shall be given an
adequate opportunity to present their views to OFCCP.
(b) OFCCP shall use its best efforts, directly or through
contractors, subcontractors, local officials, the Department of
Veterans Affairs, vocational rehabilitation facilities, and all other
available instrumentalities, to cause any labor organization,
recruiting and training agency or other representative of workers who
are employed by a contractor to cooperate with, and to assist in, the
implementation of the purposes of the Act.
Sec. 60-250.83 Rulings and interpretations.
Rulings under or interpretations of the Act and this part shall be
made by the Deputy Assistant Secretary.
Sec. 60-250.84 Responsibilities of local employment service offices.
(a) Local employment service offices shall refer qualified special
disabled veterans, veterans of the Vietnam era, recently separated
veterans, and other protected veterans to fill employment openings
listed by contractors with such local offices pursuant to the mandatory
listing requirements of the equal opportunity clause, and shall give
priority to special disabled veterans, veterans of the Vietnam era,
recently separated veterans, and other protected veterans in making
such referrals.
(b) Local employment service offices shall contact employers to
solicit the job orders described in paragraph (a) of this section. The
state employment security agency shall provide OFCCP upon request
information pertinent to
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whether the contractor is in compliance with the mandatory listing
requirements of the equal opportunity clause.
Appendix A to Part 60-250--Guidelines on a Contractor's Duty To Provide
Reasonable Accommodation
The guidelines in this appendix are in large part derived from,
and are consistent with, the discussion regarding the duty to
provide reasonable accommodation contained in the Interpretive
Guidance on Title I of the Americans with Disabilities Act (ADA) set
out as an appendix to the regulations issued by the Equal Employment
Opportunity Commission (EEOC) implementing the ADA (29 CFR part
1630). Although the following discussion is intended to provide an
independent ``free-standing'' source of guidance with respect to the
duty to provide reasonable accommodation under this part, to the
extent that the EEOC appendix provides additional guidance which is
consistent with the following discussion, it may be relied upon for
purposes of this part as well. See Sec. 60-250.1(c). Contractors
are obligated to provide reasonable accommodation and to take
affirmative action. Reasonable accommodation under VEVRAA, like
reasonable accommodation required under section 503 and the ADA, is
a part of the nondiscrimination obligation. See EEOC appendix cited
in this paragraph. Affirmative action is unique to VEVRAA and
section 503, and includes actions above and beyond those required as
a matter of nondiscrimination. An example of this is the requirement
discussed in paragraph 2 of this appendix that a contractor shall
make an inquiry of a special disabled veteran who is having
significant difficulty performing his or her job.
1. A contractor is required to make reasonable accommodations to
the known physical or mental limitations of an ``otherwise
qualified'' special disabled veteran, unless the contractor can
demonstrate that the accommodation would impose an undue hardship on
the operation of its business. As stated in Sec. 60-250.2(o), a
special disabled veteran is qualified if he or she satisfies all the
skill, experience, education and other job-related selection
criteria, and can perform the essential functions of the position
with or without reasonable accommodation. A contractor is required
to make a reasonable accommodation with respect to its application
process if the special disabled veteran is qualified with respect to
that process. One is ``otherwise qualified'' if he or she is
qualified for a job, except that, because of a disability, he or she
needs a reasonable accommodation to be able to perform the job's
essential functions.
2. Although the contractor would not be expected to accommodate
disabilities of which it is unaware, the contractor has an
affirmative obligation to provide a reasonable accommodation for
applicants and employees who are known to be special disabled
veterans. As stated in Sec. 60-250.42 (see also Appendix B of this
part), the contractor is required to invite applicants who have been
provided an offer of employment, before they are placed on the
contractor's payroll, to indicate whether they are covered by the
Act and wish to benefit under the contractor's affirmative action
program. That section further provides that the contractor should
seek the advice of special disabled veterans who ``self-identify''
in this way as to proper placement and appropriate accommodation.
Moreover, Sec. 60-250.44(d) provides that if an employee who is a
known special disabled veteran is having significant difficulty
performing his or her job and it is reasonable to conclude that the
performance problem may be related to the disability, the contractor
is required to confidentially inquire whether the problem is
disability related and if the employee is in need of a reasonable
accommodation.
3. An accommodation is any change in the work environment or in
the way things are customarily done that enables a special disabled
veteran to enjoy equal employment opportunities. Equal employment
opportunity means an opportunity to attain the same level of
performance, or to enjoy the same level of benefits and privileges
of employment, as are available to the average similarly situated
employee without a disability. Thus, for example, an accommodation
made to assist an employee who is a special disabled veteran in the
performance of his or her job must be adequate to enable the
individual to perform the essential functions of the position. The
accommodation, however, does not have to be the ``best''
accommodation possible, so long as it is sufficient to meet the job-
related needs of the individual being accommodated. There are three
areas in which reasonable accommodations may be necessary: (1)
Accommodations in the application process; (2) accommodations that
enable employees who are special disabled veterans to perform the
essential functions of the position held or desired; and (3)
accommodations that enable employees who are special disabled
veterans to enjoy equal benefits and privileges of employment as are
enjoyed by employees without disabilities.
4. The term ``undue hardship'' refers to any accommodation that
would be unduly costly, extensive, substantial, or disruptive, or
that would fundamentally alter the nature or operation of the
contractor's business. The contractor's claim that the cost of a
particular accommodation will impose an undue hardship requires a
determination of which financial resources should be considered--
those of the contractor in its entirety or only those of the
facility that will be required to provide the accommodation. This
inquiry requires an analysis of the financial relationship between
the contractor and the facility in order to determine what resources
will be available to the facility in providing the accommodation. If
the contractor can show that the cost of the accommodation would
impose an undue hardship, it would still be required to provide the
accommodation if the funding is available from another source, e.g.,
the Department of Veterans Affairs or a state vocational
rehabilitation agency, or if Federal, state or local tax deductions
or tax credits are available to offset the cost of the
accommodation. In the absence of such funding, the special disabled
veteran should be given the option of providing the accommodation or
of paying that portion of the cost which constitutes the undue
hardship on the operation of the business.
5. Section 60-250.2(t) lists a number of examples of the most
common types of accommodations that the contractor may be required
to provide. There are any number of specific accommodations that may
be appropriate for particular situations. The discussion in this
appendix is not intended to provide an exhaustive list of required
accommodations (as no such list would be feasible); rather, it is
intended to provide general guidance regarding the nature of the
obligation. The decision as to whether a reasonable accommodation is
appropriate must be made on a case-by-case basis. The contractor
generally should consult with the special disabled veteran in
deciding on the appropriate accommodation; frequently, the
individual will know exactly what accommodation he or she will need
to perform successfully in a particular job, and may suggest an
accommodation which is simpler and less expensive than the
accommodation the contractor might have devised. Other resources to
consult include the appropriate state vocational rehabilitation
services agency, the Equal Employment Opportunity Commission (1-800-
669-4000 (voice), 1-800-669-6820 (TTY)), the Job Accommodation
Network (JAN) operated by the Office of Disability Employment Policy
in the U.S. Department of Labor (1-800-JAN-7234 or 1-800-232-9675),
private disability organizations (including those that serve
veterans), and other employers.
6. With respect to accommodations that can permit an employee
who is a special disabled veteran to perform essential functions
successfully, a reasonable accommodation may require the contractor
to, for instance, modify or acquire equipment. For the visually-
impaired such accommodations may include providing adaptive hardware
and software for computers, electronic visual aids, braille devices,
talking calculators, magnifiers, audio recordings and br