Final rule requires affirmative action for disabilities in federal workforce

Imagine going to work and being told you don’t get a lunch break, or you can’t go to the bathroom.

That might sound like a recipe for an office boycott or cubicle riot, but it can be a reality for someone with a disability. Which is why the Equal Employment Opportunity Commission is publishing a final rule on affirmative action for people with disabilities in the federal workforce.

The rule codifies executive orders and management directives related to Section 501 of the Rehabilitation Act, which blocks agencies from discriminating against people with disabilities, and requires agencies to maintain and continually update affirmative action plans to ensure the federal government is hiring and promoting individuals with disabilities.

The final rule requires agencies to boost the number of their employees who have a disability and employees who have a “targeted disability” — such as deafness — and provide personal assistance services (PAS) to employees who need it.

“In a very general sense we need to remember these are things that are already happening that we know are best practices. That in many cases certain federal agencies, certain federal locations, have been doing for years and years,” said Michael Murray, chief operating officer for the American Association of People with Disabilities. “Now we’re just taking it and making sure that everyone understands and everyone knows what is asked of them, and that we’re very clear on the outset. And also that we really encourage the federal government to be a model employer of people with disabilities.”

President-elect Donald Trump said in a response to AAPD’s candidate questionnaire that his administration “will work with Congress to set an example of the importance and value of hiring individuals with disabilities.”

“It is important that the final regulations under Section 501 are enforced,” Trump’s campaign said in the survey. “We will then do all we can to make sure that the agenda outlined and agreed upon gets implemented.”

The rule applies to all federal agencies, an inclusion that the commission noted in its rule when it stated that “there is no reason to believe that small agencies cannot or should not adopt written reasonable accommodation procedures.”

But the commission also said that agencies should be allowed some flexibility when handling the application processes for their respective Disability Hiring and Advancement programs.

“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,” the rule stated.

Realities of the workforce

The rule calls for agencies to adopt the goal of having 12 percent of their GS-levels represented by people with disabilities and 2 percent comprised of people with targeted disabilities.

Federal employees with disabilities made up roughly 14.4 percent of the workforce — a total 264,844 people — in fiscal 2015, according to the Office of Personnel Management’s latest report on hiring individuals with disabilities in the federal government.

The federal workforce had 247,608 employees with disabilities — about 13.6 percent — in 2014.

Government hired more people with disabilities in 2015 than in previous years, 26,466 new hires compared with 20,618 new hires in 2014.

“We’ve really increased the number of people with disabilities in federal service to the highest percentage and real number in any point in the past 34 years, and that was due to the fact that we focused on this,” Murray said.

The EOCC estimates an annual economic benefit to the government of $6.6 million.

That cost is key to understanding that providing personal assistance services is not going to break the bank, Murray said.

“The reality is many agencies are already doing this,” he said. “All that we’re doing is putting in place the availability to make this happen.”

Matthew Gagnon, a labor and employment attorney with Seyfarth Shaw LLP in Chicago, agreed that the PAS requirement is more a “clarification of what’s required, as opposed to something that’s brand new.”

According to the rule, these services include things like helping someone remove or put on clothing, eating, or using the bathroom. The services do not include medical care.

“If you need support in the workplace in order to accomplish your job, that’s called a reasonable accommodation” Murray said. “In some way we all need things in order to get our job done. A problem has come up though, because under the law, if you as an employer, the federal government, would be required to provide the support I need to accomplish my job, but they wouldn’t necessarily be required to provide me the support I need to do everything else that everyone else does at work.”

For example, going to the bathroom, Murray said, or ensuring there’s time to grab something to eat during lunchtime.

“We all know that these are incredibly important things,” he said. “These new rules will now require federal agencies to support employees not only for job-related tasks, but also while they’re at work, ensuring that they can do simple things that we all should have a fundamental dignity and right to, including being able to go to the bathroom and other things like that.”

Another “powerful” thing the rule does is mandate that agencies have to give specific notice to employees when they are denying those employees reasonable accommodations, explained Eric Pines, a Houston, Texas based federal employment attorney.

It’s also important that now agencies have to give employees “solid notice of when they can file an appeal,” he said.

“It’s crystal clear that employees have a right to have notice that they have a right to appeal,” Pines said. “This final rule essentially puts everything in one place. It allows more clarity to the agencies; here’s what you’re required to do, here is what you need to do.”

The rule does not apply to the private sector, or state or local government. Agencies have until Jan. 3, 2018, “to make any necessary changes in policy, staff, or other aspects of their operations.”

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