Seyfarth Synopsis: These new regulations require federal agencies to be “model employers” of individuals with disabilities. As such, they now must take specific steps that are “reasonably designed” to gradually increase the number of employees who have a disability.

We had blogged previously about the Equal Employment Opportunity Commission’s Advance Notice of Proposed Rulemaking (ANPR), inviting the public to comment on how it should amend its regulations implementing Section 501 of the Rehabilitation Act of 1973, and to clarify the federal government’s obligation to be a model employer of individuals with disabilities. 79 Fed. Reg. 27824 (May 15, 2014).

The regulations — which apply only to federal agencies — that previously implemented the Section 501 affirmative action requirement simply stated that the federal government shall be a “model employer of individuals with disabilities,” and that federal agencies shall “give full consideration to the hiring, placement, and advancement of qualified individuals with disabilities.”

While the “model employer” of individuals with disabilities provisions of Section 501 require affirmative action and non-discrimination in employment only by federal agencies, what the EEOC determines to be best practices for federal agencies may be a preview of how it will handle private sector disability claims and charges. The regulations imposed an obligation on federal agencies to be “model employers” of individuals with disabilities, but did not explain what federal agencies needed to do to comply with the obligation.

Now the Final Rule, 82 Reg. Reg. 654 (January 3, 2017), requires those federal agencies to take specific steps that are “reasonably designed to gradually increase the number of employees who have a disability as defined under Section 501, and the number of employees who have a ‘targeted disability,’ which is defined for purposes of this Rule to mean a disability that is either designated as ‘targeted disability or health condition’ on the Office of Personnel Management’s (OPM’s) Standard Form 256, or that falls under one of the first 12 categories of disability listed in Part A of Question 5 of the EEOC’s Demographic Information on Applicants form (Applicant Flow Form), until they meet specific goals set by the EEOC.”

Targeted disabilities are defined as “disabilities that the government has, for several decades, emphasized in hiring because they pose the greatest barriers to employment, such as blindness, deafness, paralysis, convulsive disorders, and mental illnesses, among others.”

The EEOC indicates that the New Final Rule is similar to the approach taken by the DOL’s Office of Federal Contract Compliance Programs in regulations issued to implement the obligation of federal contractors to engage in affirmative action for individuals with disabilities pursuant to Section 503 of the Rehabilitation Act of 1973, 29 U.S.C. 793 (Section 503). See for instance, 41 CFR pt. 60-741.45(a), establishing a 7% utilization goal for employment of qualified individuals with disabilities in each job group in the contractor’s workforce. According to the EEOC news release, the regulations “set goals for federal agency workforces of 12 percent representation for individuals with disabilities, and 2 percent for individuals with ‘targeted’ disabilities.”

In addition, this New Rule requires agencies to provide personal assistance services (PAS) to employees who, because of targeted disabilities, require assistance in order to be at work or participate in work-related travel. PAS are services that help individuals with disabilities are to perform activities of daily living, including assistance with removing and putting on clothing, eating, and using the restroom.

The EEOC has also published a question-and-answer document for the new regulations.

The Rule provides federal agencies one year to make any necessary changes in policy, staff, or other aspects of their operations. The Rule is effective on March 6, 2017, and applicable on January 3, 2018.

The Rule specifically applies to federal employers. However, as noted above, this may also impact the EEOC’s handling of disability claims generally. The EEOC continues to make protecting individuals with disabilities a top priority. Employers that work on or seek to contract for government projects should vigilantly review their policies, procedures and practices to ensure that they are also acting as a “model” employer as that has been defined by the agency.