A Summary of the Section 501 Final Rule on Affirmative Action

Posted by Kim Cordingly on April 5, 2017 under Accommodations, ADAAA, Employers | Comments are off for this article

By: Tracie DeFreitas, Lead Consultant – ADA Specialist

JAN recently offered the first Federal Employer Winter Webcast Binge-a-thon — a three-hour Webcast for the federal workforce about job accommodation resources and solutions and compliance with Section 501 of the Rehabilitation Act, hosted by expert guest speakers from JAN and the Equal Employment Opportunity Commission (EEOC). The Binge-a-thon kicked-off with an overview of the EEOC’s January 2017 final rule to amend the regulations implementing Section 501 of the Rehabilitation Act, presented by Aaron Konopasky, Senior Attorney Advisor in the ADA/GINA Policy Division at the EEOC. The Rule requires agencies of the federal government to adopt employment goals for individuals with disabilities, with sub-goals for individuals with targeted disabilities, to provide personal assistance services (PAS) to certain employees who need these services because of a disability, and to meet a number of other requirements designed to improve the recruitment, hiring, retention, and advancement of individuals with disabilities in the federal workforce.

The final Rule clarifies the affirmative action requirements of Section 501. To comply with the requirements, federal agencies must develop affirmative action plans and take action to increase the employment of individuals with disabilities, and must also provide PAS to employees with targeted disabilities for work-related reasons. The final Rule gives agencies until January 3, 2018, to make changes to policy, staff, and other operations in order to meet the new requirements. Among the affirmative action and PAS requirements, the Rule also codifies various obligations placed on federal agencies by past management directives and Executive Orders, to bring all of the requirements together under one Rule.

JAN Consultants do provide information and guidance regarding the requirements of Section 501. Like many federal sector employers, our Consultants are learning as much as we can about these new regulations so that we can better assist our customers with their questions. For commonly asked questions about the Rule, see The EEOC’s Final Rule on Affirmative Action for People with Disabilities in Federal Employment. The following bullet points offer a high-level summary of some of the Rule’s requirements:

  • Affirmative Action: Federal agencies are required to adopt and implement an Affirmative Action Plan for recruiting, hiring, employing, and advancing individuals with disabilities at all levels of federal employment. The Plan is to be submitted annually to the EEOC. The Plan shall require a commitment to achieve the goal of employing 12% of individuals with disabilities at the GS-11 level and above; 12% at the GS-10 level and below; and 2% who have targeted disabilities, above and below these GS levels. Targeted disabilities are those that fall into a subset of those impairments that meet the Americans with Disabilities Act (ADA) definition of disability, and are designated on the Office of Personnel Management’s SF-256 Self-Identification Form. Affirmative Action Plans are to be posted on each agency’s public Website.
  • Record Keeping: The Rule imposes new record keeping requirements. Federal agencies must keep track of the number of applications received from individuals with disabilities (IWDs) and the number hired; the number of applications received from IWDs with targeted disabilities and the number hired; all job offer rescissions based on medical examinations or medical inquiries; the number of Schedule A appointees; and details regarding all requests for reasonable accommodation. This information must be made available to the EEOC upon request.
  • Personal Assistance Services (PAS) as Affirmative Action Requirement: Lack of PAS or fear of losing PAS have been identified as barriers to employment for individuals with some targeted disabilities. The Rule requires federal agencies, as an aspect of affirmative action, to provide PAS to employees who need these services due to a targeted disability, barring undue hardship. PAS are non-medical services that help individuals with disabilities perform activities of daily living, like eating, using the restroom, taking-off a coat, etc. PAS may be assigned during work hours and job-related travel. Agencies may hire an employee or independent contractor to provide PAS, and may provide one-to-one services or hire a pool of PAS providers to serve multiple employees with disabilities. When services are provided one-to-one to a single individual, agencies should give primary consideration to the preferences of the individual. Federal agencies are required to have a written process for employees to request PAS, or may include a PAS process in a formal reasonable accommodation procedure.
  • Notification about Reasonable Accommodation Policies and Procedures: The Rule makes clear that federal agencies must have written, easily available and understood reasonable accommodation procedures, available to applicants and employees in written and accessible formats. These procedures must be available on each agency’s public Website.
  • Interim Accommodations: When the facts and circumstances known to an agency make it reasonably likely that an employee requesting accommodation will be entitled to it, but the accommodation cannot be provided immediately, then the agency is expected to provide interim accommodations that will enable the performance of some or all of the essential functions of the employee’s job, barring undue hardship.
  • Reassignment as Accommodation: Federal agencies must consider reassignment to a vacant position as a reasonable accommodation when no other accommodation will enable an employee with a disability to perform the essential functions of the current position.
  • Denial of Reasonable Accommodation: When accommodations are denied, federal agencies must provide the job applicant or employee with a written explanation that includes a reason for the denial, remedies for internal appeal or alternative dispute resolution, and instructions and the timeframe (45 days) for filing a complaint of discrimination with the agency’s EEO Counselor. This notice must be made available in accessible formats.

For more information about affirmative action and workplace discrimination laws, regulations, and Executive Orders that apply to federal agencies, see the EEOC website for the Federal Sector. For information about reasonable accommodation obligations, please contact JAN to speak with a Consultant, or go to AskJAN.org.

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