82 FR 654 - Affirmative Action for Individuals With Disabilities in Federal Employment
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Federal Register Volume 82, Issue 1 (January 3, 2017)
Federal Register Volume 82, Issue 1 (January 3, 2017)
| Page Range | 654-681 | |
| FR Document | 2016-31397 |
[Federal Register Volume 82, Number 1 (Tuesday, January 3, 2017)] [Rules and Regulations] [Pages 654-681] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2016-31397] [[Page 653]] Vol. 82 Tuesday, No. 1 January 3, 2017 Part III Equal Employment Opportunity Commission ----------------------------------------------------------------------- 29 CFR Part 1614 Affirmative Action for Individuals With Disabilities in Federal Employment; Final Rule Federal Register / Vol. 82 , No. 1 / Tuesday, January 3, 2017 / Rules and Regulations [[Page 654]] ----------------------------------------------------------------------- EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 29 CFR Part 1614 RIN 3046-AA94 Affirmative Action for Individuals With Disabilities in Federal Employment AGENCY: Equal Employment Opportunity Commission. ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: The Equal Employment Opportunity Commission (EEOC or Commission) is issuing its final rule to amend the regulations that require federal agencies to engage in affirmative action for individuals with disabilities. These changes clarify the obligations that the Rehabilitation Act of 1973 imposes on federal agencies, as employers, that are over and above the obligation not to discriminate on the basis of disability. The regulation does not apply to the private sector or to state or local governments. DATES: Effective date: This final rule will be applicable on March 6, 2017. Applicability date: The applicability date for this final rule shall be January 3, 2018. 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). (These are not toll free numbers.) SUPPLEMENTARY INFORMATION: Executive Summary This final rule (Final Rule or Rule) amends 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. The Rule codifies a variety of obligations currently placed on federal agencies by management directives and Executive Orders. It also adds two substantive affirmative action requirements. First, the Rule requires agencies to take specific steps that are reasonably designed to gradually increase the number of employees who have a disability as defined under Section 501, and the number of employees who have a ``targeted disability,'' which is defined for purposes of this Rule to mean a disability that is either designated as ``targeted disability or health condition'' on the Office of Personnel Management's (OPM's) Standard Form 256 (SF-256),\3\ or that falls under one of the first 12 categories of disability listed in Part A of Question 5 of the EEOC's Demographic Information on Applicants form (Applicant Flow Form),\4\ until they meet specific goals set by the EEOC. This is consistent with the approach taken by the Department of Labor''s Office of Federal Contract Compliance Programs in regulations issued to implement the obligation of federal contractors to engage in affirmative action for individuals with disabilities pursuant to Section 503 of the Rehabilitation Act of 1973, 29 U.S.C. 793 (Section 503).\5\ --------------------------------------------------------------------------- \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 Aug., 2016), https://www.opm.gov/forms/pdf_fill/sf256.pdf [hereinafter SF- 256]. Targeted disabilities include: developmental disabilities, for example, autism spectrum disorder; traumatic brain injuries; deafness or serious difficulty hearing, benefiting from, for example, American Sign Language; blindness or serious difficulty seeing even when wearing glasses; missing extremities (arm, leg, hand and/or foot); significant mobility impairments, benefitting from the utilization of a wheelchair, scooter, walker, leg brace(s) and/or other supports; partial or complete paralysis (any cause); epilepsy and other seizure disorders; intellectual disabilities; psychiatric disabilities; dwarfism; and significant disfigurement, for example, disfigurements caused by burns, wounds, accidents, or congenital disorders. \4\ EEOC, Demographic Information on Applicants (n.d.), https://www.eeoc.gov/federal/upload/Applicant_Tracking_Form_2-19-2014-2.pdf [hereinafter Applicant Flow Form]. The first 12 categories of disability listed in Part A of question 5 are: Deaf or serious difficulty hearing; blind or serious difficulty seeing even when wearing glasses; missing an arm, leg, hand, or foot; partial or complete paralysis (any cause); significant disfigurement (for example, severe disfigurements caused by burns, wounds, accidents, or congenital disorders); significant mobility impairment (for example, uses a wheelchair, scooter, walker or uses a leg brace to walk); significant psychiatric disorder (for example, bipolar disorder, schizophrenia, PTSD or major depression); intellectual disability (formerly described as mental retardation); developmental disability (for example, cerebral palsy or autism spectrum disorder); traumatic brain injury; dwarfism; and epilepsy or other seizure disorder. \5\ See 41 CFR pt. 60-741.45(a) (establishing 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). --------------------------------------------------------------------------- Second, the Rule requires agencies to provide personal assistance services (PAS) to employees who, because of targeted disabilities, require such assistance in order to be at work or participate in work- related travel. PAS are services that help individuals with disabilities perform activities of daily living, including, for example, assistance with removing and putting on clothing, eating, and using the restroom. Such services do not, however, include medical care, and need not be provided by someone who has medical training or qualifications. The Commission recognizes that agencies may need some time to develop the capacity to meet these requirements. The Rule gives agencies one year to make any necessary changes in policy, staff, or other aspects of their operations. The applicability date of the Rule is thus January 3, 2018. Prior to that date, the Commission will provide extensive outreach and training to help agencies prepare to meet the new requirements. The Commission's economic analysis estimates that the Rule will have a one-time initial cost to the federal government of approximately $145,580.40; an annual cost to the federal government of between $23,151,538.70 and $70,954,568.10; and an annual economic benefit to the federal government of approximately $6,617,619.00. 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 imposes two distinct obligations on federal agencies. First, it prohibits agencies from discriminating against individuals with disabilities pursuant to the same standards that are ``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.'' \6\ Current EEOC regulations provide substantial guidance on these standards at 29 CFR part 1630. Additional guidance is provided in the many EEOC appellate decisions on complaints of employment discrimination brought under Section 501. These decisions are published on the EEOC's Web site, and significant decisions are compiled in a publicly available digest updated annually by the Commission's Office of Federal Operations.\7\ This Final Rule does not change any of the substantive nondiscrimination requirements that [[Page 655]] currently apply in the federal sector, as set forth in the EEOC's regulations and federal sector appellate decisions. --------------------------------------------------------------------------- \6\ 29 U.S.C. 791(f). \7\ See Digest of Equal Employment Opportunity Law, Equal Emp't Opportunity Comm'n, http://www.eeoc.gov/federal/digest/index.cfm (last visited Dec. 21, 2016). --------------------------------------------------------------------------- Second, the section 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.'' It further directs the Commission to approve an affirmative action plan (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.'' \8\ --------------------------------------------------------------------------- \8\ 29 U.S.C. 791(b). --------------------------------------------------------------------------- The regulations currently implementing the Section 501 affirmative action requirement simply state that the federal government shall be a ``model employer of individuals with disabilities,'' and that federal agencies shall ``give full consideration to the hiring, placement, and advancement of qualified individuals with disabilities.'' \9\ Over the years, however, the EEOC has issued various Management Directives to provide guidance on how an agency's 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. --------------------------------------------------------------------------- \9\ 29 CFR 1614.203(a). --------------------------------------------------------------------------- In 1987, the Commission issued Management Directive 713 (MD-713), setting the standards by which the Commission would evaluate an agency's Plan with regard to the hiring of people with disabilities.\10\ MD-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.\11\ --------------------------------------------------------------------------- \10\ EEOC, Management Directive 713, 1987 WL 768434 (Oct. 3, 1987). \11\ Management Directive 712 (MD-712) preceded MD-713 by four years. See EEOC, Management Directive 712, 1983 WL 410824 (March 29, 1983). 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. For a general history of the EEOC's Management Directives, see Office of Fed. Operations, EEOC, A Look at the EEOC's Office of Federal Operation's Federal Sector Programs: Past, Present, and Future, Dig. of EEO L., Winter 2008, http://www.eeoc.gov/federal/digest/xix-1.cfm. --------------------------------------------------------------------------- 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.'' \12\ 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.'' \13\ The same day, President Clinton issued Executive Order 13164, which requires federal agencies to establish written reasonable accommodation procedures, with a series of detailed requirements to be included in those written procedures.\14\ Shortly thereafter, the EEOC issued Policy Guidance on Executive Order 13164: Establishing Procedures to Facilitate the Provision of Reasonable Accommodation.\15\ --------------------------------------------------------------------------- \12\ See Executive Order No. 13163, 3 CFR 285 (2001), http://www.thefederalregister.org/fdsys/pkg/FR-2000-07-28/pdf/00-19322.pdf. \13\ Id. \14\ Executive Order No. 13164, 3 CFR 286 (2001), http://frwebgate.access.thefederalregister.org/cgi-bin/getdoc.cgi?dbname=2000_register&docid=fr28jy00-140.pdf. \15\ EEOC, Policy Guidance On Executive Order 13164: Establishing Procedures To Facilitate The Provision Of Reasonable Accommodation (last modified Oct. 19, 2000), http://www.eeoc.gov/policy/docs/qanda-accommodation_procedures.html [hereinafter 13164 Guidance]. --------------------------------------------------------------------------- In 2003, the EEOC issued Management Directive 715 (MD-715),\16\ which superseded MD-713 and is still in effect. 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. The Directive 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.'' \17\ Pursuant to Executive Order 13164, 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.\18\ 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.\19\ --------------------------------------------------------------------------- \16\ EEOC, Management Directive 715 (Oct. 1, 2003), http://www.eeoc.gov/federal/directives/md715.cfm [hereinafter MD-715]. \17\ Id. at B.III. \18\ Id. at B.V. \19\ Id. at B.V. --------------------------------------------------------------------------- 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, the Commission issued a detailed question-and-answer document on promoting the employment of individuals with disabilities in the federal workforce.\21\ --------------------------------------------------------------------------- \20\ EEOC, Practical Advice on Drafting and Implementing Reasonable Accommodation Procedures under Executive Order 13164, (July 2005), http://www.eeoc.gov/policy/docs/implementing_accommodation.pdf. \21\ EEOC, Questions and Answers: Promoting Employment of Individuals with Disabilities in the Federal Workforce (n.d.), http://eeoc.gov/federal/qanda-employment-with-disabilities.cfm [hereinafter Promoting Employment]. --------------------------------------------------------------------------- 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 required agencies to set their own 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 OPM. Again, policy and guidance documents were developed pursuant to this Executive Order.\23\ --------------------------------------------------------------------------- \22\ Executive Order No. 13548, 3 CFR 168 (2010), http://www.thefederalregister.org/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), 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. --------------------------------------------------------------------------- [[Page 656]] The Rule On May 15, 2014, the Commission published an Advance Notice of Proposed Rulemaking (ANPRM) requesting public comment on specific inquiries regarding ways to strengthen its Section 501 affirmative action regulations.\24\ A total of 89 comments were received.\25\ Taking the comments into account, the Commission published a Notice of Proposed Rulemaking (NPRM) proposing specific revisions to the Section 501 regulations on February 24, 2016.\26\ The NPRM also asked for public input on 7 specific aspects of the proposal.\27\ --------------------------------------------------------------------------- \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, .601(f)). \25\ In addition to the 89 comments, the Commission received several duplicate comments. \26\ Affirmative Action for Individuals with Disabilities in the Federal Government, 81 FR 9123 (Feb. 24, 2016) (to be codified at 29 CFR 1614.203, .601(f)). \27\ Id. at 9130. --------------------------------------------------------------------------- The Commission received a total of 103 comments on the proposed rule, representing the opinions of 73 individuals, 52 disability advocacy organizations, 5 federal agencies, 2 federal government organizations, 3 state government organizations, 2 vocational rehabilitation organizations, and 1 group of administrative law students.\28\ Twenty-one of the comments were non-responsive. The comments are available for review at the Federal eRulemaking Portal at http://www.regulations.gov. --------------------------------------------------------------------------- \28\ Some comments represented the opinions of more than one entity, and some individuals submitted more than one comment. --------------------------------------------------------------------------- The Commission has reviewed and given due consideration to all comments received during the public comment period, and now issues its Final Rule amending 29 CFR 1614.203 and 1614.601(f) to update, clarify, and put in one place the standards that the Commission will use to review and approve agency Plans. The comments resulted in numerous changes to the specific requirements proposed in the NPRM. Relevant comments and Commission responses are discussed in detail in the Section-by-Section Analysis below. The Commission also made several stylistic changes that do not affect the substantive requirements of the Rule. Commenters also offered suggestions for additional requirements not proposed in the NPRM. In some cases, the suggested requirements were not added because the Commission lacked the requisite authority. For example, the Rule does not amend Workers' Compensation laws; revise regulations governing the hiring authority for individuals with intellectual disabilities, severe physical disabilities, or psychiatric disabilities, as set forth at 5 CFR 213.3102(u) (Schedule A hiring authority for persons with certain disabilities) by, for example, extending the trial employment period or changing the eligibility criteria; create or abolish other hiring authorities; prohibit agencies from making their own hiring decisions; or extend Section 501 obligations to state and local governments, federal contractors,\29\ or businesses in the private sector generally. --------------------------------------------------------------------------- \29\ However, we note that federal contractors are subject to obligations to engage in affirmative action for individuals with disabilities under Section 503. See 29 U.S.C. 793(d); 41 CFR pt. 60- 741. --------------------------------------------------------------------------- The Commission also did not add a provision that either grants or denies a private right of action to enforce the affirmative action regulations, as suggested by some commenters. The Commission requested public input on the ability of individuals to seek enforcement of the requirement to provide PAS, codified at paragraph (d)(5) of the Rule as amended, in individual cases. Nonetheless, this is a matter of first impression, and the Commission believes that its procedural regulations governing complaints of discrimination in the federal sector, found at 29 CFR 1614, subpart A, are the most appropriate place to address this question. As such, this Rule takes no position on the availability of a private remedy for either the PAS obligation or the affirmative action obligations more generally. Other requirements were not added because they concerned issues that were beyond the scope of this rulemaking. For example, the Rule does not provide that a change in supervisors is a reasonable accommodation, that inaccessible job application processes may give rise to claims of employment discrimination, or that individuals have a right to representation during the interactive process, because these suggestions pertain to Section 501's nondiscrimination requirements, which are the same as the nondiscrimination requirements of Title I \30\ and certain provisions of Title V \31\ of the Americans with Disabilities Act (ADA) applicable to private and state and local government employers.\32\ The EEOC has regulations describing the ADA's nondiscrimination requirements at 29 CFR part 1630. For similar reasons, the Rule does not address methods of oversight established elsewhere in part 1614. --------------------------------------------------------------------------- \30\ 42 U.S.C. 12101-12117. \31\ 42 U.S.C. 12201-12213. \32\ Congress incorporated all of the ADA's employment discrimination provisions in 1992. See Rehabilitation Act Amendments of 1992, Pub. L. 102-569, 106 Stat. 4344, 4424 (codified as amended at 29 U.S.C. 791(f)). --------------------------------------------------------------------------- In some cases, suggested requirements were not added because they would affect matters governed by both EEOC and OPM regulations. For example, the Commission has not added requirements to the Rule designed to prevent violations of Section 501's qualification standard provisions.\33\ Qualification standards are governed by EEOC's nondiscrimination regulations at 29 CFR part 1630.\34\ These regulations clarify that the ADA/Section 501 qualification standard provisions require federal agencies to exempt an individual from a qualification standard, test, or other selection criterion if there is sufficient evidence that he or she cannot meet such standard, test, or criterion because of a disability, but can nevertheless perform the essential functions of the position with a reasonable accommodation (if one is required).\35\ However, qualification standards are also governed by OPM regulations.\36\ Similarly, the Final Rule does not address vacancy announcements; benefit programs such as return-to-work programs; or alternative models of employment such as apprenticeship programs, customized employment, and job splitting, which are also affected by OPM regulations. EEOC and OPM are working together to develop coordinated strategies on some of these issues and other matters over which both agencies have jurisdiction. --------------------------------------------------------------------------- \33\ The ADA prohibits ``using qualification standards, employment tests or other selection criteria that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities,'' unless a defense applies. 42 U.S.C. 12112(b)(6), 12113(a). These provisions were made applicable to federal agencies when Congress incorporated all of the ADA's employment discrimination provisions into Section 501. See Rehabilitation Act Amendments, 106 Stat. at 4424. \34\ The Commission's ADA regulations were incorporated into EEOC's Section 501 regulations, via full notice and comment, after Congress incorporated the ADA's employment discrimination provisions into Section 501. See Federal Sector Equal Employment Opportunity, 67 FR 35,732, 35,735 (May 21, 2002) (codified at 29 CFR 1614.203(b)). Further guidance on the nondiscrimination requirements pertaining to qualification standards can be found in several cases issued through the federal sector complaint process. \35\ See 29 CFR 1630.10, .15(b), .15(c); 29 CFR pt. 1630, app. 1630.10, .15(b) and (c). \36\ See 5 CFR pt. 338 and authorities cited therein. --------------------------------------------------------------------------- One commenter stated that the Rule should include an exemption for small agencies. However, except in the case of the workforce analysis and goal requirements imposed by paragraphs [[Page 657]] (d)(6) and (d)(7), discussed below, the commenter failed to identify any basis on which to conclude that the Rule's requirements were inappropriate for, or especially burdensome to, small agencies. For example, there is no reason to believe that small agencies cannot or should not adopt written reasonable accommodation procedures as required by paragraph (d)(3)(i) of the Final Rule. The Commission therefore has not added a general exemption. Authority The Commission issues this Final Rule under its Section 501 rulemaking authority. Congress expressly granted the Commission authority to issue substantive regulations under Section 501 by incorporating the federal sector enforcement provisions of Title VII of the Civil Rights Act of 1964 (Title VII) in Section 505 of the Rehabilitation Act of 1973 (Section 505).\37\ The incorporated provisions provide that ``the Equal Employment Opportunity Commission . . . shall issue such rules, regulations, orders and instructions as it deems necessary and appropriate'' to carry out its federal sector responsibilities under Title VII (and, by incorporation, its federal sector responsibilities under Section 501).\38\ The Commission also has express authority under Executive Order 12067 to ``issue such rules, regulations, policies, procedures or orders as it deems necessary to carry out its responsibilit[y]'' to ``provide leadership and coordination to the efforts of Federal departments and agencies to enforce all Federal statutes, Executive orders, regulations, and policies which require equal employment opportunity without regard to . . . handicap.'' \39\ --------------------------------------------------------------------------- \37\ See 29 U.S.C. 794a (incorporating 42 U.S.C. 2000e-5(e)(3), 2000e(f)-(k), 2000e(16)). \38\ 42 U.S.C. 2000e-16(b). This grant of authority to issue regulations implementing the federal sector provisions of Title VII is in addition to the more limited grant pursuant to EEOC's responsibility to enforce Title VII in the private sector. See 42 U.S.C. 2000e-12(a) (granting the Commission authority to issue, amend, or rescind ``suitable procedural regulations''). \39\ Executive Order No. 12067, 3 CFR, 1978 Comp., p. 206 (1978), http://www.archives.gov/federal-register/codification/executive-order/12067.html. --------------------------------------------------------------------------- As explained above, Section 501 requires federal agencies to engage in ``affirmative action'' for individuals with disabilities. However, the statute neither defines the term ``affirmative action'' nor provides detailed standards by which to determine whether an agency has met this requirement. Proper and effective enforcement of the statute thus ``necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress.'' \40\ This gap, together with the Commission's ``generally conferred authority'' under Section 501, make it ``apparent . . . that Congress . . . expect[s] the agency to be able to speak [to the issue] with the force of law . . . .'' \41\ The Commission thus has both the authority and the responsibility to issue regulations providing specific guidance to federal agencies on what they must do to satisfy their Section 501 obligation to engage in affirmative action for individuals with disabilities. --------------------------------------------------------------------------- \40\ Morton v. Ruiz, 415 U.S. 199, 231 (1974); Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843 (1984) (quoting Morton, 415 U.S. at 231). \41\ United States v. Mead Corp., 533 U.S. 218, 229 (2001) (citing Chevron, 467 U.S. at 845); see Mayo Found. for Med. Educ. & Research v. United States, 562 U.S. 44, 55 (2011) (citing Chevron, 467 U.S. at 843). --------------------------------------------------------------------------- The Commission's prior regulations implementing the affirmative action requirement, requiring agencies to be ``model employers'' of individuals with disabilities and to give ``full consideration to the hiring, placement, and advancement'' of qualified individuals with disabilities, were promulgated pursuant to the above authority in 1982.\42\ The Commission has also used its authority under Section 501 to provide subregulatory guidance to federal agencies on the contents of affirmative action programs for individuals with disabilities since 1987.\43\ Now, having found that its prior regulatory and subregulatory guidance was not sufficiently advancing the employment of qualified individuals with disabilities, the Commission again exercises its authority under Section 501 to strengthen the regulations implementing the affirmative action requirement.\44\ The Final Rule strengthens the regulations by-- --------------------------------------------------------------------------- \42\ See Federal Sector Equal Employment Opportunity, 67 FR 35,732, 35,735 (May 21, 2002) (codified at 29 CFR 1614.203(b)). \43\ See Management Directive 713, supra note 10. \44\ Cf. Assoc. Builders & Contractors, Inc. v. Shiu, 773 F.3d 257, 261, 263-64 (D.C. Cir. 2014) (finding regulations that strengthened Section 503 affirmative action requirements on federal contractors valid under similar circumstances). ---------------------------------------------------------------------------gathering longstanding requirements previously found in a variety of documents into a single regulation, making them easier to find and clarifying that they have the force and effect of law; imposing a new requirement to take specific steps that are reasonably designed to gradually increase the number of employees with disabilities and employees with targeted disabilities until they meet specific goals set by the EEOC; and imposing a new requirement to provide PAS to employees with targeted disabilities who need them during work hours and work- related travel. Section-by-Section Analysis 1614.203(a) Definitions Paragraph (a) of the proposed rule provided definitions of key terms. Many of the proposed definitions were simple abbreviations: (a)(1) provided that ``ADA'' refers to those portions of the ADA that are enforced by the Commission; \45\ (a)(4) provided that ``Plan'' refers to an agency's affirmative action plan, as required under 29 U.S.C 791(b); (a)(5) provided 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) provided that ``Section 501'' means Section 501 of the Rehabilitation Act, codified at 29 U.S.C. 791. The Commission received no objections to these definitions, which are retained in the Rule.\46\ --------------------------------------------------------------------------- \45\ 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. \46\ Proposed paragraphs (a)(4), (a)(5), and (a)(6) have been redesignated (a)(6), (a)(7), and (a)(8) respectively in the Final Rule. --------------------------------------------------------------------------- Paragraph (a)(2) of the proposed rule provided that the term ``disability'' has the same meaning as set forth in 29 CFR part 1630. One commenter stated that the term should instead be defined using a ``standard set of disability identifiers'' developed pursuant to section 4302 of the Affordable Care Act.\47\ Because the Rule implements Section 501, and not the Affordable Care Act, the Commission is required to adopt the definition of ``disability'' that applies under Section 501. The proposed definition of ``disability'' has therefore been retained. --------------------------------------------------------------------------- \47\ 42 U.S.C. 300kk; see generally U.S. Dep't of Health & Human Servs., Implementation Guidance on Data Collection Standards for Race, Ethnicity, Sex, Primary Language, and Disability Status (n.d.), https://aspe.hhs.gov/sites/default/files/pdf/76331/index.pdf. --------------------------------------------------------------------------- Proposed paragraph (a)(8), providing that the term ``undue hardship'' has the same meaning as set forth in 29 CFR part 1630, has also been retained.\48\ Undue hardship, which is both a limitation on an agency's obligation to make reasonable accommodations and to provide personal assistance services, considers the nature, extent, and cost of an accommodation or of providing personal assistance services in relation to an agency's overall resources and the [[Page 658]] impact of the accommodation or of the requirement to provide personal assistance services on the operation of the agency's business. The term is one that agencies have been familiar with since they have been required to comply with Section 501 of the Rehabilitation Act, and agency's written reasonable accommodation procedures typically explain the term's meaning and application. --------------------------------------------------------------------------- \48\ The paragraph has been redesignated (a)(10) in the Final Rule. --------------------------------------------------------------------------- Paragraph (a)(3) of the proposed rule provided 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. To improve clarity, the definition has been revised to state that the term means any hiring authority that permits an agency to consider disability status ``during the hiring process.'' Paragraph (a)(7) of the proposed rule defined the term ``targeted/ severe disability'' to mean disabilities specifically designated as ``targeted/severe'' on the SF-256.\49\ As explained in the NPRM, disabilities that fall under this term are a subset of those that meet the definition of ``disability'' as defined under (a)(2). This subset is the focus of additional attention under several paragraphs in the Rule, discussed below. Some commenters stated that the Rule should use the term ``significant disability'' rather than ``targeted/severe disability,'' because some individuals find the term ``severe'' to be stigmatizing. One of these commenters stated further that the Rule should adopt the definition of ``significant disability'' given in Section 7 of the Rehabilitation Act of 1973.\50\ --------------------------------------------------------------------------- \49\ At the time the NPRM was published, the SF-256 used the term ``targeted/severe disability'' rather than ``targeted disability.'' \50\ 29 U.S.C. 705(21) (``Except as provided in subparagraph (B) or (C), the term `individual with a significant disability' means an individual with a disability--(i) who has a severe physical or mental impairment which seriously limits one or more functional capacities (such as mobility, communication, self-care, self- direction, interpersonal skills, work tolerance, or work skills) in terms of an employment outcome; (ii) whose vocational rehabilitation can be expected to require multiple vocational rehabilitation services over an extended period of time; and (iii) who has one or more physical or mental disabilities resulting from amputation, arthritis, autism, blindness, burn injury, cancer, cerebral palsy, cystic fibrosis, deafness, head injury, heart disease, hemiplegia, hemophilia, respiratory or pulmonary dysfunction, intellectual disability, mental illness, multiple sclerosis, muscular dystrophy, musculo-skeletal disorders, neurological disorders (including stroke and epilepsy), paraplegia, quadriplegia, and other spinal cord conditions, sickle cell anemia, specific learning disability, end- stage renal disease, or another disability or combination of disabilities determined on the basis of an assessment for determining eligibility and vocational rehabilitation needs described in subparagraphs (A) and (B) of paragraph (2) to cause comparable substantial functional limitation.''). --------------------------------------------------------------------------- The Commission declines to use the term ``significant disability'' in place of ``targeted/severe disability.'' The term ``significant disability,'' as used by the federal government, refers to a group of disabilities that qualify an individual to receive certain government- funded services and benefits.\51\ By contrast, the term ``targeted/ severe disability,'' as used in the proposed rule, was intended to refer to a group of disabilities that ``have historically been used to exclude qualified individuals from employment,'' \52\ and therefore that, ``as a matter of policy, [have been] identified for special emphasis in affirmative action programs.'' \53\ We believe that use of a single term--``significant disability''--to refer both to disabilities that have historically been used to exclude qualified individuals from employment, and, at the same time, to a different group of disabilities that qualify an individual to receive certain government-funded services and benefits, is likely to cause confusion. --------------------------------------------------------------------------- \51\ See, e.g., 29 U.S.C. 796b (``Services may be provided under [29 U.S.C. ch. 16, subch. VII, pt. A] to any individual with a significant disability, as defined in section 705(21)(B) of [title 29].''). \52\ Promoting Employment, supra note 21, at I. \53\ MD-715, supra note 16, at app. A. --------------------------------------------------------------------------- The Final Rule does, however, use the term ``targeted disability'' in place of ``targeted/severe disability.'' \54\ OPM's revised SF-256 uses the term ``targeted disabilities or serious health conditions'' rather than ``targeted/severe disabilities.'' The revision to the Rule therefore both conforms the Rule to OPM's new terminology and addresses the commenters' concern that some individuals find the term ``severe'' to be stigmatizing. In addition, the definition of the term has been widened to include disabilities that fall under one of the first 12 categories of disability listed in Part A of question 5 on the EEOC's Applicant Flow Form, which include several disabilities that have historically been used to exclude qualified individuals from employment, but that are not designated as ``targeted'' on the SF-256 (for example cerebral palsy).\55\ The EEOC recognizes that it will be helpful for agencies to have an updated SF-256 that conforms to the Applicant Flow Form. The EEOC continues to work with OPM in such an effort. In the meantime, the EEOC will consider both sets of disabilities to be ``targeted'' for purposes of the Rule. --------------------------------------------------------------------------- \54\ The definition of ``targeted disability'' appears in paragraph (a)(9) of the Final Rule. \55\ See Applicant Flow Form, supra note 4, at 2. --------------------------------------------------------------------------- Definitions of the terms ``personal assistance services'' and ``personal assistance service provider'' have been added to the paragraph at (a)(5) and (a)(6), because several commenters expressed confusion over the meaning of the term in the proposed rule. We discuss the definition in connection with paragraph (d)(5) below. 1614.203(b) Nondiscrimination Paragraph 1614.203(b) of the existing regulations 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 NPRM proposed minor revisions to improve clarity. The Commission received no objections to the proposed revisions, which have been retained in the Final Rule. 1614.203(c) Model Employer This paragraph redesignates and revises paragraph 1614.203(a) of the current regulations, which provides that the federal government shall be a ``model employer'' of individuals with disabilities, and that agencies shall ``give full consideration to the hiring, placement, and advancement of individuals with disabilities.'' The NPRM did not propose any textual changes to the paragraph. However, some commenters objected to the use of the term ``placement,'' both here and throughout the regulation, because some individuals with disabilities find it offensive. Accordingly, alternate language has been incorporated here and throughout the Rule where possible. However, because Section 501 itself uses the term ``placement,'' \56\ the Rule retains the term where it directly references the language of the statute. --------------------------------------------------------------------------- \56\ See 29 U.S.C. 791(b). --------------------------------------------------------------------------- Other commenters stated that the paragraph should be revised to reflect the affirmative action requirements imposed through this rulemaking. The Commission agrees. Accordingly, the paragraph has been revised to state that ``[a]gencies shall [ ] take affirmative action to promote the recruitment, hiring, and advancement of qualified individuals with disabilities, with the goal of eliminating under- representation of individuals with disabilities in the federal workforce,'' and that agencies shall give ``full consideration to the . . . retention of qualified individuals with disabilities in the federal workforce.'' 1614.203(d) Affirmative Action Plan As provided by Section 501, this paragraph states that each agency shall adopt and implement a Plan that [[Page 659]] provides sufficient assurances, procedures, and commitments to provide adequate recruitment, hiring, and advancement opportunities for individuals with disabilities at all levels of federal employment. It also sets forth the requirements that the Plan must meet in order to be approved by the Commission. The specific requirements are discussed in separate sections below. Several commenters stated that the term ``adequate,'' as used in the statutory language quoted above, should be defined to mean ``adequate to ensure meeting the goals required under paragraph (d)(7) of this section.'' The Commission disagrees. If, on the one hand, the proposed definition was intended simply to clarify the meaning of the word, the Commission believes that the clarification is unnecessary. Section 501 requires the Commission to approve agency Plans if they ``provide[ ] sufficient assurances, procedures, and commitments to provide adequate recruitment, hiring, and advancement opportunities for individuals with disabilities at all levels of federal employment.'' By setting forth the criteria that the Commission will use to determine whether to approve a Plan in paragraph (d), the Rule effectively defines the meaning of that phrase as a whole. If, on the other hand, the definition was suggested in order to create additional criteria by which the Commission will evaluate agency Plans, the Commission disagrees with the suggestion because it would imply, contrary to paragraph (f) and to the Commission's intention, that paragraph (d) does not set forth an exhaustive list of Plan criteria. 