[Federal Register Volume 81, Number 36 (Wednesday, February 24, 2016)]
[Proposed Rules]
[Pages 9123-9139]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-03530]
[[Page 9123]]
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EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
29 CFR Part 1614
RIN 3046-AA94
Affirmative Action for Individuals With Disabilities in the
Federal Government
AGENCY: Equal Employment Opportunity Commission.
ACTION: Proposed rule.
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SUMMARY: The Equal Employment Opportunity Commission (``EEOC'' or
``Commission'') proposes to amend its regulations requiring the federal
government to engage in affirmative action for individuals with
disabilities. These changes will clarify the obligations that the
Rehabilitation Act of 1973 imposes on federal agencies as employers, in
addition to the obligation not to discriminate on the basis of
disability. An initial economic analysis indicates that the regulations
will have a moderate economic impact of less than $100 million per year
on federal agencies. Because the proposed regulation does not apply to
the private sector, it will have no impact, economic or otherwise, on
private businesses.
DATES: Submit comments on or before April 25, 2016.
ADDRESSES: You may submit comments, identified by RIN 3046-AA94, by any
of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Fax: (202) 663-4114. (There is no toll free FAX number.)
Only comments of six or fewer pages will be accepted via FAX
transmittal, in order to assure access to the equipment. Receipt of FAX
transmittals will not be acknowledged, except that the sender may
request confirmation of receipt by calling the Executive Secretariat
staff at (202) 663-4070 (voice) or (202) 663-4074 (TTY). (These are not
toll free numbers.)
Mail: Bernadette Wilson, Executive Officer, Executive
Secretariat, Equal Employment Opportunity Commission, U.S. Equal
Employment Opportunity Commission, 131 M Street NE., Washington, DC
20507.
Hand Delivery/Courier: Bernadette Wilson, Executive
Officer, Executive Secretariat, Equal Employment Opportunity
Commission, U.S. Equal Employment Opportunity Commission, 131 M Street
NE., Washington, DC 20507.
Instructions: The Commission invites comments on the proposed
changes from all interested parties. All comment submissions must
include the agency name and docket number or the Regulatory Information
Number (RIN) for this rulemaking. Comments need be submitted in only
one of the above-listed formats. All comments received will be posted
without change to http://www.regulations.gov, including any personal
information you provide.
Docket: For access to the docket to read background documents or
comments received, go to http://www.regulations.gov. Copies of the
received comments also will be available for inspection in the EEOC
Library, FOIA Reading Room, by advanced appointment only, from 9 a.m.
to 5 p.m., Monday through Friday except legal holidays, from April 25,
2016 until the Commission publishes the rule in final form. Persons who
schedule an appointment in the EEOC Library, FOIA Reading Room, and
need assistance to view the comments will be provided with appropriate
aids upon request, such as readers or print magnifiers. To schedule an
appointment to inspect the comments at the EEOC Library, FOIA Reading
Room, contact the EEOC Library by calling (202) 663-4630 (voice) or
(202) 663-4641 (TTY). (These are not toll free numbers.)
FOR FURTHER INFORMATION CONTACT: Christopher Kuczynski, Assistant Legal
Counsel, (202) 663-4665, or Aaron Konopasky, Senior Attorney-Advisor,
(202) 663-4127 (voice), or (202) 663-7026 (TTY), Office of Legal
Counsel, U.S. Equal Employment Opportunity Commission. (These are not
toll free numbers.) Requests for this document in an alternative format
should be made to the Office of Communications and Legislative Affairs
at (202) 663-4191 (voice) or (202) 663-4494 (TTY).
SUPPLEMENTARY INFORMATION:
Executive Summary
This Notice of Proposed Rulemaking (``NPRM'') proposes to amend 29
CFR 1614.203 to clarify the affirmative action obligations that Section
501 of the Rehabilitation Act of 1973 (``Section 501'') \1\ imposes on
federal agencies \2\ as employers. It codifies a variety of obligations
currently placed on federal agencies by management directives and
Executive Orders, and adds three substantive affirmative action
requirements: (1) Agencies must meet goals set by the EEOC, rather than
by the agencies themselves as currently required, for employment of
people who have disabilities as defined under Section 501; (2) agencies
must meet sub-goals set by the EEOC, rather than by the agencies
themselves as currently required, for the employment of people with
targeted/severe (hereinafter ``targeted'') disabilities as defined by
the Office of Personnel Management's (``OPM's'') Standard Form 256
(``SF-256''); \3\ and (3) agencies must provide personal assistants to
employees who, because of disabilities, require such assistance in
order to be at work or participate in work-related travel, unless the
provision of such services would impose an undue hardship on the
agency. The rule would not have retroactive effect.
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\1\ 29 U.S.C. 791.
\2\ Section 501 applies to ``each department, agency, and
instrumentality (including the United States Postal Service and the
Postal Regulatory Commission) in the executive branch and the
Smithsonian Institution.'' 29 U.S.C. 791(b). For convenience, this
Notice uses the term ``federal agency'' or ``agency'' to mean any
federal entity covered by Section 501.
\3\ Office of Pers. Mgmt., Standard Form 256 (revised July,
2010), available at http://www.opm.gov/forms/pdf_fill/sf256.pdf. The
term ``targeted disability'' was first officially recognized by the
EEOC in MD-703, which was approved on December 6, 1979. Equal Emp't
Opportunity Comm'n, Improving the Participation Rate of People with
Targeted Disabilities in the Federal Workforce 4 (Jan., 2008),
available at http://www.eeoc.gov/federal/reports/pwtd.pdf.
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An initial economic analysis indicates that the proposed regulation
may have a one-time initial cost to the federal government of
approximately $90,448.20; an annual cost to the federal government of
between $11,601,562.56 and $58,732,303.77; and an annual economic
benefit to the federal government of between $3,514,752.00 and
$6,397.947.00. The rule is also expected to have a variety of non-
monetizable qualitative and dignitary benefits for individuals with
disabilities and individuals with targeted disabilities.
Background
Section 501 requires federal agencies to establish an affirmative
action program for the hiring, placement, and advancement of
individuals with disabilities.\4\ The affirmative action requirement in
Section 501 imposes two distinct obligations on federal agencies.
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\4\ See 29 U.S.C. 791(b).
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First, affirmative action requires that agencies not discriminate
against individuals with disabilities. Section 501 provides that the
standards used to determine whether a federal agency has discriminated
against an individual with a disability ``shall be the standards
applied under title I of the Americans with Disabilities Act of 1990 .
. . and the provisions of sections 501 through 504, and 510, of the
Americans with Disabilities Act of 1990 . . . as such sections relate
to employment.'' \5\ EEOC
[[Page 9124]]
regulations provide substantial guidance on these standards at 29 CFR
part 1630. Additional guidance is provided in the many Section 501
discrimination cases decided by the Commission each year. These
decisions are published on the EEOC's Web site, and significant
decisions are compiled in a publicly available digest maintained by the
Commission's Office of Federal Operations.\6\ This rule does not change
any of the substantive nondiscrimination requirements that currently
apply in the federal sector, as set forth in EEOC's regulations and
cases.
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\5\ 29 U.S.C. 791(g).
\6\ See Digest of Equal Employment Opportunity Law, Equal Emp't
Opportunity Comm'n, http://www.eeoc.gov/federal/digest/index.cfm
(last visited July 23, 2015).
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Second, affirmative action requires each federal agency to
maintain, update annually, and submit to the Commission an
``affirmative action program plan for the hiring, placement, and
advancement of individuals with disabilities,'' and further directs the
Commission to approve a plan if ``the Commission determines . . . that
such plan provides sufficient assurances, procedures and commitments to
provide adequate hiring, placement, and advancement opportunities for
individuals with disabilities.'' \7\
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\7\ 29 U.S.C. 791(b).
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The regulations currently implementing this Section 501 requirement
simply state that the federal government shall be a ``model employer of
individuals with disabilities,'' and instruct federal agencies to
``give full consideration to the hiring, placement, and advancement of
qualified individuals with disabilities.'' \8\ Over the years, however,
the EEOC has issued various Management Directives to provide guidance
on how an agency's affirmative action plan (``Plan'') should result in
the federal government being a model employer of individuals with
disabilities. In addition, several Executive Orders have been issued,
setting numerical objectives for hiring by the federal government of
individuals with disabilities, to support the goals of Section 501 of
the Rehabilitation Act.
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\8\ 29 CFR 1614.203(a).
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In 1987, the Commission issued Management Directive 713, setting
the standards by which the Commission would judge an agency's Plan with
regard to the hiring of people with disabilities.\9\ Management-
Directive 713 required agencies with 1,000 or more employees to
establish specific numerical objectives (goals) for employment of
people with targeted disabilities, and to report the number of people
with targeted disabilities employed by the agency.\10\
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\9\ Equal Emp't Opportunity Comm'n, Management Directive 713,
1987 WL 768434 (Oct. 3, 1987).
\10\ EEO Management Directive 712 (MD-712) preceded MD-713 by
four years. MD-712 created documentation requirements for agencies'
affirmative action plans, but did not include reporting
requirements. MD-712 required agencies to focus on the employment of
individuals with targeted disabilities; included detailed
requirements for program administration and management, including
staffing commitments and responsibilities; and required agencies
with more than 1,000 employees to establish objectives for hiring
people with targeted disabilities. Equal Emp't Opportunity Comm'n,
Management Directive 712, 1983 WL 410824 (March 29, 1983). For a
general history of the EEOC's Management Directives, see Office of
Fed. Operations, Equal Emp't Opportunity Comm'n, A Look at the
EEOC's Office of Federal Operation's Federal Sector Programs: Past,
Present, and Future, Dig. of EEO L., Winter 2008, available at
http://www.eeoc.gov/federal/digest/xix-1.cfm.
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In 2003, the EEOC issued Management Directive 715 (``MD-715''),
which superseded MD-713.\11\ Part B of MD-715 provides detailed
standards by which the Commission judges an agency's affirmative action
plan with regard to the hiring of people with disabilities. MD-715
reaffirms that affirmative action includes a nondiscrimination
component and that the standards of the Americans with Disabilities Act
(``ADA'') govern the nondiscrimination requirements of Section 501.\12\
MD-715 also reaffirms that not discriminating against people with
disabilities does not exhaust an agency's affirmative action obligation
to hire and advance people with disabilities. MD-715 requires agencies
``to conduct an internal review and analysis of the effects of all
current and proposed policies, practices, procedures and conditions
that, directly or indirectly, relate to the employment of individuals
with disabilities'' and to ``collect and evaluate information and data
necessary to make an informed assessment about the extent to which the
agency is meeting its responsibility to provide employment
opportunities for qualified applicants and employees with disabilities,
especially those with targeted disabilities.'' \13\ MD-715 also
requires agencies to have written procedures for providing reasonable
accommodations, including the amount of time decision makers have to
answer reasonable accommodation requests.\14\ Finally, MD-715
reinforces the requirement from MD-713 that agencies with 1,000 or more
employees are required ``to maintain a special recruitment program for
individuals with targeted disabilities and to establish specific goals
for the employment and advancement of such individuals,'' and to report
the numbers of employees with targeted disabilities to the EEOC.\15\
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\11\ Equal Emp't Opportunity Comm'n, Management Directive 715
(Oct 1, 2003), available at http://www.eeoc.gov/federal/directives/md715.cfm.
\12\ Id. at B.II.
\13\ Id. at B.III.
\14\ Id. at B.V.
\15\ Id. at B.V.
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In addition to MD-715, there are a number of Executive Orders, as
well as guidance and policy documents implementing such Executive
Orders, that overlap with MD-715 and guide the affirmative action
efforts of federal agencies with regard to the hiring and advancement
of people with disabilities.
President Bill Clinton issued Executive Order 13163 on July 26,
2000 ``to support the goals articulated in section 501 of the
Rehabilitation Act of 1973.'' \16\ Under this Executive Order, each
federal agency was required to prepare a plan to increase the
opportunities for individuals with disabilities to be employed in the
agency, and to submit the plan to OPM within 60 days from the date of
the order. The Executive Order stated that ``based on current hiring
patterns and anticipated increases from expanded outreach efforts and
appropriate accommodations, the Federal Government, over the next 5
years, will be able to hire 100,000 qualified individuals with
disabilities.'' \17\ The same day, President Clinton issued Executive
Order 13164, requiring federal agencies to establish written reasonable
accommodation procedures, with a series of detailed requirements to be
included in those written procedures.\18\ Shortly thereafter, the EEOC
issued Policy Guidance On Executive Order 13164: Establishing
Procedures To Facilitate The Provision Of Reasonable Accommodation.\19\
In 2005, the EEOC issued additional guidance providing agencies with
detailed practical advice for drafting and implementing reasonable
accommodation procedures under Executive Order 13164.\20\ And in 2008,
[[Page 9125]]
the Commission issued an extensive manual on promoting the employment
of individuals with disabilities in the federal workforce.\21\
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\16\ See Executive Order No. 13163, 3 CFR 285 (2001), available
at http://www.gpo.gov/fdsys/pkg/FR-2000-07-28/pdf/00-19322.pdf.
