# Affirmative Action for Individuals With Disabilities in Federal Employment > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A2016-31397 ## Record - **Collection:** Federal Register - **Document type:** Rule - **Published:** January 3, 2017 - **Citation:** 82 FR 654 ## Text 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 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.gpo.gov/fdsys/pkg/FR-2000-07-28/pdf/00-19322.pdf . 13 Id. 14 Executive Order No. 13164, 3 CFR 286 (2001), http://frwebgate.access.gpo.gov/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.gpo.gov/fdsys/pkg/FR-2010-07-30/pdf/2010-18988.pdf . 23 Office of Pers. Mgmt., Model Strategies for Recruitment and Hiring of People with Disabilities (Nov. 8, 2010), 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. 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 (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 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 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 résumés 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 résumé databases to fulfill these 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 Résumés, 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 résumés 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 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 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 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 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 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 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. 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 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 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2016-31397. Public record. Not legal advice.