1614.203(d)(1)(i) Disability Hiring and Advancement Program: Recruitment Paragraph (d)(1)(i) of the proposed rule required agencies to use programs and resources that identify applicants who are eligible to be appointed under hiring authorities that take disabilities into account, examples of which include specialized training programs and databases of potential job applicants with disabilities. The paragraph also required agencies to establish and maintain contacts with organizations that specialize in the employment of individuals with disabilities, such as American Job Centers, State Vocational Rehabilitation Agencies, the Veterans' Vocational Rehabilitation and Employment Program, Centers for Independent Living, and Employment Network Service providers. In addition, the NPRM asked whether the Rule should require agencies to 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 were not hired, and, if so, whether inclusion in the database should be voluntary. A significant number of commenters stated that recruitment of individuals with targeted disabilities should receive additional emphasis in the paragraph. Consistent with the federal government's policy of giving targeted disabilities ``special emphasis in affirmative action programs,'' \57\ paragraph (d)(1)(i) has been amended to require agencies to use programs and resources that identify job applicants with disabilities, ``including individuals with targeted disabilities,'' who are eligible for appointment under a special hiring authority, and to establish and maintain contacts with organizations that specialize in providing assistance to individuals with disabilities, ``including individuals with targeted disabilities,'' in securing and maintaining employment. --------------------------------------------------------------------------- \57\ MD-715, supra note 16, at app. A. --------------------------------------------------------------------------- Some commenters stated that agencies should be required to use all of the programs and resources, and to maintain contact with all of the disability organizations, given as examples in the paragraph. Some stated that use of additional programs and resources, such as internship programs and community message boards, and contact with additional disability organizations, such as state Protection and Advocacy organizations, Ticket to Work networks, supported and customized employment providers, college or university career centers that cater to individuals with disabilities, and local education authorities, should also be mandatory. The Commission is not persuaded that every agency will benefit from the same set of programs, resources, and disability organizations in their efforts to recruit individuals with disabilities and individuals with targeted disabilities. The particular programs, resources, and disability organizations referenced in the paragraph have therefore been kept as examples. Because there is no need to make the list of examples exhaustive, most of the suggested additions were not included in the final paragraph, though they certainly may be appropriate resources to assist agencies in meeting their affirmative action obligations. However, because it was a particularly common suggestion, internship programs were added as examples of programs or resources that can be used to identify individuals who may be appointed under hiring authorities that take disability into account. Some commenters stated that, instead of requiring agencies to ``maintain contacts'' with organizations that specialize in the employment of individuals with disabilities, the Commission should require agencies to establish and maintain ``linkage agreements or other formal arrangements'' with such organizations. The paragraph has been revised to state that the required contacts may include formal agreements, but does not make formal agreements mandatory. The EEOC lacks the information necessary to determine, for example, how many formal agreements each agency should have, what each party to the agreement should be obligated to do, and what should happen if a party fails to meet an obligation in the agreement. Further, the Commission suspects that different approaches may be appropriate for different agencies. Many commenters responding to the proposal to require 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 generally favored some version of the proposal, but there was disagreement regarding the location of the database. For example, several commenters stated that the file/database needs to be government-wide in order to be effective. Other commenters stated that the databases should be required, but they would be more effective if each agency maintained its own database of individuals with disabilities who had already evidenced interest in the agency. Upon further consideration, however, the Commission has concluded that agencies should be encouraged to maintain such databases, rather than making such databases mandatory for every agency. Databases containing the r[eacute]sum[eacute]s of applicants eligible for appointment under the Schedule A hiring authority for individuals with certain disabilities, and similar resources, will greatly assist agencies in locating and hiring qualified job applicants with disabilities and targeted disabilities. Such databases will be of significant help as agencies seek to meet their targets with regarding to hiring such individuals. The Commission therefore retains ``databases of potential job applicants with disabilities'' as an example of programs and resources that identify such applicants in paragraph (d)(1)(i)(A) of the Rule, and encourages agencies to develop new databases or augment existing r[eacute]sum[eacute] databases to fulfill these [[Page 660]] functions. Should an agency decide to maintain such a database, the Commission advises the agency to include individuals in the database on a voluntary basis only, and to retain in the database only such information as is necessary to determine an applicant's identity, qualifications, and eligibility for appointment under a hiring authority that takes disability into account. Medical information about an individual's specific disability should not be included. The Commission is willing to provide technical assistance to any agency with regard to maintaining a database consistent with all applicable privacy \58\ and record retention \59\ laws and regulations. --------------------------------------------------------------------------- \58\ R[eacute]sum[eacute]s, like all records that are personally identifiable and contained in a system of records, are subject to the confidentiality requirements of the Privacy Act. See 5 U.S.C. 552a. Privacy Act requirements regarding r[eacute]sum[eacute]s that are submitted by applicants to federal agencies, including those submitted by applicants for appointment under the Schedule A hiring authority for individuals with certain disabilities, are specifically addressed by the Office of Personnel Management's Government-Wide Systems of Records Notice, OPM/GOVT-5, Recruiting, Examining, and Placement Records. See Privacy Act of 1974, System of Records, 71 FR 35,351 (June 19, 2006); Privacy Act of 1974; Routine Use Implementation; System of Records, 80 FR 74,815 (Nov. 30, 2015). \59\ Federal record retention requirements are overseen by the National Archives and Records Administration (NARA). See, e.g., Records Management, Nat'l Archives & Recs. Admin., https://www.archives.gov/records-mgmt/ (last visited Dec. 21, 2016). --------------------------------------------------------------------------- 1614.203(d)(1)(ii) Disability Hiring and Advancement Program: Application Process Paragraph (d)(1)(ii) of the proposed rule required agencies to ensure that they have sufficient staff to handle any disability-related issues that arise during the application and selection processes. It also required the agency to provide such staff with training, support, and other resources sufficient to enable them to (A) answer any disability-related questions from members of the public regarding the application and hiring processes; (B) provide job applicants with necessary reasonable accommodations; (C) accept applications for appointment under hiring authorities that take disability into account; (D) determine whether individuals who have applied for appointment under a hiring authority that takes disability into account are eligible for such appointment; (E) forward the application of an individual who has applied for appointment to a particular position under a hiring authority that takes disability into account and who is eligible to the relevant hiring officials, and explain to those officials how and when the individual may be appointed; and (F) oversee any other disability-related hiring programs. Proposed paragraphs (d)(1)(ii)(D) and (d)(1)(ii)(E) were combined into a single paragraph (d)(1)(ii)(E) in the Final Rule, in order to clarify that agencies are not required to determine whether an individual is eligible for appointment under a hiring authority that takes disability into account unless such individual is being considered for a particular position. Some commenters stated that the paragraph should be more specific as to who should perform the duties described above. Commenters suggested, for example, that only employees who focus on disability- related issues full time, employees who themselves have disabilities, or employees who are not under the supervision of the office of human resources should perform the duties. One commenter stated that the paragraph should specify the number of staff members who are assigned to these duties. The Commission believes that agencies should be afforded some flexibility in how the duties are carried out and declines to adopt a one-size-fits-all approach. Some small agencies, for example, may not need an employee who works on disability-related issues on a full-time basis, and the proper number of employees required to handle duties related to the hiring of individuals with disabilities will vary depending on an agency's size and structure. Additionally, we see no reason to conclude categorically that employees who handle issues related to applications from individuals with disabilities should not be under the supervision of an agency's human resources office, though we caution that a human resources specialist assigned to handle applications for a particular job may not necessarily have the necessary expertise to handle requests for reasonable accommodation, questions about hiring authorities that take disability into account, and other questions from job applicants with disabilities. Finally, the Commission does not believe that employees with disabilities are necessarily the only individuals capable of effectively handling duties related to the hiring of other individuals with disabilities, and embodying such an assumption in the Final Rule may actually work to encourage the segregation of individuals with disabilities into specific job categories. Some commenters stated that the paragraph should require agencies to provide relevant staff members with accurate information on reasonable accommodation, the Schedule A hiring authority for persons with certain disabilities, the affirmative action requirements imposed under this rulemaking, and other disability-related issues. Because the paragraph already requires agencies to provide ``sufficient training, support, and other resources to carry out'' the tasks listed above, the Commission concludes that no additional language is necessary. 1614.203(d)(1)(iii) Disability Hiring and Advancement Program: Advancement This paragraph of the proposed rule required agencies to take specific steps to ensure that current employees with disabilities have sufficient opportunities for advancement, such as engaging in efforts to ensure that employees with disabilities are informed of and have opportunities to enroll in relevant training, developing and maintaining mentoring programs, and administering exit interviews that address the recruitment, hiring, inclusion, and advancement of individuals with disabilities. Some commenters stated that all of the specific steps referenced in the paragraph should be mandatory. Others stated that they should be made more specific, by, for example, requiring agencies to hire dedicated ``disability advancement staff''; approach all employees with disabilities when training opportunities arise; give all notices of training opportunities ``promptly'' to individuals with disabilities in accessible formats; hire full-time assistive technology experts, and make use of the programs, resources, and disability organizations referenced in paragraph (d)(1)(i) to facilitate advancement.\60\ Again, the Commission is not persuaded that every agency will benefit from the same strategies for improving advancement opportunities for individuals with disabilities and individuals with targeted disabilities. The Rule has therefore retained the original examples. --------------------------------------------------------------------------- \60\ As an alternative, the same commenter suggested that the paragraph should be revised to require ``extra,'' ``concentrated,'' or ``specialized'' efforts to ensure that employees with disabilities are aware of training opportunities. Because the Commission does not know how the additional language would change the obligations imposed by the paragraph, the alternative suggestion was not considered. --------------------------------------------------------------------------- Some commenters stated that the paragraph should contain prohibitions against disability discrimination. For example, commenters stated that the paragraph should require agencies to make reasonable accommodations available to participants in mentoring [[Page 661]] programs, that individuals with disabilities must be afforded equal opportunities to gain work experience, and that individuals appointed under the Schedule A hiring authority for persons with certain disabilities should be afforded supervision similar to that given other employees.\61\ As explained above, the Commission believes that it is inappropriate to provide new guidance on nondiscrimination obligations applicable to federal agencies, as well as to private and state and local government employers, in a regulation that applies only to the affirmative action obligations of federal agencies. --------------------------------------------------------------------------- \61\ One commenter stated that the Rule should prohibit individuals appointed under the Schedule A hiring authority for people with certain disabilities from filing discrimination complaints. Because this requirement does not implement principles of affirmative action, it has not been included. --------------------------------------------------------------------------- Some commenters stated that the paragraph should require review of all adverse actions taken against individuals with disabilities by, for example, the head of the agency or a neutral, non-agency party. Federal employees already possess several means of subjecting adverse actions to further review. Depending on the issues involved, employees may make use of existing internal mechanisms including alternative dispute resolution, if available; file complaints of employment discrimination pursuant to 29 CFR 1614.106; file appeals with the Merit Systems Protection Board; and file appeals with the U.S. Office of Special Counsel.\62\ The Commission has been given no reason to believe that an additional layer of review would improve either the accuracy or the speed with which reviews are carried out. Indeed, because an additional layer of review would not toll existing time frames for filing complaints of discrimination, it is quite likely that such a requirement would significantly burden agencies while resulting in little if any impact on the number of discrimination complaints filed, or worse, cause confusion for employees with disabilities that could result in late filing of complaints. The commenters' suggestion therefore was not incorporated into the Rule. --------------------------------------------------------------------------- \62\ See generally Employee Rights & Appeals: Alternative Dispute Resolution, Office of Pers. Mgmt., https://www.opm.gov/policy-data-oversight/employee-relations/employee-rights-appeals/#url=Alternative-Dispute-Resolution (last visited Dec. 21, 2016) (discussing alternative dispute resolution); Employee Rights & Appeals: Appeals, Office of Pers. Mgmt., https://www.opm.gov/policy-data-oversight/employee-relations/employee-rights-appeals/#url=Appeals (last visited Dec. 21, 2016) (discussing the right to file a complaint of discrimination under the 1614 process and to file appeals with the Merit Systems Protection Board and U.S. Office of Special Counsel). --------------------------------------------------------------------------- 1614.203(d)(2) Disability Anti-Harassment Policy Paragraph (d)(2) of the proposed rule required agencies to state expressly in their anti-harassment policies that disability-based harassment is prohibited. The Commission received no comments objecting to the requirement. It therefore has been retained in the Final Rule. Some commenters stated that the paragraph should also require agencies to provide training on the disability-based harassment policy. The Commission is not persuaded that the addition is necessary. Agencies routinely provide training on their anti-harassment policies. If, as required under this paragraph, an agency's policy expressly states that disability-based harassment is prohibited, the training should naturally address the topic. The Commission notes that Commissioners Chai R. Feldblum and Victoria A. Lipnic recently published a report on how agencies and other employers can improve efforts to prevent harassment that discusses disability-based harassment throughout, and that includes a section specifically on the prevalence of disability-based harassment.\63\ --------------------------------------------------------------------------- \63\ See Chai R. Feldblum & Victoria A. Lipnic, EEOC, Report of the Co-Chairs of the Select Task Force on the Study of Harassment in the Workplace 12-13 (2016), https://www.eeoc.gov/eeoc/task_force/harassment/upload/report.pdf. --------------------------------------------------------------------------- 1614.203(d)(3)(i) Reasonable Accommodation: Procedures Proposed paragraph (d)(3)(i) required agencies to make reasonable accommodation procedures available to job applicants and employees in both written and accessible formats. It also required the procedures to address a minimum of 20 specific topics, including expedited processing, interim accommodations, reasonable accommodation requests, confidentiality, processing deadlines, the process for filing complaints pursuant to 29 CFR 1614.106, and notice of denied requests. Commenters did not object to the proposal to make reasonable accommodation procedures available in written and accessible formats. One commenter stated that the paragraph should require the procedures to be available online. Recognizing the central importance of online access in the modern workplace, the paragraph now provides that ``[t]he Plan shall require the agency to . . . post on its public Web site, and make available to all job applicants and employees in written and accessible formats, reasonable accommodation procedures. . . .'' Some commenters suggested adding a statement that ``accessible formats'' include American Sign Language (ASL). The requirement to make reasonable accommodation procedures available in written ``and accessible formats'' was drafted so as not to require the accessible format to be ``written,'' and to provide job applicants with maximum flexibility to request a type of accessible format that meets his or her particular needs. The language is sufficiently general that it should be interpreted to encompass ASL, as well as documents in Braille or large print, documents in an electronic format that can be read by screen reading software, an individual who can read the document aloud, and other types of accessible formats. Most of the public comments addressing this paragraph concerned 4 of the 20 required topics-- (d)(3)(i)(B) (redesignated (d)(3)(i)(B) and (d)(3)(i)(C) \64\): Reassignment. The proposed paragraph required the procedures to explain that the agency will consider reassignment to a position for which the employee is qualified, and not just permission to compete for such a position, as a reasonable accommodation if no other reasonable accommodation would permit the employee to perform the essential functions of his or her current position. It also required the procedures to explain how and where officials should conduct searches for vacant positions when considering reassignment as a reasonable accommodation. The Commission has revised the paragraph to clarify that agencies need only consider reassignment ``to a vacant position'' as a reasonable accommodation, consistent with 29 CFR 1630.2(o)(2)(ii). --------------------------------------------------------------------------- \64\ For reasons of clarity, the proposed paragraph was split into 2 paragraphs in the Final Rule. --------------------------------------------------------------------------- Several commenters stated that the paragraph should clarify that the ``reassignment rule applies to nondiscrimination obligations,'' i.e., that failure to provide reassignment as a reasonable accommodation may give rise to liability for employment discrimination. Because each of the 20 required topics pertain to the obligation to provide reasonable accommodations, which is a nondiscrimination obligation,\65\ they all in some sense express principles that ``apply to nondiscrimination obligations.'' The Commission therefore disagrees that this paragraph in particular should include [[Page 662]] the suggested statement. However, in response to the commenters' concerns, the proposed paragraph has been revised to state that reassignment ``is'' a reasonable accommodation, and that such reassignment ``must'' be considered if the agency determines that no other reasonable accommodation would permit the employee to perform the essential functions of his or her current position. --------------------------------------------------------------------------- \65\ 42 U.S.C. 12112(b)(5)(A); 29 CFR 1630.9; 29 CFR pt. 1630, app. 1630.9, .9(e). --------------------------------------------------------------------------- One commenter stated that the paragraph should clarify that only employees, and not job applicants, may require reassignment as a reasonable accommodation. Because the paragraph requires an agency's procedures to state that it will consider reassignment when the ``employee'' can no longer perform the essential functions of his or her ``current position,'' no further clarification is required. One commenter stated that the paragraph should require agencies to develop and maintain a database of vacant positions within the agency, and to require that agency officials use the database when considering whether to provide reassignment as a reasonable accommodation. The Commission believes that the addition is unnecessary, as long as an agency ``[n]otif[ies] supervisors and other relevant agency employees how and where they are to conduct searches for available vacancies when considering reassignment as a reasonable accommodation'' as required under revised paragraph (d)(3)(i)(C). (d)(3)(i)(I) (redesignated (d)(3)(i)(J)): Requests for supplemental medical documentation. The proposed paragraph required the procedures to explain the agency's right to request relevant supplemental medical information if the information submitted by the requester is insufficient. The Commission has revised the paragraph to clarify that ``insufficient'' means ``insufficient for the purposes specified in paragraph (d)(3)(i)(I) of this section'' (referring to the agency's right to require documentation 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 the job, or enjoy the benefits and privileges of the workplace''). One commenter stated that the paragraph should cap the number of times an agency may request supplemental documentation. As explained in the NPRM, current anti-discrimination law already prohibits agencies from requesting more documentation than is necessary to establish the existence of a disability and the need for accommodation.\66\ To the extent that the proposed cap would further restrict agencies, it would have the effect of denying them documentation that may be necessary to carry out the interactive process, potentially resulting in denials of needed accommodations. Therefore, the Commission has declined to impose a cap on the number of agency requests for documentation to support an accommodation request. --------------------------------------------------------------------------- \66\ See, e.g., 13164 Guidance, supra note 15. --------------------------------------------------------------------------- (d)(3)(i)(L) (redesignated (d)(3)(i)(M) and (d)(3)(i)(O) \67\): Deadlines. The proposed paragraph required the procedures to designate a maximum amount of time, absent extenuating circumstances, that the agency has to either provide a requested accommodation or deny the request. It also required the procedures to explain that the time limit begins to run when the accommodation is first requested, and that, where a particular reasonable accommodation can be provided in less than the maximum amount of time allowed, failure to respond promptly may result in a violation of the Rehabilitation Act. --------------------------------------------------------------------------- \67\ For reasons of clarity, the paragraph on deadlines in the proposed rule was split into 2 paragraphs in the Final Rule. --------------------------------------------------------------------------- One commenter stated that the Commission should eliminate the time limit requirement. The suggestion runs counter to longstanding federal policy. Executive Order 13164 states that each agency's procedures must ``[d]esignate a time period during which reasonable accommodation requests will be granted or denied, absent extenuating circumstances.'' \68\ As instructed by Executive Order 13164, the Commission provided further clarification of the requirement in guidance, which is still in effect.\69\ --------------------------------------------------------------------------- \68\ Executive Order No. 13164, supra note 14. \69\ See 13164 Guidance, supra note 15. --------------------------------------------------------------------------- Some commenters stated that the paragraph should require the procedures to provide additional information on the types of extenuating circumstances that would justify a delay in providing a reasonable accommodation. Commenters stated, for example, that the procedures should list all possible extenuating circumstances, should provide that an inability to secure funding is not an extenuating circumstance, should state that a delay is justified ``[a]s long as both parties are actively engaged in the interactive process,'' or should state that a requester's failure to engage in the interactive process, for example by failing to provide necessary documentation, constitutes an extenuating circumstance. Extenuating circumstances are, by definition, factors that cannot ``reasonably have been anticipated or avoided in advance of the request for accommodation.'' \70\ Thus, it is not possible to specify all such circumstances in a regulation. In addition, some agencies may define certain acts or omissions during the interactive process as ``extenuating circumstances,'' while others may not. For example, the inability to provide equipment needed as a reasonable accommodation because a vendor has suddenly and unexpectedly gone out of business might be an extenuating circumstance for a small agency making a purchase of the equipment for the first time, but not for a large agency that has extensive experience with providing reasonable accommodations. --------------------------------------------------------------------------- \70\ Id. --------------------------------------------------------------------------- The Commission therefore believes that it is not possible to create a definitive list of what constitute extenuating circumstances. However, a new paragraph has been added at (d)(3)(i)(N) clarifying the Commission's longstanding position that ``the agency will not be expected to adhere to its usual timelines if an individual's health professional fails to provide needed documentation in a timely manner.'' \71\ --------------------------------------------------------------------------- \71\ See id. --------------------------------------------------------------------------- (d)(3)(i)(N) (redesignated (d)(3)(i)(P)): Interim accommodations. The proposed paragraph required the agency's procedures to explain that, where a reasonable accommodation cannot be provided immediately, the agency must provide an interim accommodation whenever possible. One commenter stated that the paragraph should not require an agency's procedures to state an interim accommodation ``must'' be provided ``whenever possible,'' but rather that the agency will ``seek to'' provide interim accommodations during a delay. Another commenter stated that the procedures should not require the agency to provide interim accommodations if the existence of a disability, the need for accommodation, and the effectiveness of the proposed accommodation have not been established. The Commission disagrees that agencies should only be required to ``seek to'' provide an interim accommodation when there is a delay in providing a preferred accommodation. Interim accommodations may be necessary in order to avoid, for example, a worsening of symptoms, exacerbation [[Page 663]] of a medical condition, or pain. They therefore may play a crucial role in preserving the requesting individual's ability to work. The Commission also disagrees that interim accommodations should only be required once the existence of a disability, the need for accommodation, and the effectiveness of a proposed accommodation have been established. The term ``establish'' connotes a formal finding. There may be reasons why an agency does not make a formal finding even though it is reasonably likely that the requesting individual is entitled to a reasonable accommodation, such as where a disability is obvious even though the appropriate accommodation has not been established. For the foregoing reasons, the paragraph has been amended to require an interim accommodation that allows the requesting individual to perform some or all of the essential functions of his or her job when ``all the facts and circumstances known to the agency make it reasonably likely that [the] individual will be entitled to a reasonable accommodation, . . . [and] it is possible to do so without imposing undue hardship on the agency.'' Other commenters stated that agencies should be required to address topics in addition to the 20 proposed in the NPRM in their reasonable accommodation procedures. For example, commenters stated that the procedures should be required to explain that employees and applicants do not need to use ``magic words'' in order to begin the interactive process; that reasonable accommodations may be available to help applicants meet qualification standards; that the interactive process is ``ongoing''; and that employees and job applicants have an obligation to participate in the interactive process. None of the requirements were added because they are implicit in existing EEOC requirements. For example, the requirement to explain that employees and applicants do not need to use ``magic words'' in order to begin the interactive process is implicit in the existing requirement to ``[p]rovide guidance to supervisors on how to recognize requests for reasonable accommodation'' at (b)(i)(3)(G). Moreover, the list of 20 topics is only intended to set a minimum; agencies are free to address additional topics in the procedures if they wish to do so. The Commission made an unrequested change to proposed paragraph (d)(3)(i)(G) (redesignated (d)(3)(i)(H) in the Final Rule), clarifying that decision makers should communicate with individuals who have requested a reasonable accommodation early in the interactive process ``and throughout the process.'' The revision does not represent a change in Commission policy. 1614.203(d)(3)(ii) Reasonable Accommodation: Cost of Accommodations Paragraph (d)(3)(ii) of the proposed rule required agencies 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. As a clarification, this portion of the paragraph has been revised to state that all available resources are considered, ``excluding those designated by statute for a specific purpose that does not include reasonable accommodation.'' The paragraph also required the agency to ensure that relevant decision- makers are informed about various external resources that may be used in providing 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),\72\ and agency funds that, although not designated specifically for providing reasonable accommodations, may be used for that purpose. The purpose of the paragraph was to ensure that sufficient funds are available for more costly accommodations when necessary. --------------------------------------------------------------------------- \72\ See generally Computer/Electronic Accommodations Program, http://www.cap.mil (last visited Aug. 3, 2015). --------------------------------------------------------------------------- Many commenters stated that the paragraph should require a centralized fund. In the NPRM, the Commission stated that it did not require a centralized fund due to practical concerns regarding the precise manner in which an agency's appropriated funds are held, requested, and disbursed, and due to the fact that centralized funding does not ensure that sufficient funds are provided for costly accommodations where, for example, the fund is too small or relevant decision-makers do not know how to access the fund. The commenters argued that these concerns could be overcome by, for example, requiring agencies to base the size of the fund on costs in previous years and instructing relevant personnel how to access the fund. The EEOC has supported the use of a centralized fund to pay for reasonable accommodation.\73\ We think that a centralized fund is one of the best and easiest ways to ensure that requests for reasonable accommodation are not denied for reasons of cost, and that individuals with disabilities are not excluded from employment due to the anticipated cost of a reasonable accommodation, if the resources available to the agency as a whole would enable it to provide one without undue hardship. --------------------------------------------------------------------------- \73\ See, e.g., EEOC, Instructions to Federal Agencies for EEO MD-715 I (last updated July 20, 2004), http://www.eeoc.gov/federal/directives/715instruct/section1.html (``The Model EEO Program and Agency Self-Assessment Checklist''). --------------------------------------------------------------------------- However, the Commission is not persuaded that a centralized fund is the only way to achieve this objective. For example, centralized contracting vehicles may be an effective alternative. The paragraph has thus been amended to require agencies to take specific steps--which may include adoption of a centralized fund--to achieve these goals. The paragraph further states that such steps must be reasonably designed to, at a minimum-- ensure that anyone who is authorized to grant or deny requests for reasonable accommodation or to make hiring decisions is aware that, pursuant to the regulations implementing the undue hardship defense at 29 CFR part 1630, all resources available to the agency as a whole, excluding those designated by statute for a specific purpose that does not include reasonable accommodation, are considered when determining whether a denial of reasonable accommodation based on cost is lawful; and ensure that anyone authorized to grant or deny requests for reasonable accommodation or to make hiring decisions is aware of, and knows how to arrange for the use of, agency resources available to provide the accommodation, including any centralized fund the agency may have for that purpose. The revised paragraph requires agencies to adopt systems that perform the same valuable functions of centralized funds, while providing them with flexibility to work within existing budgetary schemes. 1614.203(d)(3)(iii) Reasonable Accommodation: Notification of Basis for Denial Paragraph (d)(3)(iii) of the proposed rule required agencies to provide a job applicant or employee who is denied a reasonable accommodations with a written notice that explains the reason [[Page 664]] for the denial, notifies the applicant or employee of any available internal appeal or informal dispute resolution processes, provides instructions on how to file a complaint of discrimination pursuant to 29 CFR 1614.106, and explains that, pursuant to 29 CFR 1614.105, the right to file a complaint will be lost unless the job applicant or employee initiates contact with an EEO Counselor within 45 days of the denial regardless of whether he or she participates in an informal dispute resolution process. The paragraph has been amended to clarify that the notice must be made available in accessible formats. One commenter stated that agencies should also be required to provide notices to individuals when they first request reasonable accommodations, stating that they may file complaints of discrimination if the agency fails to make a decision on or before a ``date certain.'' The same commenter stated that agencies should also provide notices whenever they determine that extenuating circumstances justify a delay in provision of an accommodation. The intended purpose of the suggested notices appears to be to (a) inform job applicants and employees who request reasonable accommodations that, absent extenuating circumstances, the agency must either provide a reasonable accommodation or deny the request within a certain number of days; (b) ensure that requesting individuals are aware of any alleged extenuating circumstances that justify a delay in providing a reasonable accommodation; and (c) inform requesters that they have the right to file complaints of discrimination if the agency fails to meet its deadlines absent extenuating circumstances. Reasonable accommodation procedures that comply with paragraph (d)(3)(i) should already satisfy these objectives: (d)(3)(i)(M) requires the procedures to designate the maximum amount of time the agency has, absent extenuating circumstances, to either provide a requested accommodation or deny the request; (d)(3)(i)(S) requires the agency to notify requesters of any alleged extenuating circumstances that justify a delay; and (d)(3)(i)(T) requires the agency to explain the requester's right to file a complaint. The additional notices are therefore unnecessary. 1614.203(d)(4) Accessibility of Facilities and Technology Paragraph (d)(4) of the proposed rule required agencies to provide all employees with contact information for individuals who are responsible for ensuring agency compliance with Section 508 of the Rehabilitation Act (Section 508),\74\ which requires all electronic and information technology purchased, maintained, or used by the agency to be readily accessible to and usable by people with disabilities, and for individuals who are responsible for ensuring agency compliance with the Architectural Barriers Act of 1968 (ABA),\75\ which requires the agency to ensure that its facilities are physically accessible to people with disabilities. It also required agencies to provide clear instructions on how to file complaints alleging violations of those laws, and to assist individuals with filing complaints against another federal agency when an investigation has shown that such other agency is responsible for the alleged violation. The paragraph does not require the agency to provide legal advice, or to represent individuals in complaints against other agencies; it merely requires agencies to provide contact information. The paragraph has been modified to clarify that the information must be available in accessible formats, and that it should be available online. --------------------------------------------------------------------------- \74\ 29 U.S.C. 794d. \75\ 42 U.S.C. 4151-4157. --------------------------------------------------------------------------- Some commenters stated that the paragraph should require agencies to provide the information to new hires ``immediately.'' The paragraph requires agencies to provide the information to ``all'' employees. Because ``all'' employees include newly hired employees, no change was required. Some commenters stated that the paragraph should require agencies to inform employees of their substantive rights under Section 508 and the ABA, in addition to their enforcement rights under those laws. Because employees may be equally unaware of their substantive rights and their enforcement rights under Section 508 and the ABA, the revised paragraph requires agencies to provide employees with information on both. Again, the paragraph does not require agencies to provide legal advice or represent the individual. Agencies may satisfy this requirement by providing Internet links to existing resources on Section 508 and the ABA. Other commenters stated that the requirement to ``assist'' individuals with filing complaints against other agencies was unclear, and that, to the extent that it was intended to require agencies to act as advocates for, or advisors to, individuals in actions against other agencies, it should be struck. The paragraph was not intended to require agencies to act as advocates for employees in actions against other agencies. The paragraph has been modified to clarify that agencies are only required to provide information on where to file a complaint against another agency when an investigation shows that such other agency is responsible for an alleged violation. 1614.203(d)(5) Personal Services Allowing Employees To Participate in the Workplace Currently, agencies are required to provide certain job-related services to individuals with disabilities as reasonable accommodations if doing so would enable them to apply for a job, perform job functions, or enjoy the benefits and privileges of employment, absent undue hardship. For example, an agency may be required to provide sign language interpreters, readers, assistance with note taking or photocopying, or permission to use a job coach as a reasonable accommodation.\76\ However, provision of PAS that are needed on the job, such as assistance with eating or using the restroom, is not considered a reasonable accommodation under the ADA or as a matter of nondiscrimination under Section 501. --------------------------------------------------------------------------- \76\ See 29 CFR pt. 1630, app. 1630.9. --------------------------------------------------------------------------- The NPRM proposed to place this obligation on agencies as an affirmative action requirement under Section 501. Paragraph (d)(5) of the proposed rule required agencies to provide PAS, such as assistance with removing and putting on clothing, eating, and using the restroom, to employees who need them because of a disability during work hours and job-related travel, unless doing so would impose undue hardship. It further provided that agencies are permitted to assign PAS providers to more than one individual with a disability, and to require them to do non-PAS tasks as time permits. In addition, the NPRM requested public input on (a) whether the description of PAS in the proposed paragraph was adequate; (b) whether the requirement to provide PAS should be kept in the Final Rule; (c) whether individuals who provide PAS should be assigned to particular individuals or, instead, asked to provide services to multiple individuals as needed; and (d) whether the agency should be allowed to assign other tasks to PAS providers when no personal assistance is needed. Many commenters responding to the question of whether the NPRM's description of PAS was adequate complained that the description was vague. Commenters offered various suggestions for making the description more precise--some stated that it [[Page 665]] should include additional examples, one stated that it should exclude medical services, one stated that the list of examples should be exhaustive, and two stated that the paragraph should incorporate language used in the definition of PAS given elsewhere in the Rehabilitation Act.