Reminder: AAPs for Individuals with Disabilities, Protected Veterans

Much of the focus over the last 10 months has been on the Trump Administration’s decision to end the requirement to prepare Affirmative Action Plans under Executive Order 11246. This change has created some confusion, with many members of the public believing all affirmative action is dead. But this stance is incorrect. It is important for federal contractors to remember that Section 503 of the Rehabilitation Act (Section 503) and the Vietnam Era Veterans Readjustment Assistance Act (VEVRAA) are still in effect. And federal contractors must continue to develop affirmative action programs for Individuals with Disabilities and Protected Veterans.

While there are some proposed regulatory changes pending, as of today, there have been no changes to the VEVRAA and Section 503 regulatory requirements, which were last revised in 2014. Proposed rules are not final and often change by the time they are finalized. Because of this, contractors are still obligated to comply with the current regulations for VEVRAA and Section 503.

Additionally, even though contractors are not currently certifying compliance with the regulations in OFCCP’s contractor verification portal, federal contracts include FAR clauses requiring compliance with the regulations. The relevant FAR clauses that incorporate the requirements of Section 503 and VEVRAA into federal contracts include: 

• FAR 52.222-36, Affirmative Action for Workers with Disabilities: This clause mandates non-discrimination and affirmative action for qualified individuals with disabilities, in accordance with Section 503 of the Rehabilitation Act of 1973.
• FAR 52.222-35, Equal Opportunity for Veterans: This clause mandates non-discrimination and affirmative action for protected veterans, in accordance with VEVRAA.
• FAR 52.222-37, Employment Reports on Veterans: This clause requires covered contractors to track and annually report on the number of protected veterans in their workforce using the VETS-4212 report. 

Human Resources or Compliance may not even be aware of how procurement, or other contracting departments, are registering and responding to contract certification requirements in SAM.gov (the System for Award Management). By signing federal contracts and registering in the SAM.GOV portal, contractors are certifying they are currently in compliance with the above FAR clauses. False certifications can have hefty consequences, including potential False Claims exposure, criminal penalties, and debarment or loss of government contracts.

At the SHRM Blueprint conference on October 27^th, immediate past OFCCP Director, Catherine Eschbach, speaking from her personal views, discussed the current and future focus of OFCCP. She noted that the first part of this year has been focused on unwinding EO 11246 from VEVRAA and Section 503 but once that work was finished, OFCCP would turn its focus to enforcing compliance with VEVRAA and Section 503. OFCCP is currently still taking complaints and conducting investigations under VEVRAA and Section 503. Eschbach noted that previously, EO 11246 enforcement made up about 90% of the OFCCP’s work but now, all of their focus will be on VEVRAA and Section 503 going forward. Her recommendation to contractors was to put a renewed focus on compliance efforts under Section 503 and VEVRAA.

With the start of a new year upon us, contractors should take a critical look to ensure these two compliance requirements are completed so the organization is positioned well when OFCCP turns its full attention to enforcement of protections for individuals with disabilities and protected veterans. This includes updating affirmative action program metrics annually, listing most jobs with the state employment service delivery system, conducting and evaluating outreach efforts for individuals with disabilities and protected veterans, and filing an annual VETS-4212 report with the Department of Labor. It’s important for HR to make sure their annual compliance checklist still includes these requirements, even as other requirements change.