By Deryn Sumner

Over the past year or so, EEOC has sought public comment regarding revisions to the regulations at 29 CFR 1614, as well as its guidance regarding workplace retaliation. It now seeks public input regarding a proposed amendment to the regulations concerning the employment of individuals with disabilities in the federal government.  This continues the administrative rulemaking process started in 2014 when the EEOC issued an Advance Notice of Proposed Rulemaking. At that time, EEOC sought general comments on how the regulations could be improved to highlight the federal government’s priority in serving as a model employer of individuals with disabilities. According to this latest posting, EEOC received 89 comments, of which 80 were generally supportive of the Commission’s proposal to amend its regulations.  The Notice of Proposed Rulemaking (NPRM) issued recently seeks to simplify the directives and guidance contained in the Americans with Disabilities Act of 1990 and its implementing regulations, Management Directive 715, and various executive orders.  The NPRM also seeks to modify the goals for federal agencies in hiring individuals with disabilities and would change the MD-715 reporting requirements accordingly.

I think the most interesting aspect of the NPRM is the inclusion of personal services. As the summary explains, “Personal services allowing employees to participate in the workplace may include assistance with eating, drinking, using the restroom, and putting on and taking off clothing. For many individuals with targeted disabilities such as paralysis or cerebral palsy, full participation in the workplace is impossible without such services. The lack of PAS in the workplace and/or the fear of losing personal services provided by means-tested assistance programs are stubborn and persistent barriers to employment for individuals with certain significant disabilities.”

The proposed rulemaking notes that agencies would not be required to provide such personal services as reasonable accommodations. However, these changes would require agencies to provide personal services as part of the agency’s affirmative action plan as long as doing so would not cause an undue hardship. [Editor’s Note: Feels a bit like EEOC is making a distinction without a difference. Does an agency have to employ someone to provide personal services for a disabled employee? No, not as a reasonable accommodation; yes, as part of the agency’s affirmative action plan.] This requirement can be fulfilled by hiring employees to perform personal services along with other duties, or to hire personal assistants who would assist more than one individual with a disability.  The summary notes that agencies could consider having a pool of personal assistants throughout the agency or at a particular location, and notes that many agencies currently use such a pooling system to provide sign language interpreters.

The EEOC’s NPRM comes after OPM issued a report to the President on October 9, 2015, noting, “By the end of Fiscal Year (FY) 2014, total permanent Federal employment for people with disabilities had increased from 234,395 in FY 2013 to 247,608, representing an increase from 12.80 percent to 13.56 percent. New hires with disabilities totaled 20,615, representing an increase from 18.18 percent in FY 2013 to 19.74 percent in FY2014.” The full report is available here: https://www.opm.gov/policy-data-oversight/diversity-and-inclusion/reports/disability-report-fy2014.pdf if you are interested in seeing how your agency stacks up. The comment period closes on April 25, 2016 and comments in response to the NPRM can be submitted here: https://www.federalregister.gov/articles/2016/02/24/2016-03530/affirmative-action-for-individuals-with-disabilities-in-the-federal-government. Sumner@FELTG.com

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