\77\ --------------------------------------------------------------------------- \77\ See 29 U.S.C. 705(28) (``The term `personal assistance services' means a range of services, provided by one or more persons, designed to assist an individual with a disability to perform daily living activities on or off the job that the individual would typically perform if the individual did not have a disability. Such services shall be designed to increase the individual's control in life and ability to perform everyday activities on or off the job.''). --------------------------------------------------------------------------- The Commission has chosen the last option. The term ``personal assistance services,'' as it is used in the disability community, expresses an open-ended concept. It is therefore not possible to provide an exhaustive list of examples, and addition of a few examples will necessarily fail to capture the full meaning. New paragraph (a)(5) thus provides that the term ``personal assistance services'' means ``assistance with performing activities of daily living that an individual would typically perform if he or she did not have a disability, and that is not otherwise required as a reasonable accommodation, including, for example, assistance with removing and putting on clothing, eating, and using the restroom.'' New paragraph (a)(4) defines the related term ``personal assistance service provider'' to mean ``an employee or independent contractor whose primary job functions include provision of personal assistance services.'' Comments on whether the PAS requirement should be kept in the Final Rule were mixed. Many disability advocacy organizations and individuals strongly favored the requirement, emphasizing that a lack of PAS in the workplace poses a major barrier to employment for some individuals with disabilities. Other commenters objected. Some argued that the associated costs would be too high. Some argued that the Commission lacks the authority to impose the requirement. Others objected that compliance with the requirement would be extremely difficult or impossible because, for example, it would require agencies to violate appropriations and antideficiency laws; require them to coordinate with local nursing boards; lead to the depletion of reasonable accommodation funds; result in reduced hiring of individuals with disabilities; conflict with merit systems principles and veterans' preference rules, at least to the extent that it would require agencies to hire providers chosen by the individuals who need them; require agencies to provide services in a variety of locations; or lead to the hiring and retention of unqualified employees. The Final Rule retains the requirement to provide PAS during work hours \78\ and job-related travel, absent undue hardship, and further clarifies in revised paragraph (d)(5)(iii) that agencies may not take adverse actions against job applicants and employees on the basis of their need, or perceived need, for PAS. Public comments from advocacy organizations and individuals confirm that 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 disabilities. For many individuals with targeted disabilities such as paralysis or cerebral palsy, full participation in the workplace is impossible without PAS. --------------------------------------------------------------------------- \78\ Work hours include time that an employee is teleworking, whether the telework is part of an agency telework program available to all employees or is being provided as a reasonable accommodation. The Commission sees no legal reason to treat the provision of PAS for workers who are teleworking any differently from the provision of other services by individuals as a reasonable accommodations, such as sign language interpreters and readers. Determinations of whether PAS can be provided to an employee who is teleworking without undue hardship should be made on a case-by-case basis, as are decisions about reasonable accommodations. --------------------------------------------------------------------------- The Commission is not persuaded by the objections raised by commenters. First, the issue of cost is addressed in the section on Executive Orders 13563 and 12866 below. Second, we disagree that the Commission lacks authority to impose the requirement. As explained above, the Commission has Section 501 rulemaking authority under Section 505 and Executive Order 12067, and, having found that its prior regulatory and subregulatory guidance was not sufficiently advancing the employment of qualified individuals with disabilities, here exercises its authority to strengthen the regulations implementing the Section 501 affirmative action requirement.\79\ Because public comments confirm that a lack of PAS in the workplace is a persistent barrier to employment for individuals with certain significant disabilities, one of the ways in which the regulation is being strengthened is by requiring agencies to provide PAS to individuals who need them during work hours and job-related travel, absent undue hardship. --------------------------------------------------------------------------- \79\ See supra notes 37-44 and accompanying text. --------------------------------------------------------------------------- Third, as to the arguments that compliance would be extremely difficult or impossible, the Commission notes as it did in the preamble to the proposed rule that several federal agencies currently provide PAS on a voluntary basis, and have been doing so for decades without any of the negative consequences imagined by commenters.\80\ --------------------------------------------------------------------------- \80\ 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) [hereinafter DOL statement] (on file with the Commission); Dep't of Transp., Disability Resource Center Services Handbook (Nov. 2014), 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). --------------------------------------------------------------------------- Responses to the question of whether PAS providers should be assigned to single individuals or to multiple individuals were mixed. Some stated that providers should be assigned to single individuals because (a) PAS are often required on very short notice, (b) receipt of PAS from multiple providers is likely to make the individual with a disability feel uncomfortable, and (c) services are improved if the provider is familiar with the individual's needs. Others stated that agencies should be given maximum flexibility. Commenters were more uniformly in favor of allowing agencies to assign non-PAS tasks to PAS providers, as long as the PAS-related assignments were given higher priority. One commenter disagreed, arguing that assignment of both PAS and non-PAS tasks to a single individual would create practical problems in contracting, creation of position descriptions, and performance assessment. In both respects, the Final Rule grants flexibility to agencies in revised paragraph (d)(5)(ii). Again the Commission looks to actual practice for guidance. Federal agencies have used a variety of models for providing PAS to equal effect. The Commission, for example, has hired federal employees to provide PAS to individuals with disabilities on a one-to-one basis, whereas the Department of Labor has contracted for a pool of qualified personnel to provide PAS and other services to multiple employees.\81\ Moreover, if an agency finds that a [[Page 666]] particular approach is impracticable or does not meet employees' needs, the paragraph permits the agency to adopt an alternative approach. --------------------------------------------------------------------------- \81\ DOL statement, supra note 80. --------------------------------------------------------------------------- Other comments on the requirement raised the following issues: Eligibility. Some stated that an agency should only be required to provide PAS to individuals who are qualified to perform their jobs. Although the Commission does not believe that the proposed paragraph provided otherwise, it has been revised to state that agencies are required to provide PAS only if they ``would, together with any reasonable accommodations required under [29 CFR] part 1630 . . ., enable the employee to perform the essential functions of his or her position.'' \82\ --------------------------------------------------------------------------- \82\ 29 CFR 1630.203(5)(i)(B), as amended. --------------------------------------------------------------------------- Other commenters stated that an agency should only be required to provide PAS to individuals who have targeted disabilities. As discussed in the NPRM, the Commission believes that individuals who do not have targeted disabilities will not require PAS in order to participate in the workplace.\83\ The paragraph has therefore been revised in the manner suggested. --------------------------------------------------------------------------- \83\ Affirmative Action for Individuals with Disabilities in the Federal Government, 81 FR 9123, 9134 n.101 (Feb. 24, 2016) (to be codified at 29 CFR 1614.203, .601(f)). --------------------------------------------------------------------------- Additional services. Some commenters stated that the paragraph should require agencies to provide additional services to employees with disabilities, including help with getting to and from work, identifying transportation options and accessing transportation, assistance with becoming familiar with surroundings, and ``informational and navigational awareness, as well as lightweight communication.'' The commenters did not, however, cite to any studies or other objective sources establishing that such services would significantly improve employment of individuals with disabilities, or to any data on which to base an estimate of the economic impact of the requirement. The Commission has not incorporated these suggestions. A significant number of commenters stated that the Rule should require agencies to permit employees with disabilities to use job coaches and other forms of supported employment paid for by outside sources. The Commission strongly endorses the use of supported employment. Indeed, permission to use a job coach or other forms of supported employment is a reasonable accommodation that may be required if such a person needs those services to perform the essential functions of a position and if providing those services does not impose an undue hardship on the agency.\84\ As explained above, however, the Commission believes that it would be inappropriate to provide guidance on nondiscrimination requirements applicable to federal agencies, as well as to private and state and local government employers, in a regulation that applies to the affirmative action obligations of federal agencies. --------------------------------------------------------------------------- \84\ See 29 CFR pt. 1630, app. 1630.9. --------------------------------------------------------------------------- Undue hardship exception. One commenter stated that agencies should not be required to establish undue hardship in order to deny a request for PAS, because, given the fact that they typically have very large budgets, agencies ``will have very limited ability to deny such requests . . . regardless of the nature of the request.'' The commenter did not suggest an alternative standard. The Commission disagrees with the commenter's characterization. First, the paragraph does not require agencies to provide PAS to individuals who request them ``regardless of the nature of the request.'' The paragraph only requires agencies to provide personal assistants, who will assist the employee with eating, using the restroom, and similar activities to individuals who need them because of a targeted disability; it does not require agencies to provide services that the individual does not need in order to participate in the workplace, or services that are needed for reasons other than disability. Second, agencies may be able to establish undue hardship for reasons other than cost.\85\ --------------------------------------------------------------------------- \85\ EEOC, Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (2002), https://www.eeoc.gov/policy/docs/accommodation.html#undue. --------------------------------------------------------------------------- Selection and evaluation of personal assistance service provider. Some commenters stated that the paragraph should require PAS providers to meet certain qualification standards, such as those imposed by OPM for all government employees and specific standards based on experience and training. Others stated that an agency should be required to consult with individuals who receive PAS during their providers' performance reviews. These requirements were not incorporated into the Rule because they primarily concern OPM functions. EEOC is not in the best position to determine what qualifications PAS providers have to possess, and we do not wish to limit unduly the choices of employees who may want to work with a PAS provider who may not necessarily possess specific certifications or credentials. This is similar to the approach the Commission has taken under the ADA with respect to sign language interpreters and readers provided as reasonable accommodations. However, the revised paragraph does provide that PAS must be provided by a personal assistance service provider, meaning an employee or independent contractor whose primary job functions include provision of personal assistance services at (d)(5)(ii). Some commenters stated that the paragraph should require agencies to consider the preferences of individuals with disabilities when selecting their PAS providers. The Commission agrees and notes that this is the same principle that applies when an employer is choosing from among available accommodations.\86\ New paragraph (d)(5)(iv) requires agencies, when selecting someone to provide personal assistance services to a single individual, to give primary consideration to the individual's preferences to the extent permitted by law. --------------------------------------------------------------------------- \86\ See 29 CFR pt. 1630, app. 1630.9. --------------------------------------------------------------------------- Process for requesting PAS. Some commenters stated that the paragraph should require agencies to have written procedures for processing PAS requests, similar to the reasonable accommodation procedures required under paragraph (d)(4). Some stated more specifically that agencies should be permitted to require medical documentation, be required to use a centralized fund, or be required to consult with vocational rehabilitation agencies during the process. The Commission agrees that agencies should have procedures for processing requests for PAS. Paragraph (d)(5)(v) of the Final Rule requires agencies to adopt such procedures, and to make them available online and in written and accessible formats. Because the intent of the Rule is to require agencies to treat PAS requests like requests for reasonable accommodation, the paragraph further provides that agencies may satisfy the requirement by stating in their reasonable accommodation procedures that the process for requesting personal assistance services, the process for determining whether such services are required, and the agency's right to deny such requests when provision of the services would pose an undue hardship, are the same as for reasonable accommodations. [[Page 667]] 1614.203(d)(6) and 1614.203(d)(7)(i) Utilization analysis and goals Paragraph (d)(7)(i) of the proposed rule required agencies to adopt the goal of achieving a 12% representation rate for people with disabilities at the GS-11 level \87\ and above, including the Senior Executive Service (SES); \88\ a 12% representation rate for people with disabilities at the GS-10 level and below; a 2% representation rate for individuals with targeted disabilities at the GS-11 level and above, including the SES; and a 2% representation rate for people with targeted disabilities at the GS-10 level and below. Paragraph (d)(6) required agencies to perform the workforce analysis necessary to determine whether these goals have been met annually, based on SF-256 records, records of requests for reasonable accommodation, and records of appointments under hiring authorities that take disability into account. In addition, the NPRM asked for public input on whether the proposed goals were appropriate, and whether there are any data showing that the goals should be raised or lowered. --------------------------------------------------------------------------- \87\ 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 Dec. 21, 2016). \88\ 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 Dec. 21, 2016). --------------------------------------------------------------------------- The Commission received a small number of comments requesting clarification of the proposed goals. One commenter asked whether the 2% goals were intended to be sub-goals of the 12% goals, i.e., whether the individuals who are counted as individuals with targeted disabilities for purposes of determining whether a 2% goal has been met may also be counted as individuals with disabilities for purposes of determining whether a 12% goal has been met. The 2% goals are intended to be sub-goals. Disabilities that fall under the term ``targeted disability'' are a subset of those that fall under the term ``disability'' as defined under Section 501. Thus, any employee who has a targeted disability, and who therefore counts toward a 2% goal for individuals with targeted disabilities, will necessarily have a condition that meets the Section 501 definition of ``disability,'' and will therefore also count toward the 12% goal for individuals with disabilities. Another commenter asked whether the fact that the NPRM proposed a 12% goal for individuals with disabilities at the GS-11 level and above, and a 12% goal for individuals with disabilities at the GS-10 level and below, meant that it proposed a 24% overall goal for individuals with disabilities. Similarly, the commenter wondered whether the 2% goals ``combined'' to create a 4% overall goal for individuals with targeted disabilities. Because each 12% and each 2% goal applies to a different segment of the workforce, the Rule does not impose goals of 24% and 4% overall.\89\ --------------------------------------------------------------------------- \89\ Where X represents the total number of employees on the GS and SES scales and Y represents the total number of employees employed at the GS-10 level and below, 0.02(Y) + 0.02(X - Y) = 0.02(X); 0.12(Y) + 0.12(X - Y) = 0.12(X). --------------------------------------------------------------------------- A small number of commenters stated that the goals should not be retained in the Final Rule because the proposed methods of measuring agencies' representation rates--SF-256 records, reasonable accommodation records, and documentation relating to appointment of individuals under hiring authorities that take disability into account--are inaccurate. SF-256 data, according to commenters, are especially likely to underestimate representation rates for individuals with disabilities and individuals with targeted disabilities because many employees are reluctant to disclose disabilities using this form. Some stated that a greater number of employees would self-disclose if, for example, the form did not ask the individual to indicate his or her specific type of disability, or if it included questions on topics other than disability. The Commission acknowledged in the NPRM that SF-256 data are likely to underestimate representation rates for individuals with disabilities and individuals with targeted disabilities, and, for that reason, used prior SF-256 data as a starting point when it developed the goals.\90\ As discussed, SF-256 data themselves (together with other data that agencies are permitted to use under (d)(6)) indicate that the federal government as a whole has achieved representation rates that are close to 12% for individuals with disabilities and 2% for individuals with targeted disabilities; actual representation rates may be much larger. The Commission also reminds agencies that they have the discretion to periodically request employees to respond to voluntary surveys updating their SF-256 information. If accompanied by an explanation of why self- reporting is important, resurveying can enhance data accuracy. The Commission therefore is not persuaded that the proposed goals are overly burdensome due to problems of measurement. --------------------------------------------------------------------------- \90\ Affirmative Action for Individuals with Disabilities in the Federal Government, 81 FR 9123, 9128-29 (Feb. 24, 2016) (to be codified at 29 CFR 1614.203, .601(f)). --------------------------------------------------------------------------- However, the Commission does acknowledge commenters' assertions that there may be ways to improve the accuracy of self-reported data, for example by asking individuals to indicate whether they have disabilities or targeted disabilities without asking for more detailed information. The Commission is not able to amend the SF-256, as suggested by some commenters, because OPM controls the content of the SF-256. Nor can the Commission require OPM to establish an ``authoritative'' system for tracking disability information, as suggested by another commenter. Instead, the Final Rule allows, but does not require, agencies to collect disability information using forms other than the SF-256. Paragraph (d)(6)(ii)(A) has thus been amended to allow agencies to classify individuals for purposes of the workforce analysis based on ``[t]he individual's self-identification as an individual with a disability or an individual with a targeted disability on a form, including but not limited to the Office of Personnel Management's Standard Form 256, which states that the information collected will be kept confidential and used only for statistical purposes, and that completion of the form is voluntary.'' \91\ The paragraph permits agencies to design their own forms or use existing forms as appropriate. For example, agencies are permitted to use the approach taken in EEOC's Applicant Flow Form. This form asks, among other things, whether the individual has a non-targeted disability. It does not, however, require the individual to identify which non-targeted disability he or she has.\92\ The Final Rule also [[Page 668]] makes conforming amendments to 29 CFR 1614.601(f) (discussed below).\93\ --------------------------------------------------------------------------- \91\ The other records discussed in this paragraph will also be kept confidential, because they are subject to the Privacy Act. See 5 U.S.C. 552a. Additionally, records relating to reasonable accommodation are subject to the ADA's confidentiality requirements, as incorporated. See 42 U.S.C. 12112(d)(4)(A) (imposing the requirements); 29 U.S.C. 791(f) (incorporating the requirements into Section 501); 29 CFR 1630.14(c) (implementing the requirements); 29 CFR pt. 1630, app. 1630.14(c) (discussing the requirements); 29 CFR 1614.203(b) (incorporating the ADA regulations at 29 CFR pt. 1630 into the Section 501 regulations). \92\ Applicant Flow Form, supra note 4, at 3. \93\ One commenter stated that current regulations at 29 CFR part 1630 should also be amended, because those regulations generally prohibit agencies from asking disability-related questions, as would be required under (d)(6). The Commission disagrees. The anti-discrimination regulations permit agencies (and employers generally) to ask disability-related questions for purposes of engaging in affirmative action for individuals with disabilities. Cf. Assoc. Builders & Contractors, Inc. v. Shiu, 30 F. Supp. 3d 25, 37-38 (D.D.C. 2014) (holding that the ADA does not prohibit federal contractors from inviting job applicants to self- identify as individuals with disabilities pursuant to regulations implementing the affirmative action requirement imposed on federal contractors by Section 503), aff'd, 773 F.3d 257 (D.C. Cir. 2014); Letter from Peggy R. Mastroianni, Legal Counsel, EEOC, to Patricia A Shiu, Director, Office of Fed. Contract Compliance Programs, Dep't of Labor (Aug. 8, 2013), http://www.dol.gov/ofccp/regs/compliance/section503.htm (follow ``EEOC Opinion on the Invitation to Self- Identify'' hyperlink) (discussing job applicants). --------------------------------------------------------------------------- One commenter argued that the goals should be eliminated for agencies that have limited opportunities to use the Schedule A hiring authority for persons with certain disabilities, and for small agencies that typically draw from a small applicant pool. The commenter also argued that small agencies should be exempted because it is sometimes possible to determine which employees within the agency have a disability based solely on aggregate data, which, according to the commenter, may result in ``per se violations of [the confidentiality requirements of] the Rehabilitation Act.'' The Final Rule does not include exemptions for agencies that have limited opportunities to use the Schedule A hiring authority for persons with certain disabilities or for small agencies. The Commission believes that all agencies are able to take steps to improve employment opportunities for individuals with disabilities, including targeted disabilities. Agencies that have limited opportunities to use the Schedule A hiring authority for persons with certain disabilities may still, for example, take steps to improve the application process as required under (d)(1)(ii); adopt advancement programs as required under (d)(1)(iii), and take other actions recommended under (d)(7)(ii) to the extent permitted by law. Agencies that typically draw from a small applicant pool may take steps to expand the pool, as required under (d)(1)(i). These and other steps specified throughout paragraph (d) are all that the Rule requires of an agency that fails to achieve a goal-- paragraph (f)(2) (discussed below) provides that ``failure to achieve a goal set forth in paragraph (d)(7) of the Rule, 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.'' The Commission does not see how compliance with the goal requirements could lead to ``per se violations of the Rehabilitation Act.'' The commenter appears to have assumed that the Rule requires agencies to make detailed, grade-level-by-grade-level disability information available to the public. It does not. The Rule only requires agencies to publish representation rates for people with disabilities and people with targeted disabilities in two broadly defined groups. Moreover, nothing in the Rule requires an individual with a disability to self-identify as such; if an individual does not wish to disclose his or her disability status, he or she need not fill out the SF-256 or similar forms. One commenter stated that agencies should be allowed to set their own goals. After the ANPRM public comment period, the Commission decided to adopt government-wide goals in the proposed rule.\94\ The commenter did not provide any basis on which to overturn that decision. Upon further consideration, the Commission has determined that the proposed government-wide approach continues to be the most appropriate one. --------------------------------------------------------------------------- \94\ See Affirmative Action for Individuals with Disabilities in the Federal Government, 81 FR at 9128. --------------------------------------------------------------------------- Most commenters responding to the question of whether the proposed goals were appropriate stated that they were too low. These commenters generally argued that, because existing representation rates for individuals with disabilities and individuals with targeted disabilities are already close to 12% and 2% respectively, the proposed goals would merely ``maintain the status quo.'' \95\ --------------------------------------------------------------------------- \95\ For example, commenters cited a recent OPM report finding that 14.64% of federal employees have reportable disabilities, 18.8% of federal employees at the GS-10 level and below have disabilities, 12.6% of federal employees at the GS-11 level and above have disabilities, 1.18% of federal employees have targeted disabilities, 1.91% of federal employees at the GS-10 level and below have targeted disabilities, and 0.8% of federal employees at the GS-11 level and above have targeted disabilities, 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), https://www.opm.gov/policy-data-oversight/diversity-and-inclusion/reports/disability-report-fy2014.pdf [hereinafter 2014 Report], and a recent survey indicating that 13.5% of federal employees have disabilities, 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 Dec. 8, 2016). --------------------------------------------------------------------------- The Commission disagrees that the proposed goals would merely ``maintain the status quo.'' Although it is true that the federal government as a whole has achieved representation rates of close to 12% and 2%, many individual agencies have not.\96\ For these agencies, meeting the goals would represent significant improvement. Further, because the goals apply at both higher and lower levels of employment, agencies that employ a disproportionately high number of individuals with disabilities in lower paying positions would also see significant improvement by meeting the goals. As noted in the NPRM, the representation rates for individuals with disabilities and individuals with targeted disabilities are significantly lower at the GS-11 level and above than at the GS-10 level and below.\97\ --------------------------------------------------------------------------- \96\ See, e.g., 2014 Report, supra note 95, at 10. \97\ See id. at 25. --------------------------------------------------------------------------- Additionally, the commenters failed to identify any data on which the Commission could reasonably base higher goals. Many commenters simply picked numbers without justification. Some commenters stated that the Commission should ``look to those agencies that have done the best job of employing people with disabilities, as well as workforce data'' to set the goals, but provided no explanation as to how this could reasonably be done, and instead chose goals that did not appear to be connected either with agency benchmarks or with workforce data.\98\ One commenter stated that the goals should be based on census data. However, the census definition of ``disability'' matches neither the Section 501 definition of ``disability'' nor the definition of ``targeted disability'' under paragraph (a).\99\ Census data, therefore, are inapposite. Because commenters failed to identify any reasonable alternatives, and because the Commission believes that the 12% and 2% goals are based on the best available data, the Final Rule retains goals of 12% for individuals with disabilities and 2% for individuals with targeted disabilities. --------------------------------------------------------------------------- \98\ These commenters recommended goals of ``at least'' 15% for people with disabilities and 4% for people with targeted disabilities. \99\ The ACS collects disability data by asking a series of questions 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. See American Community Survey (ACS), U.S. Census Bureau, https://www.census.gov/people/disability/methodology/acs.html (last visited Dec. 21, 2016). --------------------------------------------------------------------------- Some commenters stated that the goals should be extended to employees who are on neither the GS nor the SES scale. We agree. However, to avoid the difficulties inherent in establishing ``equivalencies'' across differing pay [[Page 669]] scales, the Commission has decided to classify non-GS employees using a simple pay cutoff. The revised paragraph thus requires agencies to adopt 12% and 2% goals for ``employees at the GS-11 level and above, together with employees who are not paid under the General Schedule but who have salaries equal to or greater than employees at the GS-11, step 1 \100\ level in the Washington, DC locality'' \101\ and ``employees at the GS-10 level and below, together with employees who are not paid under the General Schedule but who have salaries less than employees at the GS-11, step 1 level in the Washington, DC locality.'' Express reference to the SES was removed from the paragraph because SES employees are included in the category of ``employees who are not paid under the General Schedule but who have salaries equal to or greater than employees at the GS-11, step 1 level in the Washington, DC locality.'' --------------------------------------------------------------------------- \100\ Pay rates for employees at a given GS 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 87. \101\ The rate of pay for employees on the GS and SES scales is determined by adding a ``locality adjustment'' to a base rate. See generally Pay & Leave: Salaries & Wages, Office of Pers. Mgmt., https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/2016/general-schedule/ (last visited Dec. 21, 2016) (discussing alternative dispute resolution). Washington, DC is currently in the ``Washington-Baltimore-Northern Virginia, DC-MD-VA-WV-PA region.'' Id. The Rule refers to the ``Washington, DC locality'' in the event that the locality is renamed or defined differently in the future. --------------------------------------------------------------------------- Some commenters stated that the Rule should impose separate goals for each individual grade level, or for each individual job series and grade level. The Commission does not believe that the additional burden on agencies of meeting such goals would substantially promote the hiring, retention, and advancement of individuals with disabilities and individuals with targeted disabilities. For example, we see no reason to require agencies to have the same percentage of individuals with disabilities at both the GS-4 and GS-5 levels, and we are unsure what inference should be drawn from the fact that an agency employs a disproportionately low number of individuals at the GS-12 level, for example, but not at the GS-13 level. Of course, significant disparities in the distribution of individuals with disabilities or individuals with targeted disabilities within the pay grouping may raise concerns. For example, an agency that meets goals for the employment of people with targeted disabilities in both pay groupings, but that employs most such individuals at the GS-1 through GS-4 and GS-11 through GS-12 levels, is probably insufficiently attentive to its obligations to provide advancement opportunities. However, absent evidence at this time that agencies would attempt to circumvent their affirmative action obligations in this way, the Rule continues to group employees according to whether they are employed at higher or lower levels, rather than according to individual grade level and job series, for purposes of meeting the (d)(7)(i) goals. Two commenters stated that federal jobs ``limit[ing] advancement, or segregat[ing] federal workers on the basis of disability (including segregation into separate work areas or separate lines of advancement)'' should not count toward achievement of the goals. We assume that the commenters are referring to positions that ``limit, segregate, or classify a job applicant or employee in a way that adversely affects his or her employment opportunities or status on the basis of disability'' in violation of Section 501's nondiscrimination requirements.\102\ Although we agree with the general principle that an agency should not benefit from employing individuals with disabilities if the agency also discriminates against them, we believe that the appropriate response in these cases is to challenge the discriminatory behavior under 29 CFR 1614.106. --------------------------------------------------------------------------- \102\ 42 U.S.C. 12112(b)(1); 29 CFR 1630.5. --------------------------------------------------------------------------- Some commenters stated that the Rule should establish a deadline for achieving the goals. The Commission disagrees. As noted in the NPRM, 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. Some commenters stated that the paragraph should require agencies to adopt other types of goals in addition to, or instead of, representation rate goals-- Hiring and promotion goals. Some commenters stated that certain percentages of each agency's new hires should be, and certain percentages of each agency's promotions should be given to, individuals with disabilities and individuals with targeted disabilities. As applied to agencies that underperform with respect to employment of individuals with disabilities and individuals with targeted disabilities, hiring and retention goals do not impose more stringent requirements than the corresponding representation rate goals. They were therefore not added. Retention rate goals. One commenter stated that agencies should be required to adopt the goal of having a retention rate for employees who were appointed under the Schedule A hiring authority for persons with certain disabilities that is equal to or greater than the retention rate for other employees. The Commission lacks any data establishing what the retention rate for individuals who were appointed under the Schedule A hiring authority for persons with certain disabilities should be. Further, a function of paragraphs (d)(8)(iv) and (d)(8)(v), requiring agencies to keep detailed records on individuals who were appointed under the Schedule A hiring authority for persons with certain disabilities, and paragraph (d)(1)(iii), requiring agencies to report data regarding such individuals, is to ensure that both individuals within the agency and the Commission will be alerted if the agency is experiencing problems with retention. The Commission concludes that a separate goal is unnecessary. Goals for utilization of supported employment. Some commenters stated that the Rule should impose goals for hiring and employment of individuals receiving supported employment services. The commenter cited no evidence that such goals would eliminate a significant barrier to employment for a large number of individuals with disabilities, and neither stated what percentage the goal should be nor provided any data on which to base the goal. However, in light of the commenters' observation that there is an evidence base showing that supported employment services are an effective way to maintain employment for many individuals with disabilities, provision of such services has been added as an example of a strategy that an agency may use to increase the number of employees with disabilities and targeted disabilities in paragraph (d)(7)(ii), discussed below. 1614.203(d)(7)(ii) Progression Toward Goals Proposed paragraph (d)(7)(ii) required agencies that fail to meet one or more goals required under paragraph (d)(7)(i) to take specific steps that are reasonably designed to gradually increase the number of employees with disabilities and targeted disabilities, examples of [[Page 670]] which included increased use of hiring authorities that take disability into account; consideration of disability or targeted disability status as a positive factor in hiring, promotion, or assignment decisions, to the extent permitted by law; additional outreach and recruitment efforts; adoption of training, internship, and mentoring programs for individuals with disabilities; and disability-related training for all employees. Agencies interested in the last example are encouraged to review the components of effective harassment prevention training set forth in the report issued by Commissioners Feldblum and Lipnic in June 2016.\103\ For reasons indicated in the section immediately above, ``[i]ncreased efforts to hire and retain individuals who require supported employment because of a disability, who have retained the services of a job coach at their own expense or at the expense of a third party, and who may be given permission to use the job coach during work hours as a reasonable accommodation without imposing undue hardship on the agency'' has been added as an example. --------------------------------------------------------------------------- \103\ See Chai R. Feldblum & Victoria A. Lipnic, supra note 63. --------------------------------------------------------------------------- One commenter asked whether the paragraph requires agencies that do not meet the goals to hire individuals with disabilities or individuals with targeted disabilities who are not qualified for the job, or who are less qualified than other candidates. It does not. Hiring authorities that take disability into account do not provide agencies with a means of hiring individuals who are unqualified, and agencies are not required to hire individuals who are unqualified in order to, for example, provide disability-related training for all employees, engage in additional outreach and recruitment efforts, or adopt training, internship, or mentoring programs for individuals with disabilities. Some commenters stated that agencies should always be required to consider disability status and targeted disability status as positive factors in hiring, promotion, and employment decisions, regardless of whether the agency has failed to meet a goal. Other commenters stated that certain kinds of disability-related training, such as awareness and anti-stigma training, should also be mandatory. The purpose of these efforts is to address problems of underrepresentation. To the extent that an agency is meeting its (d)(7)(i) goals, the Commission is without reason to believe that such efforts are necessary. 1614.203(d)(8) Recordkeeping This paragraph of the Final Rule requires that each agency keep, and make available to the Commission upon request,\104\ 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 disabilities, and the number of individuals with targeted 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 regarding all requests for reasonable accommodation the agency receives. Aside from minor stylistic and terminological differences, it is identical to paragraph (d)(8) of the proposed rule.\105\ --------------------------------------------------------------------------- \104\ The records will be subject to all applicable record retention requirements, including the record retention requirements overseen by NARA. See, e.g., Records Management, supra note 59. \105\ The records required under this paragraph are subject to the confidentiality requirements of the Privacy Act. See 5 U.S.C. 552a. Records relating to reasonable accommodation are also subject to the confidentiality requirements imposed by the ADA, as incorporated. See 42 U.S.C. 12112(d)(4)(A) (imposing the requirements); 29 U.S.C. 791(f) (incorporating the requirements into Section 501); 29 CFR 1630.14(c) (implementing the requirements); 29 CFR pt. 1630, app. 1630.14(c) (discussing the requirements); 29 CFR 1614.203(b) (incorporating the implementing regulations into the regulations implementing Section 501). --------------------------------------------------------------------------- One federal agency stated that the paragraph should not require agencies to keep records of all reasonable accommodation requests because, in the agency's opinion, it is more efficient to handle some requests ``informally.'' The commenter's position runs counter to longstanding federal policy. Executive Order 13164 instructs agencies to ensure that their systems of recordkeeping ``track the processing of requests for reasonable accommodation,'' \106\ and guidance on the Executive Order provides that the records must (among other things) allow the agency to identify ``the number and types of reasonable accommodations that have been requested in the application process and whether those requests have been granted or denied; . . . the number and types of reasonable accommodation for each job, by agency component, that have been approved, and the number and types that have been denied; . . . [and] the amount of time taken to process each request for reasonable accommodation . . . .'' \107\ Such records are a necessary component of an agency's efforts to ensure that the agency is processing requests for reasonable accommodation in accordance with the nondiscrimination requirements of Section 501. --------------------------------------------------------------------------- \106\ Executive Order No. 13164, supra note 14. \107\ See 13164 Guidance, supra note 15. --------------------------------------------------------------------------- One commenter suggested that the paragraph should require agencies to develop systems that make their employment data available to vocational rehabilitation agencies ``in real time.'' The commenter failed to clarify how such a system would work, but, to the extent that it would grant non-agency access to agency personnel files, it is likely to create significant problems of privacy and data security. 