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OHR Guidance 02-2020, Schedule A Persons With Disabilities

Effective Date 06/15/2020

Document Change History

Version Number Release Date Summary of Changes Section/Page Changes Made By
1 06/15/2020 Release N/A Office of Human Resources Policy & Accountability Division employmentpolicy@hhs.gov

Approved:
/s/
J. Blair Duncan
Deputy Assistant Secretary for Human Resources

A. Purpose.

This guidance is provided to establish procedures and clarify regulatory requirements for the employment of persons with disabilities under Schedule A in the U.S. Department of Health and Human Services (HHS). This guidance is used in conjunction with HHS Instruction 302-1, Employment in the Excepted Service, which covers these positions.

B. Coverage.

This guidance covers only Schedule A positions filled under the excepted service authority, 5 CFR §213.3102(u), regarding persons with intellectual disabilities, severe physical disabilities, or psychiatric disabilities (hereinafter “Persons with Disabilities” or ‘Schedule A’). The authority must be cited when filling positions.

C. References.

  1. 5 U.S.C. §3320, Excepted Service; selection
  2. 29 U.S.C. §701, et seq., The Rehabilitation Act of 1973
  3. 42 U.S.C. §12101, et seq., The Americans with Disabilities Act of 1990, as amended
  4. 42 U.S.C. §12102, Definition of Disability
  5. 5 CFR Part 3, Noncompetitive Acquisition of Status
  6. 5 CFR Part 211, Veterans Preference
  7. 5 CFR §213.104, Special provisions for temporary, time-limited, intermittent, or seasonal appointments in Schedule A, B, C, or D
  8. 5 CFR §213.3102(u), Schedule A Hiring Authority for appointment of persons with intellectual disabilities, severe physical disabilities, or psychiatric disabilities
  9. 5 CFR Part 302, Employment in the Excepted Service
  10. 5 CFR §315.709, Appointment for Persons with Disabilities
  11. 11. 81 FR 86290-01, 2016 WL 6962944 (Nov. 30, 2016) (proposed rule regarding exempting positions filled under 5 C.F.R. § 213.3102(u) from the procedures of 5 CFR Part 302)
  12. EEOC Notice, No. 915.002, EEOC Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (ADA), July 27, 2000
  13. HHS Instruction 302-1, Employment in the Excepted Service, April 8, 2020
  14. OPM Standard Form (SF) 256, Self-Identification of Disability Form

D. Responsibilities.

  1. HHS Assistant Secretary for Administration, Office of Human Resources (OHR):
    1. Develops Department-wide human resources guidance and policy consistent with HHS and OPM policy, procedures and all applicable federal laws and regulations.
    2. Periodically reviews Operating Division and Staff Division (OpDiv/StaffDiv) procedures, actions, and reports to assure conformance with HHS and OPM policy and guidance, and all applicable federal laws and regulations.
  2. OpDiv and StaffDiv Human Resources Offices (HROs):
    1. Comply with this guidance, HHS Instruction 302-1, Employment in the Excepted Service, and applicable federal laws and regulations when making appointments under the Schedule A, Persons with Disabilities, authority.
    2. Establish written internal procedures regarding the acceptance, rating, and ranking of applications, as required by 5 CFR §§302.301 and 302.302(a), ensuring procedures are applied uniformly and positions are filled in accordance with the merit system principles and the principle of veterans’ preference.
    3. Adhere to the time-limits for temporary and time-limited appointments under 5 CFR §213.104.

E. Procedures.

  1. Verifying Proof of Disability Prior to Appointment
    1. In general, the American with Disabilities Act (ADA) does not allow an employer to ask questions about a disability until after the employer makes a conditional job offer; however, an employer may invite applicants to voluntarily self-identify as a person with a disability. Applicants who identify themselves as ‘Schedule A’ when applying to federal positions are self- identifying themselves as an individual with a disability, in accordance with the USAJOBS’ hiring paths.
    2. To be eligible for an appointment under the Schedule A, Persons with Disabilities, authority, the applicant must have a disability that meets the Rehabilitation Act of 1973 (“Rehab Act”) definition of a disability and must submit proof of their disability prior to appointment. The Self-Identification of Disability Form, OPM Standard Form (SF) 256, lists disabilities that meet the Rehab Act’s definition of a disability; however, this list is not exhaustive and an individual may be eligible for an appointment even though he/she has a disability that is not on the SF-256 list, if he/she meets the requirements of 5 CFR §213.3102(u).
    3. Prior to making a tentative job offer, the OpDiv/StaffDiv (e.g., Special Placement Program Coordinator (SPPC), servicing HR Specialist, etc.) must verify the authenticity of medical documentation from a medical professional described in 5 CFR §213.3102(u)(3)(ii) by contacting the medical professional. Contact information should be verified/obtained independently (via online, telephone directory, etc.) to ensure the request is received by the medical professional listed on the documentation. The medical provider’s confirmation that the proof of disability provided by the applicant is authentic must be in writing and documented in the case file.OHR Guidance 01-2020, Schedule A Persons With Disabilities Recommended Language
    4. Documentation from an agency that issues or provides disability benefits, as described under 5 CFR §213.3102(u)(3)(ii), may be accepted without further confirmation, if the documentation is official (i.e., on letterhead, signed and dated by the agency, and certifies the applicant is receiving benefits due to a disability). If this proof is not provided by the applicant, then the documentation must be verified following the procedures in Section E.1(c) above.
    5. Per the SF-256, employees hired via the Schedule A, Persons with Disabilities, authority are required to complete the SF-256. If the employee declines to identify his/her disability on the form, their disability code is obtained from the medical documentation that was used to support their appointment.

