Audit, Compliance and Risk Blog

Federal laws prohibit employers from basing employment decisions on a variety of factors, including “disability.” Private employers are subject to the Americans with Disabilities Act (ADA), while public agencies are subject to the Rehabilitation Act. Both laws are administered and enforced by the Equal Employment Opportunity Commission (EEOC), with states generally cooperating with EEOC or imposing similar requirements on state and local agencies. EEOC generally provides the same requirements and guidelines to both sets of employers, but there are differences.

On January 3, 2017, EEOC issued a revised regulation under the Rehabilitation Act designed to make federal agencies “model employers” regarding hiring and employment of people with disabilities, by requiring agencies to do markedly more than private employers. The new regulation is scheduled to become effective on March 6, 2017, requiring compliance to begin by January 3, 2018. The incoming Trump Administration may revise or revoke these changes, but for now they provide an interesting trigger for all employers to consider what they’re doing for present or potential employees with disabilities.

What Do ADA and the Rehabilitation Act Presently Require?

ADA and the Rehabilitation Act forbid employment discrimination based on disability, and require “reasonable accommodations” by employers to the special needs of disabled employees and job applicants unless this would impose “undue hardship” on the employer. EEOC’s Rehabilitation Act regulation adopts definitions from ADA regulations. ADA defines a disability as any of the following:

• A physical or mental impairment that substantially limits one or more of a person’s major life activities.

•  A record of such an impairment.

•  “Being regarded as having such an impairment” by the covered entity (employer, agency, etc.), for purposes of anti-discrimination requirements.

EEOC regulations define terms, and extensive EEOC guidance to employers, employees and enforcement personnel embody interpretations by the agency and federal courts.

What New Standards is EEOC Imposing on Federal Agencies?

EEOC’s regulation establishes the following goals:

“The Federal Government shall be a model employer of individuals with disabilities. Agencies shall give full consideration to the hiring, advancement, and retention of qualified individuals with disabilities in the federal workforce. Agencies shall also take affirmative action to promote the recruitment, hiring, and advancement of qualified individuals with disabilities, with the goal of eliminating under-representation of individuals with disabilities in the federal workforce.”

To meet this expansive goal, EEOC directs all federal agencies to do the following:

● Establish Workforce Goals

Agencies are to pursue goals that employees with disabilities (using the same definition as ADA) will comprise 12% of agencies’ workforce, of which employees with “targeted disabilities” will comprise 2%. EEOC defines “targeted disabilities” as those listed by the federal Office of Personnel Management (OPM). These consist of:

• Developmental disabilities (citing autism spectrum disorder as an example).

•  Traumatic brain injuries.

•  Deafness or serious difficulty hearing.

•  Blindness or serious difficulty seeing even when wearing glasses.

•  Missing extremities.

•  Significant mobility impairments, benefitting from a wheelchair, scooter, walker, leg brace(s) and/or other supports.

•  Partial or complete paralysis.

•  Epilepsy and other seizure disorders.

•  Intellectual disabilities.

•  Psychiatric disabilities.

•  Dwarfism.

•  Significant disfigurement (e.g., from wounds, accidents, or congenital disorders.

● Establish an Affirmative Action Plan

Each federal agency is to adopt and implement a Plan with “sufficient assurances, procedures, and commitments to provide adequate hiring, placement, and advancement opportunities for individuals with disabilities…” EEOC provides detailed requirements for the following Plan elements:

• Disability hiring (recruitment) and advancement program

•  Disability anti-harassment policy

•  Reasonable accommodation procedures, including agency-level resource consideration of “undue hardship” based on costs and/or disruption, interactive processes with employees, and formal notice when accommodations are denied

•  Accessibility of facilities and technology

•  Personal assistance services if needed as supplement to reasonably accommodation, and would not impose undue hardship – availability to be publicized

•  Utilization analysis to evaluate disabled workforce population, to be updated periodically

•  Recordkeeping

The big innovation here is the requirement for "personal assistance services", which expands on typical employer requirements and could be quite burdensome, depending on an individual employee's needs and the limits of "undue hardship" on the employer.

● EEOC Approval of Agency Plans

EEOC is to review each agency plan for compliance with these requirements, and formally approve or disapprove each plan.

Self-Evaluation Checklist

Does the organization have a formal policy toward employing and promoting people with disabilities, and against disability-based discrimination?

Does the organization administer procedures for development of reasonable accommodations when appropriate?

Does the organization assign responsibility for preventing, reporting and addressing possible instances of disability discrimination?

Does the organization follow-up appropriately to reporting of possible disability discrimination?

Does the organization compile information about the employment and advancement of employees with disabilities, for internal use and/or public reporting?

Where Can I Go For More Information?

• EEOC’s new rule (Federal Register publication) 

• EEOC Q&A document for new regulation 

• EEOC Disability Discrimination web portal 

Specialty Technical Publishers (STP) provides a variety of single-law and multi-law services, intended to facilitate clients’ understanding of and compliance with requirements. These include:

• OSHA Auditing - Federal Compliance Guide: Facilities: The Complete Safety & Health Audit Checklist 

• OSHA Compliance: A Simplified National Guide

• OSHA State Differences Summaries and Checklists

• OSHA Auditing - California Occupational Health and Safety Audit Guide

• Workplace Violence Prevention: A Practical Guide to Security on the Job

About the Author

photo credit: weiss_paarz_photos Wheelchair - Empty Wheelchair via photopin (license)