\17\ Id.
\18\ 3 CFR 286 (2001), available at http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=2000_register&docid=fr28jy00-140.pdf.
\19\ Equal Emp't Opportunity Comm'n, Policy Guidance On
Executive Order 13164: Establishing Procedures To Facilitate The
Provision Of Reasonable Accommodation (last modified Oct. 19, 2000),
available at http://www.eeoc.gov/policy/docs/qanda-accommodation_procedures.html.
\20\ Equal Emp't Opportunity Comm'n, Practical Advice on
Drafting and Implementing Reasonable Accommodation Procedures under
Executive Order 13164, (July 2005), available at http://www.eeoc.gov/policy/docs/implementing_accommodation.pdf.
\21\ Equal Emp't Opportunity Comm'n, Questions and Answers:
Promoting Employment of Individuals with Disabilities in the Federal
Workforce (n.d.), available at http://eeoc.gov/federal/qanda-employment-with-disabilities.cfm.
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In July 2010, President Barack Obama issued Executive Order 13548,
again setting a goal of having the federal government hire 100,000
persons with disabilities within five years.\22\ The Executive Order
requires agencies to set agency-specific hiring goals for persons with
disabilities as defined under Section 501 and sub-goals for persons
with targeted disabilities as defined by SF-256, and to report those
goals to the OPM. Again, policy and guidance documents were developed
pursuant to this Executive Order.\23\
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\22\ Executive Order No. 13548, 3 CFR 168 (2010), available at
http://www.gpo.gov/fdsys/pkg/FR-2010-07-30/pdf/2010-18988.pdf.
\23\ Office of Pers. Mgmt., Model Strategies for Recruitment and
Hiring of People with Disabilities (Nov. 8, 2010), available at
https://www.chcoc.gov/content/model-strategies-recruitment-and-hiring-people-disabilities-required-under-executive-order. This
guidance document was developed in consultation with the White
House, the Department of Labor, and the EEOC.
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On May 15, 2014, the Commission published an Advance Notice of
Proposed Rulemaking (``ANPRM'') requesting public comment on specific
inquiries regarding potential ways to strengthen its Section 501
affirmative action regulations.\24\ The comment period ended July 14,
2014, and all comments received have been reviewed and given due
consideration. The comments are available for review at the Federal
eRulemaking Portal at http://www.regulations.gov.
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\24\ The Federal Sector's Obligation to Be a Model Employer of
Individuals with Disabilities, 79 FR 27.824 (May 15, 2014) (to be
codified at 29 CFR 1614.203).
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A total of 89 comments were received,\25\ representing the views of
53 individuals, 49 advocacy groups, 10 government entities including
state governments and branches of the military, 5 businesses, 2 lawyers
or lawyers associations, 1 institution of higher learning, and 1 union
representative.
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\25\ In addition to the 89 comments, the Commission received
several duplicate comments.
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Of the 89 comments, 80 were generally supportive of the
Commission's proposal to amend its Section 501 regulations and included
at least one suggestion for what should be included in the rule. Only 2
of the comments were generally negative (1 from an individual and 1
from a government entity), and 7 were nonresponsive (6 from
individuals, and 1 from an advocacy group).
This NPRM proposes to amend 29 CFR 1614.203 to update, clarify, and
put in one place the standards the Commission will use to review and
approve affirmative action plans developed by agencies pursuant to
Section 501. The proposed rule was informed and significantly shaped by
all of the comments received. Following final promulgation of this
regulation, EEOC will reconcile this regulation's reporting
requirements with existing obligations under MD-715 to ensure that
agencies do not engage in duplicative efforts and reporting. The rule
would not have retroactive effect.
The NPRM also modifies the goals for hiring people with
disabilities in the federal government that are currently set forth by
MD-715 and Executive Order 13548 in one respect: The proposed rule
would require agencies to take specific steps that are reasonably
designed to gradually increase the number of employees with
disabilities as defined under Section 501, and the number of employees
with targeted disabilities as defined in SF-256, until they meet
specific goals set by the EEOC. This is consistent with the approach
taken by the Department of Labor in regulations issued to implement the
obligation of federal contractors pursuant to Section 503 of the
Rehabilitation Act of 1973.\26\
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\26\ The Section 503 regulations establish a 7% utilization goal
for employment of qualified individuals with disabilities for the
contractor's entire workforce or each job group in the contractor's
workforce. See 41 CFR 60-741.45(a).
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Finally, the NPRM adds a requirement that an agency's Plan include
the provision of personal assistants to employees who, because of their
disabilities, require such assistance in order to be at work or go on
work-related travel. Personal assistance services (PAS) assist
employees with disabilities with eating, drinking, using the restroom,
and putting on and taking off clothing as needed to allow them to
participate in the workforce. Such services do not, however, include
medical care, and do not have to be provided by someone who has medical
training or qualifications.
For many individuals with targeted disabilities, such as paralysis
or cerebral palsy, full participation in the workplace is impossible
without such services. Lack of PAS in the workplace and/or the fear of
losing PAS provided by means-tested assistance programs are stubborn
and persistent barriers to employment for individuals with certain
significant disabilities. Although providing an additional person to
assist an employee with a disability to perform his or her job duties
may fall under an agency's nondiscrimination obligation to provide a
reasonable accommodation (for example, hiring a sign language
interpreter), an agency is not required to hire a personal assistant to
perform PAS as part of its reasonable accommodation obligation. The
NPRM therefore places this obligation on agencies through the
affirmative action requirement of Section 501.
However, the Commission has determined that the requirement to
provide PAS should be subject to an undue hardship defense, the same
limitation on the obligation to provide reasonable accommodations as a
matter of nondiscrimination.\27\ The defense ensures that agencies will
not be required to provide PAS if doing so would involve significant
cost relative to the available resources, or significant disruption of
the agency's functions.
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\27\ See 29 CFR 1630.15(d); part 1630, app. 1630.15(d).
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Each requirement of the proposed rule is discussed in the detailed
Section-by-Section Analysis below, and relevant comments are discussed
within each section.
Section-by-Section Analysis
1614.203(a) Definitions
Paragraph (a) of the proposed rule provides definitions of key
terms. None of the definitions are novel. Many of the defined terms are
simple abbreviations: (a)(1) Provides that ``ADA'' refers to those
portions of the ADA that are enforced by the Commission; \28\ (a)(4)
provides that ``Plan'' refers to an agency's affirmative action plan,
as required under 29 U.S.C. 791(b); (a)(5) provides that ``Schedule A
hiring authority for persons with certain disabilities'' refers to the
hiring authority for individuals with intellectual disabilities, severe
physical disabilities, and psychiatric disabilities, as set forth at 5
CFR 213.3102(u); and (a)(6) provides that ``Section 501'' means Section
501 of the Rehabilitation Act, codified at 29 U.S.C. 791.
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\28\ These are title I of the ADA, 42 U.S.C. 12101 through
12117, and title V of the ADA, 42 U.S.C. 12201 through 12213, as it
applies to employment.
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Paragraph (a)(2) clarifies that, for purposes of the regulation,
``disability'' has the same meaning that it does under the ADA and
Section 501.\29\ As amended by the ADA Amendments Act
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of 2008 (``ADAAA''),\30\ and implemented by the Commission's
regulations at 29 CFR part 1630, the term ``disability'' is construed
broadly and includes a wide range of medical conditions.\31\
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\29\ See 42 U.S.C. 12102; 29 CFR 1630.2, .3; 29 CFR part 1630,
app. 1630.2, .3. The Rehabilitation Act incorporates the ADA
definition of ``disability.'' 29 U.S.C. 794(d).
\30\ ADA Amendments Act of 2008, Pub. L. 110-325, 122 Stat. 3553
(codified as amended in scattered sections of 29 U.S.C. and 42
U.S.C.).
\31\ For a discussion of the ADAAA's definition of
``disability,'' see, for example, Equal Emp't Opportunity Comm'n,
Questions and Answers on the Final Rule Implementing the ADA
Amendments Act of 2008 (n.d.), available at http://www.eeoc.gov/laws/regulations/ada_qa_final_rule.cfm.
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Paragraph (a)(3) provides that the term ``hiring authority that
takes disability into account'' means any hiring authority that permits
an agency to consider disability status in the selection of individuals
for employment, and provides examples of such, including the Section A
hiring authority for persons with certain disabilities; the Veterans'
Recruitment Appointment authority, as set forth at 5 CFR part 307; and
the 30% or More Disabled Veteran authority, as set forth at 5 CFR
316.302(b)(4), 316.402(b)(4).
Paragraph (a)(7) defines the term ``targeted/severe disability'' to
mean a disability specifically designated as ``targeted/severe'' in SF-
256. Under the definitions set forth in this paragraph, the term
``targeted disabilities'' is defined more narrowly than
``disabilities''; individuals with targeted disabilities are a subset
of individuals who have disabilities as defined under Section 501.
Paragraph (a)(8) defines ``undue hardship'' as having the same
meaning as set forth in 29 CFR part 1630.
1614.203(b) Nondiscrimination
This paragraph states that Section 501 prohibits disability
discrimination in employment, and that the standards used to determine
whether an agency has violated the prohibition against discrimination
are those applied under the ADA. The paragraph reminds agencies that
discrimination on the basis of disability is prohibited in all aspects
of employment, including hiring, advancement or discharge of employees,
employee compensation, job training, and other terms, conditions, and
privileges of employment.
1614.203(c) Model Employer
This paragraph is taken directly from 29 CFR 1614.203(a) of the
existing regulations. Other than redesignating the paragraph as
1614.203(c), the proposed rule makes no changes to the paragraph.
1614.203(d) Affirmative Action Plan
This paragraph sets forth the requirements that an agency's
affirmative action plan must meet in order to provide ``sufficient
assurances, procedures, and commitments to provide adequate hiring,
placement, and advancement opportunities for individuals with
disabilities.'' \32\ Each requirement is discussed in detail below.
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\32\ 29 U.S.C. 791(b).
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1614.203(d)(1) Disability Hiring and Advancement Program
A strong majority of commenters stated that the rule should require
agencies to improve their outreach and recruitment efforts. Many of
these commenters made specific suggestions, for example, that agencies
should be required to develop programs and resources that may be used
to identify qualified job applicants with disabilities who may be hired
using the Schedule A hiring authority for persons with certain
disabilities before a position is advertised, or establish and maintain
contacts with disability organizations. Paragraph (d)(1)(i)
incorporates these suggestions, and provides examples of ways in which
an agency could meet this requirement.\33\
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\33\ Many suggestions offered by commenters track the current
requirements of MD-715. The preamble does not note each time a
section of the NPRM repeats a requirement currently placed on
agencies by MD-715.
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A large number of commenters stated that the rule should require
federal agencies to make certain information available to job
applicants and potential job applicants with disabilities, including
information about how to request a reasonable accommodation and how to
apply for appointment to a position under noncompetitive disability-
related hiring authorities. Paragraph (d)(1)(ii) addresses this
concern. It also requires agencies to ensure there is appropriate staff
to respond to all disability-related issues relating to the application
and placement processes, including questions about reasonable
accommodation and appointment under hiring authorities that take
disability into account.
Paragraph (d)(1) also addresses the common concern that hiring
officials should be given accurate information regarding reasonable
accommodation and the appropriate use of hiring authorities that take
disability into account. The paragraph requires that the agency provide
necessary reasonable accommodations to job applicants with
disabilities; accept applications for appointment under hiring
authorities that take disability into account; determine eligibility
for such appointment; forward applications from eligible individuals to
the relevant hiring managers, and ensure that these managers know how
and when they may appoint such individuals, consistent with all
applicable laws.
Many commenters stated that agencies should be required to develop
and implement advancement programs for current employees with
disabilities, for example by taking steps to ensure that employees with
disabilities are enrolled in management training when eligible;
developing a mentoring program for employees with disabilities; or
administering exit interviews that include questions on how the agency
could improve the recruitment, hiring, inclusion, and advancement of
individuals with disabilities. Paragraph (d)(1)(iv) adopts this
suggestion.
Some common suggestions were not incorporated into the rule,
however. The proposed rule does not modify the competitive service
hiring process by, for example, awarding additional ``points'' to
candidates with disabilities, adopting preferences, reserving certain
positions for individuals with disabilities, or requiring agencies to
interview all qualified candidates with disabilities.\34\ The rule also
does not require agencies to provide mandatory training to supervisors
and hiring officials, to incorporate equal employment opportunity and
affirmative action principles into supervisors' and hiring officials'
performance reviews, or to take disciplinary action against employees
who have engaged in discrimination, because these issues are already
addressed elsewhere by Commission regulations.\35\
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\34\ The competitive hiring process is governed by OPM
regulations.
\35\ See 29 CFR 1614.102(a)(5), (6), (9).