1614.203(e) Reporting The paragraph requires each agency to submit to the Commission, on an annual basis, a report that contains a copy of its Plan; the results of its two most recent workforce analyses performed pursuant to paragraph (d)(6) of the Rule showing the percentages of individuals with disabilities and individuals with targeted disabilities in both of the specified pay groups; the number of individuals appointed under the Schedule A hiring authority for persons with certain disabilities during the previous year; 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 an explanation of any changes that were made to the Plan since the prior submission. The paragraph also requires agencies to make all information submitted to the Commission pursuant to this requirement available to the public by, at a minimum, posting a copy of the submission on its public Web site and providing a means by which members of the public may request copies of the submission in accessible formats. Aside from minor stylistic differences, it is identical to paragraph (e) of the proposed rule. [[Page 671]] Several commenters stated that the proposed reporting requirements overlapped with those of MD-715, and therefore that, in order to avoid redundancies, MD-715 should be amended. As stated in the NPRM, the Commission intends to modify the requirements of MD-715 after final promulgation of this Rule to eliminate redundancies. Some commenters stated that the paragraph should require agencies to report (and, if not already required to do so, keep records of) additional information, including, for example, the number of individuals appointed under the Schedule A hiring authority for persons with certain disabilities who were subjected to removal or offered voluntary resignation; the representation rates for individuals with disabilities and individuals with targeted disabilities broken down by grade level; a list of the disability organizations with which the agency maintains partnerships; the retention and performance rates for employees with disabilities and employees with targeted disabilities; the numbers of employees classified as having disabilities on the basis of conditions that developed pre-hire, that developed post-hire, or were service-related; and the number of individuals appointed under each veterans' authority who identified themselves as having a targeted disability. The Commission is not persuaded that it is necessary to report information at this level of detail in order to determine whether an agency has satisfied its Section 501 obligation to engage in affirmative action for individuals with disabilities. 1614.203(f) Standards for Approval and Disapproval of Plans Paragraph (f) of the proposed rule provided that the Commission will (1) approve an agency Plan if it determines that the Plan, as implemented, meets the requirements set forth in paragraph (d) of the rule, and (2) disapprove a Plan if it determines that it, as implemented, does not meet those requirements. The paragraph further clarified that failure to achieve a goal set forth in 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 in the future. Having received no objections, the Commission adopts the paragraph in the Final Rule unchanged. 1614.601(f) EEO Group Statistics Section 1614.601 requires each agency to establish a system to collect and maintain accurate demographic information about its employees, and paragraph 1614.601(f) specifies how agencies are to gather disability data. As explained above, paragraphs (d)(6)(ii) and (d)(6)(iii) specify how agencies are to gather disability data for purposes of the workforce analyses required under (d)(6)(i). In order to avoid any conflict between sections 1614.203 and 1614.601, paragraph 1614.601(f) has been amended to provide that ``[d]ata on disabilities shall be collected using a method permitted under Sec. 1614.203(d)(6)(ii) and Sec. 1614.203(d)(6)(iii).'' The revised paragraph imposes no new obligations on federal agencies. Executive Order 12866 \108\ and Executive Order 13563 \109\ (Regulatory Planning and Review) --------------------------------------------------------------------------- \108\ Executive Order No. 12866, 3 CFR 638 (1993), http://www.whitehouse.gov/sites/default/files/omb/inforeg/eo12866.pdf. \109\ Executive Order No. 13563, 3 CFR 215 (2011), http://www.whitehouse.gov/sites/default/files/omb/inforeg/eo12866/eo13563_01182011.pdf. --------------------------------------------------------------------------- This Rule has been drafted and reviewed in accordance with Executive Order 12866 and Executive Order 13563. 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 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).\110\ 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.'' \111\ 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.\112\ It 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). --------------------------------------------------------------------------- \110\ 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).'' Executive Order No. 12866, supra note 108. 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., 2003), http://www.whitehouse.gov/omb/circulars_a004_a-4. \111\ Executive Order No. 12866, supra note 108. \112\ Executive Order No. 13563, supra note 109. --------------------------------------------------------------------------- As explained above, the Commission has concluded that the existing practice of explaining Section 501's affirmative action obligations through management directives and sub-regulatory guidance,\113\ and not through regulation,\114\ has failed to sufficiently advance the employment of qualified individuals with disabilities. Detailed regulations are necessary in order to ensure that the obligations have, and are recognized to have, the force of law. Moreover, the Rule will make it easier for agencies to learn about their affirmative action obligations by presenting them all in one place, rather than in a range of documents, none of which are comprehensive. --------------------------------------------------------------------------- \113\ See supra notes 10-23 and accompanying text. \114\ Prior paragraph 1614.203(a) stated only that the federal government shall be a ``model employer of individuals with disabilities,'' and that federal agencies shall ``give full consideration to the hiring, placement, and advancement of qualified individuals with disabilities.'' --------------------------------------------------------------------------- EEOC has conducted an economic analysis of this Final Rule in accordance with EO 12866 and EO 13563. The analysis, revised in response to public comments and in light of the revisions discussed above, is presented below. Except where noted, we assume that work required under the Rule will be performed by GS-12 step 5 level employees in the Washington- Baltimore-Northern Virginia, DC-MD-VA-WV-PA region.\115\ The compensation rate for such employees, [[Page 672]] adjusted to include benefits, is $66.78 per hour \116\ or $143,968.85 per year.\117\ --------------------------------------------------------------------------- \115\ In the NPRM, the Commission assumed that some of the required tasks would be performed by employees at the GS-14 level. On reflection, we believe that they are more likely to be performed by employees at the GS-12 level. The Commission realizes that not all of these tasks will be performed by GS-12 step 5 level employees in the Washington-Baltimore-Northern Virginia, DC-MD-VA-WV-PA region; the assumption is made purely for purposes of the economic analysis. \116\ See Office of Pers. Mgmt., Salary Table 2016-DCB: Hourly Basic (B) Rates by Grade and Step, Hourly Overtime (O) Rates by Grade and Step (Jan. 2016), https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/salary-tables/pdf/2016/DCB_h.pdf (providing hourly monetary compensation rates). To adjust for the cost of benefits, we divided the annual salary by 0.61. See Congressional Budget Office, Comparing the Compensation of Federal and Private-Sector Employees 9 (Jan. 2012), https://www.cbo.gov/sites/default/files/01-30-FedPay_0.pdf [hereinafter Comparing Compensation] (reporting that the cost of providing benefits to federal workers averages between $15.50 and $24.70 per hour). \117\ See Office of Pers. Mgmt., Salary Table 2016-DCB: Annual Rates by Grade and Step (Jan. 2016), https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/salary-tables/pdf/2016/DCB.pdf [hereinafter Annual Rates] (providing annual monetary compensation rates). To adjust for the cost of benefits, we divided the annual salary by 0.61. See Comparing Compensation, supra note 116, at 9 (reporting that benefits account for 39% of the cost of total compensation for federal workers). --------------------------------------------------------------------------- Provisions Imposing No Additional Burden The NPRM stated that many of the requirements in the proposed rule would have no economic effect, because they did not impose new requirements or burdens on federal agencies-- Proposed paragraph (a), which set forth definitions of key terms, imposed no substantive requirements. Proposed paragraph (b), which provided 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 revised paragraph (b) in the current regulations for clarity. Proposed paragraph (c), which required agencies to be model employers of individuals with disabilities, was identical to paragraph (a) of the current regulations. The requirement to adopt an affirmative action plan, in proposed paragraph (d), is imposed by Section 501.\118\ --------------------------------------------------------------------------- \118\ 29 U.S.C. 791(b). --------------------------------------------------------------------------- Proposed paragraph (d)(1)(iii), which required agencies to take steps to ensure that individuals with disabilities have sufficient advancement opportunities, provided guidance on how to fulfill existing requirements rather than imposing new ones.\119\ --------------------------------------------------------------------------- \119\ See, e.g., 29 CFR 1614.102(a)(10), (a)(11), (a)(13), (b)(1); Promoting Employment, supra note 21; 13164 Guidance, supra note 15; MD-715, supra note 16. Indeed, the Commission anticipated that the additional guidance contained in the proposed rule, in the form of helpful examples and suggestions, would reduce agency burden by making it easier to satisfy the existing requirements. However, because the Commission did not have any data upon which to base an estimate of time saved, it did not quantify the benefit. --------------------------------------------------------------------------- The requirements of proposed paragraphs (d)(3)(i) (requiring written reasonable accommodation procedures) and (d)(3)(iii) (requiring agencies to provide individuals who have been denied a reasonable accommodation with written notice of the reasons for the denial) were taken from MD-715, Executive Order 13164, and existing agency guidance.\120\ --------------------------------------------------------------------------- \120\ See MD-715, supra note 16; Executive Order No. 13164, supra note 14; 13164 Guidance, supra note 15. --------------------------------------------------------------------------- The recordkeeping requirements of proposed paragraph (d)(8), with the exception of the requirements imposed by (d)(8)(iii) and (d)(8)(iv) (discussed below), were taken from MD-715.\121\ --------------------------------------------------------------------------- \121\ See MD-715, supra note 16. --------------------------------------------------------------------------- The requirement to submit a Plan to the Commission for approval on an annual basis, found in proposed paragraph (e)(1), is imposed by Section 501.\122\ --------------------------------------------------------------------------- \122\ 29 U.S.C. 791(b). --------------------------------------------------------------------------- The Commission received no objections to this aspect of the economic analysis, and none of the revisions made to these paragraphs impose additional requirements or burdens on federal agencies. One-Time Costs The NPRM stated that the following aspects of the proposed rule, all of which required agencies to make certain information more readily available, imposed one-time compliance costs on federal agencies-- Proposed paragraph (d)(2) required agencies to clarify in their harassment policies that disability-based harassment is prohibited. Proposed paragraph (d)(3)(ii) required agencies to inform all employees who are authorized to grant or deny requests for reasonable accommodation that all resources available to the agency as a whole are considered when determining whether a denial of reasonable accommodation based on cost is lawful. Proposed paragraph (d)(4) required agencies to make certain contact information available to employees. Proposed paragraph (e)(2) required agencies to make their Plans available to the public. The Commission estimated that agencies would need to spend approximately 5 hours performing these tasks, updating policies, and checking for compliance. The Commission received no objections to this estimate in the public comments. Revisions to these paragraphs, however, led us to adjust the estimate-- Proposed paragraph (d)(3)(ii) has been revised to require agencies to inform all employees who are authorized to make hiring decisions, in addition to employees authorized to grant or deny requests for reasonable accommodation, that all resources available to the agency as a whole, excluding those designated by statute for a specific purpose that does not include reasonable accommodation, are considered when determining whether a denial of reasonable accommodation based on cost is lawful. Proposed paragraph (d)(3)(ii) has also been revised to require agencies to ensure that anyone authorized to grant or deny requests for reasonable accommodation or to make hiring decisions is aware of, and knows how to arrange for the use of, agency resources available to provide the accommodation. Proposed paragraph (d)(4) has been revised to require agencies to make information on substantive Section 508 and ABA rights available to employees, in addition to contact information. To account for the additional requirements, the Commission has doubled the estimate of the time needed to perform the necessary tasks, from 5 to 10 hours. Multiplying by the number of agencies covered by the Rule (218) \123\ and by the hourly compensation rate of $66.78 yields a total estimated cost of $145,580.40. --------------------------------------------------------------------------- \123\ 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. --------------------------------------------------------------------------- Paragraph (d)(1)(ii) The NPRM stated that proposed paragraph (d)(1)(ii), requiring agencies to have sufficient staff to answer disability-related questions from members of the public, process requests for reasonable accommodations made by job applicants, accept and process applications for appointment under hiring authorities that take disability into account, and oversee any other disability-related hiring programs, would impose recurring costs on federal agencies. The Commission provided both a high and a low estimate. To calculate the high estimate, we assumed that each covered agency would need to hire at least one new employee to assist the existing agency staff in performing the required tasks. To calculate the low estimate, we assumed that approximately 10% of agencies, or 22 agencies, would need to hire a new employee. Using the updated annual [[Page 673]] compensation rate of $143,968.85, we multiply by the total number of covered agencies (218) to arrive at a high estimate of $31,385,209.30 per year, and by 22 to arrive at a low estimate of $3,167,314.70 per year. Paragraph (d)(5) The NPRM stated that proposed paragraph (d)(5), requiring agencies to provide PAS to employees who need them because of a disability, would impose costs because some current federal employees require PAS.\124\ The Commission was aware of only one study measuring the number of employed individuals who require personal services at work because of a disability (2003 study), finding that 1.1% of individuals with disabilities, as that term was defined, required ``a personal assistant to help with job-related activities.'' \125\ We thus estimated that 1.1% of current federal employees with targeted disabilities would require PAS.\126\ --------------------------------------------------------------------------- \124\ Paragraph (d)(5) is also expected to impose costs arising from the need to provide PAS to individuals who are hired because of the Rule. These costs are discussed in the section on paragraph (d)(7) below. \125\ 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). For purposes of the study, an individual had a disability if he or she 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. \126\ The group of individuals included in the study, see supra note 125, more closely matches the definition of ``targeted disability'' than the definition of ``disability'' under paragraph (a). As noted throughout, the Section 501 definition of ``disability'' is very broad. --------------------------------------------------------------------------- One commenter stated that this estimate was far too low, and that the proposed paragraph would require federal agencies to provide PAS to ``multitudes'' of federal employees. The Commission disagrees. It is simply not true that ``multitudes'' of current federal employees are unable to eat, use the restroom, or perform similar tasks without assistance. The Commission reminds readers that (d)(5) does not require agencies to assist employees by, for example, typing or reading work materials aloud for someone who requires these services because of a disability, because those types of job-related services are already required as reasonable accommodations absent undue hardship. (Of course, an agency would not be required to provide these specific accommodations if an alternative would be both less expensive and equally effective.) The paragraph also does not require agencies to hire an assistant to perform essential functions of the individual's job, or to perform tasks that the individual can perform on his or her own. As explained in the NPRM, the Commission suspects that the actual number of current federal employees who will receive PAS pursuant to (d)(5) is close to zero. A federal employee who requires PAS to remain in the workplace, but does not receive PAS from his or her agency, generally would need to pay for such services out-of-pocket. An individual who has no income, by contrast, typically relies on public benefits to pay for PAS. One study has found that an individual would need to earn approximately $40,000.00 per year simply to break even.\127\ --------------------------------------------------------------------------- \127\ See Douglas Klayman, et al., Soc. Dynamics, LLC, Funding Options for Personal Assistance Services 17 (2009), www.dol.gov/odep/research/FundingOptionsPersonalAssistanceServices(PAS).pdf. --------------------------------------------------------------------------- Nevertheless, because the Commission lacks any additional data, we continue to assume for purposes of the analysis that 1.1% of current federal employees with targeted disabilities require PAS. There are approximately 19,536 individuals with targeted disabilities in the federal workforce.\128\ Multiplying that number by 0.011 yields an estimated total of 215 current federal employees who require PAS. The Commission is aware of 16 current employees who are already given PAS by their agencies. Because provision of PAS to these individuals would not represent new costs, we exclude these individuals from the analysis, leaving an estimated 199 current employees who will receive PAS as a result of (d)(5). --------------------------------------------------------------------------- \128\ See 2014 Report, supra note 95, at 25. --------------------------------------------------------------------------- Even though the proposed paragraph allowed agencies to assign PAS providers to multiple individuals, and to perform additional duties, the Commission assumed in the NPRM that agencies would provide each individual with the equivalent of a full-time PAS provider.\129\ We provided both a high and a low estimate of associated costs. To calculate the low estimate, we assumed that agencies would contract with vendors to provide each individual with PAS for the equivalent of full-time hours at the minimum hourly rate for federal contractors ($10.10).\130\ To calculate the high estimate, the Commission assumed that agencies would hire a PAS provider for each individual at the GS-5 level. --------------------------------------------------------------------------- \129\ 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 $8,000.00). \130\ See Executive Order No. 13658, 79 FR 9851 (Feb. 12, 2014), http://www.thefederalregister.org/fdsys/pkg/FR-2014-02-20/pdf/2014-03805.pdf. --------------------------------------------------------------------------- One commenter stated that the estimates were far too low. The commenter further stated that, to generate the low-end estimate, the Commission should assume that agencies will hire PAS providers at the GS-6 level, which, according to the commenter, is a level appropriate for practical nurses. The commenter's assertions are out of step with all available evidence. PAS providers earn, on average, an amount per hour that is approximately equal to the federal minimum wage,\131\ and an amount per year that is significantly lower than the annual salary of a GS-5 level employee.\132\ We therefore retain the prior assumptions. To generate the low estimate, we multiply $10.10 by the equivalent of full-time hours (2,080 hours per year), yielding an estimated annual per-person cost of $20,800.00. Multiplying by the number of covered agencies yields a total estimated cost for providing PAS to current federal employees of $4,180,592.00 per year. To generate the high estimate, we multiply the annual salary of a GS-5, step 5 level employee in the Washington-Baltimore- [[Page 674]] Northern Virginia, DC-MD-VA-WV-PA region ($65,519.67, adjusted to include benefits) \133\ by the number of covered agencies, for a total estimated cost of $13,038,414.33 per year. --------------------------------------------------------------------------- \131\ See, e.g., Personal Assistant Career, MyMajors, http://www.mymajors.com/career/personal-assistant/salary/ (last visited Dec. 21, 2016) (reporting that PAS providers have an average hourly wage of $10.20); Douglas Klayman, et al., supra note 127, at 16 (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). \132\ PAS providers have an average annual income of $21,210.00. See, e.g., Personal Assistant Career, supra note 131. A GS-5 step 5 level employee in the Washington-Baltimore-Northern Virginia, DC-MD- VA-WV-PA region earns $39,967.00--a full 88% more. See Annual Rates, supra note 117. \133\ See supra note 117. --------------------------------------------------------------------------- In calculating both the high- and low-end costs of providing PAS, the Commission did not include the cost of having PAS providers accompany employees on work-related travel. First, we believe that whether an agency is required to provide PAS or not, it would have the obligation to pay the cost of a PAS provider to travel with an employee as a reasonable accommodation.\134\ Additionally, the Commission lacks any reliable data on which to base such an estimate, since there is no way of knowing how many employees who require PAS would be hired into jobs that require travel and how often travel would be required. --------------------------------------------------------------------------- \134\ See 29 CFR pt. 1630, app. 1630.2(o) (stating that it may be a reasonable accommodation for an employer to provide ``a travel attendant to act as a sighted guide to assist a blind employee on occasional business trips''). Additionally, federal regulations specifically provide for the reimbursement of travel expenses for family members or other attendants needed by an employee with a disability to make work-related travel possible. See 41 CFR 301-12, -13, -70. --------------------------------------------------------------------------- Paragraph (d)(6) In the NPRM, the Commission asserted that proposed paragraph (d)(6), requiring agencies to gather workforce data, imposed no new costs on agencies because they are already required to gather such data under MD-715.\135\ However, paragraph (d)(6)(ii)(A) has been amended to allow agencies to develop novel ways of gathering voluntary self-report data if the SF-256 does not meet their needs. We estimate that 50 agencies will gather voluntary self-identification data using a form other than the SF-256, and that each agency will spend 10 hours per year administering the survey, for a total of 500 additional burden hours. Multiplying by the hourly compensation rate of $66.78, we conclude that paragraph (d)(6) will have a total annual cost of approximately $33,390.00. --------------------------------------------------------------------------- \135\ 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. See MD-715, supra note 16, at B.III. MD-715 also requires agencies to determine whether they are meeting obligations imposed by Title VII, 42 U.S.C. 2000e--2000e-17, on an annual basis. See id. at A. Those requirements are not relevant to this rulemaking. --------------------------------------------------------------------------- Paragraph (d)(7) The NPRM noted that 3 aspects of proposed paragraph (d)(7), requiring agencies to adopt employment goals for individuals with disabilities and individuals with targeted disabilities, were likely to impose recurring costs. First, to determine whether the goals have been met, agencies would need to determine how many individuals with disabilities are employed at each GS and SES level. The NPRM stated that the associated costs would be minimal because agencies could simply request the information from OPM.\136\ The Commission estimated that each agency would spend 2 hours performing the required tasks, for an estimated total of 436 burden hours. --------------------------------------------------------------------------- \136\ See, e.g., 2014 Report, supra note 95, at 25. --------------------------------------------------------------------------- Again, revisions to the Rule require us to adjust the estimate. In addition to the information described above, agencies that have employees who are on neither the GS nor the SES pay scale will need to determine how many such employees-- are individuals with disabilities and have salaries equal to or greater than an employee at the GS-11 step 1 level in the Washington, DC locality; are individuals with targeted disabilities and have salaries equal to or greater than employees at the GS-11 step 1 level in the Washington, DC locality; are individuals with disabilities and have salaries less than employees at the GS-11 step 1 level in the Washington, DC locality; and are individuals with targeted disabilities and have salaries less than employees at the GS-11 step 1 level in the Washington, DC locality. There are approximately 114 agencies that have employees on non-GS, non-SES pay scales. The Commission estimates that each such agency will spend 2 hours collecting the required information, for a total of 228 additional burden hours. Adding the previous estimate yields an overall estimate of 664 burden hours arising from the obligation to determine whether the employment goals have been met. Multiplying by the hourly compensation rate $66.78 yields a total estimated annual cost of $44,341.92. Second, the NPRM stated that 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 considered the number of additional employees who would require a reasonable accommodation. Based on OPM data, the Commission estimated that the federal government as a whole would need to hire approximately 384 individuals with targeted disabilities at the GS-10 level or below, and approximately 10,381 individuals with targeted disabilities at the GS-11 level or above (including the SES), to meet the goals. Because the goals have been revised to cover employees who are on neither the GS nor the SES pay scale, the estimate has been revised-- \137\ --------------------------------------------------------------------------- \137\ See id. Because OPM reports only limited data regarding federal employees who are on neither the GS nor the SES pay scale, the Commission assumed for purposes of this analysis that employees, employees with disabilities, and employees with targeted disabilities are distributed between higher and lower levels of employment in roughly the same proportions as employees on the GS and SES scales. We also note that, based on an initial review of 2015 data, the number of new hires required to reach the goals would likely be lower than estimated above, resulting in lower costs overall. See Office of Pers. Mgmt., Report on the Employment of Individuals with Disabilities in the Federal Executive Branch: Fiscal Year 2015, 27 (2015), https://www.opm.gov/policy-data-oversight/diversity-and-inclusion/reports/disability-report-fy2015.pdf. --------------------------------------------------------------------------- Agencies will need to hire approximately 1,594 additional individuals with targeted disabilities to meet the 2% goal for individuals who are either at the GS-10 level or below or who are not paid under the General Schedule and who have salaries that are less than that of an employee at the GS-11 step 1 level in the Washington, DC locality.\138\ --------------------------------------------------------------------------- \138\ 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. --------------------------------------------------------------------------- Agencies will need to hire approximately 15,385 additional individuals with targeted disabilities to meet the 2% goal for individuals who are either at the GS-11 level or above or who are not paid under the General Schedule and who have salaries equal to or greater than that of an employee at the GS-11 step 1 level in the Washington, DC locality. Agencies will need to hire approximately 4,262 additional individuals with disabilities to meet the 12% goal for individuals who are either at the GS-11 level or above or who are not paid under the General Schedule and who have salaries equal to or greater than that of an employee at the GS-11 step 1 level in the Washington, DC locality. As in the NPRM, we assume that each new hire will require a reasonable accommodation,\139\ and estimate the [[Page 675]] cost of each accommodation to be $500.00 per year.\140\ Multiplying by the total number of estimated new hires (21,241) yields an estimated cost of $10,620,500.00 per year arising from the need to provide reasonable accommodations to new hires. --------------------------------------------------------------------------- \139\ As noted in the NPRM, this is almost certainly an overestimate, because many individuals with disabilities do not require an accommodation. See Job Accommodation Network, Workplace Accommodations: Low Cost, High Impact 3 (updated Sept. 1, 2014), http://askjan.org/media/downloads/LowCostHighImpact.pdf. \140\ See id. (finding that, if an accommodation has a cost, it will typically be approximately $500.00). This is also almost certainly an overestimate, because many individuals with disabilities do not require an accommodation; if an accommodation is required, it is likely to have no cost; and if it does have a cost, the cost does not necessarily recur. See id. --------------------------------------------------------------------------- Third, the NPRM stated that proposed paragraph (d)(7)(i) would impose ongoing costs by encouraging agencies to hire employees who are entitled to PAS under paragraph (d)(5). We assumed that the percentage of individuals who require PAS among new hires with targeted disabilities would reflect the percentage of individuals requiring PAS among individuals who have targeted disabilities, are unemployed, and are looking for work. Based on the 2003 study, and on a 2006 study that investigated the prevalence of reported ``self-care difficulties'' among employed and unemployed individuals with disabilities,\141\ we estimated that between 1.1% and 2% of individuals who have targeted disabilities, are unemployed, and looking for work require PAS. However, because neither study assessed the need for PAS among unemployed individuals,\142\ we noted at the time that the estimates may be both under- and over-inclusive. --------------------------------------------------------------------------- \141\ Susan Stoddard et al., Personal Assistance Services as a Workplace Accommodation, 27 Work 363, 364 (2006). \142\ As explained, the 2003 study assesses the need for PAS among employed individuals with disabilities, and the 2006 study assesses the prevalence of reported self-care difficulties among unemployed individuals with disabilities. --------------------------------------------------------------------------- The Commission has refined its approach. We again assume that the percentage of individuals requiring PAS among new hires with targeted disabilities will reflect the percentage of those requiring PAS among individuals who have targeted disabilities, are unemployed, and looking for work. To determine the latter percentage, we first attempt to determine the number of individuals who have targeted disabilities, are unemployed, and are looking for work. We then attempt to determine the number of individuals who have targeted disabilities, are unemployed, are looking for work, and who require PAS. Finally, we compare the two numbers to arrive at a percentage. To determine the number of individuals who have targeted disabilities, are unemployed, and are looking for work, we rely on census data. As discussed above, the census definition of ``disability'' matches neither the definition of ``disability'' nor the definition of ``targeted disability'' under paragraph (a). However, the census data are the best available to the Commission at this time. Further, because the census definition requires ``serious difficulty'' with an activity such as seeing or walking, it is likely that most people who meet the census definition have a targeted disability.\143\ We therefore rely on census data to conclude for purposes of the economic analysis that there are approximately 1,282,377 individuals who have targeted disabilities, are unemployed, and are looking for work.\144\ --------------------------------------------------------------------------- \143\ See supra note 99. \144\ See Employment Status by Disability Status and Type (2014), U.S. Census Bureau, http://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ACS_14_1YR_B18120&prodType=table (last visited Dec. 21, 2016) (reporting that 1,282,377 individuals who meet the census definition of ``disability'' are noninstitutionalized, between the ages of 18 and 64, unemployed, and looking for work). Use of the census data will lead to an overestimate of costs. As noted in the NPRM, some individuals with targeted disabilities, such as individuals with epilepsy or certain psychiatric disabilities, likely do not fall into the census definition. Therefore, the census data are likely to underestimate the total number of individuals with targeted disabilities who are unemployed and looking for work, thereby making the proportion of such individuals needing PAS seem artificially large. --------------------------------------------------------------------------- To determine the number of individuals who have targeted disabilities, are unemployed, are looking for work, and who require PAS, we first note that there are approximately 1,257,000 individuals employed as personal assistance service providers throughout the country.\145\ Assuming that each provider is assigned to a single individual, there are approximately 1,257,000 individuals who require PAS nationally, presumably because of a targeted disability.\146\ Not all of these individuals are unemployed and looking for work, however-- some are already employed, some are retired, some are below working age, and some do not participate in the workforce for other reasons. --------------------------------------------------------------------------- \145\ Personal Assistant Career, supra note 131. \146\ We recognize that some individuals with disabilities may receive PAS from family members, rather than from persons who work as personal assistance service providers. We have no data, however, about how many such individuals receive PAS exclusively from family members, and consequently, whether and to what extent 1,257,000 individuals who require PAS underestimates the actual number. We believe that any difference would be small, however, since individuals who receive PAS from family members likely also receive PAS from individuals who are PAS providers. --------------------------------------------------------------------------- The Commission is not aware of any data showing how many individuals who require PAS because of a targeted disability are unemployed and looking for work. To arrive at an approximation, we assume that the workforce participation and unemployment rates for such individuals reflect those of individuals who have disabilities that result in self-care difficulty more generally.\147\ Research shows that roughly 8% of these individuals participate in the workforce (are either employed or unemployed and looking for work),\148\ and that their unemployment rate is approximately 18.14%.\149\ Thus, roughly 18.14% of 8%, or 1.4512%, of individuals with disabilities resulting in self-care difficulty are unemployed and looking for work. Applying this percentage to the estimated number of individuals who require PAS because of a targeted disability (1,257,000), we find that there are approximately 18,242 individuals who have a targeted disability, are unemployed, are looking for work, and who require PAS nationally. --------------------------------------------------------------------------- \147\ We suspect that the workforce participation rate for individuals who require PAS is significantly lower than the workforce participation rate for individuals who have disabilities that result in self-care difficulty. But again, because the Commission lacks more specific data, and also because lower workforce participation rates may be offset by higher unemployment rates for individuals who require PAS, we believe that the data on individuals who have disabilities that result in self-care difficulty are adequate for purposes of this analysis. \148\ Am. Insts. for Research, One Size Does Not Fit All: A New Look at the Labor Force Participation of People with Disabilities 4 (2015), http://www.air.org/sites/default/files/downloads/report/Labor-Force-Participation-People-with-Disabilities-Yin-Sept-2015.pdf. \149\ In 2014, the number of employed individuals who had disabilities that resulted in self-care difficulty was 548,700, and the number who were unemployed and looking for work was 121,600. The total number of such individuals who participated in the workforce in 2014 was therefore 670,300. The 121,600 who were unemployed and looking for work represent 18.14% of this total. All of these figures were obtained using the data retrieval tool at Cornell Univ., American Community Survey (ACS) Employment Statistics, Disability Statistics, https://www.disabilitystatistics.org/reports/acs.cfm?statistic=3 (last visited July 7, 2016). --------------------------------------------------------------------------- Comparing the estimated number of individuals who have targeted disabilities, are unemployed, are looking for work, and who require PAS (18,242) to the estimated total number of individuals who have targeted disabilities, are unemployed, and are looking for work (1,282,377), we find that the former group represents 1.42% of the latter. Assuming, as discussed above, that this relationship will be [[Page 676]] reflected in the estimated 16,979 new hires who have targeted disabilities, we conclude that 241 new hires will require PAS. To generate an estimate of the associated costs, we rely on the estimated per-person costs for providing PAS calculated in the section on paragraph (d)(5) above. Multiplying 241 by the low estimate of the associated costs ($21,008.00) yields a total estimated cost of $5,062,928.00 per year, and multiplying by the high estimate of the associated costs ($65,519.67) yields a total estimated cost of $15,790,240.47 per year. In summary, the estimated annual costs arising from paragraph (d)(7) will be $44,341.92 (the estimated cost of determining whether goals have been met) plus $10,620,500.00 (the estimated cost of providing reasonable accommodations to individuals hired pursuant to the goals) plus between $5,062,928.00 and $15,790,240.47 (the estimated cost of providing PAS to individuals hired pursuant to the goals), for a total estimated annual cost of between $15,727,769.92 and $26,455,082.39. Paragraphs (d)(8)(iii) and (d)(8)(iv) The requirements of proposed paragraphs (d)(8)(iii) and (d)(8)(iv)--to keep records of all 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--were adopted unchanged in the Final Rule. The NPRM estimated that it would take each agency 2 hours to gather the required data, to perform the required calculations, and to create and maintain the associated records. Multiplying by the number of covered agencies yielded an overall estimate of 436 burden hours per year. One commenter stated that the estimate is too low for small agencies that do not have ``automated [human resources (HR)] systems.'' The commenter did not state how many such agencies there are. For purposes of this analysis, the Commission estimates for purposes of this analysis that 20 agencies lack an automated HR system. The commenter also did not provide an estimate of the amount of time that such agencies would need to perform the required tasks, except to say that the ``guidepost . . . is the amount of time it takes to manually prepare the MD-715 report.'' We disagree that it would take agencies the same amount of time to meet the requirements of (d)(8)(iii) and (d)(8)(iv) as it would take them to prepare an entire MD-715 report. The commenter is reminded that, to the extent paragraph (d)(8) requires agencies to maintain the same records that are required under MD-715, it imposes no new burden. The (d)(8) requirements exceed those of MD-715 only insofar as they require records relating to the Schedule A hiring authority for persons with certain disabilities. We also note that the associated burden is likely to be proportional to the size of the agency--if an agency is small enough that it lacks an automated HR system, it is not likely to have appointed an overwhelmingly large number of individuals under the Schedule A hiring authority for persons with certain disabilities. Nevertheless, the Commission estimates for purposes of this analysis that each of the estimated 20 agencies lacking automated HR systems will need to spend an additional 10 hours performing the required tasks, for a total of 200 additional burden hours. Adding this to the previous estimate yields a total estimate of 636 burden hours. Multiplying by the hourly compensation rate of $66.78 yields a total estimated cost for paragraphs (d)(8)(iii) and (d)(8)(iv) of $42,472.08 per year. Economic Benefits As stated in the NPRM, the Rule is also expected to have positive economic effects by bringing a greater number of individuals with disabilities into the workforce.