Developments at the EEOC: On January 3, 2017, the Equal Employment Opportunity Commission (EEOC) published a Final Rule in the Federal Register, 82 Fed.Reg. 654-681. The Final Rule clarifies the federal government’s obligations as a model employer of disabled individuals.
The Final Rule is the culmination of a long-term EEOC rulemaking (previously analyzed in this blog). After two rounds of public comments, the EEOC identified specific reforms for strengthening disability protections for federal sector employees and job applicants. Significant changes include:
- Requiring federal agencies to develop affirmative action plans for hiring disabled employees, to be reviewed by the EEOC annually.
- Agencies’ affirmative action plans must set the goal of 12% disabled employees in their workforce, including 2% of employees with specified “targeted disabilities”.
- Agencies must properly resource reasonable accommodation in hiring, processing applications for “Schedule A” disabled applicants, answering questions from applicants and the public on disabled hiring issues, and providing disabled employees with training needed for upward mobility.
- Agencies are required to maintain contacts with organizations who assist disabled applicants in applying for jobs, programs that help disabled applicants gain qualifications for the workforce and databases of disabled applicants.
- Agencies considering reasonable accommodation reassignments are required to provide employees vacant positions in appropriate circumstances–not merely allowing the employees to compete for the job.
- Requiring agencies to provide personal assistance services to employees. These services are non-job related, non-medical assistance with basic activities of daily living (such as doffing/donning clothing, rating and restroom use).
- Agencies are required to include disability as a protected basis in antiharassment policies.
- Limiting when agencies can request supplemental medical documents for reasonable accommodation requests.
- Requiring that agencies’ reasonable accommodation policies set deadlines for grant or denial of reasonable accommodation requests (absent extenuating circumstances).
- Requiring reasonable accommodation denials be provided in writing explaining the specific denial grounds, with notice of EEO complaint mechanisms for filing denial of reasonable accommodation complaints.
- Requiring agencies to provide interim accommodations where possible if immediate provision of the preferred accommodation is impossible.
- Requiring agencies to notify managers of all resources available to fund reasonable accommodations (including external funding sources) and advise that the general agency budget (if not designated for non-accommodation use by statute) is available for reasonable accommodations when determining if a particular accommodation would be an undue hardship.
Further details on this Final Rule can be found on the EEOC’s “Question and Answer” guidance. The Final Rule takes effect January 3, 2018.
If you are a federal employee and believe that you have been discriminated against on the basis of disability and wish to discuss your rights, please contact Passman & Kaplan to request an initial consultation.