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1614.203(d)(2) Disability Anti-Harassment Policy
Some commenters stated that agencies should be required to state
specifically in their anti-harassment policies that harassment based on
disability is prohibited. This paragraph adopts this suggestion.
1614.203(d)(3) Reasonable Accommodation
Many commenters stated that agencies should be required to have
written reasonable accommodation procedures. Executive Order 13164 has
required agencies to have such
[[Page 9127]]
procedures since 2000,\36\ and MD-715, as updated in 2003, includes
this requirement as well.\37\ The Commission has made this requirement
part of the proposed rule. The paragraph also adopts several
commenters' suggestions for what should be included in the written
procedures, many of which are similar to components of reasonable
accommodation procedures described in Executive Order 13164 and MD-715.
They include a statement that expedited processing and interim
accommodations will be provided when possible; instructions for
managers on how to recognize and report requests for reasonable
accommodation; an explanation of the applicable confidentiality
requirements; processing deadlines; information on how to challenge a
denial under the federal equal employment opportunity complaint
process; and a statement that requestors will be notified of the basis
for a denial. The notification requirement is incorporated into the
rule at (d)(3)(iii).
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\36\ Executive Order No. 13164, supra note 18; see also Policy
Guidance On Executive Order 13164, supra note 12.
\37\ See Management Directive 715, supra note 11, at B.V.
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Some commenters stated that the rule should require agencies to
establish a ``centralized fund'' to pay for required reasonable
accommodations. The purpose of the suggested requirement is to ensure
that sufficient funds are available for more costly accommodations,
when necessary. Under MD-715, agencies are asked to report whether they
use a centralized fund for purposes of providing reasonable
accommodations across the agency.\38\ However, in the Commission's
judgment, mandating this requirement as part of an agency's affirmative
action obligation raises too many practical concerns as to the precise
manner in which appropriated funds are to be held, requested, and
disbursed within the agency. Additionally, centralized funding is not a
complete solution--problems remain if the fund is too small, or if
relevant decision-makers within the agency are unaware of the fund's
existence or of the means of accessing it.
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\38\ Equal Emp't Opportunity Comm'n, Instructions to Federal
Agencies for EEO MD-715 I (last updated July 20, 2004), available at
http://www.eeoc.gov/federal/directives/715instruct/section1.html
(``The Model EEO Program and Agency Self-Assessment Checklist'').
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Paragraph (d)(3)(ii) addresses the commenters' underlying concerns
by requiring agencies to inform all employees who are authorized to
grant or deny requests for reasonable accommodation that, under the
``undue hardship'' standard set forth by Section 501's
nondiscrimination requirement, all available resources are considered
when determining whether a denial of reasonable accommodation based on
cost is appropriate. In addition, the agency should ensure that
relevant decision-makers are informed about various external resources
that may be used to fund reasonable accommodations, including, for
example, a centralized fund specifically created by the agency for
providing reasonable accommodations, the Department of Defense Computer
and Electronic Accommodations Program (``CAP''),\39\ and agency funds
that, although not designated specifically for providing reasonable
accommodations, may be used for that purpose.
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\39\ See generally Computer/Electronic Accommodations Program,
http://www.cap.mil (last visited Aug. 3, 2015).
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Other commenters stated that the rule should place further
restrictions, in addition to those that already apply under 29 CFR part
1630, on the amount of medical information an agency may request to
support a request for reasonable accommodation. Under current anti-
discrimination standards, an agency cannot require supporting medical
documentation if the existence of a disability and the need for
accommodation are obvious, and can require no more than is necessary to
establish the existence of a disability and the need for
accommodation.\40\ Because additional restrictions would deny agencies
documentation necessary to establish disability and the need for
accommodation, no additional restrictions have been adopted in the
proposed rule.
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\40\ See, e.g., Policy Guidance On Executive Order 13164, supra
note 19.
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1614.203(d)(4) Accessibility of Facilities and Technology
Many commenters stated that greater compliance with Section 508 of
the Rehabilitation Act (``Section 508'') \41\ and the Architectural
Barriers Act of 1968 (``ABA'') \42\ would improve the hiring,
retention, inclusion, and advancement of individuals with disabilities.
Section 508 requires all electronic and information technology
purchased, maintained, or used by the agency to be accessible to people
with disabilities, and the ABA requires the agency to ensure that its
facilities are physically accessible to people with disabilities. Many
of these commenters suggested more specifically that the Commission
should issue or amend implementing regulations for these laws, or
otherwise strengthen their enforcement.
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\41\ 29 U.S.C. 794d.
\42\ 42 U.S.C. 4151-4157.
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The Commission has not been given authority by Congress to issue or
amend substantive regulations implementing Section 508 or the ABA, or
to engage in or strengthen federal agencies' enforcement of those
laws.\43\ The Commission therefore cannot include in the proposed rule
any provisions that implement or enforce these laws.
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\43\ Rulemaking authority for Section 508 and the ABA belongs to
the Architectural and Transportation Barriers Compliance Board
(``Access Board''). See 29 U.S.C. 792(b), 794d(a)(2). The Access
Board also enforces the ABA. See 29 U.S.C. 792(e). Enforcement of
Section 508 is accomplished by filing a complaint with the allegedly
noncompliant agency. See 29 U.S.C. 794d(f).
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However, paragraph (d)(4) is intended to ensure that federal
employees with disabilities have the information they need to utilize
existing enforcement and compliance mechanisms. The paragraph requires
agencies to provide all employees with contact information for the
employees inside the agency who are responsible for ensuring compliance
with these laws, and with clear instructions on how to file complaints
under existing rules. It also requires agencies to assist employees in
filing a complaint with another federal agency, where investigation
shows that such other entity is responsible for the alleged violation.
1614.203(d)(5) Personal Services Allowing Employees To Participate in
the Workplace
Personal services allowing employees to participate in the
workplace may include assistance with eating, drinking, using the
restroom, and putting on and taking off clothing. For many individuals
with targeted disabilities such as paralysis or cerebral palsy, full
participation in the workplace is impossible without such services. The
lack of PAS in the workplace and/or the fear of losing personal
services provided by means-tested assistance programs are stubborn and
persistent barriers to employment for individuals with certain
significant disabilities.
The nondiscrimination standards set forth under the ADA in 29 CFR
part 1630, and incorporated into Section 501, already require agencies
to provide certain job-related services to an individual with a
disability as a reasonable accommodation if doing so enables the
individual to apply for a job, perform job functions, or enjoy the
benefits and privileges of employment, so long as the provision of such
services does not impose an undue hardship on the agency. For example,
an agency may be required to provide sign language
[[Page 9128]]
interpreter services, assistance with note taking or photocopying, or
use of a job coach as reasonable accommodations, absent undue hardship.
The provision of other personal services needed on the job,
however, such as assistance with eating or using the restroom, is not
considered a reasonable accommodation under the ADA, and therefore is
not considered a reasonable accommodation for purposes of the
nondiscrimination requirements of Section 501.\44\ A number of
commenters stated that agencies should, however, be required to provide
PAS to individuals who need them because of a disability as part of the
agencies' affirmative action obligations under Section 501. We adopt
this suggestion at paragraph (d)(5). We note that several federal
agencies currently provide PAS on a voluntary basis and have been doing
so for several decades.\45\
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\44\ See 29 CFR part 1630, app. 1630.9.
\45\ The Commission provides personal assistant services to
employees with disabilities who require them. The Department of
Labor, the Department of Transportation, and the Department of
Justice's Civil Rights Division also provide workplace PAS for
employees with disabilities. See Department of Labor statement of
work on providing personal assistance services as a reasonable
accommodation for qualified Department of Labor employees with
disabilities (2014) (on file with the Commission); Dep't of Transp.,
Disability Resource Center Services Handbook (Nov. 2014), available
at http://www.transportation.gov/individuals/disability/disability-resource-center-drc-services-handbook (providing guidance to the
Department of Transportation on meeting its obligations regarding
the retention and promotion of individuals with disabilities by
providing personal assistance and other services); Civil Rights
Div., U.S. Dep't of Justice, Reasonable Accommodation Manual A.2.5
(n.d.) (on file with the Commission) (providing that the Civil
Rights Division will provide part-time personal care attendants at
work or on official travel when necessary and otherwise reasonable).
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Paragraph (d)(5) also clarifies that agencies can fulfill the PAS
requirement by hiring persons who perform both PAS and additional
tasks, including provision of professional services and other duties,
as time permits. The agency can also require a person hired as a
personal assistant to perform PAS for more than one individual with a
disability. Thus, an agency might be able to satisfy this requirement
by, for example, hiring a pool of personal assistants (either solely
for assistance tasks or for assistance tasks and other professional
services) throughout the agency or at a particular location.\46\ The
pool hiring approach would be consistent with how many agencies
currently address sign language interpreter needs. Whether this
approach is feasible will depend on the particular services required
and other relevant facts.
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\46\ The Department of Labor provides personal assistance
services to qualified headquarter employees in this manner. A
contractor provides and manages a pool of qualified personnel to
provide personal assistance services to approximately 10 employees.
Personal assistance tasks include assistance with general office
tasks (filing, copying and collating, note taking, etc.), assistance
with transportation and travel management (excluding driving, but
including overnight travel), assistance with evacuation during
emergencies, assistance with personal care related needs on the job
(removing or putting on coats, eating lunch, and taking bathroom
breaks), assistance with computer technology, when appropriate, and
reading services for visually impaired employees. Department of
Labor statement of work, supra note 49.
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1614.203(d)(6) and 1614.203(d)(7) Utilization Analysis and Goals
A majority of commenters stated that agencies should be required to
adopt employment goals for individuals with disabilities. Some
commenters also stated that agencies should be required to adopt
separate goals for individuals with disabilities in the higher ranks of
the civil service.
Since 1987, federal agencies have been required by the EEOC to set
numerical objectives (goals) for the number of people with targeted
disabilities employed in their workforces and report that data annually
to the Commission.\47\ Since 2010, federal agencies have been required
under Executive Order 13548 to set an internal goal for the percentage
of employees with targeted disabilities and the percentage of employees
with disabilities as defined under Section 501 in their workforces, and
submit those targets to OPM. In OPM's report for fiscal year 2014, the
percentage of employees with reportable disabilities in the federal
government was 14.64% (191,086 individuals out of a federal workforce
of 1,305,392).\48\ The percentage of employees with targeted
disabilities in the federal government was 1.18% (15,343
individuals).\49\
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\47\ Management Directive 715, supra note 11, at B.VI;
Management Directive 713, supra note 9, at ] 9.
\48\ See Office of Pers. Mgmt., Report on the Employment of
Individuals with Disabilities in the Federal Executive Branch:
Fiscal Year 2014, 25 (Oct. 9, 2015) available at https://www.opm.gov/policy-data-oversight/diversity-and-inclusion/reports/disability-report-fy2014.pdf (including individuals classified as
``30% or more disabled veterans,'' but excluding employees who are
not on the GS or SES pay scales).
\49\ Id. (excluding employees who are not on the GS or SES pay
scales).
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Paragraph (d)(7) sets forth the goals that the EEOC expects federal
agencies to be able to achieve, based on current federal employment
data. First, an affirmative action plan should adopt the goal of
achieving a 12% representation rate for people with disabilities as
defined by Section 501 at both the GS-11 level \50\ and above,
including the Senior Executive Service (``SES''),\51\ and at the GS-10
level and below. Second, the Plan should adopt the goal of achieving a
2% representation rate for individuals with targeted disabilities as
defined by SF-256 at the GS-11 level and above (including SES), and at
the GS-10 level and below.
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\50\ Most federal employees are part of the General Schedule
(GS) pay system. The General Schedule has fifteen grades--GS-1
(lowest) to GS-15 (highest). See generally General Schedule
Classification and Pay, Office of Pers. Mgmt., http://www.opm.gov/policy-data-oversight/pay-leave/pay-systems/general-schedule/ (last
visited Mar. 24, 2015).
\51\ High-level leadership positions in the federal government
are occupied by members of the SES. SES members have a different pay
scale than employees who are part of the GS pay system. See
generally Senior Executive Service: Leading America's Workforce,
Office of Pers. Mgmt., http://www.opm.gov/policy-data-oversight/senior-executive-service/ (last visited Mar. 24, 2015).
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The 12% goals established in paragraph (d)(7) are based, in part,
on historical data on the employment of persons with disabilities in
the federal workforce compiled by OPM. OPM data show that the federal
government, viewed as a whole, has already reached a representation
rate of 12% at both the GS-10 level and below and the GS-11 level and
above.\52\ Results from the most recent Federal Employee Viewpoint
Survey further indicate that approximately 13.5% of the federal
workforce identify as a person with a disability.\53\
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\52\ See Report on the Employment of Individuals with
Disabilities in the Federal Executive Branch: Fiscal Year 2014,
supra note 48, at 25.
\53\ Governmentwide Unweighted Results: Demographic, Items 85-
98, Office of Pers. Mgmt., http://www.fedview.opm.gov/2014/Reports/ResponsePCT.asp?AGY=ALL&SECT=8 (last visited July 28, 2015).