\150\ Because individuals who require PAS throughout the day and who are looking for work most likely rely on government benefits to meet the significant cost of hiring a personal assistant, the NPRM assumed that each individual who receives PAS from an agency would otherwise have relied on Social Security and Supplemental Security Income benefits to pay for those services. Research indicated 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,\151\ for a total annual benefit of $27,459.00 per individual. The Commission received no objections to this analysis. Multiplying by the revised estimate of the number of new hires who are expected to require PAS (241) yields a total estimated economic benefit of $6,617,619.00 per year. --------------------------------------------------------------------------- \150\ 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). \151\ See Douglas Klayman, et al., supra note 127, at 17. --------------------------------------------------------------------------- Non-Economic Effects The NPRM also noted that, in addition to economic effects, the proposed rule would 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 NPRM stated that the rule would 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.\152\ In addition, the NPRM stated that the proposed rule would have qualitative and dignitary benefits, including-- --------------------------------------------------------------------------- \152\ See, e.g., Jean P. Hall, et al., supra note 150, 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). --------------------------------------------------------------------------- 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. All of these considerations apply equally well to the Final Rule. 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. Summary In summary, the Commission estimates that the Rule as a whole will have a one-time initial cost to the federal government of approximately $145,580.40, an annual cost to the federal government of between $23,151,538.70 and $70,954,568.10, and an annual economic benefit to the federal government of $6,617,619.00. 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 [[Page 677]] 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 amends 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. 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 during the hiring process, 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 personal assistance service provider means an employee or independent contractor whose primary job functions include provision of personal assistance services. (5) The term personal assistance services means assistance with performing activities of daily living that an individual would typically perform if he or she did not have a disability, and that is not otherwise required as a reasonable accommodation, including, for example, assistance with removing and putting on clothing, eating, and using the restroom. (6) 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). (7) 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). (8) The term Section 501 means section 501 of the Rehabilitation Act of 1973, as amended (29 U.S.C. 791). (9) The term targeted disability means a disability that is designated as a ``targeted disability or health condition'' on the Office of Personnel Management's Standard Form 256 or that falls under one of the first 12 categories of disability listed in Part A of question 5 of the Equal Employment Opportunity Commission's Demographic Information on Applicants form. (10) 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 the ADA. (c) Model employer. The Federal Government shall be a model employer of individuals with disabilities. Agencies shall give full consideration to the hiring, advancement, and retention of qualified individuals with disabilities in the federal workforce. Agencies shall also take affirmative action to promote the recruitment, hiring, and advancement of qualified individuals with disabilities, with the goal of eliminating under-representation of individuals with disabilities in the federal workforce. (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 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, including individuals with targeted 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 identify job applicants with disabilities, including individuals with targeted 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 programs that provide the qualifications necessary for particular positions within the agency to individuals with disabilities, databases of individuals with disabilities who previously applied to the agency but were not hired for the positions they applied for, and training and internship programs that lead directly to employment for individuals with disabilities; and (B) Establishment and maintenance of contacts (which may include formal agreements) with organizations that specialize in providing assistance to individuals with disabilities, including [[Page 678]] individuals with targeted disabilities, in securing and maintaining employment, such as 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 selection processes, and shall require the agency to provide such individuals with sufficient training, support, and other resources to carry out their responsibilities under this section. Such responsibilities shall include, at a minimum-- (A) Ensuring that disability-related questions from members of the public regarding the agency's application and selection processes are answered promptly and correctly, including questions about reasonable accommodations needed by job applicants during the application and selection processes and questions about how individuals may apply for appointment under hiring authorities that take 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) If an individual has applied for appointment to a particular position under a hiring authority that takes disability into account, determining whether the individual is eligible for appointment under such authority, and, if so, forwarding the individual's application to the relevant hiring officials with an explanation of how and when the individual may be appointed, consistent with all applicable laws; (E) 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, post on its public Web site, 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) Explain that reassignment to a vacant position for which an employee is qualified, and not just permission to compete for such position, is a reasonable accommodation, and that the agency must consider providing reassignment to a vacant position as a reasonable accommodation when it determines that no other reasonable accommodation will permit an employee with a disability to perform the essential functions of his or her current position; (C) Notify supervisors and other relevant agency employees how and where they are to conduct searches for available vacancies when considering reassignment as a reasonable accommodation; (D) Explain that an individual may request a reasonable accommodation orally or in writing at any time, need not fill out any specific form in order for the interactive process to begin, and 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; (E) 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; (F) Describe the agency's process for determining whether to provide a reasonable accommodation, including the interactive process, and provide contact information for the individual or program office from whom requesters will receive a final decision; (G) Provide guidance to supervisors on how to recognize requests for reasonable accommodation; (H) Require that decision makers communicate, early in the interactive process and periodically throughout the process, with individuals who have requested a reasonable accommodation; (I) Explain when 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; (J) Explain the agency's right to request relevant supplemental medical information if the information submitted by the requester is insufficient for the purposes specified in paragraph (d)(3)(i)(I) of this section; (K) Explain the agency's right to have medical information reviewed by a medical expert of the agency's choosing at the agency's expense; (L) 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; (M) Designate the maximum amount of time the agency has, absent extenuating circumstances, to either provide a requested accommodation or deny the request, and explain that the time limit begins to run when the accommodation is first requested; (N) Explain that the agency will not be expected to adhere to its usual timelines if an individual's health professional fails to provide needed documentation in a timely manner; (O) Explain that, where a particular reasonable accommodation can be provided in less than the maximum amount of time permitted under paragraph (d)(3)(i)(M) of this section, failure to provide the accommodation in a prompt manner may result in a violation of the Rehabilitation Act; [[Page 679]] (P) 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)(M) of this section; (Q) Explain that, when all the facts and circumstances known to the agency make it reasonably likely that an individual will be entitled to a reasonable accommodation, but the accommodation cannot be provided immediately, the agency shall provide an interim accommodation that allows the individual to perform some or all of the essential functions of his or her job, if it is possible to do so without imposing undue hardship on the agency; (R) Inform applicants and employees how they may track the processing of requests for reasonable accommodation; (S) 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, including any extenuating circumstances that justify the delay; (T) Explain that individuals who have been denied reasonable accommodations have the right to file complaints pursuant to 29 CFR 1614.106; (U) Encourage the use of voluntary informal dispute resolution processes that individuals may use to obtain prompt reconsideration of denied requests for reasonable accommodation; (V) Provide that the agency shall give the requester a notice consistent with the requirements of paragraph (d)(3)(iii) of this section at the time a request for reasonable accommodation is denied; and (W) Provide information on how to access additional information regarding reasonable accommodation, including, at a minimum, Commission guidance and technical assistance documents. (ii) Cost of accommodations. The Plan shall require the agency to take specific steps to ensure that requests for reasonable accommodation are not denied for reasons of cost, and that individuals with disabilities are not excluded from employment due to the anticipated cost of a reasonable accommodation, if the resources available to the agency as a whole, excluding those designated by statute for a specific purpose that does not include reasonable accommodation, would enable it to provide an effective reasonable accommodation without undue hardship. Such steps shall be reasonably designed to, at a minimum-- (A) Ensure that anyone who is authorized to grant or deny requests for reasonable accommodation or to make hiring decisions is aware that, pursuant to the regulations implementing the undue hardship defense at 29 CFR part 1630, all resources available to the agency as a whole, excluding those designated by statute for a specific purpose that does not include reasonable accommodation, are considered when determining whether a denial of reasonable accommodation based on cost is lawful; and (B) Ensure that anyone authorized to grant or deny requests for reasonable accommodation or to make hiring decisions is aware of, and knows how to arrange for the use of, agency resources available to provide the accommodation, including any centralized fund the agency may have for that purpose. (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 at the time of the denial, in an accessible format when requested, that-- (A) Explains the reasons for the denial and notifies the job applicant or employee of any available internal appeal or informal 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) Provides instructions on how to file such a complaint; and (D) Explains that, pursuant to 29 CFR 1614.105, the right to file a complaint will be lost unless the job applicant or employee initiates contact with an EEO Counselor within 45 days of the denial, regardless of whether the applicant or employee participates in an informal dispute resolution process. (4) Accessibility of facilities and technology--(i) Notice of rights. The Plan shall require the agency to adopt, post on its public Web site, and make available to all employees in written and accessible formats, a notice that-- (A) Explains their rights under Section 508 of the Rehabilitation Act of 1973, 29 U.S.C. 794d, concerning the accessibility of agency technology, and the Architectural Barriers Act, 42 U.S.C. 4151 through 4157, concerning the accessibility of agency building and facilities; (B) Provides 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, 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; and (C) Provides instructions on how to file complaints alleging violations of the accessibility requirements of the Architectural Barriers Act of 1968 and Section 508 of the Rehabilitation Act of 1973. (ii) Assistance with filing complaints at other agencies. If an agency's investigation of a complaint filed under Section 508 of the Rehabilitation Act of 1973 or the Architectural Barriers Act of 1968 shows that a different entity is responsible for the alleged violation, the Plan shall require the agency to inform the individual who filed the complaint where he or she may file a complaint against the other entity, if possible. (5) Personal assistance services allowing employees to participate in the workplace-- (i) Obligation to provide personal assistance services. The Plan shall require the agency to provide an employee with, 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 if-- (A) The employee requires such services because of a targeted disability; (B) Provision of such services would, together with any reasonable accommodations required under the standards set forth in part 1630 of this chapter, enable the employee to perform the essential functions of his or her position; and (C) Provision of such services would not impose undue hardship on the agency. (ii) Service providers. The Plan shall state that personal assistance services required under paragraph (d)(5)(i) of this section must be performed by a personal assistance service provider. The Plan may permit the agency to require personal assistance service providers to provide personal assistance services to more than one individual. The Plan may also permit the agency to require personal assistance service providers to perform tasks unrelated to personal assistance services, but only to the extent that doing so does not result in failure to provide personal assistance services required under paragraph (d)(5)(i) of this section in a timely manner. (iii) No adverse action. The Plan shall prohibit the agency from taking adverse actions against job applicants or employees based on their need for, or [[Page 680]] perceived need for, personal assistance services. (iv) Selection of personal assistance service providers. The Plan shall require the agency, when selecting someone who will provide personal assistance services to a single individual, to give primary consideration to the individual's preferences to the extent permitted by law. (v) Written procedures. The Plan shall require the agency to adopt, post on its public Web site, and make available to all job applicants and employees in written and accessible formats, procedures for processing requests for personal assistance services. An agency may satisfy this requirement by stating, in the procedures required under paragraph (d)(3)(i) of this section, that the process for requesting personal assistance services, the process for determining whether such services are required, and the agency's right to deny such requests when provision of the services would pose an undue hardship, are the same as for reasonable accommodations. (6) Utilization analysis--(i) Current utilization. The Plan shall require the agency to perform a workforce analysis annually to determine the percentage of its employees at each grade and salary level who have disabilities, and the percentage of its employees at each grade and salary level who have targeted disabilities. (ii) Source of data. For purposes of the analysis required under paragraph (d)(6)(i) of this section, an employee may be classified as an individual with a disability or an individual with a targeted disability on the basis of-- (A) The individual's self-identification as an individual with a disability or an individual with a targeted disability on a form, including but not limited to the Office of Personnel Management's Standard Form 256, which states that the information collected will be kept confidential and used only for statistical purposes, and that completion of the form is voluntary; (B) Records relating to the individual's appointment under a hiring authority that takes disability into account, if applicable; and (C) Records relating to the individual's requests for reasonable accommodation, if any. (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 employees at the GS-11 level and above, together with employees who are not paid under the General Schedule but who have salaries equal to or greater than employees at the GS-11, step 1 level in the Washington, DC locality, are individuals with disabilities; (B) No less than 12% of employees at the GS-10 level and below, together with employees who are not paid under the General Schedule but who have salaries less than employees at the GS-11, step 1 level in the Washington, DC locality, are individuals with disabilities; (C) No less than 2% of employees at the GS-11 level and above, together with employees who are not paid under the General Schedule but who have salaries equal to or greater than employees at the GS-11, step 1 level in the Washington, DC locality, are individuals with targeted disabilities; and (D) No less than 2% of employees at the GS-10 level and below, together with employees who are not paid under the General Schedule but who have salaries less than employees at the GS-11, step 1 level in the Washington, DC locality, are individuals with targeted 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 or targeted disabilities employed at the agency until it meets 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 disabilities, as applicable; (B) To the extent permitted by applicable laws, consideration of disability or targeted 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; (E) Increased efforts to hire and retain individuals who require supported employment because of a disability, who have retained the services of a job coach at their own expense or at the expense of a third party, and who may be given permission to use the job coach during work hours as a reasonable accommodation without imposing undue hardship on the agency; and (F) 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 disabilities, and the number of individuals with targeted 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, and the number of such employees who were terminated prior to being converted to a career or career-conditional appointment in the competitive service; 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. [[Page 681]] (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 showing the percentage of employees with disabilities and employees with targeted disabilities in each of the designated pay groups; (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 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 providing a means by which members of the public may request copies of the submission in accessible formats. (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. 0 3. Amend Sec. 1614.601 by revising paragraph (f) to read as follows: Sec. 1614.601 EEO group statistics. * * * * * (f) Data on disabilities shall be collected using a method permitted under Sec. 1614.203(d)(6)(ii) and Sec. 1614.203(d)(6)(iii). * * * * * Dated: December 21, 2016. For the Commission. Peggy R. Mastroianni, Legal Counsel. [FR Doc. 2016-31397 Filed 12-30-16; 8:45 am] BILLING CODE 6570-01-P
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EQUAL EMPLOYMENT OPPORTUNITY the Rule requires agencies to take assistance in order to be at work or
COMMISSION specific steps that are reasonably participate in work-related travel. PAS
designed to gradually increase the are services that help individuals with
29 CFR Part 1614 number of employees who have a disabilities perform activities of daily
RIN 3046–AA94 disability as defined under Section 501, living, including, for example,
and the number of employees who have assistance with removing and putting on
Affirmative Action for Individuals With a ‘‘targeted disability,’’ which is defined clothing, eating, and using the restroom.
Disabilities in Federal Employment for purposes of this Rule to mean a Such services do not, however, include
disability that is either designated as medical care, and need not be provided
AGENCY: Equal Employment ‘‘targeted disability or health condition’’ by someone who has medical training or
Opportunity Commission. on the Office of Personnel qualifications.
ACTION: Final rule. Management’s (OPM’s) Standard Form The Commission recognizes that
256 (SF–256),3 or that falls under one of agencies may need some time to
SUMMARY: The Equal Employment the first 12 categories of disability listed develop the capacity to meet these
Opportunity Commission (EEOC or in Part A of Question 5 of the EEOC’s requirements. The Rule gives agencies
Commission) is issuing its final rule to Demographic Information on Applicants one year to make any necessary changes
amend the regulations that require form (Applicant Flow Form),4 until they in policy, staff, or other aspects of their
federal agencies to engage in affirmative meet specific goals set by the EEOC. operations. The applicability date of the
action for individuals with disabilities. This is consistent with the approach Rule is thus January 3, 2018. Prior to
These changes clarify the obligations taken by the Department of Labor’’s that date, the Commission will provide
that the Rehabilitation Act of 1973 Office of Federal Contract Compliance extensive outreach and training to help
imposes on federal agencies, as Programs in regulations issued to agencies prepare to meet the new
employers, that are over and above the implement the obligation of federal requirements.
obligation not to discriminate on the contractors to engage in affirmative The Commission’s economic analysis
basis of disability. The regulation does action for individuals with disabilities estimates that the Rule will have a one-
not apply to the private sector or to state pursuant to Section 503 of the time initial cost to the federal
or local governments. Rehabilitation Act of 1973, 29 U.S.C. government of approximately
DATES: Effective date: This final rule 793 (Section 503).5 $145,580.40; an annual cost to the
will be applicable on March 6, 2017. Second, the Rule requires agencies to federal government of between
Applicability date: The applicability provide personal assistance services $23,151,538.70 and $70,954,568.10; and
date for this final rule shall be January (PAS) to employees who, because of an annual economic benefit to the
3, 2018. targeted disabilities, require such federal government of approximately
FOR FURTHER INFORMATION CONTACT: $6,617,619.00. The Rule is also expected
Christopher Kuczynski, Assistant Legal 3 Office of Pers. Mgmt., Standard Form 256 to have a variety of non-monetizable
Counsel, (202) 663–4665, or Aaron (revised Aug., 2016), https://www.opm.gov/forms/ qualitative and dignitary benefits for
pdf_fill/sf256.pdf [hereinafter SF–256]. Targeted individuals with disabilities and
Konopasky, Senior Attorney-Advisor, disabilities include: developmental disabilities, for
(202) 663–4127 (voice), or (202) 663– example, autism spectrum disorder; traumatic brain individuals with targeted disabilities.
7026 (TTY), Office of Legal Counsel, injuries; deafness or serious difficulty hearing,
benefiting from, for example, American Sign
Background
U.S. Equal Employment Opportunity Language; blindness or serious difficulty seeing Section 501 imposes two distinct
Commission. (These are not toll free even when wearing glasses; missing extremities obligations on federal agencies. First, it
numbers.) Requests for this document in (arm, leg, hand and/or foot); significant mobility
impairments, benefitting from the utilization of a prohibits agencies from discriminating
an alternative format should be made to
wheelchair, scooter, walker, leg brace(s) and/or against individuals with disabilities
the Office of Communications and other supports; partial or complete paralysis (any pursuant to the same standards that are
Legislative Affairs at (202) 663–4191 cause); epilepsy and other seizure disorders; ‘‘applied under title I of the Americans
(voice) or (202) 663–4494 (TTY). (These intellectual disabilities; psychiatric disabilities;
dwarfism; and significant disfigurement, for
with Disabilities Act of 1990 . . . and
are not toll free numbers.)
example, disfigurements caused by burns, wounds, the provisions of sections 501 through
SUPPLEMENTARY INFORMATION: accidents, or congenital disorders. 504, and 510, of the Americans with
Executive Summary
4 EEOC, Demographic Information on Applicants
Disabilities Act of 1990 . . . as such
(n.d.), https://www.eeoc.gov/federal/upload/ sections relate to employment.’’ 6
This final rule (Final Rule or Rule) Applicant_Tracking_Form_2-19-2014-2.pdf
Current EEOC regulations provide
amends 29 CFR 1614.203 to clarify the [hereinafter Applicant Flow Form]. The first 12
categories of disability listed in Part A of question substantial guidance on these standards
affirmative action obligations that 5 are: Deaf or serious difficulty hearing; blind or at 29 CFR part 1630. Additional
Section 501 of the Rehabilitation Act of serious difficulty seeing even when wearing glasses; guidance is provided in the many EEOC
1973 (Section 501) 1 imposes on federal missing an arm, leg, hand, or foot; partial or
appellate decisions on complaints of
agencies 2 as employers. The Rule complete paralysis (any cause); significant
disfigurement (for example, severe disfigurements employment discrimination brought
codifies a variety of obligations caused by burns, wounds, accidents, or congenital under Section 501. These decisions are
currently placed on federal agencies by disorders); significant mobility impairment (for published on the EEOC’s Web site, and
management directives and Executive example, uses a wheelchair, scooter, walker or uses
significant decisions are compiled in a
Orders. It also adds two substantive a leg brace to walk); significant psychiatric disorder
(for example, bipolar disorder, schizophrenia, PTSD publicly available digest updated
affirmative action requirements. First, or major depression); intellectual disability annually by the Commission’s Office of
(formerly described as mental retardation); Federal Operations.7 This Final Rule
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1 29 U.S.C. 791. developmental disability (for example, cerebral
2 Section palsy or autism spectrum disorder); traumatic brain
does not change any of the substantive
501 applies to ‘‘each department,
agency, and instrumentality (including the United injury; dwarfism; and epilepsy or other seizure nondiscrimination requirements that
States Postal Service and the Postal Regulatory disorder.
Commission) in the executive branch and the 5 See 41 CFR pt. 60–741.45(a) (establishing a 7% 6 29U.S.C. 791(f).
Smithsonian Institution.’’ 29 U.S.C. 791(b). For utilization goal for employment of qualified 7 SeeDigest of Equal Employment Opportunity
convenience, this Notice uses the term ‘‘federal individuals with disabilities for the contractor’s Law, Equal Emp’t Opportunity Comm’n, http://
agency’’ or ‘‘agency’’ to mean any federal entity entire workforce or each job group in the www.eeoc.gov/federal/digest/index.cfm (last visited
covered by Section 501. contractor’s workforce). Dec. 21, 2016).
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currently apply in the federal sector, as President Bill Clinton issued applicants and employees with
set forth in the EEOC’s regulations and Executive Order 13163 on July 26, 2000 disabilities, especially those with
federal sector appellate decisions. ‘‘to support the goals articulated in targeted disabilities.’’ 17 Pursuant to
Second, the section requires each section 501 of the Rehabilitation Act of Executive Order 13164, MD–715 also
federal agency to maintain, update 1973.’’ 12 Under this Executive Order, requires agencies to have written
annually, and submit to the Commission each federal agency was required to procedures for providing reasonable
an ‘‘affirmative action program plan for prepare a plan to increase the accommodations, including the amount
the hiring, placement, and advancement opportunities for individuals with of time decision makers have to answer
of individuals with disabilities.’’ It disabilities to be employed in the reasonable accommodation requests.18
further directs the Commission to agency, and to submit the plan to OPM
Finally, MD–715 reinforces the
approve an affirmative action plan within 60 days from the date of the
(Plan) if ‘‘the Commission determines requirement from MD–713 that agencies
order. The Executive Order stated that
. . . that such plan provides sufficient ‘‘based on current hiring patterns and with 1,000 or more employees are
assurances, procedures and anticipated increases from expanded required ‘‘to maintain a special
commitments to provide adequate outreach efforts and appropriate recruitment program for individuals
hiring, placement, and advancement accommodations, the Federal with targeted disabilities and to
opportunities for individuals with Government, over the next 5 years, will establish specific goals for the
disabilities.’’ 8 be able to hire 100,000 qualified employment and advancement of such
The regulations currently individuals with disabilities.’’ 13 The individuals,’’ and to report the numbers
implementing the Section 501 same day, President Clinton issued of employees with targeted disabilities
affirmative action requirement simply Executive Order 13164, which requires to the EEOC.19
state that the federal government shall federal agencies to establish written In 2005, the EEOC issued additional
be a ‘‘model employer of individuals reasonable accommodation procedures, guidance providing agencies with
with disabilities,’’ and that federal with a series of detailed requirements to detailed practical advice for drafting
agencies shall ‘‘give full consideration be included in those written and implementing reasonable
to the hiring, placement, and procedures.14 Shortly thereafter, the accommodation procedures under
advancement of qualified individuals EEOC issued Policy Guidance on
with disabilities.’’ 9 Over the years, Executive Order 13164,20 and in 2008,
Executive Order 13164: Establishing the Commission issued a detailed
however, the EEOC has issued various Procedures to Facilitate the Provision of
Management Directives to provide question-and-answer document on
Reasonable Accommodation.15
guidance on how an agency’s Plan In 2003, the EEOC issued promoting the employment of
should result in the federal government Management Directive 715 (MD–715),16 individuals with disabilities in the
being a model employer of individuals which superseded MD–713 and is still federal workforce.21
with disabilities. In addition, several in effect. Part B of MD–715 provides In July 2010, President Barack Obama
Executive Orders have been issued, detailed standards by which the issued Executive Order 13548, again
setting numerical objectives for hiring Commission judges an agency’s setting a goal of having the federal
by the federal government of affirmative action plan with regard to government hire 100,000 persons with
individuals with disabilities, to support the hiring of people with disabilities. disabilities within five years.22 The
the goals of Section 501. The Directive requires agencies ‘‘to Executive Order required agencies to set
In 1987, the Commission issued conduct an internal review and analysis their own hiring goals for persons with
Management Directive 713 (MD–713), of the effects of all current and proposed disabilities as defined under Section
setting the standards by which the policies, practices, procedures and 501 and sub-goals for persons with
Commission would evaluate an agency’s conditions that, directly or indirectly, targeted disabilities as defined by SF–
Plan with regard to the hiring of people relate to the employment of individuals 256, and to report those goals to OPM.
with disabilities.10 MD–713 required with disabilities,’’ and to ‘‘collect and Again, policy and guidance documents
agencies with 1,000 or more employees evaluate information and data necessary were developed pursuant to this
to establish specific numerical to make an informed assessment about Executive Order.23
objectives (goals) for employment of the extent to which the agency is
people with targeted disabilities, and to meeting its responsibility to provide 17 Id. at B.III.
report the number of people with employment opportunities for qualified 18 Id. at B.V.
targeted disabilities employed by the 19 Id. at B.V.
agency.11 Look at the EEOC’s Office of Federal Operation’s 20 EEOC, Practical Advice on Drafting and
Federal Sector Programs: Past, Present, and Future, Implementing Reasonable Accommodation
8 29 U.S.C. 791(b). Dig. of EEO L., Winter 2008, http://www.eeoc.gov/ Procedures under Executive Order 13164, (July
9 29 CFR 1614.203(a). federal/digest/xix-1.cfm. 2005), http://www.eeoc.gov/policy/docs/
12 See Executive Order No. 13163, 3 CFR 285
10 EEOC, Management Directive 713, 1987 WL implementing_accommodation.pdf.
768434 (Oct. 3, 1987). (2001), http://www.gpo.gov/fdsys/pkg/FR-2000-07- 21 EEOC, Questions and Answers: Promoting
11 Management Directive 712 (MD–712) preceded 28/pdf/00-19322.pdf. Employment of Individuals with Disabilities in the
13 Id.
MD–713 by four years. See EEOC, Management Federal Workforce (n.d.), http://eeoc.gov/federal/
14 Executive Order No. 13164, 3 CFR 286 (2001), qanda-employment-with-disabilities.cfm
Directive 712, 1983 WL 410824 (March 29, 1983).
MD–712 created documentation requirements for http://frwebgate.access.gpo.gov/cgi-bin/ [hereinafter Promoting Employment].
agencies’ affirmative action plans, but did not getdoc.cgi?dbname=2000_register&docid=fr28jy00- 22 Executive Order No. 13548, 3 CFR 168 (2010),
include reporting requirements. MD–712 required 140.pdf. http://www.gpo.gov/fdsys/pkg/FR-2010-07-30/pdf/
sradovich on DSK3GMQ082PROD with RULES3
15 EEOC, Policy Guidance On Executive Order 2010-18988.pdf.
agencies to focus on the employment of individuals
with targeted disabilities; included detailed 13164: Establishing Procedures To Facilitate The 23 Office of Pers. Mgmt., Model Strategies for
requirements for program administration and Provision Of Reasonable Accommodation (last Recruitment and Hiring of People with Disabilities
management, including staffing commitments and modified Oct. 19, 2000), http://www.eeoc.gov/ (Nov. 8, 2010), https://www.chcoc.gov/content/
responsibilities; and required agencies with more policy/docs/qanda-accommodation_ model-strategies-recruitment-and-hiring-people-
than 1,000 employees to establish objectives for procedures.html [hereinafter 13164 Guidance]. disabilities-required-under-executive-order. This
hiring people with targeted disabilities. For a 16 EEOC, Management Directive 715 (Oct. 1, guidance document was developed in consultation
general history of the EEOC’s Management 2003), http://www.eeoc.gov/federal/directives/ with the White House, the Department of Labor,
Directives, see Office of Fed. Operations, EEOC, A md715.cfm [hereinafter MD–715]. and the EEOC.
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(d)(6) and (d)(7), discussed below, the rules to fill any gap left, implicitly or • imposing a new requirement to
commenter failed to identify any basis explicitly, by Congress.’’ 40 This gap, provide PAS to employees with targeted
on which to conclude that the Rule’s together with the Commission’s disabilities who need them during work
requirements were inappropriate for, or ‘‘generally conferred authority’’ under hours and work-related travel.
especially burdensome to, small Section 501, make it ‘‘apparent . . . that
Section-by-Section Analysis
agencies. For example, there is no Congress . . . expect[s] the agency to be
reason to believe that small agencies able to speak [to the issue] with the 1614.203(a) Definitions
cannot or should not adopt written force of law . . . .’’ 41 The Commission Paragraph (a) of the proposed rule
reasonable accommodation procedures thus has both the authority and the provided definitions of key terms. Many
as required by paragraph (d)(3)(i) of the responsibility to issue regulations of the proposed definitions were simple
Final Rule. The Commission therefore providing specific guidance to federal abbreviations: (a)(1) provided that
has not added a general exemption. agencies on what they must do to satisfy ‘‘ADA’’ refers to those portions of the
their Section 501 obligation to engage in ADA that are enforced by the
Authority
affirmative action for individuals with Commission; 45 (a)(4) provided that
The Commission issues this Final disabilities. ‘‘Plan’’ refers to an agency’s affirmative
Rule under its Section 501 rulemaking The Commission’s prior regulations action plan, as required under 29 U.S.C
authority. Congress expressly granted implementing the affirmative action 791(b); (a)(5) provided that ‘‘Schedule A
the Commission authority to issue requirement, requiring agencies to be hiring authority for persons with certain
substantive regulations under Section ‘‘model employers’’ of individuals with disabilities’’ refers to the hiring
501 by incorporating the federal sector disabilities and to give ‘‘full authority for individuals with
enforcement provisions of Title VII of consideration to the hiring, placement, intellectual disabilities, severe physical
the Civil Rights Act of 1964 (Title VII) and advancement’’ of qualified disabilities, and psychiatric disabilities,
in Section 505 of the Rehabilitation Act individuals with disabilities, were as set forth at 5 CFR 213.3102(u); and
of 1973 (Section 505).37 The promulgated pursuant to the above (a)(6) provided that ‘‘Section 501’’
incorporated provisions provide that authority in 1982.42 The Commission means Section 501 of the Rehabilitation
‘‘the Equal Employment Opportunity has also used its authority under Act, codified at 29 U.S.C. 791. The
Commission . . . shall issue such rules, Section 501 to provide subregulatory Commission received no objections to
regulations, orders and instructions as it guidance to federal agencies on the these definitions, which are retained in
deems necessary and appropriate’’ to contents of affirmative action programs the Rule.46
carry out its federal sector for individuals with disabilities since Paragraph (a)(2) of the proposed rule
responsibilities under Title VII (and, by 1987.43 Now, having found that its prior provided that the term ‘‘disability’’ has
incorporation, its federal sector regulatory and subregulatory guidance the same meaning as set forth in 29 CFR
responsibilities under Section 501).38 was not sufficiently advancing the part 1630. One commenter stated that
The Commission also has express employment of qualified individuals the term should instead be defined
authority under Executive Order 12067 with disabilities, the Commission again using a ‘‘standard set of disability
to ‘‘issue such rules, regulations, exercises its authority under Section identifiers’’ developed pursuant to
policies, procedures or orders as it 501 to strengthen the regulations section 4302 of the Affordable Care
deems necessary to carry out its implementing the affirmative action Act.47 Because the Rule implements
responsibilit[y]’’ to ‘‘provide leadership requirement.44 The Final Rule Section 501, and not the Affordable Care
and coordination to the efforts of strengthens the regulations by— Act, the Commission is required to
Federal departments and agencies to • gathering longstanding adopt the definition of ‘‘disability’’ that
enforce all Federal statutes, Executive requirements previously found in a applies under Section 501. The
orders, regulations, and policies which variety of documents into a single proposed definition of ‘‘disability’’ has
require equal employment opportunity regulation, making them easier to find therefore been retained.
without regard to . . . handicap.’’ 39 and clarifying that they have the force Proposed paragraph (a)(8), providing
As explained above, Section 501 and effect of law; that the term ‘‘undue hardship’’ has the
requires federal agencies to engage in • imposing a new requirement to take same meaning as set forth in 29 CFR
‘‘affirmative action’’ for individuals specific steps that are reasonably part 1630, has also been retained.48
with disabilities. However, the statute designed to gradually increase the Undue hardship, which is both a
neither defines the term ‘‘affirmative number of employees with disabilities limitation on an agency’s obligation to
action’’ nor provides detailed standards and employees with targeted disabilities make reasonable accommodations and
by which to determine whether an until they meet specific goals set by the to provide personal assistance services,
agency has met this requirement. Proper EEOC; and considers the nature, extent, and cost of
and effective enforcement of the statute 40 Morton v. Ruiz, 415 U.S. 199, 231 (1974);
an accommodation or of providing
thus ‘‘necessarily requires the Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc.,
personal assistance services in relation
formulation of policy and the making of 467 U.S. 837, 843 (1984) (quoting Morton, 415 U.S. to an agency’s overall resources and the
at 231).
37 See 29 U.S.C. 794a (incorporating 42 U.S.C. 41 United States v. Mead Corp., 533 U.S. 218, 229 45 These are title I of the ADA, 42 U.S.C. 12101
2000e–5(e)(3), 2000e(f)–(k), 2000e(16)). (2001) (citing Chevron, 467 U.S. at 845); see Mayo through 12117, and title V of the ADA, 42 U.S.C.
