[Federal Register Volume 72, Number 247 (Thursday, December 27, 2007)]
[Proposed Rules]
[Pages 73282-73285]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-25108]


 ========================================================================
 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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 

  Federal Register / Vol. 72, No. 247 / Thursday, December 27, 2007 / 
Proposed Rules  

[[Page 73282]]



OFFICE OF PERSONNEL MANAGEMENT

5 CFR PART 339

RIN 3206-AL14


Medical Qualification Determinations

AGENCY: Office of Personnel Management.

ACTION: Proposed rule.

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SUMMARY: The Office of Personnel Management (OPM) is proposing a 
revision of its regulations regarding medical qualification 
determinations. The proposed revisions add four authorities, separate 
and move two definitions, add three definitions, clarify coverage and 
applicability, update to reflect current references and language, and 
address the need for medical testing/examination or medical 
documentation of an employee whose job has no physical standards or 
physical requirements.

DATES: We will consider comments received on or before February 25, 
2008.

ADDRESSES: Send, deliver, or fax comments to Mark Doboga, Deputy 
Associate Director, Center for Talent and Capacity Policy, Strategic 
Human Resources Policy, U.S. Office of Personnel Management, Room 6551, 
1900 E Street, NW., Washington, DC 20415-9700; e-mail [email protected]; 
FAX: (202) 606-2329. Comments may also be sent through the Federal 
eRulemaking Portal at http://www.regulations.gov. All submissions 
received through the Portal must include the agency name and docket 
number or Regulation Identifier Number (RIN) for this rulemaking.

FOR FURTHER INFORMATION CONTACT: J. C. Phillip Spottswood, J.D., 
M.P.H., by telephone at (202) 606-1389, by TTY at (202) 418-3134; by 
fax at (202) 606-0864; or by e-mail at [email protected].

SUPPLEMENTARY INFORMATION: The Office of Personnel Management (OPM) is 
issuing proposed revised regulations on medical qualification 
determinations. Details of the proposed revisions are discussed under 
the applicable subpart.
    OPM has replaced the verb ``shall'' with ``must'' in this part for 
added clarity and readability. OPM intends that any provisions in this 
part using the verb ``must'' has the same meaning and effect as 
previous provisions in this part using ``shall.''
    The proposed revised regulations add four authority citations to 
clarify the scope of applicability: (1) 5 U.S.C. 3312 Preference 
eligibles; physical qualifications; waiver; (2) 5 U.S.C. 3318 
Competitive service; selection from certificates; (3) 5 U.S.C. 3320 
Excepted service; government of the District of Columbia; selection; 
and (4) 5 U.S.C. 3504 Preference eligibles; retention; physical 
qualifications; waiver.

Subpart A

    Subpart A covers General information. The proposed subpart A adds 
wording to clarify applicability of this regulation to excepted service 
positions; updates references to the Rehabilitation Act of 1973, as 
amended, and to portions of the Americans with Disabilities Act of 1992 
that are applicable to the Federal government through the 
Rehabilitation Act; adds examples to the definition in Sec.  339.104 
for ``medical evaluation program,'' separates and moves definitions for 
``subtle incapacitation'' and ``sudden incapacitation;'' and adds 
definitions for ``medical restriction,'' ``physical fitness standard,'' 
and ``physical fitness test.''

Subpart B

    Subpart B governs Medical Standards, Physical Requirements, and 
Medical Evaluation Programs. The title of proposed subpart B is changed 
to clarify application of this part to physical requirements and 
medical evaluation programs. The proposed subpart B incorporates 
physical fitness standards into Sec.  339.203, and adds language to 
clarify application of this part to arbitrary disqualification; adds 
``medical surveillance'' to policies agencies may establish to 
safeguard employee health; provides an example of an immunization 
program and changes ``incumbents'' to ``employees'' to clarify Sec.  
339.205.

Subpart C

    Subpart C governs Medical Examinations. The proposed subpart C 
incorporates minor corrections in references, spelling and punctuation; 
adds wording to clarify examinations the agency may require and 
examples of ``benefits'' in Sec.  339.304; and adds wording to clarify 
applicability of this regulation to excepted service positions when 
requesting a medical disqualification or a pass over of a preference 
eligible in Sec.  339.306.
    For the convenience of the reader, the proposed part 339 is 
published in its entirety.

E.O. 12866, Regulatory Review

    This rule has been reviewed by the Office of Management and Budget 
in accordance with E.O. 12866.

Regulatory Flexibility Act (5 U.S.C. 601, et seq.)