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It should be noted that the OPM data are based on persons who
either self-identify as a person with a disability or are veterans with
a disability rating of 30% or higher. These figures likely undercount
the number of persons with disabilities as defined by Section 501 who
are employed or available to be employed by the federal government--in
the Commission's final rule implementing changes made by the ADAAA, the
Commission estimated that as many as 60 million individuals, or
approximately 24% of the eligible workforce, had ADA qualifying
disabilities.\54\
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\54\ See Regulations to Implement the Equal Employment
Provisions of the Americans with Disabilities Act, as amended, 76 FR
16,978, 16,990 (March 25, 2011) (codified at scattered sections of
29 CFR part 1630).
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The sub-goal for targeted disabilities is also based, in part, on
historical data from OPM. Individuals with targeted disabilities
currently make up 1.91% of
[[Page 9129]]
federal employees at the GS-10 level and below and approximately 0.8%
of federal employees at the GS-11 level and above.\55\ These figures
are based on the number of persons who self-report as having targeted
disabilities on SF-256. In addition, the Commission has encouraged
federal agencies with 1,000 or more employees to set a goal of a 2%
representation rate for individuals with targeted disabilities for some
time.\56\
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\55\ See Report on the Employment of Individuals with
Disabilities in the Federal Executive Branch: Fiscal Year 2014,
supra note 48, at 25 (excluding employees not on the SES or GS pay
scales).
\56\ See Equal Emp't Opportunity Comm'n, Annual Report on the
Federal Work Force Part II Work Force Statistics Fiscal Year 2011 1-
23 (n.d.), available at http://www.eeoc.gov/federal/reports/fsp2011_2/upload/fsp2011_2.pdf.
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As with the data on the percentage of persons with disabilities in
the federal workforce, there is reason to believe that these figures
undercount the number of persons with targeted disabilities employed or
available to be employed by the federal government. The American
Community Survey (``ACS''), administered by the U.S. Census Bureau,
asks a series of questions related to disability such as whether, due
to a physical, mental, or emotional problem, the person has serious
difficulty hearing, seeing (even with glasses), remembering,
concentrating, or making decisions, walking or climbing stairs, bathing
or dressing, and/or doing errands alone.\57\ Using this definition, the
ACS estimates that approximately 10.5% of the population aged 18-64 is
a person with a disability.\58\ Because the ACS frames its questions in
terms of ``serious difficulty,'' it is likely that most of the persons
falling within this definition would qualify as persons with targeted
disabilities. In addition, there are likely persons with targeted
disabilities as defined by SF-256, such as persons with epilepsy or
certain psychiatric disabilities, who would not fall into the ACS
definition.
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\57\ See American Community Survey (ACS), U.S. Census Bureau,
https://www.census.gov/people/disability/methodology/acs.html (last
visited July 28, 2015).
\58\ 2013 American Community Survey 1-Year Estimates: Disability
Characteristics, U.S. Census Bureau, http://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ACS_13_1YR_S1810&prodType=table (last visited
July 28, 2015).
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Despite data suggesting that utilization goals higher than those
proposed in paragraph (d)(7) for all disabilities and targeted
disabilities could be justified, the Commission elects to establish
targets that are in line with, but slightly above, historic utilization
patterns in the federal government. The goals in paragraph (d)(7) are
aggressive in comparison with those imposed on federal contractors by
the regulations implementing Section 503 of the Rehabilitation Act \59\
and, at the same time, readily achievable based on current federal
employment data. The Commission expects that early successes in meeting
the goals will create momentum for higher agency targets in the future.
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\59\ See 41 CFR 60-741.45(a) (establishing a utilization goal of
7% for employment of individuals with disabilities for the
contractor's entire workforce or each job group in the contractor's
workforce).
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Paragraph (d)(7) further states that the utilization goals for
persons with disabilities and for persons with targeted disabilities
will be assessed both above and below the GS-10 level, including SES.
This was done for two reasons. First, OPM employment data show that
individuals with disabilities are disproportionately represented at
lower levels of employment within the federal government. In fiscal
year 2014, the representation rate of individuals with disabilities at
the GS-11 level and above was roughly 30% lower than their
representation rate at the GS-10 level and below, and the
representation rate of individuals with targeted disabilities was
almost 60% lower at the GS-11 level and above.\60\ Establishing a
separate goal for representation at GS-11 and above should rectify this
imbalance.
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\60\ See Report on the Employment of Individuals with
Disabilities in the Federal Executive Branch: Fiscal Year 2014,
supra note 48, at 25 (excluding employees not on the SES or GS pay
scales).
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Second, the Commission does not wish to see a rise in the
representation of individuals with disabilities as defined by Section
501 at higher levels of employment be accompanied by a corresponding
fall in their representation rate at lower levels. As a result, the
proposed rule also requires agencies to adopt the goal of achieving a
12% representation rate for individuals with disabilities as defined by
Section 501 and a 2% representation rate for individuals with targeted
disabilities as defined by SF-256 at the GS-10 level and below.
Paragraph (d)(6) requires agencies to perform the workforce
analysis necessary to determine whether these goals set forth in
paragraph (d)(7) have been met. The paragraph clarifies that the
analysis must be performed on an annual basis, and that it may classify
individuals as having disabilities or targeted disabilities on the
basis of records relating to self-identification via SF-256,
appointment of individuals under noncompetitive disability-related
hiring authorities, and requests for reasonable accommodation. This
workforce analysis is largely consistent with what is currently
required under MD-715.\61\
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\61\ See Management Directive 715, supra note 11, at B.III. MD-
715 requires agencies to collect data on the total workforce
distribution of employees with disabilities for both the permanent
and temporary workforce; the representation and distribution of
employees with disabilities, by grade, in both the permanent and
temporary workforce; the permanent and temporary workforce
participation of employees with disabilities in major occupational
groups by grades; the representation of individuals with
disabilities among applicants for permanent and temporary
employment; the representation of employees with disabilities among
those who received promotions, training opportunities and
performance incentives; and the representation of employees with
disabilities among those who were voluntarily and involuntarily
separated. MD-715 requires that agencies separately identify
applicants and employees with targeted disabilities. Id. The
Directive explains that each agency must collect and evaluate this
data in order to make ``an informed assessment about the extent to
which the agency is meeting its responsibility to provide employment
opportunities for qualified applicants and employees with
disabilities, especially those with targeted disabilities.'' Id.
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The Commission recognizes that there are many reasons why it may
take some agencies more time than others to meet the utilization goals,
such as budgetary constraints (including hiring freezes), the number of
additional individuals with targeted disabilities that would have to be
hired to achieve the goals, and the nature of certain jobs within an
agency's workforce that may include valid physical standards that
individuals with certain disabilities may not be able to meet. The rule
therefore does not specify a timeframe for achieving the goals. Rather,
the rule requires each agency to create and submit a Plan that includes
specific steps reasonably designed to gradually increase the number of
employees with disabilities and targeted disabilities, with the
objective of achieving the goals established pursuant to paragraph
(d)(7)(i) of this section. Paragraph (d)(7)(ii) provides examples of
such steps, including increased use of hiring authorities that take
disability into account, additional outreach and recruitment efforts,
disability-related training for all employees, and adoption of
training, internship, and mentoring programs for individuals with
disabilities. The rule explicitly provides that the Commission will not
disapprove a Plan solely because the agency has failed to meet a goal.
Although Section 501 generally prohibits employers from asking
questions about whether an applicant has a disability before making a
job offer, there are still a number of ways that agencies may learn
about a particular applicant's disability. First, the applicant may
choose to disclose his or her disability, or the disability may
[[Page 9130]]
be obvious. Second, the disability may be disclosed in paperwork
establishing eligibility for appointment under the Schedule A hiring
authority for persons with certain disabilities. Third, an employer is
permitted to invite job applicants to self-identify as individuals with
disabilities or targeted disabilities prior to a conditional offer of
employment, if the invitation is made pursuant to an affirmative action
program for people with disabilities, and if the information is used
only for that purpose.\62\
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\62\ See, e.g., Letter from Peggy R. Mastroianni, Legal Counsel,
Equal Emp't Opportunity Comm'n, to Patricia A Shiu, Director, Office
of Fed. Contract Compliance Programs, Dep't of Labor (Aug. 8, 2013),
available at http://www.dol.gov/ofccp/regs/compliance/section503.htm
(follow ``EEOC Opinion on the Invitation to Self-Identify''
hyperlink).
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1614.203(d)(8) Recordkeeping
This paragraph sets forth the recordkeeping requirements imposed by
the rule, and directs agencies to make the required records available
to the Commission upon request. The required records are necessary for
an agency to determine whether it is providing ``adequate hiring,
placement, and advancement opportunities for individuals with
disabilities,'' as required under Section 501. Specifically, the rule
requires that each agency keep a record of: (1) The number of
individuals with disabilities and the number of individuals with
targeted disabilities who apply for employment; (2) the number of
individuals with disabilities and the number of individuals with
targeted disabilities that the agency hires; (3) the number of adverse
actions the agency takes based on medical information, including
rescissions of conditional job offers; and (4) details regarding all
requests for reasonable accommodation the agency receives.
A significant number of commenters stated that the rule should
require agencies to track the careers of individuals who are appointed
under the Schedule A hiring authority for persons with certain
disabilities, to ensure that they are appropriately converted to a
career or career-conditional appointments in the competitive service
and promoted. The paragraph adopts this suggestion, and, accordingly,
requires agencies to keep records of the date of hire, entering grade
level, probationary status, and current grade level of each employee
hired under that authority, as well as the number of such employees
converted to the competitive service each year.
1614.203(e) Reporting
This paragraph sets forth the reporting requirements imposed by the
rule. As provided under Section 501,\63\ the paragraph requires each
agency to submit a copy of its Plan to the Commission on an annual
basis, the results of the two most recent workforce analyses performed
pursuant to paragraph (d)(7), and the number of employees appointed
under the Schedule A hiring authority for persons with certain
disabilities. The proposed paragraph does not specify the precise time
and manner of submission, as EEOC intends to reconcile this
regulation's reporting requirements with existing obligations under MD-
715 following final promulgation of the rule. As suggested by several
commenters, the paragraph also requires agencies to make the
information submitted to the Commission available to the public.
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\63\ 29 U.S.C. 791(b).
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1614.203(f) Commission Approval and Disapproval
Paragraph (1) provides that the Commission will approve a Plan if
it determines that the Plan, as implemented, meets the requirements set
forth in paragraph (d) of this section. Paragraph (2) provides that the
Commission will disapprove a Plan if it determines that the Plan, as
implemented, does not meet those requirements. The paragraph further
clarifies that failure to achieve a goal set forth in proposed
paragraph (d)(8)(i), by itself, is not grounds for disapproval unless
the Plan fails to require the agency to take specific steps that are
reasonably designed to achieve the goal.
Request for Comments
The Commission invites comments on all aspects of the proposed
regulation. In addition, it invites comments on the following specific
issues.
As discussed above, agencies are not required to provide PAS, such
as assistance with eating or using the restroom, under the reasonable
accommodation standards set forth in 29 CFR part 1630. The
unavailability of PAS, however, is a significant hindrance to the
employment of persons with certain targeted disabilities. Paragraph
(d)(6) addresses this concern by requiring agencies to provide PAS to
employees with disabilities as part of the agencies' affirmative action
obligations under Section 501. To ensure that the Commission's final
decision whether to include this requirement is based on a sound
record, the Commission invites responses to the following questions:
1. Should Section 501 regulations require agencies to provide PAS
to employees who need them because of a disability while they are on
the job or on job-related travel as part of the affirmative action
obligation? Do the services described in the regulations accurately
capture the PAS that a person with a disability might require?
2. If the rule should require agencies to provide PAS, should
assistants be assigned to a particular individual, or should they
respond to requests for PAS by different individuals, as needed? Should
the agency be allowed to assign non-PAS tasks to assistants when no
personal assistance is required?
3. The proposed rule does not address how the obligation to provide
PAS would be enforced. The Commission is requiring that agencies
provide PAS as part of their affirmative action obligations under
Section 501. Affirmative action obligations, such as employment goals
or advancement plans, are not generally enforceable through the part
1614 process. The requirement to provide PAS is unlike most general
affirmative action obligations, however, as an agency's failure to
comply with this obligation will directly harm specific, identifiable
individuals. The Commission invites comments on (a) whether the
Commission should enforce the PAS requirement in the manner envisioned
in paragraph (f) of the proposed rule, or instead offer a process
through which individuals denied PAS can request that the Commission
review agency denials and order relief to persons wrongly denied those
services.
4. Is the Commission's estimate of the costs associated with a PAS
requirement, discussed in the regulatory procedures section below,
accurate? If not, what is a more accurate estimate? Would particular
agencies, or types of agencies, experience significant logistical
difficulties in complying with the PAS requirement? What is a realistic
estimate of costs arising from offering a process for enforcement of
the obligation to provide PAS? Please include supporting references.