38 42 U.S.C. 2000e–16(b). This grant of authority Found. for Med. Educ. & Research v. United States, 12201 through 12213, as it applies to employment.
to issue regulations implementing the federal sector 562 U.S. 44, 55 (2011) (citing Chevron, 467 U.S. at 46 Proposed paragraphs (a)(4), (a)(5), and (a)(6)
provisions of Title VII is in addition to the more 843). have been redesignated (a)(6), (a)(7), and (a)(8)
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42 See Federal Sector Equal Employment respectively in the Final Rule.
limited grant pursuant to EEOC’s responsibility to
enforce Title VII in the private sector. See 42 U.S.C. Opportunity, 67 FR 35,732, 35,735 (May 21, 2002) 47 42 U.S.C. 300kk; see generally U.S. Dep’t of
2000e–12(a) (granting the Commission authority to (codified at 29 CFR 1614.203(b)). Health & Human Servs., Implementation Guidance
issue, amend, or rescind ‘‘suitable procedural 43 See Management Directive 713, supra note 10. on Data Collection Standards for Race, Ethnicity,
regulations’’). 44 Cf. Assoc. Builders & Contractors, Inc. v. Shiu, Sex, Primary Language, and Disability Status (n.d.),
39 Executive Order No. 12067, 3 CFR, 1978 773 F.3d 257, 261, 263–64 (D.C. Cir. 2014) (finding https://aspe.hhs.gov/sites/default/files/pdf/76331/
Comp., p. 206 (1978), http://www.archives.gov/ regulations that strengthened Section 503 index.pdf.
federal-register/codification/executive-order/ affirmative action requirements on federal 48 The paragraph has been redesignated (a)(10) in
12067.html. contractors valid under similar circumstances). the Final Rule.
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![658 Federal Register / Vol. 82, No. 1 / Tuesday, January 3, 2017 / Rules and Regulations
impact of the accommodation or of the The Commission declines to use the assistance service provider’’ have been
requirement to provide personal term ‘‘significant disability’’ in place of added to the paragraph at (a)(5) and
assistance services on the operation of ‘‘targeted/severe disability.’’ The term (a)(6), because several commenters
the agency’s business. The term is one ‘‘significant disability,’’ as used by the expressed confusion over the meaning
that agencies have been familiar with federal government, refers to a group of of the term in the proposed rule. We
since they have been required to comply disabilities that qualify an individual to discuss the definition in connection
with Section 501 of the Rehabilitation receive certain government-funded with paragraph (d)(5) below.
Act, and agency’s written reasonable services and benefits.51 By contrast, the
term ‘‘targeted/severe disability,’’ as 1614.203(b) Nondiscrimination
accommodation procedures typically
explain the term’s meaning and used in the proposed rule, was intended Paragraph 1614.203(b) of the existing
application. to refer to a group of disabilities that regulations states that Section 501
Paragraph (a)(3) of the proposed rule ‘‘have historically been used to exclude prohibits disability discrimination in
provided that the term ‘‘hiring authority qualified individuals from employment, and that the standards
that takes disability into account’’ employment,’’ 52 and therefore that, ‘‘as used to determine whether an agency
means any hiring authority that permits a matter of policy, [have been] identified has violated the prohibition against
an agency to consider disability status for special emphasis in affirmative discrimination are those applied under
in the selection of individuals for action programs.’’ 53 We believe that use the ADA. The NPRM proposed minor
employment. To improve clarity, the of a single term—‘‘significant revisions to improve clarity. The
definition has been revised to state that disability’’—to refer both to disabilities Commission received no objections to
the term means any hiring authority that that have historically been used to the proposed revisions, which have
permits an agency to consider disability exclude qualified individuals from been retained in the Final Rule.
status ‘‘during the hiring process.’’ employment, and, at the same time, to 1614.203(c) Model Employer
Paragraph (a)(7) of the proposed rule a different group of disabilities that
defined the term ‘‘targeted/severe qualify an individual to receive certain This paragraph redesignates and
disability’’ to mean disabilities government-funded services and revises paragraph 1614.203(a) of the
specifically designated as ‘‘targeted/ benefits, is likely to cause confusion. current regulations, which provides that
severe’’ on the SF–256.49 As explained The Final Rule does, however, use the the federal government shall be a
in the NPRM, disabilities that fall under term ‘‘targeted disability’’ in place of ‘‘model employer’’ of individuals with
this term are a subset of those that meet ‘‘targeted/severe disability.’’ 54 OPM’s disabilities, and that agencies shall
the definition of ‘‘disability’’ as defined revised SF–256 uses the term ‘‘targeted ‘‘give full consideration to the hiring,
under (a)(2). This subset is the focus of disabilities or serious health placement, and advancement of
additional attention under several conditions’’ rather than ‘‘targeted/severe individuals with disabilities.’’
disabilities.’’ The revision to the Rule The NPRM did not propose any
paragraphs in the Rule, discussed
therefore both conforms the Rule to textual changes to the paragraph.
below. Some commenters stated that the
OPM’s new terminology and addresses However, some commenters objected to
Rule should use the term ‘‘significant
the commenters’ concern that some the use of the term ‘‘placement,’’ both
disability’’ rather than ‘‘targeted/severe
individuals find the term ‘‘severe’’ to be here and throughout the regulation,
disability,’’ because some individuals
stigmatizing. In addition, the definition because some individuals with
find the term ‘‘severe’’ to be
of the term has been widened to include disabilities find it offensive.
stigmatizing. One of these commenters
disabilities that fall under one of the Accordingly, alternate language has
stated further that the Rule should adopt
first 12 categories of disability listed in been incorporated here and throughout
the definition of ‘‘significant disability’’
Part A of question 5 on the EEOC’s the Rule where possible. However,
given in Section 7 of the Rehabilitation
Applicant Flow Form, which include because Section 501 itself uses the term
Act of 1973.50
several disabilities that have historically ‘‘placement,’’ 56 the Rule retains the
49 At the time the NPRM was published, the SF– been used to exclude qualified term where it directly references the
256 used the term ‘‘targeted/severe disability’’ individuals from employment, but that language of the statute.
rather than ‘‘targeted disability.’’ are not designated as ‘‘targeted’’ on the Other commenters stated that the
50 29 U.S.C. 705(21) (‘‘Except as provided in
SF–256 (for example cerebral palsy).55 paragraph should be revised to reflect
subparagraph (B) or (C), the term ‘individual with the affirmative action requirements
a significant disability’ means an individual with a The EEOC recognizes that it will be
disability—(i) who has a severe physical or mental helpful for agencies to have an updated imposed through this rulemaking. The
impairment which seriously limits one or more SF–256 that conforms to the Applicant Commission agrees. Accordingly, the
functional capacities (such as mobility,
Flow Form. The EEOC continues to paragraph has been revised to state that
communication, self-care, self-direction, ‘‘[a]gencies shall [ ] take affirmative
interpersonal skills, work tolerance, or work skills) work with OPM in such an effort. In the
in terms of an employment outcome; (ii) whose meantime, the EEOC will consider both action to promote the recruitment,
vocational rehabilitation can be expected to require sets of disabilities to be ‘‘targeted’’ for hiring, and advancement of qualified
multiple vocational rehabilitation services over an
purposes of the Rule. individuals with disabilities, with the
extended period of time; and (iii) who has one or goal of eliminating under-representation
more physical or mental disabilities resulting from Definitions of the terms ‘‘personal
amputation, arthritis, autism, blindness, burn assistance services’’ and ‘‘personal of individuals with disabilities in the
injury, cancer, cerebral palsy, cystic fibrosis, federal workforce,’’ and that agencies
deafness, head injury, heart disease, hemiplegia, paragraph (2) to cause comparable substantial shall give ‘‘full consideration to the . . .
hemophilia, respiratory or pulmonary dysfunction, functional limitation.’’). retention of qualified individuals with
intellectual disability, mental illness, multiple
disabilities in the federal workforce.’’
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51 See, e.g., 29 U.S.C. 796b (‘‘Services may be
sclerosis, muscular dystrophy, musculo-skeletal
provided under [29 U.S.C. ch. 16, subch. VII, pt. A]
disorders, neurological disorders (including stroke 1614.203(d) Affirmative Action Plan
to any individual with a significant disability, as
and epilepsy), paraplegia, quadriplegia, and other
defined in section 705(21)(B) of [title 29].’’).
spinal cord conditions, sickle cell anemia, specific 52 Promoting Employment, supra note 21, at I.
As provided by Section 501, this
learning disability, end-stage renal disease, or paragraph states that each agency shall
53 MD–715, supra note 16, at app. A.
another disability or combination of disabilities
determined on the basis of an assessment for 54 The definition of ‘‘targeted disability’’ appears adopt and implement a Plan that
determining eligibility and vocational rehabilitation in paragraph (a)(9) of the Final Rule.
needs described in subparagraphs (A) and (B) of 55 See Applicant Flow Form, supra note 4, at 2. 56 See 29 U.S.C. 791(b).
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provides sufficient assurances, been determined to be eligible for under hiring authorities that take
procedures, and commitments to appointment under a hiring authority disability into account.
provide adequate recruitment, hiring, that takes disability into account, but Some commenters stated that, instead
and advancement opportunities for who were not hired, and, if so, whether of requiring agencies to ‘‘maintain
individuals with disabilities at all levels inclusion in the database should be contacts’’ with organizations that
of federal employment. It also sets forth voluntary. specialize in the employment of
the requirements that the Plan must A significant number of commenters individuals with disabilities, the
meet in order to be approved by the stated that recruitment of individuals Commission should require agencies to
Commission. The specific requirements with targeted disabilities should receive establish and maintain ‘‘linkage
are discussed in separate sections additional emphasis in the paragraph. agreements or other formal
below. Consistent with the federal arrangements’’ with such organizations.
Several commenters stated that the government’s policy of giving targeted The paragraph has been revised to state
term ‘‘adequate,’’ as used in the disabilities ‘‘special emphasis in that the required contacts may include
statutory language quoted above, should affirmative action programs,’’ 57 formal agreements, but does not make
be defined to mean ‘‘adequate to ensure paragraph (d)(1)(i) has been amended to formal agreements mandatory. The
meeting the goals required under require agencies to use programs and EEOC lacks the information necessary to
paragraph (d)(7) of this section.’’ The resources that identify job applicants determine, for example, how many
Commission disagrees. If, on the one with disabilities, ‘‘including individuals formal agreements each agency should
hand, the proposed definition was with targeted disabilities,’’ who are have, what each party to the agreement
intended simply to clarify the meaning eligible for appointment under a special should be obligated to do, and what
of the word, the Commission believes hiring authority, and to establish and should happen if a party fails to meet an
that the clarification is unnecessary. maintain contacts with organizations obligation in the agreement. Further, the
Section 501 requires the Commission to that specialize in providing assistance to Commission suspects that different
approve agency Plans if they ‘‘provide[ ] individuals with disabilities, ‘‘including approaches may be appropriate for
sufficient assurances, procedures, and individuals with targeted disabilities,’’ different agencies.
commitments to provide adequate in securing and maintaining Many commenters responding to the
recruitment, hiring, and advancement employment. proposal to require a file or database of
opportunities for individuals with Some commenters stated that agencies individuals who have been determined
disabilities at all levels of federal should be required to use all of the to be eligible for appointment under a
employment.’’ By setting forth the programs and resources, and to hiring authority that takes disability into
criteria that the Commission will use to maintain contact with all of the account but who have not been hired
determine whether to approve a Plan in disability organizations, given as generally favored some version of the
paragraph (d), the Rule effectively examples in the paragraph. Some stated proposal, but there was disagreement
defines the meaning of that phrase as a that use of additional programs and regarding the location of the database.
whole. If, on the other hand, the resources, such as internship programs For example, several commenters stated
definition was suggested in order to and community message boards, and that the file/database needs to be
create additional criteria by which the contact with additional disability government-wide in order to be
Commission will evaluate agency Plans, organizations, such as state Protection effective. Other commenters stated that
the Commission disagrees with the and Advocacy organizations, Ticket to the databases should be required, but
suggestion because it would imply, Work networks, supported and they would be more effective if each
contrary to paragraph (f) and to the customized employment providers, agency maintained its own database of
Commission’s intention, that paragraph college or university career centers that individuals with disabilities who had
(d) does not set forth an exhaustive list cater to individuals with disabilities, already evidenced interest in the
of Plan criteria. and local education authorities, should agency.
also be mandatory. Upon further consideration, however,
1614.203(d)(1)(i) Disability Hiring and The Commission is not persuaded the Commission has concluded that
Advancement Program: Recruitment that every agency will benefit from the agencies should be encouraged to
Paragraph (d)(1)(i) of the proposed same set of programs, resources, and maintain such databases, rather than
rule required agencies to use programs disability organizations in their efforts making such databases mandatory for
and resources that identify applicants to recruit individuals with disabilities every agency. Databases containing the
who are eligible to be appointed under and individuals with targeted résumés of applicants eligible for
hiring authorities that take disabilities disabilities. The particular programs, appointment under the Schedule A
into account, examples of which resources, and disability organizations hiring authority for individuals with
include specialized training programs referenced in the paragraph have certain disabilities, and similar
and databases of potential job applicants therefore been kept as examples. resources, will greatly assist agencies in
with disabilities. The paragraph also Because there is no need to make the list locating and hiring qualified job
required agencies to establish and of examples exhaustive, most of the applicants with disabilities and targeted
maintain contacts with organizations suggested additions were not included disabilities. Such databases will be of
that specialize in the employment of in the final paragraph, though they significant help as agencies seek to meet
individuals with disabilities, such as certainly may be appropriate resources their targets with regarding to hiring
American Job Centers, State Vocational to assist agencies in meeting their such individuals.
Rehabilitation Agencies, the Veterans’ affirmative action obligations. However, The Commission therefore retains
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Vocational Rehabilitation and because it was a particularly common ‘‘databases of potential job applicants
Employment Program, Centers for suggestion, internship programs were with disabilities’’ as an example of
Independent Living, and Employment added as examples of programs or programs and resources that identify
Network Service providers. In addition, resources that can be used to identify such applicants in paragraph (d)(1)(i)(A)
the NPRM asked whether the Rule individuals who may be appointed of the Rule, and encourages agencies to
should require agencies to maintain a develop new databases or augment
file or database of individuals who have 57 MD–715, supra note 16, at app. A. existing résumé databases to fulfill these
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programs, that individuals with suggestion therefore was not applicants and employees in written
disabilities must be afforded equal incorporated into the Rule. and accessible formats, reasonable
opportunities to gain work experience, accommodation procedures. . . .’’
1614.203(d)(2) Disability Anti-
and that individuals appointed under Some commenters suggested adding a
Harassment Policy
the Schedule A hiring authority for statement that ‘‘accessible formats’’
persons with certain disabilities should Paragraph (d)(2) of the proposed rule include American Sign Language (ASL).
be afforded supervision similar to that required agencies to state expressly in The requirement to make reasonable
given other employees.61 As explained their anti-harassment policies that accommodation procedures available in
above, the Commission believes that it disability-based harassment is written ‘‘and accessible formats’’ was
is inappropriate to provide new prohibited. The Commission received drafted so as not to require the
guidance on nondiscrimination no comments objecting to the accessible format to be ‘‘written,’’ and to
obligations applicable to federal requirement. It therefore has been provide job applicants with maximum
agencies, as well as to private and state retained in the Final Rule. flexibility to request a type of accessible
and local government employers, in a Some commenters stated that the format that meets his or her particular
regulation that applies only to the paragraph should also require agencies needs. The language is sufficiently
affirmative action obligations of federal to provide training on the disability- general that it should be interpreted to
agencies. based harassment policy. The encompass ASL, as well as documents
Some commenters stated that the Commission is not persuaded that the in Braille or large print, documents in
paragraph should require review of all addition is necessary. Agencies an electronic format that can be read by
adverse actions taken against routinely provide training on their anti- screen reading software, an individual
individuals with disabilities by, for harassment policies. If, as required who can read the document aloud, and
under this paragraph, an agency’s policy other types of accessible formats.
example, the head of the agency or a
expressly states that disability-based Most of the public comments
neutral, non-agency party. Federal
harassment is prohibited, the training addressing this paragraph concerned 4
employees already possess several
should naturally address the topic. The of the 20 required topics—
means of subjecting adverse actions to
Commission notes that Commissioners • (d)(3)(i)(B) (redesignated (d)(3)(i)(B)
further review. Depending on the issues
Chai R. Feldblum and Victoria A. Lipnic and (d)(3)(i)(C) 64): Reassignment. The
involved, employees may make use of
recently published a report on how proposed paragraph required the
existing internal mechanisms including
agencies and other employers can procedures to explain that the agency
alternative dispute resolution, if
improve efforts to prevent harassment will consider reassignment to a position
available; file complaints of
that discusses disability-based for which the employee is qualified, and
employment discrimination pursuant to
harassment throughout, and that not just permission to compete for such
29 CFR 1614.106; file appeals with the includes a section specifically on the
Merit Systems Protection Board; and file a position, as a reasonable
prevalence of disability-based accommodation if no other reasonable
appeals with the U.S. Office of Special harassment.63
Counsel.62 The Commission has been accommodation would permit the
given no reason to believe that an 1614.203(d)(3)(i) Reasonable employee to perform the essential
additional layer of review would Accommodation: Procedures functions of his or her current position.
improve either the accuracy or the Proposed paragraph (d)(3)(i) required It also required the procedures to
speed with which reviews are carried agencies to make reasonable explain how and where officials should
out. Indeed, because an additional layer accommodation procedures available to conduct searches for vacant positions
of review would not toll existing time job applicants and employees in both when considering reassignment as a
frames for filing complaints of written and accessible formats. It also reasonable accommodation. The
discrimination, it is quite likely that required the procedures to address a Commission has revised the paragraph
such a requirement would significantly minimum of 20 specific topics, to clarify that agencies need only
burden agencies while resulting in little including expedited processing, interim consider reassignment ‘‘to a vacant
if any impact on the number of accommodations, reasonable position’’ as a reasonable
discrimination complaints filed, or accommodation requests, accommodation, consistent with 29 CFR
worse, cause confusion for employees confidentiality, processing deadlines, 1630.2(o)(2)(ii).
with disabilities that could result in late the process for filing complaints Several commenters stated that the
filing of complaints. The commenters’ pursuant to 29 CFR 1614.106, and paragraph should clarify that the
notice of denied requests. ‘‘reassignment rule applies to
61 One commenter stated that the Rule should Commenters did not object to the nondiscrimination obligations,’’ i.e.,
prohibit individuals appointed under the Schedule proposal to make reasonable that failure to provide reassignment as
A hiring authority for people with certain
accommodation procedures available in a reasonable accommodation may give
disabilities from filing discrimination complaints. rise to liability for employment
Because this requirement does not implement written and accessible formats. One
principles of affirmative action, it has not been commenter stated that the paragraph discrimination. Because each of the 20
included. should require the procedures to be required topics pertain to the obligation
62 See generally Employee Rights & Appeals:
available online. Recognizing the central to provide reasonable accommodations,
Alternative Dispute Resolution, Office of Pers. which is a nondiscrimination
Mgmt., https://www.opm.gov/policy-data-oversight/ importance of online access in the
employee-relations/employee-rights-appeals/ modern workplace, the paragraph now obligation,65 they all in some sense
#url=Alternative-Dispute-Resolution (last visited provides that ‘‘[t]he Plan shall require express principles that ‘‘apply to
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Dec. 21, 2016) (discussing alternative dispute the agency to . . . post on its public nondiscrimination obligations.’’ The
resolution); Employee Rights & Appeals: Appeals, Commission therefore disagrees that this
Office of Pers. Mgmt., https://www.opm.gov/policy- Web site, and make available to all job
data-oversight/employee-relations/employee-rights-
paragraph in particular should include
appeals/#url=Appeals (last visited Dec. 21, 2016) 63 See Chai R. Feldblum & Victoria A. Lipnic,
64 For reasons of clarity, the proposed paragraph
(discussing the right to file a complaint of EEOC, Report of the Co-Chairs of the Select Task
discrimination under the 1614 process and to file Force on the Study of Harassment in the Workplace was split into 2 paragraphs in the Final Rule.
appeals with the Merit Systems Protection Board 12–13 (2016), https://www.eeoc.gov/eeoc/task_ 65 42 U.S.C. 12112(b)(5)(A); 29 CFR 1630.9; 29
and U.S. Office of Special Counsel). force/harassment/upload/report.pdf. CFR pt. 1630, app. 1630.9, .9(e).
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![662 Federal Register / Vol. 82, No. 1 / Tuesday, January 3, 2017 / Rules and Regulations
the suggested statement. However, in documentation than is necessary to failing to provide necessary
response to the commenters’ concerns, establish the existence of a disability documentation, constitutes an
the proposed paragraph has been and the need for accommodation.66 To extenuating circumstance.
revised to state that reassignment ‘‘is’’ a the extent that the proposed cap would Extenuating circumstances are, by
reasonable accommodation, and that further restrict agencies, it would have definition, factors that cannot
such reassignment ‘‘must’’ be the effect of denying them ‘‘reasonably have been anticipated or
considered if the agency determines that documentation that may be necessary to avoided in advance of the request for
no other reasonable accommodation carry out the interactive process, accommodation.’’ 70 Thus, it is not
would permit the employee to perform potentially resulting in denials of possible to specify all such
the essential functions of his or her needed accommodations. Therefore, the circumstances in a regulation. In
current position. Commission has declined to impose a addition, some agencies may define
One commenter stated that the cap on the number of agency requests certain acts or omissions during the
paragraph should clarify that only for documentation to support an interactive process as ‘‘extenuating
employees, and not job applicants, may accommodation request. circumstances,’’ while others may not.
require reassignment as a reasonable • (d)(3)(i)(L) (redesignated (d)(3)(i)(M) For example, the inability to provide
accommodation. Because the paragraph and (d)(3)(i)(O) 67): Deadlines. The equipment needed as a reasonable
requires an agency’s procedures to state proposed paragraph required the accommodation because a vendor has
that it will consider reassignment when procedures to designate a maximum suddenly and unexpectedly gone out of
the ‘‘employee’’ can no longer perform amount of time, absent extenuating business might be an extenuating
the essential functions of his or her circumstances, that the agency has to circumstance for a small agency making
‘‘current position,’’ no further either provide a requested a purchase of the equipment for the first
clarification is required. accommodation or deny the request. It time, but not for a large agency that has
One commenter stated that the also required the procedures to explain extensive experience with providing
paragraph should require agencies to that the time limit begins to run when reasonable accommodations.
develop and maintain a database of the accommodation is first requested, The Commission therefore believes
vacant positions within the agency, and and that, where a particular reasonable that it is not possible to create a
to require that agency officials use the accommodation can be provided in less definitive list of what constitute
database when considering whether to than the maximum amount of time extenuating circumstances. However, a
provide reassignment as a reasonable allowed, failure to respond promptly new paragraph has been added at
accommodation. The Commission may result in a violation of the (d)(3)(i)(N) clarifying the Commission’s
believes that the addition is Rehabilitation Act. longstanding position that ‘‘the agency
unnecessary, as long as an agency One commenter stated that the will not be expected to adhere to its
‘‘[n]otif[ies] supervisors and other usual timelines if an individual’s health
Commission should eliminate the time
relevant agency employees how and professional fails to provide needed
limit requirement. The suggestion runs
where they are to conduct searches for documentation in a timely manner.’’ 71
counter to longstanding federal policy.
available vacancies when considering • (d)(3)(i)(N) (redesignated
Executive Order 13164 states that each
reassignment as a reasonable (d)(3)(i)(P)): Interim accommodations.
agency’s procedures must ‘‘[d]esignate a
accommodation’’ as required under The proposed paragraph required the
time period during which reasonable
revised paragraph (d)(3)(i)(C). agency’s procedures to explain that,
• (d)(3)(i)(I) (redesignated (d)(3)(i)(J)): accommodation requests will be granted
where a reasonable accommodation
Requests for supplemental medical or denied, absent extenuating
cannot be provided immediately, the
documentation. The proposed circumstances.’’ 68 As instructed by
agency must provide an interim
paragraph required the procedures to Executive Order 13164, the Commission
accommodation whenever possible.
explain the agency’s right to request provided further clarification of the One commenter stated that the
relevant supplemental medical requirement in guidance, which is still paragraph should not require an
information if the information in effect.69 agency’s procedures to state an interim
submitted by the requester is Some commenters stated that the accommodation ‘‘must’’ be provided
insufficient. The Commission has paragraph should require the ‘‘whenever possible,’’ but rather that the
revised the paragraph to clarify that procedures to provide additional agency will ‘‘seek to’’ provide interim
‘‘insufficient’’ means ‘‘insufficient for information on the types of extenuating accommodations during a delay.
the purposes specified in paragraph circumstances that would justify a delay Another commenter stated that the
(d)(3)(i)(I) of this section’’ (referring to in providing a reasonable procedures should not require the
the agency’s right to require accommodation. Commenters stated, for agency to provide interim
documentation sufficient to ‘‘explain example, that the procedures should list accommodations if the existence of a
the nature of the individual’s disability, all possible extenuating circumstances, disability, the need for accommodation,
his or her need for reasonable should provide that an inability to and the effectiveness of the proposed
accommodation, and how the requested secure funding is not an extenuating accommodation have not been
accommodation, if any, will assist the circumstance, should state that a delay established.
individual to apply for a job, perform is justified ‘‘[a]s long as both parties are The Commission disagrees that
the essential functions of the job, or actively engaged in the interactive agencies should only be required to
enjoy the benefits and privileges of the process,’’ or should state that a ‘‘seek to’’ provide an interim
workplace’’). requester’s failure to engage in the accommodation when there is a delay in
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One commenter stated that the interactive process, for example by providing a preferred accommodation.
paragraph should cap the number of Interim accommodations may be
66 See, e.g., 13164 Guidance, supra note 15.
times an agency may request 67 For
necessary in order to avoid, for example,
reasons of clarity, the paragraph on
supplemental documentation. As deadlines in the proposed rule was split into 2 a worsening of symptoms, exacerbation
explained in the NPRM, current anti- paragraphs in the Final Rule.
discrimination law already prohibits 68 Executive Order No. 13164, supra note 14. 70 Id.
agencies from requesting more 69 See 13164 Guidance, supra note 15. 71 See id.
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of a medical condition, or pain. They have requested a reasonable The EEOC has supported the use of a
therefore may play a crucial role in accommodation early in the interactive centralized fund to pay for reasonable
preserving the requesting individual’s process ‘‘and throughout the process.’’ accommodation.73 We think that a
ability to work. The Commission also The revision does not represent a centralized fund is one of the best and
disagrees that interim accommodations change in Commission policy. easiest ways to ensure that requests for
should only be required once the reasonable accommodation are not
existence of a disability, the need for 1614.203(d)(3)(ii) Reasonable denied for reasons of cost, and that
accommodation, and the effectiveness of Accommodation: Cost of individuals with disabilities are not
a proposed accommodation have been Accommodations excluded from employment due to the
established. The term ‘‘establish’’ Paragraph (d)(3)(ii) of the proposed anticipated cost of a reasonable
connotes a formal finding. There may be rule required agencies to inform all accommodation, if the resources
reasons why an agency does not make employees who are authorized to grant available to the agency as a whole
a formal finding even though it is or deny requests for reasonable would enable it to provide one without
reasonably likely that the requesting accommodation that, pursuant to the undue hardship.
individual is entitled to a reasonable regulations implementing the undue However, the Commission is not
accommodation, such as where a hardship defense at 29 CFR part 1630, persuaded that a centralized fund is the
disability is obvious even though the all available resources are considered only way to achieve this objective. For
appropriate accommodation has not when determining whether a denial of example, centralized contracting
been established. reasonable accommodation based on vehicles may be an effective alternative.
For the foregoing reasons, the The paragraph has thus been amended
cost is appropriate. As a clarification,
paragraph has been amended to require to require agencies to take specific
this portion of the paragraph has been
an interim accommodation that allows steps—which may include adoption of a
revised to state that all available
the requesting individual to perform centralized fund—to achieve these
resources are considered, ‘‘excluding
some or all of the essential functions of goals. The paragraph further states that
those designated by statute for a specific
his or her job when ‘‘all the facts and such steps must be reasonably designed
purpose that does not include
circumstances known to the agency to, at a minimum—
reasonable accommodation.’’ The • ensure that anyone who is
make it reasonably likely that [the]
paragraph also required the agency to authorized to grant or deny requests for
individual will be entitled to a
ensure that relevant decision-makers are reasonable accommodation or to make
reasonable accommodation, . . . [and] it
is possible to do so without imposing informed about various external hiring decisions is aware that, pursuant
undue hardship on the agency.’’ resources that may be used in providing to the regulations implementing the
Other commenters stated that reasonable accommodations, including, undue hardship defense at 29 CFR part
agencies should be required to address for example, a centralized fund 1630, all resources available to the
topics in addition to the 20 proposed in specifically created by the agency for agency as a whole, excluding those
the NPRM in their reasonable providing reasonable accommodations, designated by statute for a specific
accommodation procedures. For the Department of Defense Computer purpose that does not include
example, commenters stated that the and Electronic Accommodations reasonable accommodation, are
procedures should be required to Program (CAP),72 and agency funds that, considered when determining whether a
explain that employees and applicants although not designated specifically for denial of reasonable accommodation
do not need to use ‘‘magic words’’ in providing reasonable accommodations, based on cost is lawful; and
order to begin the interactive process; may be used for that purpose. The • ensure that anyone authorized to
that reasonable accommodations may be purpose of the paragraph was to ensure grant or deny requests for reasonable
available to help applicants meet that sufficient funds are available for accommodation or to make hiring
qualification standards; that the more costly accommodations when decisions is aware of, and knows how
interactive process is ‘‘ongoing’’; and necessary. to arrange for the use of, agency
that employees and job applicants have Many commenters stated that the resources available to provide the
an obligation to participate in the paragraph should require a centralized accommodation, including any
interactive process. None of the fund. In the NPRM, the Commission centralized fund the agency may have
requirements were added because they stated that it did not require a for that purpose.
are implicit in existing EEOC centralized fund due to practical The revised paragraph requires
requirements. For example, the concerns regarding the precise manner agencies to adopt systems that perform
requirement to explain that employees in which an agency’s appropriated the same valuable functions of
and applicants do not need to use funds are held, requested, and centralized funds, while providing them
‘‘magic words’’ in order to begin the disbursed, and due to the fact that with flexibility to work within existing
interactive process is implicit in the centralized funding does not ensure that budgetary schemes.
existing requirement to ‘‘[p]rovide sufficient funds are provided for costly 1614.203(d)(3)(iii) Reasonable
guidance to supervisors on how to accommodations where, for example, Accommodation: Notification of Basis
recognize requests for reasonable the fund is too small or relevant for Denial
accommodation’’ at (b)(i)(3)(G). decision-makers do not know how to
Moreover, the list of 20 topics is only access the fund. The commenters argued Paragraph (d)(3)(iii) of the proposed
intended to set a minimum; agencies are that these concerns could be overcome rule required agencies to provide a job
free to address additional topics in the by, for example, requiring agencies to applicant or employee who is denied a
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procedures if they wish to do so. base the size of the fund on costs in reasonable accommodations with a
The Commission made an previous years and instructing relevant written notice that explains the reason
unrequested change to proposed personnel how to access the fund. 73 See, e.g., EEOC, Instructions to Federal
paragraph (d)(3)(i)(G) (redesignated
Agencies for EEO MD–715 I (last updated July 20,
(d)(3)(i)(H) in the Final Rule), clarifying 72 See generally Computer/Electronic 2004), http://www.eeoc.gov/federal/directives/
that decision makers should Accommodations Program, http://www.cap.mil (last 715instruct/section1.html (‘‘The Model EEO
communicate with individuals who visited Aug. 3, 2015). Program and Agency Self-Assessment Checklist’’).
