On January 3, 2017, the EEOC published a Final Rule on Affirmative Action for Individuals with Disabilities in Federal Employment. Section 501 of the Rehabilitation Act prohibits Federal agencies from discriminating against individuals with disabilities in employment and requires agencies to be model employers - that is, to engage in affirmative action on behalf of individuals with disabilities in order to promote their hiring, promotion, and retention. The Final Rule clarifies the obligations that the Rehabilitation Act of 1973 imposes on Federal agencies, as employers, that are over and above the obligation not to discriminate on the basis of disability. The requirements in the regulations apply to agencies as of January 3, 2018.
The final rule requires Federal agencies to provide "personal assistance services" (PAS) as a form of affirmative action.1 PAS provide employees with targeted disabilities "assistance with performing activities of daily living that an individual would typically perform if they did not have a disability, and that is not otherwise required as a reasonable accommodation, including, for example, assistance with removing and putting on clothing, eating, and using the restroom."2 PAS must be performed by a personal assistance service provider. Also, PAS must be provided to employees who need them when they telework under an agency's telework policy or telework as a reasonable accommodation.
PAS also must be provided when needed because of job-related travel. An employee receiving PAS in the office or while teleworking must still request PAS for job-related travel. The EEOC will not necessarily know that PAS is required for travel simply because an employee regularly receives PAS while at the worksite or while teleworking. It is also possible that an employee may require different PAS for travel than usually required. Since PAS for job-related travel are also considered a form of reasonable accommodation, requests for these services will be handled as requests for reasonable accommodation.
Employees do not need to determine if what they need is a reasonable accommodation or PAS; they should simply contact the EEOC's Disability Program Manager (see below) and explain what they need. The DPM will determine whether the request is for reasonable accommodation or PAS and proceed accordingly.
The EEOC must provide PAS if:
The EEOC is prohibited from taking any adverse action against job applicants or employees based on their need, or perceived need, for PAS.
Undue hardship considers the nature, extent, and cost of an accommodation or of providing personal assistance services in relation to an agency's overall resources and the impact of the accommodation or of the requirement to provide personal assistance services on the operation of the agency's business. Determination of undue hardship is always made on a case by case basis.
A "targeted disability" is one that is designated as a "targeted disability or serious health condition" on the U.S. Office of Personnel Management's Standard Form 256 https://www.opm.gov/Forms/pdf_fill/sf256.pdf. Some targeted disabilities for which PAS may be needed include:
EEOC has designated a DPM to conduct the interactive process, request medical information as necessary, and determine whether to grant or deny PAS. The DPM handles all requests for PAS, even those requests made to a supervisor or manager. See Section VII on how to contact the DPM.
The Chief Human Capital Officer will designate another staff member of the Office of the Chief Human Capital Officer (OCHCO) to be the Acting DPM to process requests when the DPM is unavailable for three or more days (e.g., the DPM is on vacation or out on extended leave). The time frames will not be extended for such absences unless they can be considered extenuating circumstances. The DPM's e-mail and phone messages will make clear how to contact the Acting DPM. The Acting DPM is expected to fully comply with applicable time frames, and must be familiar with the DPM's role and the PAS obligation under the affirmative action provision of the Rehabilitation Act.
The following time frames apply to the processing of requests for PAS:
The Final Rule requires Federal agencies to adopt written procedures for processing requests for PAS.4 Consistent with the Final Rule, the EEOC will generally use the same Procedures it follows for processing requests for reasonable accommodation and will follow the same time frames for processing requests. This means employees should follow the guidance in the Reasonable Accommodation Procedures if they want to request PAS. Similarly, the responsibilities of the DPM, the employee, and other relevant EEOC staff (e.g., supervisors and managers) during the interactive process, as discussed in the Reasonable Accommodation Procedures, apply to requests for PAS. The DPM will also follow the Reasonable Accommodation Procedures as they address requests for medical information and confidentiality. The Reasonable Accommodation Procedures may be found at https://www.eeoc.gov/eeoc/internal/reasonable_accommodation.cfm.
The provision of PAS may require the DPM to consult with a supervisor and/or manager to ensure that a personal assistance service provider has appropriate access to agency facilities and equipment.
Any individual wanting further information concerning these Procedures may contact the DPM via e-mail at firstname.lastname@example.org.
These Procedures shall be distributed to all employees upon issuance. They will also be posted on the EEOC's Intranet site, included in the employee handbook, and be available in the EEOC's library, in the Office of Equal Opportunity, and the Office of the Chief Human Capital Officer. They will be distributed to all new employees as part of their orientation on their first day of work. These Procedures will be provided in alternative formats when requested from the DPM by, or on behalf of, any EEOC employee.
Victoria A. Lipnic
1 29 C.F.R. §1614.203(d)(5)(i). For more information on the obligation to provide PAS, see EEOC's Q&A document at https:/www1.eeoc.gov/federal/directives/personal-assistance-services.cfm.
2 29 C.F.R. §1614.203(a)(5).
3 29 C.F.R.§1614.203(d)(5)(i)(A-C).
4 29 C.F.R. §1614.203(d)(5)(v).