The Commission also invites responses to the following general
questions regarding the proposed rule:
5. EEOC is interested in learning from the public what would be
appropriate minimum standards for federal agencies regarding goals for
hiring of persons with disabilities. As proposed, the goals for
representation rates have been set at 12% for individuals with all
disabilities and 2% for individuals with targeted disabilities. Are
these levels appropriate? What data exists that show
[[Page 9131]]
that the goals should either be higher or lower than in this proposed
rule?
6. EEOC is interested in whether agencies should maintain a file or
database of individuals who have been determined to be eligible for
appointment under a hiring authority that takes disability into
account, but who have not been hired by the agency. EEOC is interested
in whether such individuals should be asked whether they wish to be
included in such a database, or whether the database should be created
automatically from those who apply via a hiring authority that takes
disability into account.
7. EEOC requests comments from the public on any of the standards
proposed in this rule governing affirmative action with respect to the
hiring, advancement, and retention of federal employees with
disabilities. This includes the PAS requirement, the utilization
analysis and goals provision, and the recordkeeping and reporting
requirements. It also includes the affirmative action requirements
related to reasonable accommodations. EEOC requests any data or
evidence that shows that these standards are either too strict or too
lenient and any information on the costs and benefits related to each
standard.
Regulatory Procedures
Executive Order 13563 \64\ and Executive Order 12866 \65\ (Regulatory
Planning and Review)
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\64\ Executive Order No. 13563, 3 CFR 215 (2011), available at
http://www.whitehouse.gov/sites/default/files/omb/inforeg/eo12866/eo13563_01182011.pdf.
\65\ Executive Order No. 12866, 3 CFR 638 (1993), available at
http://www.whitehouse.gov/sites/default/files/omb/inforeg/eo12866.pdf.
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This proposed rule has been drafted and reviewed in accordance with
Executive Order 13563 and Executive Order 12866. This rule has been
designated a ``significant regulatory action'' under section 3(f) of
Executive Order 12866. Accordingly, the proposed rule has been reviewed
by the Office of Management and Budget.
Executive Order 13563 directs agencies to propose or adopt a
regulation only upon a reasoned determination that its benefits justify
its cost (recognizing that some benefits and costs are difficult to
quantify); to tailor its regulations to impose the least burden on
society, consistent with obtaining regulatory objectives; and to
select, from among alternative regulatory approaches, including the
alternative of not regulating, those approaches that maximize net
benefits (including potential economic, environmental, public health
and safety, and other advantages, distributive impacts, and equity).
Executive Order 12866 directs agencies to submit a regulatory
impact analysis for those regulatory actions that are ``economically
significant'' within the meaning of section 3(f)(1).\66\ A regulatory
action is economically significant under section 3(f)(1) if it is
anticipated (1) to ``[h]ave an annual effect on the economy of $100
million or more,'' or (2) to ``adversely affect in a material way the
economy, a sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or State, local, or tribal
governments or communities.'' \67\ Executive Order 13563 reaffirms the
principles established by Executive Order 12866, and further emphasizes
the need to reduce regulatory burden to the extent feasible and
permitted by law.\68\
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\66\ Executive Order 12866 refers to ``those matters identified
as, or determined by the Administrator of [the Office of Information
and Regulatory Affairs] to be, a significant regulatory action
within the scope of section 3(f)(1).'' Id. The Office of Management
and Budget states that ``Executive Order 12866 requires agencies to
conduct a regulatory analysis for economically significant
regulatory actions as defined by Section 3(f)(1).'' Office of Mgmt.
& Budget, Circular A-4 (Sept. 17, 2003), available at http://www.whitehouse.gov/omb/circulars_a004_a-4.
\67\ Executive Order No. 12866, supra note 65.
\68\ Executive Order No. 13563, supra note 64.
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Currently, guidance on the federal government's obligation to
engage in affirmative action for individuals with disabilities is
scattered throughout a number of overlapping Executive Orders,\69\
management directives,\70\ and guidance and policy documents.\71\ In
contrast, the Commission's current Section 501 regulations do not
provide a detailed explanation of what an agency must do to comply with
its Section 501 affirmative action obligations, or of how the
Commission will assess Plans submitted to it for approval pursuant to
29 U.S.C. 791(b).\72\
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\69\ See, e.g., Executive Order No. 13164, supra note 18;
Executive Order No. 13548, supra note 11.
\70\ See, e.g., Management Directive 715, supra note 11.
\71\ See, e.g., Policy Guidance on Executive Order 13164, supra
note 19; Promoting Employment of Individuals with Disabilities in
the Federal Workforce, supra note 21. See generally supra notes 9
through 23 and accompanying discussion.
\72\ See 29 CFR 1614.203(a) (stating only that the federal
government shall be a ``model employer of individuals with
disabilities,'' and instructing federal agencies to ``give full
consideration to the hiring, placement, and advancement of qualified
individuals with disabilities'').
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The proposed rule is necessary to ensure that federal agencies'
affirmative action obligations are in a regulation, rather than merely
in management directives and sub-regulatory guidance, so that the
obligations will have the force of law. Moreover, by compiling federal
agencies' affirmative action obligations in one place, rather than in a
range of documents, none of which are comprehensive, the proposed rule
would provide agencies with easy access to the necessary information,
thereby facilitating increased compliance.
The Commission has determined that the proposed rule will have an
annual effect of less than $100 million on federal agencies, including
both estimated costs and estimated savings arising from the rule, based
on the high estimate of projected costs. In addition, the rule is
expected to result in one-time compliance costs for agencies of
approximately $90,448.20, and have a variety of positive qualitative
and dignitary benefits. The Commission's economic impact analysis is
presented immediately below.
Many of the proposed requirements will have no economic effect,
because they will impose no new requirements or burdens on federal
agencies--
Paragraph (a), which sets forth definitions of key terms,
imposes no requirements.
Paragraph (b), which provides that Section 501 prohibits
discrimination on the basis of disability, and that the standards for
determining whether Section 501 has been violated in a complaint
alleging employment discrimination are the same standards applied under
the ADA, merely revises paragraph (b) in the current regulations for
clarity.
Paragraph (c), which requires agencies to be model
employers of individuals with disabilities, is identical to paragraph
(a) of the current regulations.
The requirement to adopt an affirmative action plan, in
paragraph (d) of the proposed rule, is imposed by Section 501.\73\
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\73\ 29 U.S.C. 791(b).
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Paragraphs (d)(1)(i), which requires outreach, and
(d)(1)(iii), which requires agencies to take steps to ensure that
individuals with disabilities have sufficient advancement
opportunities, impose no new annual burden on agencies because they
provide guidance on how to fulfill existing requirements, rather than
impose new ones.\74\
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\74\ See, e.g., 29 CFR 1614.102(a)(10), (a)(11), (a)(13),
(b)(1); Promoting Employment of Individuals with Disabilities, supra
note 21; Policy Guidance on Executive Order 13164, supra note 19;
Management Directive 715, supra note 11. Indeed, the Commission
anticipates that the additional guidance contained in the proposed
rule, in the form of helpful examples and suggestions, will reduce
agency burden by making it easier to satisfy the existing
requirements. However, because the Commission does not have any data
upon which to base an estimate of time saved, it does not quantify
that benefit here.
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[[Page 9132]]
The requirements of paragraph (d)(3)(i), which requires
written reasonable accommodation procedures, and paragraph (d)(3)(iii),
which requires agencies to provide individuals who have been denied a
reasonable accommodation with written notice of the reasons for the
denial, are taken from MD-715, Executive Order 13164, and existing
agency guidance.\75\
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\75\ See Policy Guidance on Executive Order 13164, supra note
19.
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The recordkeeping requirements of paragraph (d)(8), with
the exception of (d)(8)(iii) and (d)(8)(iv) (discussed below), are
taken from MD-715.
The requirement to submit an Affirmative Action Plan to
the Commission for approval on an annual basis, found in (e)(1), is
imposed by Section 501.\76\
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\76\ 29 U.S.C. 791(b).
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Other requirements of the proposed rule will impose no new burdens
on federal agencies because they codify aspects of the existing MD-715
and program review processes. MD-715 requires agencies to conduct
annual internal reviews of their policies, practices, and procedures to
determine whether they provide sufficient employment opportunities to
qualified applicants and employees with disabilities, especially those
with targeted disabilities. As part of this analysis, agencies must
determine the numerical representation and distribution of applicants
and employees with disabilities and targeted disabilities.\77\
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\77\ See Management Directive 715, supra note 11, at B.III. MD-
715 also requires agencies to determine whether they are meeting
obligations imposed by Title VII of the Civil Rights Act of 1964, 42
U.S.C. 2000e et seq., on an annual basis. See Management Directive
715, supra note 11, at A. Those requirements are not relevant to
this rulemaking.
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Many of these requirements are reflected in the proposed rule.
Paragraph (d)(6) reaffirms that agencies are required to gather
distribution data in order to assess whether individuals with
disabilities and individuals with targeted disabilities are being given
sufficient employment opportunities and paragraph (d)(7)(ii) reaffirms
that additional steps must be taken, as appropriate, to address
statistical disparities.\78\
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\78\ The Commission recognizes that proposed paragraph (d)(7)(i)
requires agencies to adopt specific goals for employment of
individuals with all disabilities and individuals with targeted
disabilities for purposes of this assessment, and that this aspect
of the proposed rule may impose annual burdens on federal agencies.
The burdens associated with (d)(7)(i) are discussed below, and the
Commission seeks comment on the estimated costs provided.
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The following aspects of the rule, all of which require agencies to
make certain information more readily available, may impose one-time
compliance costs on federal agencies:
Paragraph (d)(2) requires agencies to clarify in their
harassment policies that disability-based harassment is prohibited;
(d)(3)(ii) requires agencies to inform all employees who
are authorized to grant or deny requests for reasonable accommodation
about reasonable accommodation funding;
(d)(4) requires agencies to make certain contact
information available to employees; and
(e)(2) requires agencies to make their Affirmative Action
Plans available to the public.
We estimate that agencies will spend approximately 5 hours performing
these tasks, updating policies, and checking for compliance.
Multiplying by the number of agencies covered by the rule (218) \79\
yields a total of 1090 burden hours. We assume that these tasks will be
performed by an employee at the GS-14 step 5 level, in the Washington-
Baltimore-Northern Virginia, DC-MD-VA-WV-PA region.\80\ The hourly
compensation rate for such an employee, adjusted to include benefits,
is $82.98 per hour,\81\ yielding a total estimated cost of $90,448.20.
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\79\ The number of agencies covered by the requirements of MD-
715 varies from year to year. The number of agencies covered in
Fiscal Year 2014 was 218.
\80\ Pay rates for employees at the GS-14 level depend on the
within-grade level, or ``step,'' of the employee, which ranges
between one and ten, and on the geographic location of the employee.
See generally General Schedule Classification and Pay, supra note
50. The Commission realizes that not all of these tasks will be
performed by employees meeting these criteria; the assumption is
made purely for purposes of the economic analysis.
\81\ See Office of Pers. Mgmt., Salary Table 2015-DCB: Hourly
Basic (B) Rates by Grade and Step, Hourly Overtime (O) Rates by
Grade and Step (Jan. 2015), available at http://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/salary-tables/15Tables/pdf/DCB_h.pdf (providing hourly monetary compensation rates);
Congressional Budget Office, Comparing the Compensation of Federal
and Private-Sector Employees 9 (Jan. 2012), available at https://www.cbo.gov/sites/default/files/01-30-FedPay_0.pdf (reporting that
the cost of providing benefits to federal workers averages between
$15.50 and $24.70 per hour). For purposes of this analysis, we
assume a cost of $24.70 per hour for benefits.
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Other aspects of the proposed rule will impose recurring or ongoing
costs on federal agencies.
Paragraph (d)(1)(ii) requires agencies to ensure that staff are
available to perform certain tasks. We provide both a high and a low
estimate of the annual costs associated with this requirement. To
calculate the high estimate, we assume that each covered agency will
need to hire at least one new employee to perform the required tasks,
at the GS-14 step 5 level, in the Washington-Baltimore-Northern
Virginia, DC-MD-VA-WV-PA region. The compensation rate for a government
employee at this level, adjusted to include benefits, is $173,011.00
per year.\82\ Multiplying by the number of agencies covered by the rule
yields a total cost of $37,716,398.00.
---------------------------------------------------------------------------
\82\ See Office of Pers. Mgmt., Salary Table 2015-DCB: Annual
Rates by Grade and Step (Jan. 2015), available at http://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/salary-tables/15Tables/pdf/DCB.pdf (providing annual monetary compensation
rates); Comparing the Compensation of Federal and Private-Sector
Employees, supra note 88, at 9.
