FEDweek

Federal Legal Corner: Noncompetitive Hiring of People With Disabilities

The Office of Personnel Management recently issued its final rule concerning excepted service appointments of persons with mental retardation, severe physical disabilities, and/or psychiatric disabilities. The final rule, published in the Federal Register (71 Fed.Reg. 42241), was designed to remove barriers and increase the employment opportunities for individuals with disabilities.

Due to the variety of challenges faced by individuals with severe disabilities, hiring these individuals can be difficult under traditional competitive hiring procedures. In 1979, President Jimmy Carter issued Executive Order 12125 establishing the authorities for hiring individuals with mental retardation or severe physical disabilities into the federal government. Later, President Bill Clinton issued Executive Order 13124 and provided persons with psychiatric disabilities the same hiring opportunities as those persons with mental retardation or severe physical disabilities.

The hiring authorities enabled agencies to more easily hire individuals with these disabilities. These authorities streamlined the hiring process by allowing agencies to hire when it was not feasible or practical to do so using traditional competitive hiring procedures. To be appointed under these hiring authorities, individuals needed to submit proof of their disability status; this proof had to be obtained from either the Department of Veterans Affairs, or from a state vocational rehabilitation agency. After completing two years of satisfactory service, individuals hired under Schedule A authorities are eligible for conversion to federal career service (competitive status).

The new OPM regulation, effective August 25, 2006, consolidates these three authorities into a single “Schedule A” authority. One significant difference in the new regulation is the expansion of the types of entities from which agencies can accept proof of disability status. Under the new authority, agencies are able to accept documentation from a licensed medical professional, a licensed vocational rehabilitation specialist, or any federal, state, or District of Columbia agency that issues or provides disability benefits.

In addition to documentation of disability status, Schedule A appointments now also require a certification of job readiness. A certification of job readiness is a determination that a disabled individual is likely to succeed in the performance of the duties of the position s/he is seeking. Agencies can accept certificates of job readiness from the same entities that are authorized to provide disability status documentation. Agencies also have the discretion to accept the individual’s prior employment under a temporary appointment in either the competitive or excepted services as proof of job readiness.

Recognizing that it may be necessary to observe the individual on the job to determine whether the individual is able or ready to perform the duties of the position, Schedule A also allows agencies to place disabled individuals into temporary appointments, in lieu of job readiness certifications. This temporary employment option is not intended for individuals who are already in the federal workforce who have already demonstrated the ability to perform a certain job. If an agency utilizes the temporary employment option, the agency may then convert these appointments to time-limited or permanent appointments at any time during the temporary appointment.

Individuals with disabilities, especially the specific types of disabilities for which Schedule A appointments were designed, often face seemingly insurmountable barriers to securing employment. As explained in Executive Order 13124, it is the policy of the United States to assure equality of opportunity, full participation, independent living, and economic self-sufficiency of persons with disabilities. The federal government should serve as a model employer of individuals with disabilities. In revising the Schedule A regulations to allow disability certifications from a variety of sources, and by offering more than one option for determining job readiness, OPM has removed potential barriers the employment individuals with disabilities. In doing so, OPM is expanding employment opportunities for many talented individuals and is encouraging individuals with disabilities to realize their full potential in the workforce.

** This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com. **

The attorneys at Passman & Kaplan, P.C, are the authors of The Federal Employees Legal Survival Guide, Second Edition, a comprehensive overview of federal employees’ legal rights. To order your copy, go to http://www.fedweek.com/pub/index.php.