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should include additional examples, them; require agencies to provide notes as it did in the preamble to the
one stated that it should exclude services in a variety of locations; or lead proposed rule that several federal
medical services, one stated that the list to the hiring and retention of agencies currently provide PAS on a
of examples should be exhaustive, and unqualified employees. voluntary basis, and have been doing so
two stated that the paragraph should The Final Rule retains the for decades without any of the negative
incorporate language used in the requirement to provide PAS during consequences imagined by
definition of PAS given elsewhere in the work hours 78 and job-related travel, commenters.80
Rehabilitation Act.77 absent undue hardship, and further Responses to the question of whether
The Commission has chosen the last clarifies in revised paragraph (d)(5)(iii) PAS providers should be assigned to
option. The term ‘‘personal assistance that agencies may not take adverse single individuals or to multiple
services,’’ as it is used in the disability actions against job applicants and individuals were mixed. Some stated
community, expresses an open-ended employees on the basis of their need, or that providers should be assigned to
concept. It is therefore not possible to perceived need, for PAS. Public single individuals because (a) PAS are
provide an exhaustive list of examples, comments from advocacy organizations often required on very short notice, (b)
and addition of a few examples will and individuals confirm that lack of receipt of PAS from multiple providers
necessarily fail to capture the full PAS in the workplace and/or the fear of is likely to make the individual with a
meaning. New paragraph (a)(5) thus losing PAS provided by means-tested disability feel uncomfortable, and (c)
provides that the term ‘‘personal assistance programs are stubborn and services are improved if the provider is
assistance services’’ means ‘‘assistance persistent barriers to employment for familiar with the individual’s needs.
with performing activities of daily living individuals with certain disabilities. For Others stated that agencies should be
that an individual would typically many individuals with targeted given maximum flexibility. Commenters
perform if he or she did not have a disabilities such as paralysis or cerebral were more uniformly in favor of
disability, and that is not otherwise palsy, full participation in the allowing agencies to assign non-PAS
required as a reasonable workplace is impossible without PAS. tasks to PAS providers, as long as the
accommodation, including, for example, The Commission is not persuaded by PAS-related assignments were given
assistance with removing and putting on the objections raised by commenters. higher priority. One commenter
clothing, eating, and using the First, the issue of cost is addressed in disagreed, arguing that assignment of
restroom.’’ New paragraph (a)(4) defines the section on Executive Orders 13563 both PAS and non-PAS tasks to a single
the related term ‘‘personal assistance and 12866 below. Second, we disagree individual would create practical
service provider’’ to mean ‘‘an employee that the Commission lacks authority to problems in contracting, creation of
or independent contractor whose impose the requirement. As explained position descriptions, and performance
primary job functions include provision above, the Commission has Section 501 assessment.
of personal assistance services.’’ rulemaking authority under Section 505 In both respects, the Final Rule grants
Comments on whether the PAS
and Executive Order 12067, and, having flexibility to agencies in revised
requirement should be kept in the Final
found that its prior regulatory and paragraph (d)(5)(ii). Again the
Rule were mixed. Many disability
subregulatory guidance was not Commission looks to actual practice for
advocacy organizations and individuals
sufficiently advancing the employment guidance. Federal agencies have used a
strongly favored the requirement,
of qualified individuals with variety of models for providing PAS to
emphasizing that a lack of PAS in the
disabilities, here exercises its authority equal effect. The Commission, for
workplace poses a major barrier to
to strengthen the regulations example, has hired federal employees to
employment for some individuals with
implementing the Section 501 provide PAS to individuals with
disabilities. Other commenters objected.
Some argued that the associated costs affirmative action requirement.79 disabilities on a one-to-one basis,
would be too high. Some argued that the Because public comments confirm that whereas the Department of Labor has
Commission lacks the authority to a lack of PAS in the workplace is a contracted for a pool of qualified
impose the requirement. Others objected persistent barrier to employment for personnel to provide PAS and other
that compliance with the requirement individuals with certain significant services to multiple employees.81
would be extremely difficult or disabilities, one of the ways in which Moreover, if an agency finds that a
impossible because, for example, it the regulation is being strengthened is
would require agencies to violate by requiring agencies to provide PAS to 80 The Commission provides personal assistant
individuals who need them during work services to employees with disabilities who require
appropriations and antideficiency laws; them. The Department of Labor, the Department of
require them to coordinate with local hours and job-related travel, absent Transportation, and the Department of Justice’s
nursing boards; lead to the depletion of undue hardship. Civil Rights Division also provide workplace PAS
reasonable accommodation funds; result Third, as to the arguments that for employees with disabilities. See Department of
compliance would be extremely Labor statement of work on providing personal
in reduced hiring of individuals with assistance services as a reasonable accommodation
disabilities; conflict with merit systems difficult or impossible, the Commission for qualified Department of Labor employees with
principles and veterans’ preference disabilities (2014) [hereinafter DOL statement] (on
78 Work hours include time that an employee is file with the Commission); Dep’t of Transp.,
rules, at least to the extent that it would teleworking, whether the telework is part of an Disability Resource Center Services Handbook (Nov.
require agencies to hire providers agency telework program available to all employees 2014), http://www.transportation.gov/individuals/
chosen by the individuals who need or is being provided as a reasonable disability/disability-resource-center-drc-services-
accommodation. The Commission sees no legal handbook (providing guidance to the Department of
77 See 29 U.S.C. 705(28) (‘‘The term ‘personal reason to treat the provision of PAS for workers Transportation on meeting its obligations regarding
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assistance services’ means a range of services, who are teleworking any differently from the the retention and promotion of individuals with
provided by one or more persons, designed to assist provision of other services by individuals as a disabilities by providing personal assistance and
an individual with a disability to perform daily reasonable accommodations, such as sign language other services); Civil Rights Div., U.S. Dep’t of
living activities on or off the job that the individual interpreters and readers. Determinations of whether Justice, Reasonable Accommodation Manual A.2.5
would typically perform if the individual did not PAS can be provided to an employee who is (n.d.) (on file with the Commission) (providing that
have a disability. Such services shall be designed teleworking without undue hardship should be the Civil Rights Division will provide part-time
to increase the individual’s control in life and made on a case-by-case basis, as are decisions about personal care attendants at work or on official travel
ability to perform everyday activities on or off the reasonable accommodations. when necessary and otherwise reasonable).
job.’’). 79 See supra notes 37–44 and accompanying text. 81 DOL statement, supra note 80.
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particular approach is impracticable or perform the essential functions of a credentials. This is similar to the
does not meet employees’ needs, the position and if providing those services approach the Commission has taken
paragraph permits the agency to adopt does not impose an undue hardship on under the ADA with respect to sign
an alternative approach. the agency.84 As explained above, language interpreters and readers
Other comments on the requirement however, the Commission believes that provided as reasonable
raised the following issues: it would be inappropriate to provide accommodations. However, the revised
• Eligibility. Some stated that an guidance on nondiscrimination paragraph does provide that PAS must
agency should only be required to requirements applicable to federal be provided by a personal assistance
provide PAS to individuals who are agencies, as well as to private and state service provider, meaning an employee
qualified to perform their jobs. Although and local government employers, in a
or independent contractor whose
the Commission does not believe that regulation that applies to the affirmative
primary job functions include provision
the proposed paragraph provided action obligations of federal agencies.
• Undue hardship exception. One of personal assistance services at
otherwise, it has been revised to state
commenter stated that agencies should (d)(5)(ii).
that agencies are required to provide
PAS only if they ‘‘would, together with not be required to establish undue Some commenters stated that the
any reasonable accommodations hardship in order to deny a request for paragraph should require agencies to
required under [29 CFR] part 1630 . . ., PAS, because, given the fact that they consider the preferences of individuals
enable the employee to perform the typically have very large budgets, with disabilities when selecting their
essential functions of his or her agencies ‘‘will have very limited ability PAS providers. The Commission agrees
position.’’ 82 to deny such requests . . . regardless of and notes that this is the same principle
Other commenters stated that an the nature of the request.’’ The that applies when an employer is
agency should only be required to commenter did not suggest an choosing from among available
provide PAS to individuals who have alternative standard. accommodations.86 New paragraph
targeted disabilities. As discussed in the The Commission disagrees with the
(d)(5)(iv) requires agencies, when
NPRM, the Commission believes that commenter’s characterization. First, the
paragraph does not require agencies to selecting someone to provide personal
individuals who do not have targeted assistance services to a single
disabilities will not require PAS in provide PAS to individuals who request
them ‘‘regardless of the nature of the individual, to give primary
order to participate in the workplace.83 consideration to the individual’s
The paragraph has therefore been request.’’ The paragraph only requires
agencies to provide personal assistants, preferences to the extent permitted by
revised in the manner suggested. law.
• Additional services. Some who will assist the employee with
commenters stated that the paragraph eating, using the restroom, and similar • Process for requesting PAS. Some
activities to individuals who need them commenters stated that the paragraph
should require agencies to provide
because of a targeted disability; it does should require agencies to have written
additional services to employees with
not require agencies to provide services procedures for processing PAS requests,
disabilities, including help with getting
that the individual does not need in similar to the reasonable
to and from work, identifying
order to participate in the workplace, or accommodation procedures required
transportation options and accessing
services that are needed for reasons
transportation, assistance with under paragraph (d)(4). Some stated
other than disability. Second, agencies
becoming familiar with surroundings, more specifically that agencies should
may be able to establish undue hardship
and ‘‘informational and navigational be permitted to require medical
for reasons other than cost.85
awareness, as well as lightweight • Selection and evaluation of documentation, be required to use a
communication.’’ The commenters did personal assistance service provider. centralized fund, or be required to
not, however, cite to any studies or Some commenters stated that the consult with vocational rehabilitation
other objective sources establishing that paragraph should require PAS providers agencies during the process.
such services would significantly to meet certain qualification standards, The Commission agrees that agencies
improve employment of individuals such as those imposed by OPM for all should have procedures for processing
with disabilities, or to any data on government employees and specific
which to base an estimate of the requests for PAS. Paragraph (d)(5)(v) of
standards based on experience and the Final Rule requires agencies to
economic impact of the requirement. training. Others stated that an agency
The Commission has not incorporated adopt such procedures, and to make
should be required to consult with them available online and in written
these suggestions. individuals who receive PAS during
A significant number of commenters and accessible formats. Because the
their providers’ performance reviews. intent of the Rule is to require agencies
stated that the Rule should require These requirements were not
agencies to permit employees with incorporated into the Rule because they to treat PAS requests like requests for
disabilities to use job coaches and other primarily concern OPM functions. reasonable accommodation, the
forms of supported employment paid for EEOC is not in the best position to paragraph further provides that agencies
by outside sources. The Commission determine what qualifications PAS may satisfy the requirement by stating
strongly endorses the use of supported providers have to possess, and we do in their reasonable accommodation
employment. Indeed, permission to use not wish to limit unduly the choices of procedures that the process for
a job coach or other forms of supported employees who may want to work with requesting personal assistance services,
employment is a reasonable a PAS provider who may not necessarily the process for determining whether
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accommodation that may be required if possess specific certifications or such services are required, and the
such a person needs those services to agency’s right to deny such requests
84 See
29 CFR pt. 1630, app. 1630.9. when provision of the services would
82 29 CFR 1630.203(5)(i)(B), as amended. 85 EEOC,Enforcement Guidance: Reasonable pose an undue hardship, are the same
83 Affirmative Action for Individuals with Accommodation and Undue Hardship Under the as for reasonable accommodations.
Disabilities in the Federal Government, 81 FR 9123, Americans with Disabilities Act (2002), https://
9134 n.101 (Feb. 24, 2016) (to be codified at 29 CFR www.eeoc.gov/policy/docs/
1614.203, .601(f)). accommodation.html#undue. 86 See 29 CFR pt. 1630, app. 1630.9.
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1614.203(d)(6) and 1614.203(d)(7)(i) count toward the 12% goal for periodically request employees to
Utilization analysis and goals individuals with disabilities. respond to voluntary surveys updating
Paragraph (d)(7)(i) of the proposed Another commenter asked whether their SF–256 information. If
rule required agencies to adopt the goal the fact that the NPRM proposed a 12% accompanied by an explanation of why
of achieving a 12% representation rate goal for individuals with disabilities at self-reporting is important, resurveying
for people with disabilities at the GS– the GS–11 level and above, and a 12% can enhance data accuracy. The
11 level 87 and above, including the goal for individuals with disabilities at Commission therefore is not persuaded
Senior Executive Service (SES); 88 a the GS–10 level and below, meant that that the proposed goals are overly
12% representation rate for people with it proposed a 24% overall goal for burdensome due to problems of
disabilities at the GS–10 level and individuals with disabilities. Similarly, measurement.
below; a 2% representation rate for the commenter wondered whether the
However, the Commission does
individuals with targeted disabilities at 2% goals ‘‘combined’’ to create a 4%
acknowledge commenters’ assertions
the GS–11 level and above, including overall goal for individuals with
that there may be ways to improve the
the SES; and a 2% representation rate targeted disabilities. Because each 12%
accuracy of self-reported data, for
for people with targeted disabilities at and each 2% goal applies to a different
example by asking individuals to
the GS–10 level and below. Paragraph segment of the workforce, the Rule does
not impose goals of 24% and 4% indicate whether they have disabilities
(d)(6) required agencies to perform the or targeted disabilities without asking
workforce analysis necessary to overall.89
A small number of commenters stated for more detailed information. The
determine whether these goals have Commission is not able to amend the
that the goals should not be retained in
been met annually, based on SF–256 SF–256, as suggested by some
the Final Rule because the proposed
records, records of requests for commenters, because OPM controls the
methods of measuring agencies’
reasonable accommodation, and records content of the SF–256. Nor can the
representation rates—SF–256 records,
of appointments under hiring Commission require OPM to establish
reasonable accommodation records, and
authorities that take disability into an ‘‘authoritative’’ system for tracking
documentation relating to appointment
account. In addition, the NPRM asked disability information, as suggested by
of individuals under hiring authorities
for public input on whether the another commenter.
that take disability into account—are
proposed goals were appropriate, and
inaccurate. SF–256 data, according to Instead, the Final Rule allows, but
whether there are any data showing that
commenters, are especially likely to does not require, agencies to collect
the goals should be raised or lowered.
The Commission received a small underestimate representation rates for disability information using forms other
number of comments requesting individuals with disabilities and than the SF–256. Paragraph (d)(6)(ii)(A)
clarification of the proposed goals. One individuals with targeted disabilities has thus been amended to allow
commenter asked whether the 2% goals because many employees are reluctant agencies to classify individuals for
were intended to be sub-goals of the to disclose disabilities using this form. purposes of the workforce analysis
12% goals, i.e., whether the individuals Some stated that a greater number of based on ‘‘[t]he individual’s self-
who are counted as individuals with employees would self-disclose if, for identification as an individual with a
targeted disabilities for purposes of example, the form did not ask the disability or an individual with a
determining whether a 2% goal has individual to indicate his or her specific targeted disability on a form, including
been met may also be counted as type of disability, or if it included but not limited to the Office of
individuals with disabilities for questions on topics other than Personnel Management’s Standard Form
purposes of determining whether a 12% disability. 256, which states that the information
The Commission acknowledged in the collected will be kept confidential and
goal has been met.
The 2% goals are intended to be sub- NPRM that SF–256 data are likely to used only for statistical purposes, and
goals. Disabilities that fall under the underestimate representation rates for that completion of the form is
term ‘‘targeted disability’’ are a subset of individuals with disabilities and voluntary.’’ 91 The paragraph permits
those that fall under the term individuals with targeted disabilities, agencies to design their own forms or
‘‘disability’’ as defined under Section and, for that reason, used prior SF–256 use existing forms as appropriate. For
501. Thus, any employee who has a data as a starting point when it example, agencies are permitted to use
targeted disability, and who therefore developed the goals.90 As discussed, the approach taken in EEOC’s Applicant
counts toward a 2% goal for individuals SF–256 data themselves (together with Flow Form. This form asks, among other
with targeted disabilities, will other data that agencies are permitted to things, whether the individual has a
necessarily have a condition that meets use under (d)(6)) indicate that the non-targeted disability. It does not,
the Section 501 definition of federal government as a whole has however, require the individual to
‘‘disability,’’ and will therefore also achieved representation rates that are identify which non-targeted disability
close to 12% for individuals with he or she has.92 The Final Rule also
87 Most federal employees are part of the General disabilities and 2% for individuals with
Schedule (GS) pay system. The General Schedule targeted disabilities; actual 91 The other records discussed in this paragraph
has fifteen grades—GS–1 (lowest) to GS–15 representation rates may be much larger. will also be kept confidential, because they are
(highest). See generally General Schedule The Commission also reminds agencies subject to the Privacy Act. See 5 U.S.C. 552a.
Classification and Pay, Office of Pers. Mgmt., http:// Additionally, records relating to reasonable
www.opm.gov/policy-data-oversight/pay-leave/pay- that they have the discretion to accommodation are subject to the ADA’s
systems/general-schedule/ (last visited Dec. 21, confidentiality requirements, as incorporated. See
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2016). 89 Where X represents the total number of 42 U.S.C. 12112(d)(4)(A) (imposing the
88 High-level leadership positions in the federal employees on the GS and SES scales and Y requirements); 29 U.S.C. 791(f) (incorporating the
government are occupied by members of the SES. represents the total number of employees employed requirements into Section 501); 29 CFR 1630.14(c)
SES members have a different pay scale than at the GS–10 level and below, 0.02(Y) + 0.02(X ¥ (implementing the requirements); 29 CFR pt. 1630,
employees who are part of the GS pay system. See Y) = 0.02(X); 0.12(Y) + 0.12(X ¥ Y) = 0.12(X). app. 1630.14(c) (discussing the requirements); 29
generally Senior Executive Service: Leading 90 Affirmative Action for Individuals with CFR 1614.203(b) (incorporating the ADA
America’s Workforce, Office of Pers. Mgmt., http:// Disabilities in the Federal Government, 81 FR 9123, regulations at 29 CFR pt. 1630 into the Section 501
www.opm.gov/policy-data-oversight/senior- 9128–29 (Feb. 24, 2016) (to be codified at 29 CFR regulations).
executive-service/ (last visited Dec. 21, 2016). 1614.203, .601(f)). 92 Applicant Flow Form, supra note 4, at 3.
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makes conforming amendments to 29 fails to require the agency to take the federal government as a whole has
CFR 1614.601(f) (discussed below).93 specific steps that are reasonably achieved representation rates of close to
One commenter argued that the goals designed to achieve the goal.’’ 12% and 2%, many individual agencies
should be eliminated for agencies that The Commission does not see how have not.96 For these agencies, meeting
have limited opportunities to use the compliance with the goal requirements the goals would represent significant
Schedule A hiring authority for persons could lead to ‘‘per se violations of the improvement. Further, because the goals
with certain disabilities, and for small Rehabilitation Act.’’ The commenter apply at both higher and lower levels of
agencies that typically draw from a appears to have assumed that the Rule employment, agencies that employ a
small applicant pool. The commenter requires agencies to make detailed, disproportionately high number of
also argued that small agencies should grade-level-by-grade-level disability individuals with disabilities in lower
be exempted because it is sometimes information available to the public. It paying positions would also see
possible to determine which employees does not. The Rule only requires significant improvement by meeting the
within the agency have a disability agencies to publish representation rates goals. As noted in the NPRM, the
based solely on aggregate data, which, for people with disabilities and people representation rates for individuals with
according to the commenter, may result with targeted disabilities in two broadly disabilities and individuals with
in ‘‘per se violations of [the defined groups. Moreover, nothing in targeted disabilities are significantly
confidentiality requirements of] the the Rule requires an individual with a lower at the GS–11 level and above than
Rehabilitation Act.’’ disability to self-identify as such; if an at the GS–10 level and below.97
The Final Rule does not include individual does not wish to disclose his Additionally, the commenters failed
exemptions for agencies that have or her disability status, he or she need to identify any data on which the
limited opportunities to use the not fill out the SF–256 or similar forms. Commission could reasonably base
Schedule A hiring authority for persons One commenter stated that agencies higher goals. Many commenters simply
with certain disabilities or for small should be allowed to set their own picked numbers without justification.
agencies. The Commission believes that goals. After the ANPRM public Some commenters stated that the
all agencies are able to take steps to comment period, the Commission Commission should ‘‘look to those
improve employment opportunities for decided to adopt government-wide goals agencies that have done the best job of
individuals with disabilities, including in the proposed rule.94 The commenter employing people with disabilities, as
targeted disabilities. Agencies that have did not provide any basis on which to well as workforce data’’ to set the goals,
limited opportunities to use the overturn that decision. Upon further but provided no explanation as to how
Schedule A hiring authority for persons consideration, the Commission has this could reasonably be done, and
with certain disabilities may still, for determined that the proposed instead chose goals that did not appear
example, take steps to improve the government-wide approach continues to to be connected either with agency
application process as required under be the most appropriate one. benchmarks or with workforce data.98
(d)(1)(ii); adopt advancement programs Most commenters responding to the One commenter stated that the goals
as required under (d)(1)(iii), and take question of whether the proposed goals should be based on census data.
other actions recommended under were appropriate stated that they were However, the census definition of
(d)(7)(ii) to the extent permitted by law. too low. These commenters generally ‘‘disability’’ matches neither the Section
Agencies that typically draw from a argued that, because existing 501 definition of ‘‘disability’’ nor the
small applicant pool may take steps to representation rates for individuals with definition of ‘‘targeted disability’’ under
expand the pool, as required under disabilities and individuals with paragraph (a).99 Census data, therefore,
targeted disabilities are already close to are inapposite. Because commenters
(d)(1)(i). These and other steps specified
12% and 2% respectively, the proposed
throughout paragraph (d) are all that the failed to identify any reasonable
goals would merely ‘‘maintain the status
Rule requires of an agency that fails to alternatives, and because the
quo.’’ 95
achieve a goal—paragraph (f)(2) Commission believes that the 12% and
The Commission disagrees that the
(discussed below) provides that ‘‘failure proposed goals would merely ‘‘maintain 2% goals are based on the best available
to achieve a goal set forth in paragraph the status quo.’’ Although it is true that data, the Final Rule retains goals of 12%
(d)(7) of the Rule, by itself, is not for individuals with disabilities and 2%
grounds for disapproval unless the Plan 94 See Affirmative Action for Individuals with for individuals with targeted
Disabilities in the Federal Government, 81 FR at disabilities.
93 One commenter stated that current regulations 9128. Some commenters stated that the
at 29 CFR part 1630 should also be amended, 95 For example, commenters cited a recent OPM
goals should be extended to employees
because those regulations generally prohibit report finding that 14.64% of federal employees
agencies from asking disability-related questions, as
who are on neither the GS nor the SES
have reportable disabilities, 18.8% of federal
would be required under (d)(6). The Commission employees at the GS–10 level and below have scale. We agree. However, to avoid the
disagrees. The anti-discrimination regulations disabilities, 12.6% of federal employees at the GS– difficulties inherent in establishing
permit agencies (and employers generally) to ask 11 level and above have disabilities, 1.18% of ‘‘equivalencies’’ across differing pay
disability-related questions for purposes of engaging federal employees have targeted disabilities, 1.91%
in affirmative action for individuals with of federal employees at the GS–10 level and below 96 See,
disabilities. Cf. Assoc. Builders & Contractors, Inc. have targeted disabilities, and 0.8% of federal e.g., 2014 Report, supra note 95, at 10.
97 See id. at 25.
v. Shiu, 30 F. Supp. 3d 25, 37–38 (D.D.C. 2014) employees at the GS–11 level and above have
98 These commenters recommended goals of ‘‘at
(holding that the ADA does not prohibit federal targeted disabilities, see Office of Pers. Mgmt.,
contractors from inviting job applicants to self- Report on the Employment of Individuals with least’’ 15% for people with disabilities and 4% for
identify as individuals with disabilities pursuant to Disabilities in the Federal Executive Branch: Fiscal people with targeted disabilities.
regulations implementing the affirmative action Year 2014, 25 (Oct. 9, 2015), https://www.opm.gov/ 99 The ACS collects disability data by asking a
sradovich on DSK3GMQ082PROD with RULES3
requirement imposed on federal contractors by policy-data-oversight/diversity-and-inclusion/ series of questions such as whether, due to a
Section 503), aff’d, 773 F.3d 257 (D.C. Cir. 2014); reports/disability-report-fy2014.pdf [hereinafter physical, mental, or emotional problem, the person
Letter from Peggy R. Mastroianni, Legal Counsel, 2014 Report], and a recent survey indicating that has ‘‘serious difficulty’’ hearing, seeing (even with
EEOC, to Patricia A Shiu, Director, Office of Fed. 13.5% of federal employees have disabilities, glasses), remembering, concentrating, or making
Contract Compliance Programs, Dep’t of Labor Governmentwide Unweighted Results: decisions, walking or climbing stairs, bathing or
(Aug. 8, 2013), http://www.dol.gov/ofccp/regs/ Demographic, Items 85–98, Office of Pers. Mgmt., dressing, and/or doing errands alone. See American
compliance/section503.htm (follow ‘‘EEOC Opinion http://www.fedview.opm.gov/2014/Reports/ Community Survey (ACS), U.S. Census Bureau,
on the Invitation to Self-Identify’’ hyperlink) ResponsePCT.asp?AGY=ALL&SECT=8 (last visited https://www.census.gov/people/disability/
(discussing job applicants). Dec. 8, 2016). methodology/acs.html (last visited Dec. 21, 2016).
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![Federal Register / Vol. 82, No. 1 / Tuesday, January 3, 2017 / Rules and Regulations 669
scales, the Commission has decided to pay groupings, but that employs most employment of individuals with
classify non-GS employees using a such individuals at the GS–1 through disabilities and individuals with
simple pay cutoff. The revised GS–4 and GS–11 through GS–12 levels, targeted disabilities, hiring and
paragraph thus requires agencies to is probably insufficiently attentive to its retention goals do not impose more
adopt 12% and 2% goals for obligations to provide advancement stringent requirements than the
‘‘employees at the GS–11 level and opportunities. However, absent corresponding representation rate goals.
above, together with employees who are evidence at this time that agencies They were therefore not added.
not paid under the General Schedule would attempt to circumvent their • Retention rate goals. One
but who have salaries equal to or greater affirmative action obligations in this commenter stated that agencies should
than employees at the GS–11, step 1 100 way, the Rule continues to group be required to adopt the goal of having
level in the Washington, DC locality’’ 101 employees according to whether they a retention rate for employees who were
and ‘‘employees at the GS–10 level and are employed at higher or lower levels, appointed under the Schedule A hiring
below, together with employees who are rather than according to individual authority for persons with certain
not paid under the General Schedule grade level and job series, for purposes disabilities that is equal to or greater
but who have salaries less than of meeting the (d)(7)(i) goals. than the retention rate for other
employees at the GS–11, step 1 level in Two commenters stated that federal employees. The Commission lacks any
the Washington, DC locality.’’ Express jobs ‘‘limit[ing] advancement, or data establishing what the retention rate
reference to the SES was removed from segregat[ing] federal workers on the for individuals who were appointed
the paragraph because SES employees basis of disability (including segregation under the Schedule A hiring authority
are included in the category of into separate work areas or separate for persons with certain disabilities
‘‘employees who are not paid under the lines of advancement)’’ should not should be. Further, a function of
General Schedule but who have salaries count toward achievement of the goals. paragraphs (d)(8)(iv) and (d)(8)(v),
equal to or greater than employees at the We assume that the commenters are requiring agencies to keep detailed
GS–11, step 1 level in the Washington, referring to positions that ‘‘limit, records on individuals who were
DC locality.’’ segregate, or classify a job applicant or appointed under the Schedule A hiring
Some commenters stated that the Rule employee in a way that adversely affects authority for persons with certain
should impose separate goals for each his or her employment opportunities or disabilities, and paragraph (d)(1)(iii),
individual grade level, or for each status on the basis of disability’’ in requiring agencies to report data
individual job series and grade level. violation of Section 501’s regarding such individuals, is to ensure
The Commission does not believe that nondiscrimination requirements.102 that both individuals within the agency
the additional burden on agencies of Although we agree with the general and the Commission will be alerted if
meeting such goals would substantially principle that an agency should not the agency is experiencing problems
promote the hiring, retention, and benefit from employing individuals with retention. The Commission
advancement of individuals with with disabilities if the agency also concludes that a separate goal is
disabilities and individuals with discriminates against them, we believe unnecessary.
targeted disabilities. For example, we that the appropriate response in these • Goals for utilization of supported
see no reason to require agencies to have cases is to challenge the discriminatory employment. Some commenters stated
the same percentage of individuals with behavior under 29 CFR 1614.106. that the Rule should impose goals for
disabilities at both the GS–4 and GS–5 Some commenters stated that the Rule hiring and employment of individuals
levels, and we are unsure what should establish a deadline for receiving supported employment
inference should be drawn from the fact achieving the goals. The Commission services. The commenter cited no
that an agency employs a disagrees. As noted in the NPRM, there evidence that such goals would
disproportionately low number of are many reasons why it may take some eliminate a significant barrier to
individuals at the GS–12 level, for agencies more time than others to meet employment for a large number of
example, but not at the GS–13 level. Of the utilization goals, such as budgetary individuals with disabilities, and
course, significant disparities in the constraints (including hiring freezes), neither stated what percentage the goal
distribution of individuals with the number of additional individuals should be nor provided any data on
disabilities or individuals with targeted with targeted disabilities that would which to base the goal. However, in
disabilities within the pay grouping may have to be hired to achieve the goals, light of the commenters’ observation
raise concerns. For example, an agency and the nature of certain jobs within an that there is an evidence base showing
that meets goals for the employment of agency’s workforce that may include that supported employment services are
people with targeted disabilities in both valid physical standards that an effective way to maintain
individuals with certain disabilities may employment for many individuals with
100 Pay rates for employees at a given GS level not be able to meet. disabilities, provision of such services
depend on the within-grade level, or ‘‘step,’’ of the Some commenters stated that the has been added as an example of a
employee, which ranges between one and ten, and paragraph should require agencies to strategy that an agency may use to
on the geographic location of the employee. See adopt other types of goals in addition to, increase the number of employees with
generally General Schedule Classification and Pay,
supra note 87.
or instead of, representation rate goals— disabilities and targeted disabilities in
101 The rate of pay for employees on the GS and • Hiring and promotion goals. Some paragraph (d)(7)(ii), discussed below.
SES scales is determined by adding a ‘‘locality commenters stated that certain
adjustment’’ to a base rate. See generally Pay & percentages of each agency’s new hires 1614.203(d)(7)(ii) Progression Toward
Leave: Salaries & Wages, Office of Pers. Mgmt., should be, and certain percentages of Goals
sradovich on DSK3GMQ082PROD with RULES3
https://www.opm.gov/policy-data-oversight/pay-
leave/salaries-wages/2016/general-schedule/ (last each agency’s promotions should be Proposed paragraph (d)(7)(ii) required
visited Dec. 21, 2016) (discussing alternative given to, individuals with disabilities agencies that fail to meet one or more
dispute resolution). Washington, DC is currently in and individuals with targeted goals required under paragraph (d)(7)(i)
the ‘‘Washington-Baltimore-Northern Virginia, DC– disabilities. As applied to agencies that to take specific steps that are reasonably
MD–VA–WV–PA region.’’ Id. The Rule refers to the
‘‘Washington, DC locality’’ in the event that the underperform with respect to designed to gradually increase the
locality is renamed or defined differently in the number of employees with disabilities
future. 102 42 U.S.C. 12112(b)(1); 29 CFR 1630.5. and targeted disabilities, examples of
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![670 Federal Register / Vol. 82, No. 1 / Tuesday, January 3, 2017 / Rules and Regulations
which included increased use of hiring 1614.203(d)(8) Recordkeeping guidance on the Executive Order
authorities that take disability into This paragraph of the Final Rule provides that the records must (among
account; consideration of disability or requires that each agency keep, and other things) allow the agency to
targeted disability status as a positive make available to the Commission upon identify ‘‘the number and types of
factor in hiring, promotion, or request,104 records of: (i) The number of reasonable accommodations that have
assignment decisions, to the extent job applications received from been requested in the application
permitted by law; additional outreach individuals with disabilities, and the process and whether those requests
and recruitment efforts; adoption of number of individuals with disabilities have been granted or denied; . . . the
training, internship, and mentoring who were hired by the agency; (ii) the number and types of reasonable
programs for individuals with number of job applications received accommodation for each job, by agency
disabilities; and disability-related from individuals with targeted component, that have been approved,
training for all employees. Agencies disabilities, and the number of and the number and types that have
interested in the last example are individuals with targeted disabilities been denied; . . . [and] the amount of
encouraged to review the components of who were hired by the agency; (iii) all time taken to process each request for
effective harassment prevention training rescissions of conditional job offers, reasonable accommodation . . . .’’ 107
set forth in the report issued by demotions, and terminations taken Such records are a necessary component
Commissioners Feldblum and Lipnic in against applicants or employees as a of an agency’s efforts to ensure that the
June 2016.103 For reasons indicated in result of medical examinations or agency is processing requests for
the section immediately above, inquiries; (iv) all agency employees reasonable accommodation in
‘‘[i]ncreased efforts to hire and retain hired under the Schedule A hiring accordance with the nondiscrimination
individuals who require supported authority for persons with certain requirements of Section 501.
employment because of a disability, disabilities, and each such employee’s One commenter suggested that the
who have retained the services of a job date of hire, entering grade level, paragraph should require agencies to
coach at their own expense or at the probationary status, and current grade develop systems that make their
expense of a third party, and who may level; (v) the number of employees employment data available to vocational
be given permission to use the job coach appointed under the Schedule A hiring rehabilitation agencies ‘‘in real time.’’
during work hours as a reasonable authority for persons with certain The commenter failed to clarify how
accommodation without imposing disabilities who have been converted to such a system would work, but, to the
undue hardship on the agency’’ has career or career-conditional extent that it would grant non-agency
been added as an example. appointments in the competitive service access to agency personnel files, it is
One commenter asked whether the each year, and the number of such likely to create significant problems of
paragraph requires agencies that do not employees who were terminated prior to privacy and data security.
meet the goals to hire individuals with being converted to a career or career-
conditional appointment in the 1614.203(e) Reporting
disabilities or individuals with targeted
disabilities who are not qualified for the competitive service each year; and (vi) The paragraph requires each agency to
job, or who are less qualified than other details regarding all requests for submit to the Commission, on an annual
candidates. It does not. Hiring reasonable accommodation the agency basis, a report that contains a copy of its
authorities that take disability into receives. Aside from minor stylistic and Plan; the results of its two most recent
account do not provide agencies with a terminological differences, it is identical workforce analyses performed pursuant
means of hiring individuals who are to paragraph (d)(8) of the proposed to paragraph (d)(6) of the Rule showing
unqualified, and agencies are not rule.105 the percentages of individuals with
required to hire individuals who are One federal agency stated that the disabilities and individuals with
unqualified in order to, for example, paragraph should not require agencies targeted disabilities in both of the
provide disability-related training for all to keep records of all reasonable specified pay groups; the number of
employees, engage in additional accommodation requests because, in the individuals appointed under the
outreach and recruitment efforts, or agency’s opinion, it is more efficient to Schedule A hiring authority for persons
adopt training, internship, or mentoring handle some requests ‘‘informally.’’ The with certain disabilities during the
programs for individuals with commenter’s position runs counter to previous year; the total number of
disabilities. longstanding federal policy. Executive employees whose employment at the
Order 13164 instructs agencies to ensure agency began by appointment under the
Some commenters stated that agencies
that their systems of recordkeeping Schedule A hiring authority for persons
should always be required to consider
‘‘track the processing of requests for with certain disabilities; and an
disability status and targeted disability reasonable accommodation,’’ 106 and
status as positive factors in hiring, explanation of any changes that were
promotion, and employment decisions, 104 The records will be subject to all applicable
made to the Plan since the prior
regardless of whether the agency has record retention requirements, including the record
submission. The paragraph also requires
failed to meet a goal. Other commenters retention requirements overseen by NARA. See, agencies to make all information
stated that certain kinds of disability- e.g., Records Management, supra note 59. submitted to the Commission pursuant
105 The records required under this paragraph are
related training, such as awareness and to this requirement available to the
subject to the confidentiality requirements of the
anti-stigma training, should also be Privacy Act. See 5 U.S.C. 552a. Records relating to
public by, at a minimum, posting a copy
mandatory. The purpose of these efforts reasonable accommodation are also subject to the of the submission on its public Web site
is to address problems of confidentiality requirements imposed by the ADA, and providing a means by which
sradovich on DSK3GMQ082PROD with RULES3
as incorporated. See 42 U.S.C. 12112(d)(4)(A) members of the public may request
underrepresentation. To the extent that (imposing the requirements); 29 U.S.C. 791(f)
an agency is meeting its (d)(7)(i) goals, (incorporating the requirements into Section 501); copies of the submission in accessible
the Commission is without reason to 29 CFR 1630.14(c) (implementing the formats. Aside from minor stylistic
requirements); 29 CFR pt. 1630, app. 1630.14(c) differences, it is identical to paragraph
believe that such efforts are necessary. (discussing the requirements); 29 CFR 1614.203(b)
(incorporating the implementing regulations into
(e) of the proposed rule.
