[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] [[Page 72147]] ----------------------------------------------------------------------- Part II Department of Labor ----------------------------------------------------------------------- Office of Federal Contract Compliance Programs ----------------------------------------------------------------------- 41 CFR 60-250 Affirmative Action and Nondiscrimination Obligations of Contractors and Subcontractors Regarding Protected Veterans; Final Rule [[Page 72148]] ----------------------------------------------------------------------- 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. ----------------------------------------------------------------------- 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 Third, it removes language about the effective date of the rule published in 1998 because that language is obsolete.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. [[Page 72150]] 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). --------------------------------------------------------------------------- [[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 r