EEOC Notice of Proposed Rulemaking on Affirmative Action for People with Disabilities in the Federal Government: Background and Summary

On February 24, the EEOC issued a notice of proposed rulemaking (NPRM) to amend the regulations at 29 C.F.R. § 1614.203 implementing Section 501 of the Rehabilitation Act of 1973 (Section 501). The proposed rule provides guidance to federal agencies on what they must do to satisfy their Section 501 obligation to engage in affirmative action in employment for individuals with disabilities.

BACKGROUND

Section 501 includes both nondiscrimination and affirmative action obligations.

• The standards governing federal agencies' nondiscrimination obligations are the same standards that apply to private, state, and local government employers with 15 or more employees under Title I of the Americans with Disabilities Act (ADA).
• Agencies' affirmative action obligations include a requirement to submit Affirmative Action Plans (Plans) for the hiring, placement, and advancement of individuals with disabilities to the Commission on an annual basis.
• EEOC has detailed regulations on nondiscrimination obligations under both Title I of the ADA and Section 501 at 29 C.F.R. Part 1630. However, the current regulations provide very little guidance on Section 501's affirmative action requirement, 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." 29 C.F.R. § 1614.2034(a).

Non-Regulatory Guidance

• In the past, guidance regarding the Section 501 affirmative action obligation has been provided through EEOC's Management Directive 715 (MD-715).
• A number of overlapping executive orders and policy documents also provide guidance.
  • Executive Order 13164, for example, requires federal agencies to establish written reasonable accommodation procedures.
  • Executive Orders 13163 and 13548 set five-year hiring goals for persons with disabilities in the federal workforce, and the latter also required agencies to set agency-specific hiring goals for persons with disabilities as defined under Section 501 and sub-goals for persons with targeted/severe disabilities as defined by Office of Personnel Management Standard Form 256 (SF-256). Policy and guidance documents were developed pursuant to each executive order to further explain the obligations they imposed.

OFCCP Regulations: On Sept. 24, 2013, the Office of Federal Contract Compliance Programs (OFCCP) finalized Section 503 regulations requiring federal contractors to engage in affirmative action for people with disabilities. See Affirmative Action and Nondiscrimination Obligations of Contractors and Subcontractors Regarding Individuals With Disabilities, 78 Fed. Reg. 58,752 (codified at 41 C.F.R. pt. 60-741), available at https://www.federalregister.gov/articles/2013/09/24/2013-21228/affirmative-action-and-nondiscrimination-obligations-of-contractors-and-subcontractors-regarding.

• The regulation requires federal contractors to adopt the goal of achieving a 7% representation rate for individuals with disabilities. 41 C.F.R. § 60-741.45(a).
• If the goal is not met, contractors must establish action-oriented programs designed to address the problem.
• The regulation also requires federal contractors to collect data, invite applicants to self-identify as individuals with disabilities, maintain and make available to OFCCP various records, and meet other requirements.

ANPRM: On May 15, 2014, the Commission issued an Advance Notice of Proposed Rulemaking (ANPRM), informing the public that it intends to revise its Section 501 regulations to include further guidance on federal agencies' affirmative action obligations. See 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), available at https://www.federalregister.gov/articles/2014/05/15/2014-11233/the-federal-sectors-obligation-to-be-a-model-employer-of-individuals-with-disabilities.

• The ANPRM included seven detailed questions on how the regulations should be revised, including questions on the employment barriers faced by individuals with disabilities, employment goals, the federal hiring process, retention and advancement, and reasonable accommodation.
• The Commission received 89 responses, 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. The vast majority of the comments were supportive of the proposal; only two of the comments were generally negative.

SUMMARY OF PROPOSED RULE

The proposed rule provides guidance on the Section 501 affirmative action obligation by informing agencies of the criteria by which the Commission will evaluate Plans submitted pursuant to 29 U.S.C. § 791(b). The most significant Plan requirements are listed below.

• The Plan must designate sufficient staff to process requests for reasonable accommodations related to the application and hiring processes, and to process applications for appointment to vacant positions under hiring authorities that take disability into account, such as the Schedule A hiring authority for individuals with intellectual disabilities, severe physical disabilities, or psychiatric disabilities.
• The Plan must adopt the goal of having a 12% representation rate for people with disabilities, both at the GS-11 level and above (including SES) and at the GS-10 level and below.
  • For purposes of the proposed rule, the term "disability" has the same definition that applies under the ADA, as amended by the ADA Amendments Act.
  • Data show that the federal government as a whole has achieved a 12% representation rate for individuals with disabilities, but that they are disproportionately represented at lower levels of employment. Establishing goals of 12% at both higher and lower levels of employment is intended to rectify this imbalance.
• The Plan must adopt the goal of having a 2% representation rate for people with targeted/severe disabilities, both at the GS-11 level and above (including SES) and at the GS-10 level and below.
  • Targeted/severe disabilities are listed on OPM Standard Form 256 (SF-256). They include total deafness in both ears, blindness, missing extremities, partial or complete paralysis, epilepsy, severe intellectual disability, psychiatric disability, and dwarfism.
  • The Commission has encouraged agencies to adopt a 2% goal for people with targeted/severe disabilities for many years, but data show that the federal government as a whole has achieved representation rates of only 1.91% at the GS-10 level and below, and 0.8% at the GS-11 level and above.
• The Plan must require the agency to make written reasonable accommodation procedures available to job applicants and employees.
  • This requirement is consistent with existing obligations imposed by Executive Order 13164, issued in 2000.
  • The rule provides that certain topics must be addressed in the written procedures, including, for example, how to request accommodations, processing deadlines, limitations on the amount of medical documentation agencies may require as part of the reasonable accommodation interactive process, and when agencies must provide reassignment as a reasonable accommodation.
• The Plan must ensure that employees who are authorized to grant or deny requests for reasonable accommodation are aware that all available resources should be considered when determining whether a requested accommodation would impose undue hardship, and that such employees know how to access those resources.
• The Plan must require the agency to provide personal assistance services, such as assistance with eating, drinking, using the restroom, and putting on and taking off outerwear, to employees who need them because of a disability, unless doing so would impose undue hardship.
  • Employers are not required to provide personal assistance services as a reasonable accommodation. Under the proposed rule, personal assistance services must be provided by agencies in order to fulfill the Section 501 requirement to engage in affirmative action for people with disabilities, unless doing so would result in undue hardship.
  • The NPRM asks for public input regarding the cost of this requirement. EEOC currently estimates that the federal government as a whole would be required to provide personal assistance services to approximately 169 current employees and between 188 and 215 new hires as a result of the rule.
• The Plan must require the agency to provide information to employees about how to file complaints about the accessibility of facilities under the Architectural Barriers Act and about the accessibility of electronic and information technology under Section 508 of the Rehabilitation Act, and require the agency to assist with filing a complaint if a different agency is responsible for an accessibility problem.
• The Plan must require agencies to include disability in their anti-harassment policies.
• The Plan must require agencies to take specific steps to ensure that current employees have sufficient opportunities for advancement. Such steps may include training for employees with disabilities and creation or maintenance of mentoring programs.

NEXT STEPS

• The Commission has invited written comments from members of the public on any issues related to the proposed rule. The comment period ends sixty (60) days from publication in the Federal Register, which is April 25, 2016.
• Following the comment period, the Commission will evaluate comments, revise the proposed rule as necessary, and submit a final rule to the Office of Management and Budget for coordination with other federal agencies pursuant to Executive Order 12866. Following interagency coordination, a final rule will be published in the Federal Register.