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To calculate the low estimate, we note that almost all federal
agencies already employ personnel who provide these services. For
example, agencies already employ 229 Disability Program Managers
(``DPMs'') or Selective Placement Program Coordinators (``SPPCs'') (who
perform, among other things, certain tasks of a DPM),\83\ most commonly
at the GS-12 or GS-13 level. We assume that approximately 10% of
agencies, or 22 agencies, will need to hire a new staff person at the
GS-12 step 5 level, in the Washington-Baltimore-Northern Virginia, DC-
MD-VA-WV-PA region. The annual salary of such an employee, adjusted to
include benefits, is $137,940.00.\84\ Multiplying by 22 yields a total
annual cost of $3,034,680.00.
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\83\ See Disability Employment: Selective Placement Program
Coordinator Directory, Office of Pers. Mgmt., http://www.opm.gov/policy-data-oversight/disability-employment/selective-placement-program-coordinator-directory/ (last visited Aug.3, 2015).
\84\ See Salary Table 2015-DCB: Annual Rates by Grade and Step,
supra note 82; Comparing the Compensation of Federal and Private-
Sector Employees, supra note 81, at 9.
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Based on the two calculations above, the Commission estimates that
paragraph (d)(1)(ii) will result in recurring annual costs of between
approximately $3,034,680.00 at the low end and $37,716,398.00 at the
high end.
Paragraph (d)(7)(i), which requires agencies to adopt specific
goals for employment of individuals with all disabilities and
individuals with targeted disabilities, is likely to impose recurring
or ongoing costs on federal agencies in three respects.
First, to determine whether the goals have been met, agencies will
need to determine--
the percentage of employees at the GS-11 level or above,
including SES, who are individuals with disabilities;
the percentage of employees at the GS-11 level or above,
including SES,
[[Page 9133]]
who are individuals with targeted disabilities;
the percentage of employees at the GS-10 level or below
who are individuals with disabilities; and
the percentage of employees at the GS-10 level or below
who are individuals with targeted disabilities.
Associated costs should be minimal. OPM already gathers data on the
representation of individuals with disabilities and individuals with
targeted disabilities at each grade level within each agency. The OPM
data include employees classified as veterans with 30% or more
disability.\85\ Agencies therefore may make the required determinations
by requesting the relevant raw data from OPM, and performing the four
simple calculations noted above. The Commission estimates that agencies
will spend 2 hours to perform the required analysis, to determine
whether goals have been met, and to maintain the associated records, on
an annual basis. Multiplying by the number of agencies covered by the
rule yields a total of 436 burden hours. We assume that these tasks
will be performed by an employee at the GS-14 step 5 level in the
Washington-Baltimore-Northern Virginia, DC-MD-VA-WV-PA region, at an
hourly rate of $82.98 per hour (adjusted to include benefits).\86\
Multiplying the hourly rate by the number of burden hours yields a
total recurring annual cost of $36,179.28.
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\85\ See, e.g., Report on the Employment of Individuals with
Disabilities in the Federal Executive Branch: Fiscal Year 2014,
supra note 48, at 25.
\86\ See Hourly Basic (B) Rates by Grade and Step, supra note
81; Comparing the Compensation of Federal and Private-Sector
Employees, supra note 81, at 9.
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Second, because paragraph (d)(7)(i) encourages federal agencies to
hire individuals with disabilities, it may impose ongoing costs by
increasing the number of federal employees who need a reasonable
accommodation.
We first consider the number of additional employees who will need
a reasonable accommodation. Because research shows that the federal
government as a whole has already achieved a representation rate of 12%
for people with disabilities as defined by Section 501 both at the GS-
10 level and below and at the GS-11 level and above,\87\ the Commission
does not expect that agencies will hire a large number of individuals
who have disabilities as defined under Section 501, but do not have
targeted disabilities, as a result of the rule.
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\87\ See Report on the Employment of Individuals with
Disabilities in the Federal Executive Branch: Fiscal Year 2014,
supra note 48, at 25.
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However, the federal government will need to hire additional
individuals with targeted disabilities to meet the 2% goals at the GS-
10 level and below and at the GS-11 level and above.\88\ Data show that
individuals with targeted disabilities currently represent 1.81% of
federal employees at the GS-10 level and below, and that approximately
384 additional employees with targeted disabilities are required to
reach the 2% goal.\89\ Such individuals represent approximately 0.8% of
federal employees at the GS-11 level and above, and approximately
10,381 additional individuals with targeted disabilities are required
to reach the goal.\90\ Although many of these 10,765 additional
employees will not need reasonable accommodations, we assume for
purposes of this economic analysis that they will.
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\88\ The regulation does not require agencies to create
positions or vacancies for persons with targeted disabilities;
agencies may place individuals with targeted disabilities into
existing vacancies.
\89\ See Report on the Employment of Individuals with
Disabilities in the Federal Executive Branch: Fiscal Year 2014,
supra note 48, at 25.
\90\ See id.
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We next consider the cost of the required accommodations. Although
many accommodations have no financial cost,\91\ we assume for purposes
of this economic analysis that the needed accommodations will have a
cost. The Job Accommodation Network (``JAN'') has found that, if an
accommodation has a cost, it will typically be approximately $500.00.
While some accommodations will cost more (for example sign language
interpreters or specialized computer equipment), they are the exception
rather than the rule. Multiplying the estimated 10,765 additional
federal employees who will need reasonable accommodations by the
estimated cost of $500.00 per accommodation yields a total estimated
recurring \92\ cost of $5,382,500.00.
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\91\ See Job Accommodation Network, Workplace Accommodations:
Low Cost, High Impact 3 (updated Sept. 1, 2014), available at http://askjan.org/media/downloads/LowCostHighImpact.pdf (finding that 57%
of all reasonable accommodations have no costs).
\92\ See id. We note that JAN's estimate of $500.00 is for one-
time costs associated with providing a reasonable accommodation.
However, given the limitations of the study, JAN was unable to
provide an estimate of ongoing or annual costs. We therefore assume
a cost of $500.00 per year for purposes of this estimate.
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Third, again because paragraph (d)(7)(i) encourages the hiring of
individuals with disabilities, it may impose ongoing costs arising from
the obligation to provide PAS to new employees under paragraph (d)(5)
of the proposed rule. The Commission estimates that between 1.1% and
2.0% of the estimated 10,765 additional federal employees, or between
118 and 215 individuals, will require PAS to function in the
workplace.\93\ Further, although the proposed rule allows agencies to
hire a single personal assistant to provide services to multiple
individuals, and to require personal assistants to perform additional
duties, we nevertheless assume for the purposes of this analysis that
each individual who will be entitled to PAS under the proposed rule
will require a dedicated personal assistant for 40 hours per week.\94\
We provide both a high and a low estimate of associated costs under
these assumptions.
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\93\ The Commission is aware of only one study that asks
specifically about the need for personal assistance services among
persons with disabilities in the workplace. The low estimate is
based on that study's finding that 1.1% of surveyed individuals with
disabilities reported the need to have a personal assistant to help
with job-related activities as a reasonable accommodation. See Craig
Zwerling, et al., Workplace Accommodations for People with
Disabilities: National Health Interview Survey Disability
Supplement, 1994-1995, 45 J. Occupational & Envtl. Med. 517, 519
(2003). This study only included employed individuals with
disabilities. The Commission recognizes that, because individuals
who need personal assistance services have disproportionately high
unemployment rates, the study likely underestimates the percentage
of such individuals in the labor pool.
However, there is very little research on which to base an
estimate of the difference between the need for personal assistance
services at work among individuals who are currently employed and
individuals who are unemployed but seeking work. The Commission is
only aware of one study, conducted in 2003, that partially addressed
this issue. That study found that approximately 7.7% of employed
individuals with disabilities reported difficulty with self-care,
while approximately 8.6% of individuals with disabilities who were
unemployed and seeking work reported such difficulty. See Susan
Stoddard et al., Personal Assistance Services as a Workplace
Accommodation, 27 Work 363, 364 (2006). Because difficulty with
self-care is not equivalent to the need for personal assistance
services at work, those findings are not apposite. However, the 0.9%
difference in difficulty with self-care between the two populations
may be used as an estimate of differences in self-care-related needs
more generally. Therefore, in order to calculate the high estimate,
the Commission assumes that an additional 0.9% of the additional
hires, or a total of 2%, will require personal assistance services.
\94\ Because individuals who require personal assistance
services generally do not require them continuously throughout the
workday, the cost of providing such services to a single individual
will represent a fraction of this figure. See, e.g., Tatiana I.
Solovieva et al., Cost of Workplace Accommodations for Individuals
with Disabilities: With or Without Personal Assistance Services, 2
Disability & Health J. 196, 201 (2009) (reporting that the median
annual cost of accommodations for individuals who need personal
assistance services is $8000.00).
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To calculate the low estimate, we assume that the agency will hire
personal assistants on a contract basis,
[[Page 9134]]
at market rates. The average hourly wage for a personal assistant is
approximately equivalent to the federal contract employee minimum
hourly wage of $10.10.\95\ Multiplying this amount by the approximate
total number of work hours per year (2,080) yields a total annual cost
of $21,008.00 per assistant. Multiplying by the low estimate of the
number of new hires expected to require PAS (118) yields a total cost
of $2,478,944.00 per year. Multiplying by the high estimate of the
number of new hires expected to require PAS (215) yields a total cost
of $4,516,720.00 per year.
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\95\ See, e.g., Douglas Klayman, et al., Soc. Dynamics, LLC,
Funding Options for Personal Assistance Services 16 (2009),
available at www.dol.gov/odep/research/FundingOptionsPersonalAssistanceServices(PAS).pdf (finding that the
average hourly wage was $9.11); Denetta L. Dowler et al., Personal
Assistance Services in the Workplace: A Literature Review, 4
Disability & Health J. 201, 206 (2011) (finding that the average
hourly wages of between $8.18 and $12.00); Tatiana I. Solovieva et
al., Personal Assistance Services (PAS) for Individuals with
Disabilities: Self-Care at the Workplace, 36 Work 339, 341 (2010)
(reporting an average hourly wage of $8.34). The federal contract
employee minimum hourly wage was adopted under Executive Order No.
13658, 79 FR 9851 (Feb. 12, 2014), available at http://www.gpo.gov/fdsys/pkg/FR-2014-02-20/pdf/2014-03805.pdf.
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To calculate the high estimate, we assume that the agency will hire
the personal assistant at the GS-5 step 5 level, in the Washington-
Baltimore-Northern Virginia, DC-MD-VA-WV-PA region. The annual
compensation rate for such an employee, adjusted to include benefits,
is $64,581.97.\96\ Multiplying by the low estimate of the number of new
hires expected to require PAS (118) yields a total cost of
$7,620,672.46 per year. Multiplying by the high estimate of the number
of new hires expected to require such services (215) yields a total
cost of $13,885,123.55 per year.
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\96\ To adjust for the cost of benefits, we divided the annual
salary for an employee at this level ($39,395.00) by 0.61. See
Salary Table 2015-DCB: Annual Rates by Grade and Step, supra note
82; Comparing the Compensation of Federal and Private-Sector
Employees, supra note 88, at 9 (reporting that benefits account for
39% of the cost of total compensation for federal workers).
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In addition, some existing federal employees may receive PAS from
federal agencies as a result of the rule. The Commission is not aware
of any existing data concerning the number of such employees, and is
not aware of any means of determining that number short of surveying
the entire federal workforce. The Commission is aware of one 2003 study
measuring the number of employed individuals who require personal
services at work because of a disability.\97\ That study found that
1.1% of individuals who had medical conditions resulting in certain
serious functional limitations \98\ required ``a personal assistant to
help with job-related activities.'' \99\
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\97\ See Craig Zwerling et al., supra note 93.
\98\ Specifically, the study included individuals who had
``difficulty with [activities of daily living] (bathing, dressing,
eating, getting in or out of bed or chair, or using the toilet);
difficulty with [instrumental activities of daily living] (preparing
own meals, shopping for personal items, using the telephone, doing
heavy work around the house, or doing light work around the house);
functional limitations (lifting 10 pounds, walking up 10 steps,
walking a quarter mile, standing for 20 minutes, bending down from a
standing position, reaching over the head, using the fingers to
grasp or handle something, or holding a pen or pencil); difficulty
seeing (even with their glasses); difficulty hearing (even with a
hearing aid); reported mental health or cognitive diagnoses (Down's
Syndrome, mental retardation, schizophrenia, delusional disorders,
bipolar disorder, major depression, severe personality disorder,
alcohol abuse, drug abuse, other mental or emotional conditions); or
reported use of a cane, crutches, walker, wheelchair. Or scooter to
get around.'' Id. at 518.
\99\ Id. at 519.
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In practice, however, the Commission suspects that the number of
existing federal employees who would receive PAS as a result of this
rule is close to zero. Individuals who require PAS because of a
disability typically cannot work, because once an individual begins to
earn an income the cost of the required assistance is shifted away from
the public benefit system and onto the individual. One study has found
that an individual would need to earn approximately $40,000.00 per year
simply to offset the accompanying loss of benefits.\100\ Even at higher
salaries, the benefits of working would be marginal.
