Employment Law Daily EEOC proposed regs for federal agency affirmative action set 12% goal for persons with disabilities
Thursday, February 25, 2016

EEOC proposed regs for federal agency affirmative action set 12% goal for persons with disabilities

By Joy P. Waltemath, J.D. The EEOC published a Notice of Proposed Rulemaking in the February 24, 2016, Federal Register describing the specific actions that federal agencies must take to comply with their obligation to engage in affirmative action in employment for individuals with disabilities. Section 501 of the Rehabilitation Act requires federal agencies to create affirmative action plans for the employment of people with disabilities and to submit those plans to the EEOC for approval. The proposed rule does not impose any obligations on private businesses or state and local governments. “Model employer” goals. The proposed rule reaffirms the federal government’s commitment to being a model employer of people with disabilities. It would require federal agencies to adopt the goal of achieving a 12% representation rate for individuals with disabilities, and a 2% representation rate for individuals with targeted/severe disabilities. Targeted disabilities are those that the government has, for several decades, placed a special emphasis on in hiring because they pose the greatest barriers to employment. “Personal assistance services.” The goals would apply at both higher and lower levels of federal employment. Hiring efforts would be further improved through focused recruitment efforts and simplified access to disability hiring programs and services. In addition to setting numerical goals and requiring enhanced efforts to hire individuals with disabilities, the proposed rule would require agencies to provide personal assistance services to employees who, because of a disability, need these services to help with activities such as eating and using the restroom while at work. In addition to the Notice of Proposed Rulemaking, EEOC has also published a question-and-answer document on the NPRM and a document providing background information and a summary of the NPRM. To provide clarity for federal agencies for the development of their affirmative action plans, the proposal would also collect, into a single rule, longstanding requirements found in a variety of sources, including management directives and executive orders. “The federal government has a special responsibility to lead by example in serving as a model employer for people with disabilities in the workforce,” said EEOC Chair Jenny Yang. Commissioner Chai R. Feldblum, who led an internal work group that developed the NPRM, echoed that sentiment: “Since 2013, federal contractors have been required to meet goals for the employment of individuals with disabilities. EEOC’s proposed rule will hold the federal government to an even higher standard, particularly with regard to hiring people with targeted disabilities and providing personal assistance services.” Comments, questions. The NPRM is available in the Public Inspection portion of the Federal Register and is officially published February 24. Members of the public have 60 days from that date, April 25, to submit comments. The Commission invites comments on any aspect of the proposed rule from members of the public. In addition, the Commission invites responses to a number of specific questions posed in the preamble of the NPRM. Methods for commenting are specified in the Federal Register notice, and the EEOC will consider all public comments before finalizing the rule. Specific questions on personal assistance services include:


Should Section 501 regulations require agencies to provide PAS [personal assistance services] to employees who need them because of a disability while they are on the job or on job-related travel as part of the affirmative action obligation? Do the services described in the regulations accurately capture the PAS that a person with a disability might require?


If the rule should require agencies to provide PAS, should assistants be assigned to a particular individual, or should they respond to requests for PAS by different individuals, as needed? Should the agency be allowed to assign non-PAS tasks to assistants when no personal assistance is required?


The proposed rule does not address how the obligation to provide PAS would be enforced. The Commission is requiring that agencies provide PAS as part of their affirmative action obligations under Section 501. Affirmative action obligations, such as employment goals or advancement plans, are not generally enforceable through the part 1614 process. The requirement to provide PAS is unlike most general affirmative action obligations, however, as an agency’s failure to comply with this obligation will directly harm specific, identifiable individuals. The Commission invites comments on (a) whether the Commission should enforce the PAS requirement in the manner envisioned in paragraph (f) of the proposed rule, or instead offer a process through which individuals denied PAS can request that the Commission review agency denials and order relief to persons wrongly denied those services.


Is the Commission’s estimate of the costs associated with a PAS requirement, discussed in the regulatory procedures section, accurate? If not, what is a more accurate estimate? Would particular agencies, or types of agencies, experience significant logistical difficulties in complying with the PAS requirement? What is a realistic estimate of costs arising from offering a process for enforcement of the obligation to provide PAS? Please include supporting references.
The Commission also invites responses to the following general questions regarding the proposed rule:


EEOC is interested in learning from the public what would be appropriate minimum standards for federal agencies regarding goals for hiring of persons with disabilities. As proposed, the goals for representation rates have been set at 12% for individuals with all disabilities and 2% for individuals with targeted disabilities. Are these levels appropriate? What data exists that show that the goals should either be higher or lower than in this proposed rule?


EEOC is interested in whether agencies should 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 have not been hired by the agency. EEOC is interested in whether such individuals should be asked whether they wish to be included in such a database, or whether the database should be created automatically from those who apply via a hiring authority that takes disability into account.


EEOC requests comments from the public on any of the standards proposed in this rule governing affirmative action with respect to the hiring, advancement, and retention of federal employees with disabilities. This includes the PAS requirement, the utilization analysis and goals provision, and the recordkeeping and reporting requirements. It also includes the affirmative action requirements related to reasonable accommodations. EEOC requests any data or evidence that shows that these standards are either too strict or too lenient and any information on the costs and benefits related to each standard.

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