    I certify that these regulations would not have a significant 
economic impact on a substantial number of small entities because it 
affects only Federal employees.

List of Subjects in 5 CFR Part 339

    Equal employment opportunity, Government employees, Health, 
Individuals with disabilities.

U.S. Office of Personnel Management.
Linda M. Springer,
Director.
    Accordingly, OPM proposes to revise 5 CFR part 339 to read as 
follows:

PART 339--MEDICAL QUALIFICATION DETERMINATIONS

Subpart A--General
Sec.
339.101 Coverage.
339.102 Purpose and effect.
339.103 Compliance with disability laws and regulations.
339.104 Definitions.
Subpart B--Medical Standards, Physical Requirements, and Medical 
Evaluation Programs
339.201 Disqualification by OPM.
339.202 Medical standards.
339.203 Physical requirements and/or physical fitness requirements.
339.204 Waiver of standards and requirements.
339.205 Medical evaluation programs.
339.206 Disqualification on the basis of medical history.
Subpart C--Medical Examinations
 339.301 Authority to require an examination.
339.302 Authority to offer examinations.
339.303 Examination procedures.

[[Page 73283]]

339.304 Payment for examination.
339.305 Records and reports.
339.306 Processing medical eligibility determinations.

    Authority: 5 U.S.C. 1104(a), 1302(a) 3301, 3302, 3304, 3312, 
3318, 3320, 3504, 5112; 39 U.S.C. 1005; Executive Order 10577, Rule 
II, codified as amended in 5 CFR 2.1(a).

Subpart A--General


Sec.  339.101  Coverage.

    This part applies to all applicants for and employees in 
competitive service positions; and to applicants for and employees in 
positions excepted from the competitive service, by statute or 
executive order, when medical issues arise in connection with an OPM 
regulation that governs a particular personnel decision.


Sec.  339.102  Purpose and effect.

    (a) This part defines the circumstances under which medical 
documentation may be required and examinations and evaluations 
conducted to determine the nature of a medical condition that may 
affect safe and efficient performance.
    (b) Personnel decisions based wholly or in part on the review of 
medical documentation and the results of medical examinations and 
evaluations must be made in accordance with appropriate parts of this 
title.
    (c) Failure to meet a properly established medical standard or 
physical requirement under this part means that the individual is not 
qualified for the position unless a waiver or reasonable accommodation 
is suitable, as described in Sec. Sec.  339.103 and 339.204. An 
employee's refusal to be examined and provide medical documentation in 
accordance with a proper agency order authorized under this part 
constitutes a basis for appropriate disciplinary or adverse action.


Sec.  339.103  Compliance with disability laws and regulations.

    Actions under this part must be consistent with the Rehabilitation 
Act of 1973, as amended, and the Americans with Disabilities Act (ADA) 
of 1992, as it applies to the Federal government through the 
Rehabilitation Act. In addition, the Equal Employment Opportunity 
Commission (EEOC) has issued regulations covering the equal employment 
provisions of the ADA in 29 CFR part 1630, which must be followed to 
the extent consistent with the Rehabilitation Act. Particularly 
relevant to medical qualification determinations are 29 CFR 1630.2(o) 
(requiring reasonable accommodation of individuals with disabilities); 
29 CFR 1630.10 (prohibiting use of employment criteria that screen out 
individuals with disabilities unless shown to be related to the job in 
question); and 29 CFR 1630.13 (prohibiting pre-employment examination 
or inquiry related to the existence or nature of a disability and pre-
employment medical examination or inquiry of employees, except under 
specified circumstances). In addition, use of the term ``qualified'' in 
this part must be interpreted consistently with 29 CFR 1630.2(m), which 
provides that a ``qualified individual with a disability'' means an 
individual with a disability ``who, with or without reasonable 
accommodation, can perform the essential functions of the position in 
question without endangering the health and safety of the individual or 
others.''


Sec.  339.104  Definitions.