103 See Chai R. Feldblum & Victoria A. Lipnic, the regulations implementing Section 501).
supra note 63. 106 Executive Order No. 13164, supra note 14. 107 See 13164 Guidance, supra note 15.
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Several commenters stated that the information about its employees, and adopt a regulation only upon a reasoned
proposed reporting requirements paragraph 1614.601(f) specifies how determination that its benefits justify its
overlapped with those of MD–715, and agencies are to gather disability data. As cost (recognizing that some benefits and
therefore that, in order to avoid explained above, paragraphs (d)(6)(ii) costs are difficult to quantify); to tailor
redundancies, MD–715 should be and (d)(6)(iii) specify how agencies are its regulations to impose the least
amended. As stated in the NPRM, the to gather disability data for purposes of burden on society, consistent with
Commission intends to modify the the workforce analyses required under obtaining regulatory objectives; and to
requirements of MD–715 after final (d)(6)(i). In order to avoid any conflict select, from among alternative
promulgation of this Rule to eliminate between sections 1614.203 and regulatory approaches, including the
redundancies. 1614.601, paragraph 1614.601(f) has alternative of not regulating, those
Some commenters stated that the been amended to provide that ‘‘[d]ata on
paragraph should require agencies to approaches that maximize net benefits
disabilities shall be collected using a
report (and, if not already required to do (including potential economic,
method permitted under
so, keep records of) additional § 1614.203(d)(6)(ii) and environmental, public health and safety,
information, including, for example, the § 1614.203(d)(6)(iii).’’ The revised and other advantages, distributive
number of individuals appointed under paragraph imposes no new obligations impacts, and equity).
the Schedule A hiring authority for on federal agencies. As explained above, the Commission
persons with certain disabilities who has concluded that the existing practice
were subjected to removal or offered Executive Order 12866 108 and
Executive Order 13563 109 (Regulatory of explaining Section 501’s affirmative
voluntary resignation; the action obligations through management
representation rates for individuals with Planning and Review)
directives and sub-regulatory
disabilities and individuals with This Rule has been drafted and guidance,113 and not through
targeted disabilities broken down by reviewed in accordance with Executive regulation,114 has failed to sufficiently
grade level; a list of the disability Order 12866 and Executive Order advance the employment of qualified
organizations with which the agency 13563. This Rule has been designated a
individuals with disabilities. Detailed
maintains partnerships; the retention ‘‘significant regulatory action’’ under
and performance rates for employees regulations are necessary in order to
section 3(f) of Executive Order 12866.
with disabilities and employees with ensure that the obligations have, and are
Accordingly, the proposed rule has been
targeted disabilities; the numbers of reviewed by the Office of Management recognized to have, the force of law.
employees classified as having and Budget. Moreover, the Rule will make it easier
disabilities on the basis of conditions Executive Order 12866 directs for agencies to learn about their
that developed pre-hire, that developed agencies to submit a regulatory impact affirmative action obligations by
post-hire, or were service-related; and analysis for those regulatory actions that presenting them all in one place, rather
the number of individuals appointed are ‘‘economically significant’’ within than in a range of documents, none of
under each veterans’ authority who the meaning of section 3(f)(1).110 A which are comprehensive.
identified themselves as having a regulatory action is economically EEOC has conducted an economic
targeted disability. The Commission is significant under section 3(f)(1) if it is analysis of this Final Rule in accordance
not persuaded that it is necessary to anticipated (1) to ‘‘[h]ave an annual with EO 12866 and EO 13563. The
report information at this level of detail effect on the economy of $100 million analysis, revised in response to public
in order to determine whether an agency or more,’’ or (2) to ‘‘adversely affect in comments and in light of the revisions
has satisfied its Section 501 obligation a material way the economy, a sector of discussed above, is presented below.
to engage in affirmative action for the economy, productivity, competition,
individuals with disabilities. jobs, the environment, public health or Except where noted, we assume that
safety, or State, local, or tribal work required under the Rule will be
1614.203(f) Standards for Approval performed by GS–12 step 5 level
and Disapproval of Plans governments or communities.’’ 111
Executive Order 13563 reaffirms the employees in the Washington-
Paragraph (f) of the proposed rule principles established by Executive Baltimore-Northern Virginia, DC–MD–
provided that the Commission will (1) Order 12866, and further emphasizes VA–WV–PA region.115 The
approve an agency Plan if it determines the need to reduce regulatory burden to compensation rate for such employees,
that the Plan, as implemented, meets the the extent feasible and permitted by
requirements set forth in paragraph (d) law.112 It directs agencies to propose or
of the rule, and (2) disapprove a Plan if
it determines that it, as implemented, 108 Executive Order No. 12866, 3 CFR 638 (1993),
does not meet those requirements. The http://www.whitehouse.gov/sites/default/files/omb/ 113 See
inforeg/eo12866.pdf. supra notes 10–23 and accompanying text.
paragraph further clarified that failure to 114 Prior
109 Executive Order No. 13563, 3 CFR 215 (2011), paragraph 1614.203(a) stated only that
achieve a goal set forth in paragraph the federal government shall be a ‘‘model employer
http://www.whitehouse.gov/sites/default/files/omb/
(d)(8)(i), by itself, is not grounds for inforeg/eo12866/eo13563_01182011.pdf. of individuals with disabilities,’’ and that federal
disapproval unless the Plan fails to 110 Executive Order 12866 refers to ‘‘those matters agencies shall ‘‘give full consideration to the hiring,
require the agency to take specific steps identified as, or determined by the Administrator of placement, and advancement of qualified
that are reasonably designed to achieve [the Office of Information and Regulatory Affairs] to individuals with disabilities.’’
be, a significant regulatory action within the scope
the goal in the future. Having received of section 3(f)(1).’’ Executive Order No. 12866,
115 In the NPRM, the Commission assumed that
no objections, the Commission adopts some of the required tasks would be performed by
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supra note 108. The Office of Management and
employees at the GS–14 level. On reflection, we
the paragraph in the Final Rule Budget states that ‘‘Executive Order 12866 requires
agencies to conduct a regulatory analysis for believe that they are more likely to be performed
unchanged. by employees at the GS–12 level. The Commission
economically significant regulatory actions as
1614.601(f) EEO Group Statistics defined by Section 3(f)(1).’’ Office of Mgmt. & realizes that not all of these tasks will be performed
Budget, Circular A–4 (Sept., 2003), http:// by GS–12 step 5 level employees in the
Section 1614.601 requires each www.whitehouse.gov/omb/circulars_a004_a-4. Washington-Baltimore-Northern Virginia, DC–MD–
agency to establish a system to collect 111 Executive Order No. 12866, supra note 108. VA–WV–PA region; the assumption is made purely
and maintain accurate demographic 112 Executive Order No. 13563, supra note 109. for purposes of the economic analysis.
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adjusted to include benefits, is $66.78 • The requirements of proposed these paragraphs, however, led us to
per hour 116 or $143,968.85 per year.117 paragraphs (d)(3)(i) (requiring written adjust the estimate—
reasonable accommodation procedures) • Proposed paragraph (d)(3)(ii) has
Provisions Imposing No Additional
and (d)(3)(iii) (requiring agencies to been revised to require agencies to
Burden
provide individuals who have been inform all employees who are
The NPRM stated that many of the denied a reasonable accommodation authorized to make hiring decisions, in
requirements in the proposed rule with written notice of the reasons for addition to employees authorized to
would have no economic effect, because the denial) were taken from MD–715, grant or deny requests for reasonable
they did not impose new requirements Executive Order 13164, and existing accommodation, that all resources
or burdens on federal agencies— agency guidance.120 available to the agency as a whole,
• Proposed paragraph (a), which set • The recordkeeping requirements of excluding those designated by statute
forth definitions of key terms, imposed proposed paragraph (d)(8), with the for a specific purpose that does not
no substantive requirements. exception of the requirements imposed include reasonable accommodation, are
• Proposed paragraph (b), which by (d)(8)(iii) and (d)(8)(iv) (discussed considered when determining whether a
provided that Section 501 prohibits below), were taken from MD–715.121 denial of reasonable accommodation
discrimination on the basis of disability, • The requirement to submit a Plan to based on cost is lawful.
and that the standards for determining the Commission for approval on an • Proposed paragraph (d)(3)(ii) has
whether Section 501 has been violated annual basis, found in proposed also been revised to require agencies to
in a complaint alleging employment paragraph (e)(1), is imposed by Section ensure that anyone authorized to grant
discrimination are the same standards 501.122 or deny requests for reasonable
applied under the ADA, merely revised The Commission received no accommodation or to make hiring
paragraph (b) in the current regulations objections to this aspect of the economic decisions is aware of, and knows how
for clarity. analysis, and none of the revisions made to arrange for the use of, agency
• Proposed paragraph (c), which to these paragraphs impose additional resources available to provide the
required agencies to be model requirements or burdens on federal accommodation.
employers of individuals with agencies. • Proposed paragraph (d)(4) has been
disabilities, was identical to paragraph revised to require agencies to make
(a) of the current regulations. One-Time Costs information on substantive Section 508
• The requirement to adopt an The NPRM stated that the following and ABA rights available to employees,
affirmative action plan, in proposed aspects of the proposed rule, all of in addition to contact information.
paragraph (d), is imposed by Section which required agencies to make certain To account for the additional
501.118 information more readily available, requirements, the Commission has
• Proposed paragraph (d)(1)(iii), imposed one-time compliance costs on doubled the estimate of the time needed
which required agencies to take steps to federal agencies— to perform the necessary tasks, from 5
ensure that individuals with disabilities • Proposed paragraph (d)(2) required to 10 hours. Multiplying by the number
have sufficient advancement agencies to clarify in their harassment of agencies covered by the Rule (218) 123
opportunities, provided guidance on policies that disability-based and by the hourly compensation rate of
how to fulfill existing requirements harassment is prohibited. $66.78 yields a total estimated cost of
rather than imposing new ones.119 • Proposed paragraph (d)(3)(ii) $145,580.40.
116 See Office of Pers. Mgmt., Salary Table 2016–
required agencies to inform all Paragraph (d)(1)(ii)
DCB: Hourly Basic (B) Rates by Grade and Step,
employees who are authorized to grant
Hourly Overtime (O) Rates by Grade and Step (Jan. or deny requests for reasonable The NPRM stated that proposed
2016), https://www.opm.gov/policy-data-oversight/ accommodation that all resources paragraph (d)(1)(ii), requiring agencies
pay-leave/salaries-wages/salary-tables/pdf/2016/ available to the agency as a whole are to have sufficient staff to answer
DCB_h.pdf (providing hourly monetary disability-related questions from
compensation rates). To adjust for the cost of
considered when determining whether a
benefits, we divided the annual salary by 0.61. See denial of reasonable accommodation members of the public, process requests
Congressional Budget Office, Comparing the based on cost is lawful. for reasonable accommodations made by
Compensation of Federal and Private-Sector • Proposed paragraph (d)(4) required job applicants, accept and process
Employees 9 (Jan. 2012), https://www.cbo.gov/sites/ applications for appointment under
default/files/01-30-FedPay_0.pdf [hereinafter
agencies to make certain contact
Comparing Compensation] (reporting that the cost information available to employees. hiring authorities that take disability
of providing benefits to federal workers averages • Proposed paragraph (e)(2) required into account, and oversee any other
between $15.50 and $24.70 per hour). agencies to make their Plans available to disability-related hiring programs,
117 See Office of Pers. Mgmt., Salary Table 2016–
the public. would impose recurring costs on federal
DCB: Annual Rates by Grade and Step (Jan. 2016), agencies. The Commission provided
https://www.opm.gov/policy-data-oversight/pay- The Commission estimated that
leave/salaries-wages/salary-tables/pdf/2016/ agencies would need to spend both a high and a low estimate. To
DCB.pdf [hereinafter Annual Rates] (providing approximately 5 hours performing these calculate the high estimate, we assumed
annual monetary compensation rates). To adjust for
tasks, updating policies, and checking that each covered agency would need to
the cost of benefits, we divided the annual salary hire at least one new employee to assist
by 0.61. See Comparing Compensation, supra note for compliance. The Commission
116, at 9 (reporting that benefits account for 39% received no objections to this estimate the existing agency staff in performing
of the cost of total compensation for federal in the public comments. Revisions to the required tasks. To calculate the low
workers). estimate, we assumed that
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118 29 U.S.C. 791(b).
However, because the Commission did not have any
approximately 10% of agencies, or 22
119 See, e.g., 29 CFR 1614.102(a)(10), (a)(11),
data upon which to base an estimate of time saved, agencies, would need to hire a new
(a)(13), (b)(1); Promoting Employment, supra note
21; 13164 Guidance, supra note 15; MD–715, supra it did not quantify the benefit. employee. Using the updated annual
120 See MD–715, supra note 16; Executive Order
note 16. Indeed, the Commission anticipated that
the additional guidance contained in the proposed No. 13164, supra note 14; 13164 Guidance, supra 123 The number of agencies covered by the
rule, in the form of helpful examples and note 15. requirements of MD–715 varies from year to year.
121 See MD–715, supra note 16.
suggestions, would reduce agency burden by The number of agencies covered in Fiscal Year 2014
making it easier to satisfy the existing requirements. 122 29 U.S.C. 791(b). was 218.
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compensation rate of $143,968.85, we require agencies to assist employees by, and a low estimate of associated costs.
multiply by the total number of covered for example, typing or reading work To calculate the low estimate, we
agencies (218) to arrive at a high materials aloud for someone who assumed that agencies would contract
estimate of $31,385,209.30 per year, and requires these services because of a with vendors to provide each individual
by 22 to arrive at a low estimate of disability, because those types of job- with PAS for the equivalent of full-time
$3,167,314.70 per year. related services are already required as hours at the minimum hourly rate for
reasonable accommodations absent federal contractors ($10.10).130 To
Paragraph (d)(5)
undue hardship. (Of course, an agency calculate the high estimate, the
The NPRM stated that proposed would not be required to provide these Commission assumed that agencies
paragraph (d)(5), requiring agencies to specific accommodations if an would hire a PAS provider for each
provide PAS to employees who need alternative would be both less expensive individual at the GS–5 level.
them because of a disability, would and equally effective.) The paragraph One commenter stated that the
impose costs because some current also does not require agencies to hire an estimates were far too low. The
federal employees require PAS.124 The assistant to perform essential functions commenter further stated that, to
Commission was aware of only one of the individual’s job, or to perform generate the low-end estimate, the
study measuring the number of tasks that the individual can perform on Commission should assume that
employed individuals who require his or her own. agencies will hire PAS providers at the
personal services at work because of a As explained in the NPRM, the GS–6 level, which, according to the
disability (2003 study), finding that Commission suspects that the actual commenter, is a level appropriate for
1.1% of individuals with disabilities, as number of current federal employees practical nurses.
that term was defined, required ‘‘a who will receive PAS pursuant to (d)(5) The commenter’s assertions are out of
personal assistant to help with job- is close to zero. A federal employee who step with all available evidence. PAS
related activities.’’ 125 We thus estimated requires PAS to remain in the providers earn, on average, an amount
that 1.1% of current federal employees workplace, but does not receive PAS per hour that is approximately equal to
with targeted disabilities would require from his or her agency, generally would the federal minimum wage,131 and an
PAS.126 need to pay for such services out-of- amount per year that is significantly
One commenter stated that this pocket. An individual who has no lower than the annual salary of a GS–
estimate was far too low, and that the income, by contrast, typically relies on 5 level employee.132 We therefore retain
proposed paragraph would require public benefits to pay for PAS. One the prior assumptions. To generate the
federal agencies to provide PAS to study has found that an individual low estimate, we multiply $10.10 by the
‘‘multitudes’’ of federal employees. The would need to earn approximately equivalent of full-time hours (2,080
Commission disagrees. It is simply not $40,000.00 per year simply to break hours per year), yielding an estimated
true that ‘‘multitudes’’ of current federal even.127 annual per-person cost of $20,800.00.
employees are unable to eat, use the Nevertheless, because the Multiplying by the number of covered
restroom, or perform similar tasks Commission lacks any additional data, agencies yields a total estimated cost for
without assistance. The Commission we continue to assume for purposes of providing PAS to current federal
reminds readers that (d)(5) does not the analysis that 1.1% of current federal employees of $4,180,592.00 per year. To
employees with targeted disabilities generate the high estimate, we multiply
124 Paragraph (d)(5) is also expected to impose
require PAS. There are approximately the annual salary of a GS–5, step 5 level
costs arising from the need to provide PAS to
individuals who are hired because of the Rule.
19,536 individuals with targeted employee in the Washington-Baltimore-
These costs are discussed in the section on disabilities in the federal workforce.128
paragraph (d)(7) below. Multiplying that number by 0.011 yields continuously throughout the workday, the cost of
125 See Craig Zwerling, et al., Workplace
an estimated total of 215 current federal providing such services to a single individual will
Accommodations for People with Disabilities: represent a fraction of this figure. See, e.g., Tatiana
employees who require PAS. The I. Solovieva et al., Cost of Workplace
National Health Interview Survey Disability
Supplement, 1994–1995, 45 J. Occupational & Commission is aware of 16 current Accommodations for Individuals with Disabilities:
Envtl. Med. 517, 519 (2003). For purposes of the employees who are already given PAS With or Without Personal Assistance Services, 2
study, an individual had a disability if he or she by their agencies. Because provision of Disability & Health J. 196, 201 (2009) (reporting that
had ‘‘difficulty with [activities of daily living] the median annual cost of accommodations for
PAS to these individuals would not individuals who need personal assistance services
(bathing, dressing, eating, getting in or out of bed
or chair, or using the toilet); difficulty with represent new costs, we exclude these is $8,000.00).
[instrumental activities of daily living] (preparing individuals from the analysis, leaving 130 See Executive Order No. 13658, 79 FR 9851
own meals, shopping for personal items, using the an estimated 199 current employees (Feb. 12, 2014), http://www.gpo.gov/fdsys/pkg/FR-
telephone, doing heavy work around the house, or 2014-02-20/pdf/2014-03805.pdf.
who will receive PAS as a result of 131 See, e.g., Personal Assistant Career, MyMajors,
doing light work around the house); functional
limitations (lifting 10 pounds, walking up 10 steps, (d)(5). http://www.mymajors.com/career/personal-
walking a quarter mile, standing for 20 minutes, Even though the proposed paragraph assistant/salary/ (last visited Dec. 21, 2016)
bending down from a standing position, reaching allowed agencies to assign PAS (reporting that PAS providers have an average
over the head, using the fingers to grasp or handle providers to multiple individuals, and hourly wage of $10.20); Douglas Klayman, et al.,
something, or holding a pen or pencil); difficulty supra note 127, at 16 (finding that the average
seeing (even with their glasses); difficulty hearing
to perform additional duties, the hourly wage was $9.11); Denetta L. Dowler et al.,
(even with a hearing aid); reported mental health Commission assumed in the NPRM that Personal Assistance Services in the Workplace: A
or cognitive diagnoses (Down’s Syndrome, mental agencies would provide each individual Literature Review, 4 Disability & Health J. 201, 206
retardation, schizophrenia, delusional disorders, with the equivalent of a full-time PAS (2011) (finding that the average hourly wages of
bipolar disorder, major depression, severe between $8.18 and $12.00); Tatiana I. Solovieva et
personality disorder, alcohol abuse, drug abuse,
provider.129 We provided both a high al., Personal Assistance Services (PAS) for
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other mental or emotional conditions); or reported Individuals with Disabilities: Self-Care at the
127 See Douglas Klayman, et al., Soc. Dynamics,
use of a cane, crutches, walker, wheelchair. Or Workplace, 36 Work 339, 341 (2010) (reporting an
scooter to get around.’’ Id. at 518. LLC, Funding Options for Personal Assistance average hourly wage of $8.34).
126 The group of individuals included in the Services 17 (2009), www.dol.gov/odep/research/ 132 PAS providers have an average annual income
study, see supra note 125, more closely matches the FundingOptionsPersonalAssistanceServices(PAS) of $21,210.00. See, e.g., Personal Assistant Career,
definition of ‘‘targeted disability’’ than the .pdf. supra note 131. A GS–5 step 5 level employee in
128 See 2014 Report, supra note 95, at 25.
definition of ‘‘disability’’ under paragraph (a). As the Washington-Baltimore-Northern Virginia, DC-
noted throughout, the Section 501 definition of 129 Because individuals who require personal MD-VA-WV-PA region earns $39,967.00—a full
‘‘disability’’ is very broad. assistance services generally do not require them 88% more. See Annual Rates, supra note 117.
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![676 Federal Register / Vol. 82, No. 1 / Tuesday, January 3, 2017 / Rules and Regulations
reflected in the estimated 16,979 new (d)(8)(iv) as it would take them to hires who are expected to require PAS
hires who have targeted disabilities, we prepare an entire MD–715 report. The (241) yields a total estimated economic
conclude that 241 new hires will require commenter is reminded that, to the benefit of $6,617,619.00 per year.
PAS. extent paragraph (d)(8) requires agencies
To generate an estimate of the Non-Economic Effects
to maintain the same records that are
associated costs, we rely on the required under MD–715, it imposes no The NPRM also noted that, in
estimated per-person costs for providing new burden. The (d)(8) requirements addition to economic effects, the
PAS calculated in the section on exceed those of MD–715 only insofar as proposed rule would have a variety of
paragraph (d)(5) above. Multiplying 241 they require records relating to the qualitative and dignitary benefits, all of
by the low estimate of the associated Schedule A hiring authority for persons which further values identified in
costs ($21,008.00) yields a total with certain disabilities. We also note Executive Order 13563 such as equity,
estimated cost of $5,062,928.00 per year, that the associated burden is likely to be human dignity, and fairness. Most
and multiplying by the high estimate of proportional to the size of the agency— significantly, the NPRM stated that the
the associated costs ($65,519.67) yields if an agency is small enough that it lacks rule would increase the number of
a total estimated cost of $15,790,240.47 an automated HR system, it is not likely hiring and advancement opportunities
per year. to have appointed an overwhelmingly available to individuals with disabilities
In summary, the estimated annual large number of individuals under the by making them better aware of federal
costs arising from paragraph (d)(7) will Schedule A hiring authority for persons job openings. Research demonstrates
be $44,341.92 (the estimated cost of with certain disabilities. that employment is an important
determining whether goals have been Nevertheless, the Commission determinant of both perceived quality of
met) plus $10,620,500.00 (the estimated estimates for purposes of this analysis life and health status among individuals
cost of providing reasonable that each of the estimated 20 agencies with disabilities.152 In addition, the
accommodations to individuals hired lacking automated HR systems will need NPRM stated that the proposed rule
pursuant to the goals) plus between to spend an additional 10 hours would have qualitative and dignitary
$5,062,928.00 and $15,790,240.47 (the performing the required tasks, for a total benefits, including—
estimated cost of providing PAS to of 200 additional burden hours. Adding • promotion of human dignity and
individuals hired pursuant to the goals), this to the previous estimate yields a self-respect, and diminished feelings of
for a total estimated annual cost of total estimate of 636 burden hours. exclusion and humiliation;
between $15,727,769.92 and Multiplying by the hourly compensation • reduced prevalence of disability-
$26,455,082.39. rate of $66.78 yields a total estimated based stereotypes and associated stigma;
Paragraphs (d)(8)(iii) and (d)(8)(iv) cost for paragraphs (d)(8)(iii) and • increased diversity, understanding,
(d)(8)(iv) of $42,472.08 per year. and fairness in the workplace; and
The requirements of proposed • improved interactions with
paragraphs (d)(8)(iii) and (d)(8)(iv)—to Economic Benefits coworkers and workplace morale.
keep records of all employees hired As stated in the NPRM, the Rule is All of these considerations apply
under the Schedule A hiring authority also expected to have positive economic equally well to the Final Rule. The Rule
for persons with certain disabilities, to effects by bringing a greater number of is also expected to prevent disability-
calculate the number of such employees individuals with disabilities into the based employment discrimination by
who have been converted to career or workforce.150 Because individuals who making job applicants, employees, and
career-conditional appointment, and to require PAS throughout the day and agency management better aware of the
calculate the number of such employees who are looking for work most likely protections against discrimination
who have been terminated prior to rely on government benefits to meet the provided by Section 501.
conversion—were adopted unchanged significant cost of hiring a personal
in the Final Rule. The NPRM estimated Summary
assistant, the NPRM assumed that each
that it would take each agency 2 hours individual who receives PAS from an In summary, the Commission
to gather the required data, to perform agency would otherwise have relied on estimates that the Rule as a whole will
the required calculations, and to create Social Security and Supplemental have a one-time initial cost to the
and maintain the associated records. Security Income benefits to pay for federal government of approximately
Multiplying by the number of covered those services. Research indicated that, $145,580.40, an annual cost to the
agencies yielded an overall estimate of for every individual with a disability federal government of between
436 burden hours per year. who transitions from receipt of benefits $23,151,538.70 and $70,954,568.10, and
One commenter stated that the an annual economic benefit to the
to gainful employment, the federal
estimate is too low for small agencies federal government of $6,617,619.00.
government saves approximately
that do not have ‘‘automated [human The Rule is also expected to have a
$19,380.00 in paid benefits, and gains
resources (HR)] systems.’’ The variety of non-monetizable qualitative
approximately $8,079.00 in tax revenue,
commenter did not state how many and dignitary benefits for individuals
on an annual basis,151 for a total annual
such agencies there are. For purposes of with disabilities and individuals with
benefit of $27,459.00 per individual.
this analysis, the Commission estimates targeted disabilities.
The Commission received no objections
for purposes of this analysis that 20
to this analysis. Multiplying by the Regulatory Flexibility Act
agencies lack an automated HR system.
The commenter also did not provide revised estimate of the number of new
The Commission certifies under 5
an estimate of the amount of time that U.S.C. 605(b) that this Rule will not
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150 See, e.g., Jean P. Hall, et al., Employment as
such agencies would need to perform a Health Determinant for Working-Age, Dually- have a significant economic impact on
the required tasks, except to say that the Eligible People with Disabilities, 6 Disability &
‘‘guidepost . . . is the amount of time it Health J. 100 (2013) (finding that employment of 152 See, e.g., Jean P. Hall, et al., supra note 150,
takes to manually prepare the MD–715 individuals with disabilities is associated with at 100 (finding that, among individuals who are
lower per-person, per-month Medicaid eligible for both Medicaid and Medicare, paid
report.’’ We disagree that it would take expenditures). employment is associated with significantly better
agencies the same amount of time to 151 See Douglas Klayman, et al., supra note 127, quality of life, self-reported health status, and
meet the requirements of (d)(8)(iii) and at 17. health behaviors).
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![Federal Register / Vol. 82, No. 1 / Tuesday, January 3, 2017 / Rules and Regulations 681
(e) Reporting—(1) Submission to the an explanation of why those changes as required by 29 U.S.C. 791(b). Failure
Commission. On an annual basis, each were made. to achieve a goal set forth in paragraph
federal agency shall submit to the (2) Availability to the public. Each (d)(7)(i) of this section, by itself, is not
Commission for approval, at such time agency shall make the information grounds for disapproval unless the Plan
and in such manner as the Commission submitted to the Commission pursuant fails to require the agency to take
deems appropriate— to paragraph (e)(1) of this section specific steps that are reasonably
(i) A copy of its current Plan; available to the public by, at a designed to achieve the goal.
(ii) The results of the two most recent minimum, posting a copy of the
workforce analyses performed pursuant ■ 3. Amend § 1614.601 by revising
submission on its public Web site and paragraph (f) to read as follows:
to paragraph (d)(6) of this section providing a means by which members of
showing the percentage of employees the public may request copies of the § 1614.601 EEO group statistics.
with disabilities and employees with submission in accessible formats.
targeted disabilities in each of the * * * * *
designated pay groups; (f) Commission approval and (f) Data on disabilities shall be
(iii) The number of individuals disapproval—(1) Basis for approval. If collected using a method permitted
appointed to positions within the the Commission determines that an under § 1614.203(d)(6)(ii) and
agency under the Schedule A hiring agency has adopted and implemented a § 1614.203(d)(6)(iii).
authority for persons with certain Plan that meets the requirements set
forth in paragraph (d) of this section, the * * * * *
disabilities during the previous year,
and the total number of employees Commission shall approve the Plan. Dated: December 21, 2016.
whose employment at the agency began (2) Basis for disapproval. If the For the Commission.
by appointment under the Schedule A Commission determines that an agency Peggy R. Mastroianni,
hiring authority for persons with certain has failed to adopt and implement a Legal Counsel.
disabilities; and Plan that meets the requirements set
(iv) A list of changes made to the Plan forth in paragraph (d) of this section, the [FR Doc. 2016–31397 Filed 12–30–16; 8:45 am]
since the prior submission, if any, and Commission shall disapprove the Plan BILLING CODE 6570–01–P
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Document Created: 2018-02-01 14:44:34
Document Modified: 2018-02-01 14:44:34
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Rules and Regulations | |
| Action | Final rule. | |
| Dates | Effective date: This final rule will be applicable on March 6, 2017. | |
| 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). (These are not toll free numbers.) | |
| FR Citation | 82 FR 654 | |
| RIN Number | 3046-AA94 | |
| CFR Associated | Administrative Practice and Procedure; Age Discrimination; Equal Employment Opportunity; Government Employees; Individuals with Disabilities; Race Discrimination; Religious Discrimination and Sex Discrimination |
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