Dear Berkshire: Can Contractors Ask About Disability Status Beyond the Self ID Form?

The following content was developed as part of our new blog column, “Dear Berkshire.” Instead of trying to anticipate the challenges you're facing at work, we’re going straight to the source. Every several weeks, one of our expert consultants will answer a specific question about compliance, regulatory changes, and affirmative action -- submitted by HR professionals like you!

Q: Can federal contractors make inquiries about employees disabilities or medical conditions for DEI purposes outside of the self-ID form? 

A: Companies with federal contracts are required to take affirmative action to hire, promote, and provide equal opportunities to qualified individuals that have self-identified as having a disability. Under Section 503, federal contractors should provide the voluntary self-identification of disability form, CC-305, before an offer of employment is made, after an offer is made, and at least once every 5 years for current employees. Many federal contractors also have DEI&A initiatives outside the scope of OFCCP regulations. Is it ok for employers to make inquiries about employees’ medical conditions or disabilities for DEI&A initiatives, without using the form CC-305?  

The short answer is No; while contractors can use the voluntary self-id data collected via the form CC-305 for their DEI&A initiatives, they cannot ask questions about medical conditions or disabilities without using the form.  

So, what can employers do to support DEI&A initiatives and engage employees, without violating the ADA or ousting employees? Use the regulations to your benefit: you are required to survey your workforce every 5 years, and provide a reminder during that time frame that employees can update their disability status any time… nothing says you can’t survey your workforce every year. Use the CC-305 form to educate the workforce on what qualifies as a disability. Socializing the list may help employees better understand what counts and help to create buy-in, encouraging employees to self-identify.

EARN, the Employer Assistance and Resource Network, offers several toolkits for creating inclusive environments at work.  

Disability:IN.org provides a global resource library of white papers, webinars, and business cases for disability equality and accessibility at work.  

The form CC-305 Voluntary Self-Identification of Disability Form in English: https://www.dol.gov/sites/dolgov/files/OFCCP/regs/compliance/sec503/Self_ID_Forms/503Self-IDForm.pdf 

Other languages can be downloaded here: https://www.dol.gov/agencies/ofccp/self-id-forms  

More information about section 503 requirements can be found at the Office of Federal Contract Compliance Programs (OFCCP) Resources for Federal Contractors Section 503 and VEVRAA: https://www.dol.gov/agencies/ofccp/compliance-assistance/outreach/resources/section-503-vevraa  

Next time you get stuck while working on your affirmative action plan(s) -- or maybe you get a question from a colleague that you’re not sure how to answer – remember that expert advice is just a couple of clicks away! 

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