OPM Issues Final Regulation on Hiring Persons with Disabilities

The U.S. Office of Personnel Management (OPM) issued a final regulation regarding the hiring of persons with certain disabilities on February 22, 2013, which will take effect on March 25, 2013.

The new rule for "Excepted Service -- Appointment of Persons with Intellectual Disabilities, Severe Physical Disabilities, and Psychiatric Disabilities," which targets certain disabilities, is also referred to as "Schedule 'A' Hiring Authority." The change to this rule purports to accomplish two goals -- simplify the hiring process for applicants with disabilities and modernize the language used in describing people with disabilities.

First, the regulation removes the requirement that applicants with disabilities must provide a "certificate of readiness" as a condition of appointment.

As pointed out in the supplemental history of the regulation, 5 CFR 213.3102(u)(3)(i) currently requires all applicants seeking either a permanent or time-limited appointment to supply a "certification of job readiness," which has been used as the basis for determining that an applicant can be reasonably expected to perform in a particular work environment. This generally came in the form of a formal written assessment by a doctor, vocational rehabilitation specialist or disability benefit agency.

However, OPM found that persons with disabilities often have other experience that can demonstrate that they are likely to succeed in the sought after position, such as work, education, or other experience that an agency may find relevant in making their evaluation. As such, OPM concluded that, for appointments made under the Schedule 'A' authority, a separate "certification of job readiness" was not necessary.

Under the new regulation, a job applicant seeking a position under the Schedule 'A' appointment authority will now only need to demonstrate that he or she has a qualifying disability. Under 5 CFR 213.3102(u)(3)(ii), an agency may accept, as proof of disability, documentation such records, statements, or other appropriate information issued by a licensed medical professional a licensed vocational rehabilitation specialist any Federal agency, State agency, or a disability benefits agency.

Agencies may also make temporary appointments when it determines that it is necessary to observe the applicant on the job to determine whether the applicant is able or ready to perform the duties of the position, and can then convert the position to a permanent one when the agency determines that the person is able to perform the duties of the position, under 5 CFR 213.3102(u)(5)(i).

OPM noted that the new regulation implements the directive of Executive Order 13548 of 2010, Increasing Federal Employment of Individuals with Disabilities, which sought to "establish the Federal Government as a model employer of individuals with disabilities," improve the recruitment, hiring, retention, and return to work of individuals with disabilities, and specifically "increase utilization of the Federal Government's Schedule A excepted service hiring authority for persons with disabilities." Moreover, OPM believes the change will speed up the hiring process by removing what it refers to as "an unnecessary burden."

Secondly, the regulation replaces the phrase "mental retardation" with "intellectual disability." According to OPM, the change was prompted by Congress's enactment, of "Rosa's Law," on October 6, 2010, which changed references from "mental retardation" to "intellectual disability," and a desire to use similar, less stigmatizing terminology without changing the underlying scope of coverage of the regulation.

According to the Federal Registrar, OPM received 12 sets of comments to the proposed changes, from private citizens, two Federal agencies, a university law center, a professional organization, and a disability advocacy group.

One individual commentator raised concerns that by removing the certification requirement, agencies may be less inclined to hire a person with disabilities, particularly if the person has little work experience, because the certification provided an objective basis for the hiring decision. OPM declined to adopt this position, stating that the benefits of speeding up the process and removing the unnecessary paperwork burden outweighed any possible disadvantages of the change.

Several commentators supported the proposed changes as being improvements to the employment of people with disabilities.

Many other comments and suggestions were received, which OPM acknowledged, but concluded were beyond the scope of these proposed changes.

OPM reported that in 2011, people with disabilities represented 7.96 percent of all new hires, and when veterans who are 30 percent or more disabled are included, people with disabilities represent 14.7 percent of all new hires or 18,738 people.

The final regulation can be found on the Federal Registrar:

Anne O'Donnell is a recovering litigator who is now currently a Senior Writer for legal professional content at FindLaw.com. She practiced for 10 years in civil litigation in San Francisco.