    For purposes of this part--
    Accommodation means reasonable accommodation as described in 29 CFR 
1630.2(o).
    Arduous or hazardous positions means positions that are dangerous 
or physically demanding to such a degree that an employee's medical 
and/or physical condition is necessarily an important consideration in 
determining ability to perform safely and efficiently.
    Medical condition means a health impairment which results from 
birth, injury, or disease, including psychiatric disease.
    Medical documentation or documentation of a medical condition means 
a statement from a licensed physician or other appropriate practitioner 
who provides information the agency considers necessary to enable it to 
make an employment decision. To be acceptable, the diagnosis or 
clinical impression must be justified according to established 
diagnostic criteria and the conclusions and recommendations must not be 
inconsistent with generally accepted professional standards. The 
determination that the diagnosis meets these criteria is made by or in 
coordination with a licensed physician or, if appropriate, a 
practitioner of the same discipline as the one who issued the 
statement. An acceptable diagnosis must include the following 
information, or parts identified by the agency as necessary and 
relevant:
    (1) The history of the medical condition(s), including references 
to findings from previous examinations, treatment, and responses to 
treatment;
    (2) Clinical findings from the most recent medical evaluation, 
including any of the following which have been obtained: Findings of 
physical examination; results of laboratory tests; X-rays; EKG's and 
other special evaluations or diagnostic procedures; and, in the case of 
psychiatric examination or psychological assessment, the findings of a 
mental status examination and the results of psychological tests, if 
appropriate;
    (3) Diagnosis, including the current clinical status;
    (4) Prognosis, including plans for future treatment and an estimate 
of the expected date of full or partial recovery;
    (5) An explanation of the impact of the medical condition(s) on 
overall health and activities, including the basis for any conclusion 
that restrictions or accommodations are or are not warranted, and if 
warranted, an explanation of their therapeutic or risk avoiding value;
    (6) An explanation of the medical basis for any conclusion that 
indicates the likelihood that the individual is or is not expected to 
suffer sudden or subtle incapacitation by carrying out, with or without 
accommodation, the tasks or duties of a specific position; and
    (7) Narrative explanation of the medical basis for any conclusion 
that the medical condition has or has not become static or well-
stabilized and the likelihood that the individual may experience sudden 
or subtle incapacitation as a result of the medical condition. In this 
context, ``static or well-stabilized'' medical condition means a 
medical condition which is not likely to change as a consequence of the 
natural progression of the condition, specifically as a result of the 
normal aging process, or in response to the work environment or the 
work itself.
    Medical evaluation program means a program of recurring medical 
examinations (e.g., age adjusted periodic medical examinations) or 
tests established by written agency policy or directive, to safeguard 
the health of employees whose work may subject them or others to 
significant health or safety risks due to occupational or environmental 
exposure or demands. For example, an agency policy or directive may 
include but is not limited to medical clearances and medical 
surveillance to test for occupational exposure to biological, chemical, 
and/or radiological hazardous agents, occupational diseases, and 
occupational risk.
    Medical restriction is an operative event that limits, modifies, or 
prevents an individual from performing certain physical requirements 
(e.g., lifting, pushing, and standing) because of a particular medical 
condition(s) or physical limitation(s). The purpose of a medical 
restriction is to ensure that the

[[Page 73284]]

medical condition(s) is not aggravated, accelerated, exacerbated, or 
made permanently worse.
    Medical standard is a written description of the medical 
requirements for a particular occupation based on a determination that 
a certain level of fitness or health status is required for successful 
performance.
    Physical fitness standard(s) is a documented and validated 
evaluation of identified essential common duties of similar positions, 
job task simulation scenarios, and results of testing.
    Physical fitness test(s) is a measure of the minimum level of 
physical fitness (e.g., running or lifting) consistent with validated 
physical fitness standards that must be met in order to perform the 
essential duties of the position (e.g. law enforcement or wildland 
firefighter duties that regularly involve dangerous and stressful 
situations and physical hazards).
    Physical requirement is a written description of job-related 
physical abilities which are normally considered essential for 
successful performance in a specific position.
    Physician means a licensed Doctor of Medicine or Doctor of 
Osteopathy, or a physician who is serving on active duty in the 
uniformed services and is designated by the uniformed service to 
conduct examinations under this part.
    Practitioner means a person providing health service(s) who is not 
a medical doctor, but who is certified by a National organization and 
licensed by a State to provide the health service in question.
    Subtle incapacitation means gradual, initially imperceptible 
impairment of physical or mental function whether reversible or not 
which is likely to result in performance or conduct deficiencies.
    Sudden incapacitation means abrupt onset of loss of control of 
physical or mental function(s).

Subpart B--Medical Standards, Physical Requirements, and Medical 
Evaluation Programs


Sec.  339.201  Disqualification by OPM.

    Under subpart C of part 731 of this chapter, OPM may deny an 
applicant examination, deny an eligible appointment, and/or instruct an 
agency to remove an appointee by reason of physical or mental unfitness 
for the position for which he or she has applied, or to which he or she 
has been appointed. An OPM decision under this section is separate and 
distinct from a determination of disability pursuant to statutory 
provisions for CSRS and FERS disability retirement.