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\100\ See Douglas Klayman, et al., supra note 95, at 17.
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Nevertheless, because the Commission lacks any other source of data
on the issue, we estimate for purposes of this economic analysis that
1.1% of existing federal employees with targeted disabilities will be
given PAS by their employing agencies as a result of the proposed
rule.\101\ There are approximately 1,343 individuals with targeted
disabilities in the federal workforce.\102\ Multiplying that number by
0.011 yields an estimated total of 169 current federal employees who
require personal assistance services.
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\101\ The 2003 study found that 1.1% of persons with medical
conditions resulting in certain serious functional limitations
require personal assistance in the workplace. Craig Zwerling et al.,
supra note 93, at 519. The group of individuals included in the
study more closely matches the definition of ``targeted/severe
disability'' than the definition of ``disability,'' as those terms
are used in this rule. See note 98, supra. As noted above, the
definition of ``disability'' is to be construed much more broadly
for purposes of Section 501.
\102\ See Report on the Employment of Individuals with
Disabilities in the Federal Executive Branch: Fiscal Year 2014,
supra note 48, at 25 (excluding employees who are not on the GS or
SES pay scales).
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We are aware that at least 16 current federal employees are already
being provided PAS at the agency's expense. Because provision of PAS to
these individuals would not represent new costs to these agencies, we
exclude these individuals from the analysis, which leaves 153
individuals who will receive PAS from their employing agencies as a
result of the rule. Multiplying that number by the low estimate of the
associated costs as calculated above ($21,008.00) yields an estimated
cost of $3,214,224.00. Multiplying by the high estimate of associated
costs ($64,581.97) yields an estimated cost of $9,881,041.41.
Based on the calculations above, we conclude that the PAS
requirement will have a total cost of between $5,693,168.00 and
$23,766,164.96 per year.
Paragraphs (d)(8)(iii) and (d)(8)(iv) require agencies to keep
records of all agency employees hired under the Schedule A hiring
authority for persons with certain disabilities, to calculate the
number of such employees who have been converted to career or career-
conditional appointment, and to calculate the number of such employees
who have been terminated prior to conversion. The Commission estimates
that it will take agencies 2 hours to gather the required data, to
perform the required calculations, and to create and maintain the
associated records, on an annual basis. Multiplying by the number of
agencies covered by the rule yields a total of 436 burden hours. We
assume that these tasks will be performed by an employee at the GS-14
step 5 level in the Washington-Baltimore-Northern Virginia, DC-MD-VA-
WV-PA region, at an hourly rate of $82.98 per hour (adjusted to include
benefits).\103\ Multiplying the hourly rate by the number of burden
hours yields a total of 436 burden hours, or a cost of $36,179.28.
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\103\ See Hourly Basic (B) Rates by Grade and Step, supra note
81; Comparing the Compensation of Federal and Private-Sector
Employees, supra note 81, at 9.
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In addition to imposing costs, the Commission expects the proposed
rule to have positive economic effects. By bringing a greater number of
individuals with disabilities into the workforce, the rule will reduce
dependence on government benefits.\104\ To calculate the
[[Page 9135]]
economic benefits to the federal government of providing PAS to a
single individual, we assume that each individual receiving such
services from an employer would otherwise rely on Social Security and
Supplemental Security Income benefits to pay for those services. An
individual who requires PAS throughout the day, but who lacks an income
and is actively looking for work, is most likely relying on government
benefits to meet the significant cost of hiring a personal assistant.
Research indicates that, for every individual with a disability who
transitions from receipt of benefits to gainful employment, the federal
government saves approximately $19,380.00 in paid benefits, and gains
approximately $8,079.00 in tax revenue, on an annual basis.\105\
Multiplying the sum ($27,459.00) by the low and high estimates of the
number of new hires expected to require personal services (118 and 215)
yields an estimated economic benefit of between $3,240,162.00 and
$5,903,685.00 per year.
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\104\ See, e.g., Jean P. Hall, et al., Employment as a Health
Determinant for Working-Age, Dually-Eligible People with
Disabilities, 6 Disability & Health J. 100 (2013) (finding that
employment of individuals with disabilities is associated with lower
per-person, per-month Medicaid expenditures).
\105\ See Douglas Klayman, et al., supra note 95, at 17.
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In addition to its economic effects, the proposed rule is expected
to have a variety of qualitative and dignitary benefits, all of which
further values identified in Executive Order 13563 such as equity,
human dignity, and fairness. Most significantly, the rule will increase
the number of hiring and advancement opportunities available to
individuals with disabilities by making them better aware of federal
job openings. Research demonstrates that employment is an important
determinant of both perceived quality of life and health status among
individuals with disabilities.\106\ Additional anticipated qualitative
and dignitary benefits of the rule include, but are not limited to--
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\106\ See, e.g., Jean P. Hall, et al., supra note 104, at 100
(finding that, among individuals who are eligible for both Medicaid
and Medicare, paid employment is associated with significantly
better quality of life, self-reported health status, and health
behaviors).
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Promotion of human dignity and self-respect, and
diminished feelings of exclusion and humiliation;
reduced prevalence of disability-based stereotypes and
associated stigma;
increased diversity, understanding, and fairness in the
workplace; and
improved interactions with coworkers and workplace morale.
The rule is also expected to prevent disability-based employment
discrimination by making job applicants, employees, and agency
management better aware of the protections against discrimination
provided by Section 501.
In summary, the Commission estimates that the rule as a whole will
have a one-time initial cost to the federal government of approximately
$90,448.20; an annual cost to the federal government of between
$14,182,706.56 and $66,937,421.52; and an annual economic benefit to
the federal government of between $3,240,162.00 and $5,903,685.00. The
rule is also expected to have a variety of non-monetizable qualitative
and dignitary benefits for individuals with disabilities and
individuals with targeted disabilities.
Regulatory Flexibility Act
The Commission certifies under 5 U.S.C. 605(b) that this rule will
not have a significant economic impact on a substantial number of small
entities, because it applies exclusively to employees and agencies of
the federal government. For this reason, a regulatory flexibility
analysis is not required.
Unfunded Mandates Reform Act of 1995
This final rule will not result in the expenditure by State, local,
or tribal governments, in the aggregate, or by the private sector, of
$100 million or more in any one year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
Congressional Review Act
This action pertains to agency management, personnel and
organization and does not substantially affect the rights or
obligations of non-agency parties and, accordingly, is not a ``rule''
as that term is used by the Congressional Review Act (Subtitle E of the
Small Business Regulatory Enforcement Fairness Act of 1996. Therefore,
the reporting requirement of 5 U.S.C. 801 does not apply.
List of Subjects in 29 CFR Part 1614
Administrative practice and procedure, Age discrimination, Equal
employment opportunity, Government employees, Individuals with
disabilities, Race discrimination, Religious discrimination, Sex
discrimination.
For the reasons set forth in the preamble, the Equal Employment
Opportunity Commission proposes to amend 29 CFR part 1614 as follows:
PART 1614--FEDERAL SECTOR EQUAL EMPLOYMENT OPPORTUNITY
0
1. The authority citation for part 1614 continues to read as follows:
Authority: 29 U.S.C. 206(d), 633a, 791 and 794a; 42 U.S.C.
2000e-16 and 2000FF-6(e); E.O. 10577, 3 CFR, 1954-1958 Comp., p.
218; E.O. 11222, 3 CFR, 1964-1965 Comp., p. 306; E.O. 11478, 3 CFR,
1969 Comp., p. 133; E.O. 12106, 3 CFR, 1978 Comp., p. 263; Reorg.
Plan No. 1 of 1978, 3 CFR, 1978 Comp., p. 321.
Subpart B--Provisions Applicable to Particular Complaints
0
2. Revise Sec. 1614.203 to read as follows:
Sec. 1614.203 Rehabilitation Act.
(a) Definitions. The following definitions apply for purposes of
this section:
(1) The term ADA means title I of the Americans with Disabilities
Act of 1990, as amended (42 U.S.C. 12101 through 12117), title V of the
Americans with Disabilities Act, as amended (42 U.S.C. 12201 through
12213), as it applies to employment, and the regulations of the Equal
Employment Opportunity Commission implementing titles I and V of the
ADA at part 1630 of this chapter.
(2) The term disability means disability as defined under Sec.
1630.2(g) through (l) of this chapter.
(3) The term hiring authority that takes disability into account
means a hiring authority that permits an agency to consider disability
status in the selection of individuals for employment, including the
hiring authority for individuals with intellectual disabilities, severe
physical disabilities, or psychiatric disabilities, as set forth at 5
CFR 213.3102(u); the Veterans' Recruitment Appointment authority, as
set forth at 5 CFR part 307; and the 30% or More Disabled Veteran
authority, as set forth at 5 CFR 316.302(b)(4), 316.402(b)(4).
(4) The term Plan means an affirmative action plan for the hiring,
placement, and advancement of individuals with disabilities, as
required under 29 U.S.C. 791(b).
(5) The term Schedule A hiring authority for persons with certain
disabilities means the hiring authority for individuals with
intellectual disabilities, severe physical disabilities, or psychiatric
disabilities, as set forth at 5 CFR 213.3102(u).
(6) The term Section 501 means section 501 of the Rehabilitation
Act of 1973, as amended (29 U.S.C. 791).
(7) The term targeted/severe disability means a disability
designated as such on
[[Page 9136]]
the Office of Personnel Management's Standard Form 256 (SF-256).
(8) The term undue hardship has the meaning set forth in part 1630
of this chapter.
(b) Nondiscrimination. Federal agencies shall not discriminate on
the basis of disability in regard to the hiring, advancement or
discharge of employees, employee compensation, job training, or other
terms, conditions, and privileges of employment. The standards used to
determine whether Section 501 has been violated in a complaint alleging
employment discrimination under this part shall be the standards
applied under Titles I and V (sections 501 through 504 and 510) of the
Americans with Disabilities Act of 1990, as amended (42 U.S.C. 12101,
12111, 12201), as such sections relate to employment. These standards
are set forth in part 1630 of this chapter.
(c) Model employer. The Federal Government shall be a model
employer of individuals with disabilities. Agencies shall give full
consideration to the hiring, placement, and advancement of qualified
individuals with disabilities.
(d) Affirmative action plan. Pursuant to 29 U.S.C. 791, each agency
shall adopt and implement a Plan that provides sufficient assurances,
procedures, and commitments to provide adequate recruitment, hiring,
placement, and advancement opportunities for individuals with
disabilities at all levels of federal employment. An agency fails to
satisfy this requirement unless it has adopted and implemented a Plan
that meets the following criteria:
(1) Disability hiring and advancement program--(i) Recruitment. The
Plan shall require the agency to take specific steps to ensure that a
broad range of individuals with disabilities will be aware of and be
encouraged to apply for job vacancies, when eligible. Such steps shall
include, at a minimum--
(A) Use of programs and resources that may be used to identify job
applicants with disabilities who are eligible to be appointed under a
hiring authority that takes disability into account, consistent with
applicable OPM regulations, examples of which could include training
programs for individuals with disabilities that lead directly to
employment or that provide the qualifications necessary for particular
positions within the agency, and databases of potential job applicants
with disabilities; and
(B) Establishing and maintaining contacts with organizations
specializing in the placement of individuals with disabilities,
including, for example, American Job Centers, State Vocational
Rehabilitation Agencies, the Veterans' Vocational Rehabilitation and
Employment Program, Centers for Independent Living, and Employment
Network service providers.
(ii) Application process. The Plan shall ensure that the agency has
designated sufficient staff to handle any disability-related issues
that arise during the application and placement processes, and will
require the agency to provide such individuals with sufficient
training, support, and other resources to carry out their
responsibilities under this section, which shall include, at a
minimum--
(A) Ensuring that disability-related questions from members of the
public regarding the agency's placement process are answered promptly
and correctly, including questions about reasonable accommodations
needed by job applicants during the application and placement
processes, and questions about how individuals may apply for
appointment under a hiring authority that takes disability into
account;
(B) Processing requests for reasonable accommodations needed by job
applicants during the application and placement processes, and ensuring
that the agency provides such accommodations when required to do so
under the standards set forth in part 1630 of this chapter;
(C) Accepting applications for appointment under hiring authorities
that take disability into account, consistent with applicable OPM
regulations;
(D) Determining whether individuals who have applied for
appointment under a hiring authority that takes disability into account
are eligible for appointment under that authority;
(E) If an individual has applied for appointment to a particular
position under a hiring authority that takes disability into account
and is eligible for appointment under such authority, forwarding the
individual's application to the relevant hiring officials, and
explaining to those officials how and when they may appoint the
individual, consistent with all applicable laws;
(F) Overseeing any other agency programs designed to increase
hiring of individuals with disabilities.
(iii) Advancement program. The Plan shall require the agency to
take specific steps to ensure that current employees with disabilities
have sufficient opportunities for advancement. Such steps may include,
for example--
(A) Efforts to ensure that employees with disabilities are informed
of and have opportunities to enroll in relevant training, including
management training when eligible;
(B) Development or maintenance of a mentoring program for employees
with disabilities; and
(C) Administration of exit interviews that include questions on how
the agency could improve the recruitment, hiring, inclusion, and
advancement of individuals with disabilities.
(2) Disability anti-harassment policy. The Plan shall require the
agency to state specifically in its anti-harassment policy that
harassment based on disability is prohibited and to include in its
training materials examples of the types of conduct that would
constitute disability-based harassment.
(3) Reasonable accommodation--(i) Procedures. The Plan shall
require the agency to adopt, and make available to all job applicants
and employees in written and accessible formats, reasonable
accommodation procedures that are easy to understand and that, at a
minimum--
(A) Explain relevant terms such as ``reasonable accommodation,''
``disability,'' ``interactive process,'' ``qualified,'' and ``undue
hardship,'' consistent with applicable statutory and regulatory
definitions, using examples where appropriate;
(B) Provide that reassignment to a position for which an employee
is qualified, and not just permission to compete for such position,
will be considered as a reasonable accommodation if the agency
determines that no other reasonable accommodation will permit the
employee with a disability to perform the essential functions of his or
her current position, and notify supervisors and other relevant agency
employees about how and where to conduct a search for available
vacancies when reassignment is being considered;
(C) Explain that an individual may request a reasonable
accommodation orally or in writing at any time, that an individual need
not have a particular accommodation in mind before making a request,
and that the request may be made to a supervisor or manager in the
individual's chain of command, the office designated by the agency to
oversee the reasonable accommodation process, any agency employee
connected with the application process, or any other individual
designated by the agency to accept such requests;
(D) Include any forms the agency uses in connection with a
reasonable accommodation request as attachments, and indicate that such
forms are available in alternative formats that are accessible to
people with disabilities;
[[Page 9137]]
(E) Describe the agency's process for determining whether to
provide a reasonable accommodation, including a description of the
interactive process, and the individual from whom requestors will
receive a final decision;
(F) Provide guidance to supervisors on how to recognize requests
for reasonable accommodation;
(G) Require that decision makers communicate, early in the
interactive process, with individuals who have requested a reasonable
accommodation;
(H) Explain that the agency may require an individual who requests
a reasonable accommodation to provide medical information that is
sufficient to explain the nature of the individual's disability, his or
her need for reasonable accommodation, and how the requested
accommodation, if any, will assist the individual to apply for a job,
perform the essential functions of a job, or enjoy the benefits and
privileges of the workplace;
(I) Explain the agency's right to request relevant supplemental
medical information if the information submitted by the requestor is
insufficient;
(J) Explain the agency's right to have medical information reviewed
by a medical expert of the agency's choosing at the agency's expense;
(K) Explain the agency's obligation to keep medical information
confidential, in accordance with applicable laws and regulations, and
the limited circumstances under which such information may be
disclosed;
(L) Designate the maximum amount of time the agency has, absent
extenuating circumstances, to either provide a requested accommodation
or deny the request, explain that the time limit begins to run when the
accommodation is first requested, and explain that, where a particular
reasonable accommodation can be provided in less than the maximum
amount of time allowed, failure to respond to a request in a prompt
manner may result in a violation of the Rehabilitation Act;
(M) Provide for expedited processing of requests for reasonable
accommodations that are needed sooner than the maximum allowable time
frame permitted under paragraph (d)(3)(i)(L) of this section;
(N) Explain that, where a reasonable accommodation cannot be
provided immediately, the agency must provide an interim accommodation
whenever possible;
(O) Inform applicants and employees how they may track the
processing of requests for reasonable accommodation;
(P) Explain that, where there is a delay in either processing a
request for, or providing, a reasonable accommodation, the agency must
notify the individual of the reason for the delay;
(Q) Explain that individuals who have been denied reasonable
accommodations have the right to file complaints in the Equal
Employment Opportunity process and other statutory processes, as
appropriate;
(R) Encourage the use of voluntary informal dispute resolution
processes that individuals may use to obtain prompt reconsideration of
denied requests for reasonable accommodation;
(S) Provide that the agency shall give the requestor a notice
consistent with the requirements of paragraph (d)(3)(iii) of this
section at the time a requested accommodation is denied; and
(T) Provide information on how to access, at a minimum, Commission
guidance and technical assistance documents.
(ii) Cost of accommodations. The Plan shall require the agency to
inform all employees who are authorized to grant or deny requests for
reasonable accommodation that, pursuant to the regulations implementing
the undue hardship defense at 29 CFR part 1630, all available resources
are considered when determining whether a denial of reasonable
accommodation based on cost is appropriate. The Plan shall also require
the agency to provide such employees with a list of all resources
available for providing reasonable accommodations, and with
instructions on how to gain access to those resources. Available
resources may include a centralized fund specifically created by the
agency for providing reasonable accommodations, the Department of
Defense Computer and Electronic Accommodations Program (CAP), and
agency funds that, although not designated specifically for providing
reasonable accommodations, may be used for that purpose consistent with
all applicable laws.
(iii) Notification of basis for denial. The Plan shall require the
agency to provide a job applicant or employee who is denied a
reasonable accommodation with a written notice that--
(A) Explains the reasons for the denial and notifies the job
applicant or employee of any available internal appeal or dispute
resolution processes;
(B) Informs the job applicant or employee of the right to challenge
the denial by filing a complaint of discrimination under this part;
(C) Explains that such complaint must be filed within 45 days of
the denial regardless of whether the individual participates in an
informal dispute resolution process; and
(D) Provides instructions on how to file such a complaint.
(4) Accessibility of facilities and technology--(i) Contact
information. The Plan shall require the agency to provide all employees
with contact information for an agency employee who is responsible for
ensuring the physical accessibility of the agency's facilities under
the Architectural Barriers Act of 1968, 42 U.S.C. 4151 through 4157,
and an agency employee who is responsible for ensuring that the
electronic and information technology purchased, maintained, or used by
the agency is readily accessible to, and usable by, individuals with
disabilities, as required by Section 508 of the Rehabilitation Act of
1973, 29 U.S.C. 794d.
(ii) Filing complaints. The Plan shall require the agency to
provide all employees clear instructions on how to file a complaint
under Section 508 of the Rehabilitation Act of 1973, 29 U.S.C. 794d,
concerning the accessibility of agency technology, and a complaint
under the Architectural Barriers Act, 42 U.S.C. 4151 through 4157
concerning the accessibility of a building or facility.
(iii) Assistance with filing complaints at other agencies. If
investigation of a complaint filed under Section 508 of the
Rehabilitation Act of 1973 or the Architectural Barriers Act shows that
it is beyond the agency's power to correct the identified
inaccessibility, the agency shall assist the individual in identifying
the responsible party, and, if possible, filing a complaint with such
party.
(5) Personal services allowing employees to participate in the
workplace. The Plan shall require the agency to provide, in addition to
professional services required as a reasonable accommodation under the
standards set forth in part 1630 of this chapter, personal assistance
services during work hours and job-related travel to employees who need
them because of a disability, unless doing so would impose undue
hardship. Personal assistance services may include, for example,
assistance with removing and putting on clothing, eating, and using the
restroom. An individual who performs personal assistance services may
be required to perform additional tasks, as time permits, including
provision of assistance required as a reasonable accommodation and
other duties, and may be required to perform personal assistance
services for more than one individual with a disability.
(6) Utilization analysis--(i) Current utilization. The Plan shall
require the agency to perform a workforce analysis
[[Page 9138]]
annually to determine the percentage of its employees at each grade
level, including the Senior Executive Service, who have disabilities as
defined by the Rehabilitation Act, and the percentage of its employees
at each grade level, including the Senior Executive Service, who have
targeted/severe disabilities.
(ii) For purposes of the analysis required under paragraph
(d)(6)(i) of this section, employees may be classified as individuals
with disabilities or individuals with a targeted/severe disability on
the basis of--
(A) Self-identification records gathered in the manner prescribed
by the Office of Personnel Management;
(B) Records acquired during the course of appointments made under
hiring authorities that take disability into account; and
(C) Records of requests for reasonable accommodation.
(iii) Data accuracy. The Plan shall require the agency to take
steps to ensure that data collected pursuant to paragraph (d)(6)(i) of
this section are accurate.
(7) Goals--(i) Adoption. The Plan shall commit the agency to the
goal of ensuring that--
(A) No less than 12% of its employees at the GS-11 level or above,
including employees in the Senior Executive Service, are individuals
with disabilities;
(B) No less than 12% of its employees at the GS-10 level or below
are individuals with disabilities;
(C) No less than 2% of its employees at the GS-11 level or above,
including employees in the Senior Executive Service, are individuals
with targeted/severe disabilities; and
(D) No less than 2% of its employees at the GS-10 level or below
are individuals with targeted/severe disabilities.
(ii) Progression toward goals. The Plan shall require the agency to
take specific steps that are reasonably designed to gradually increase
the number of persons with disabilities and targeted/severe
disabilities employed at the agency until they meet the goals
established pursuant to paragraph (d)(7)(i) of this section. Examples
of such steps include, but are not limited to--
(A) Increased use of hiring authorities that take disability into
account to hire or promote individuals with disabilities or targeted/
severe disabilities, as applicable;
(B) To the extent permitted by applicable laws, consideration of
disability or targeted/severe disability status as a positive factor in
hiring, promotion, or assignment decisions;
(C) Disability-related training and education campaigns for all
employees in the agency;
(D) Additional outreach or recruitment efforts; and
(E) Adoption of training, mentoring, or internship programs for
individuals with disabilities.
(8) Recordkeeping. The Plan shall require the agency to keep
records that it may use to determine whether it is complying with the
nondiscrimination and affirmative action requirements imposed under
Section 501, and to make such records available to the Commission upon
the Commission's request, including, at a minimum, records of--
(i) The number of job applications received from individuals with
disabilities and the number of individuals with disabilities who were
hired by the agency;
(ii) The number of job applications received from individuals with
targeted/severe disabilities and the number of individuals with
targeted/severe disabilities who were hired by the agency;
(iii) All rescissions of conditional job offers, demotions, and
terminations taken against applicants or employees as a result of
medical examinations or inquiries;
(iv) All agency employees hired under the Schedule A hiring
authority for persons with certain disabilities, and each such
employee's date of hire, entering grade level, probationary status, and
current grade level;
(v) The number of employees appointed under the Schedule A hiring
authority for persons with certain disabilities who have been converted
to career or career-conditional appointments in the competitive service
each year, and the number of such employees who were terminated prior
to being converted to a career or career-conditional appointment in the
competitive service each year; and
(vi) Details about each request for reasonable accommodation
including, at a minimum--
(A) The specific reasonable accommodation requested, if any;
(B) The job (occupational series, grade level, and agency
component) sought by the requesting applicant or held by the requesting
employee;
(C) Whether the accommodation was needed to apply for a job,
perform the essential functions of a job, or enjoy the benefits and
privileges of employment;
(D) Whether the request was granted (which may include an
accommodation different from the one requested) or denied;
(E) The identity of the deciding official;
(F) If denied, the basis for such denial; and
(G) The number of days taken to process the request.
(e) Reporting--(1) Submission to the Commission. On an annual
basis, each federal agency shall submit to the Commission for approval,
at such time and in such manner as the Commission deems appropriate--
(i) A copy of its current Plan;
(ii) The results of the two most recent workforce analyses
performed pursuant to paragraph (d)(6) of this section;
(iii) The number of individuals appointed to positions within the
agency under the Schedule A hiring authority for persons with certain
disabilities during the previous year, and the total number of
employees whose employment at the agency began by appointment under the
Schedule A hiring authority for persons with certain disabilities; and
(iv) A list of any changes made to the Plan since the prior
submission, if any, and an explanation of why those changes were made.
(2) Availability to the public. Each agency shall make the
information submitted to the Commission pursuant to paragraph (e)(1) of
this section available to the public by, at a minimum, posting a copy
of the submission on its public Web site, and by providing means by
which members of the public may request copies of the submission in
alternative formats accessible to individuals with disabilities.
(f) Commission approval and disapproval--(1) Basis for approval. If
the Commission determines that an agency has adopted and implemented a
Plan that meets the requirements set forth in paragraph (d) of this
section, the Commission shall approve the Plan.
(2) Basis for disapproval. If the Commission determines that an
agency has failed to adopt and implement a Plan that meets the
requirements set forth in paragraph (d) of this section, the Commission
shall disapprove the Plan as required by 29 U.S.C. 791(b). Failure to
achieve a goal set forth in paragraph (d)(7)(i) of this section, by
itself, is not grounds for disapproval unless the Plan fails to require
the agency to take specific steps that are reasonably designed to
achieve the goal.
Dated: February 16, 2016.
[[Page 9139]]
For the Commission.
Cynthia G. Pierre,
Chief Operating Officer.
[FR Doc. 2016-03530 Filed 2-23-16; 8:45 am]
BILLING CODE 6570-01-P