Sec.  339.202  Medical standards.

    OPM may establish or approve medical standards for a Governmentwide 
occupation (i.e., an occupation common to more than one agency) or 
approve revisions to its established medical qualification standards. 
An agency may establish medical standards for position(s) that 
predominate in that agency (i.e., where the agency has 50 percent or 
more of the position(s) in a particular occupation). Such standards 
must be justified on the basis that the duties of the position(s) are 
arduous or hazardous, or require a certain level of health status or 
physical fitness because, for reasons including the nature of the 
position(s) involves a high degree of responsibility toward the public 
or sensitive national security concerns. The rationale for establishing 
the standard must be documented. Standards established by OPM or an 
agency must be:
    (a) Established by written directive and uniformly applied, and
    (b) Directly related to the actual requirements of the position.


Sec.  339.203  Physical requirements and physical fitness standards.

    Agencies are authorized to establish physical requirements for 
individual positions without OPM approval when such requirements are 
considered essential for successful job performance. This includes 
development and implementation of validated physical fitness standards 
including but not limited to aerobic capacity. The requirements or 
standards must be clearly supported by the actual duties of the 
position, documented in the position description and by job analysis. 
Applicants and employees cannot be disqualified arbitrarily on the 
basis of physical requirements, fitness tests, or other criteria that 
do not relate specifically to job performance.


Sec.  339.204  Waiver of standards and requirements.

    An agency must waive a medical standard or physical requirement 
established under this part when an applicant or employee unable to 
meet that standard or requirements presents sufficient evidence that he 
or she, with or without reasonable accommodation, can perform the 
essential duties of the position without endangering the health and 
safety of him or herself or others. Additional information obtained by 
the agency may be considered in determining whether a waiver is 
appropriate.


Sec.  339.205  Medical evaluation programs.

    Agencies may establish periodic medical examinations, medical 
surveillance, or immunization programs by written policies or 
directives to safeguard the health of employees whose work may subject 
them or others to significant health or safety risks due to 
occupational or environmental exposure or demands. This may include but 
is not limited to the requirement to undergo mandatory Food and Drug 
Administration approved vaccines (e.g., for national security reasons 
or in order to safely carry out an agency program). The need for a 
medical evaluation program must be clearly supported by the nature of 
the work. The specific positions covered must be identified and the 
applicants or employees notified in writing of the reasons for 
including the positions in the program.


Sec.  339.206  Disqualification on the basis of medical history.

    A candidate may not be disqualified for any position solely on the 
basis of medical history. For positions with medical standards or 
physical requirements, or positions under medical evaluation programs, 
a history of a particular medical condition(s) may result in medical 
disqualification only if the condition(s) at issue is itself 
disqualifying, recurrence is a reasonable probability, and the duties 
of the position are such that a recurrence would pose a reasonable 
probability of substantial harm to the individual or others.

Subpart C--Medical Examinations


Sec.  339.301  Authority to require an examination.

    (a) A routine pre-employment medical examination is appropriate 
only for a position with specific medical standards, physical 
requirements, or validated physical fitness standards, or is covered by 
a medical evaluation program established under this part.
    (b) Subject to Sec.  339.103, an agency may require an individual 
who has applied for or occupies a position which has medical standards, 
physical requirements, physical fitness standards, or is covered by a 
medical evaluation program established under this part, to report for a 
medical examination:
    (1) Prior to appointment or selection (including reemployment on 
the basis of full or partial recovery from a medical condition(s));
    (2) On a regularly recurring, periodic basis after appointment; or
    (3) Whenever there is a direct question about an employee's 
continued capacity to meet the physical or medical or physical fitness 
requirements of a position.

[[Page 73285]]

    (c) An agency may require an employee who has applied for or is 
receiving continuation of pay or compensation as a result of an on-the-
job injury or disease to report for an examination under 5 U.S.C. 8123 
to determine medical limitations that may affect placement decisions.
    (d) An agency may require an employee who is released from his or 
her competitive level in a reduction in force under part 351 of this 
chapter to undergo a relevant medical evaluation if the position to 
which the employee has assignment rights has medical standards or 
physical requirements that are different from those required in the 
employee's current position.
    (e)(1) An agency may order a psychiatric examination (including a 
psychological assessment) only when:
    (i) The result of a current general medical examination that the 
agency has the authority to order under this section indicates no 
physical explanation for behavior or actions that may affect the safe 
and efficient performance of the individual or the safety of others, or
    (ii) A psychiatric examination or psychological assessment is 
specifically called for in a position having medical standards or under 
a medical evaluation program established under this part.
    (2) A psychiatric examination or psychological assessment 
authorized under paragraphs (e)(1)(i) or (ii) of this section must be 
conducted in accordance with accepted professional standards, by a 
licensed physician or practitioner authorized to conduct such 
examinations, and may only be used to make inquiry into a person's 
mental fitness as it directly relates to successfully performing the 
duties of the position without undue hazard to the individual or 
others.


Sec.  339.302  Authority to offer examinations.

    An agency may, at its option, offer a medical examination 
(including a psychiatric examination or psychological assessment) in 
any situation where the agency needs additional medical documentation 
to make an informed management decision. This may include situations 
where an individual requests for medical reasons a change in duty 
status, assignment, working conditions, or any other different 
treatment (including reasonable accommodation or reemployment on the 
basis of full or partial recovery from a medical condition) or where 
the individual has a performance or conduct problem that may require 
agency action. Reasons for offering an examination must be documented. 
An offer of an examination must be carried out and used in accordance 
with 29 CFR 1630.


Sec.  339.303  Examination procedures.

    (a) When an agency orders or offers a medical or psychiatric 
examination or psychological assessment under this subpart, it must 
inform the applicant or employee in writing of its reasons for doing 
so, the consequences of failure to cooperate, and the right to submit 
medical information from his or her personal physician or practitioner. 
A refusal or failure to report for a medical examination ordered by the 
agency may be a basis for the agency to determine that the employee is 
not qualified for the position. A single notification is sufficient to 
cover a series of regularly recurring or periodic examinations ordered 
under this subpart.
    (b) The agency designates the examining physician or other 
appropriate practitioner, but must offer the individual an opportunity 
to submit medical documentation from his or her personal physician or 
practitioner. The agency must review and consider all such 
documentation supplied by the individual's personal physician or 
practitioner.


Sec.  339.304  Payment for examination.

    Agencies must pay for all examinations ordered or offered under 
this subpart, whether conducted by the agency's physician or the 
applicant's or employee's own physician or practitioner. This includes 
special evaluations or diagnostic procedures required by an agency. 
Applicants and employees must pay for a medical examination conducted 
by his or her own physician or practitioner where the purpose of the 
examination is to secure a change sought by an employee (e.g., a 
request for change in duty status, reasonable accommodation, and job 
modification).


Sec.  339.305  Records and reports.

    (a) Agencies will receive and maintain all medical documentation 
and records of examinations obtained under this part in accordance with 
part 293, subpart E of this chapter.
    (b) The report of an examination conducted under this subpart must 
be made available to the applicant or employee under the provisions of 
part 297 of this chapter.
    (c) Agencies must forward to the Office of Workers' Compensation 
Programs (OWCP), Employment Standards Administration, Department of 
Labor, a copy of all medical documentation and reports of examinations 
of individuals who are receiving or have applied for injury 
compensation benefits under 5 U.S.C. 81, including continuation of pay. 
The agency must also report to the OWCP the failure of such individuals 
to report for examinations that the agency orders under this subpart. 
When the individual has applied for disability retirement, this 
information and any medical documentation or reports of examination 
must be forwarded to OPM.


Sec.  339.306  Processing medical eligibility determinations.

    (a) In accordance with the provisions of this part, agencies are 
authorized to medically disqualify a nonpreference eligible. A 
nonpreference eligible so disqualified has a right to a higher level 
review of the determination within the agency.
    (b) OPM must approve the sufficiency of the agency's reasons to:
    (1) Medically disqualify or pass over a preference eligible in 
order to select a nonpreference eligible for:
    (A) competitive service positions under part 332 of this chapter; 
and
    (B) excepted service positions in the executive branch subject to 
title 5, U.S.C. by statute or executive order;
    (2) Medically disqualify or pass over a 30 percent or more 
compensably disabled veteran for a position in the U.S. Postal Service 
in favor of a nonpreference eligible;
    (3) Medically disqualify a 30 percent or more compensably disabled 
veteran for assignment to another position in a reduction in force 
under Sec.  351.702(d) of this chapter; or
    (4) Medically disqualify a 30 percent or more disabled veteran for 
noncompetitive appointment, for example, under Sec.  316.302(b)(4) of 
this chapter.

 [FR Doc. E7-25108 Filed 12-26-07; 8:45 am]
BILLING CODE 6325-39-P