F. Filling Positions.

  1. Proposed Rule Change. In 2016, OPM proposed a regulation change to exempt the Schedule A, Persons with Disabilities, authority (5 CFR §213.3102(u)) from the 5 CFR Part 302 hiring procedures by listing 5 CFR §213.3102(u) under 5 CFR §302.101(c), positions exempt from 302 appointment procedures. Until such regulation changes are published, the hiring procedures under 5 CFR Part 302 and HHS Instruction 302-1, Employment in the Excepted Service, apply when filling positions under 5 CFR §213.3102(u). See proposed rule, Section C.11.
  2. Recruitment. Public notice is not required to fill positions under Schedule A; however, the merit system principles apply to excepted service recruitment. OpDiv/StaffDivs must use recruitment methods that notify applicants of excepted service vacancies within their division so interested applicants have a reasonable opportunity to apply.  Notification options, include, but are not limited to, notice on the HHS or division’s website of existing or future vacancies; notices provided at job fairs; or a traditional job opportunity announcement (JOA). Strategic outreach that includes disability-related publications and organizations may also be considered. OpDivs/StaffDivs must establish procedures on their recruitment methods and acceptance of applications, and apply them uniformly to all applicants (5 CFR §302.301 and HHS Instruction 302-1, Employment in the Excepted Service).
  3. Hiring Process. Persons with disabilities may be hired via:
    1. Non-competitive Schedule A hiring process – Applicants who apply for jobs under Schedule A, Persons with Disabilities, authority are not required to compete with non-Schedule A, Persons with Disabilities, applicants for a position; however, if more than one (1) applicant applies for a vacancy under Schedule A, they compete with each other following the 5 CFR Part 302 hiring procedures outlined in this guidance. Such Schedule A applicants are placed on an excepted service certificate with other Schedule A applicants and are appointed via Schedule A, 5 CFR §213.3102(u);
    2. Competitive process – Persons with disabilities may also apply under the traditional competitive hiring process and be considered for federal positions in the same manner as applicants without disabilities, and be appointed via the hiring authority for the position for which they applied; or
    3. Veterans appointments – Veterans with disabilities may also be considered and appointed via the Veterans Recruitment Appointment (VRA); 30% or More Disabled Veterans Program; or Veterans Employment Opportunity Act (VEOA) special hiring authorities.
  4. Assessment and Selection.
    1. Schedule A, Persons with Disabilities, applicants must meet the OPM qualification requirements for the position they are selected.
    2. OpDivs/StaffDivs do not need to provide selection priority to displaced or surplus candidates under the Career Transitions Assistance Plan (CTAP), Interagency Career Transition Assistance Plan (ICTAP) or the Reemployment Priority List (RPL) before making a Schedule A, persons with disabilities appointment, in accordance with 5 CFR §§ 330.211(i) (RPL), 330.609(i) (CTAP), and 330.707(g) (ICTAP).
    3. However, OpDivs/StaffDivs must provide selection priority to former HHS excepted service employees who are registered on HHS Priority Reemployment List (PRL) before referring the names of other qualified Schedule A, persons with disabilities candidates, in accordance with 5 CFR §302.304(a) and HHS Instruction 330-2, Priority Placement Programs. HROs are required to retain sufficient documentation to demonstrate PRL clearance for each vacancy.
    4. OpDiv/StaffDivs should follow the assessment and selection procedures, including the pass over procedures, outlined in HHS Instruction 302-1, Employment in the Excepted Service (Sec 302-1-80), when considering more than one (1) candidate for a vacancy.
    5. When considering more than one (1) Schedule A applicant and one (1) or more applicant is a preference eligible, OpDivs/StaffDivs must apply 5 CFR Part 302 veterans’ preference procedures. (See HHS Instruction 302-1, Employment in the Excepted Service, Sec 302-1-80.)

G. Promotions. Consistent with HHS Instruction 302-1, Employment in the Excepted Service:

  1. Schedule A Promotions. Employees may be promoted within the excepted service under the following conditions:
    1. Promotions within the excepted service are not subject to the time-in-grade restrictions outlined in 5 CFR Part 300, Subpart F; however, excepted service employees must meet the qualification requirements for the position. OpDivs/StaffDivs will waive the qualifications specified under 5 CFR §302.403 for preference eligibles.
    2. The merit system principles apply to promotions within the excepted service; therefore, the employee must compete/have competed for the proposed position/grade level.
  2. Promotions Upon Conversion. Schedule A, Persons with Disabilities, employees may be promoted upon conversion to the competitive service under the following conditions:
    1. If the Schedule A employee is in an excepted service position with a career ladder and the employee competed for the proposed position/grade level, and
    2. The Schedule A employee meets the qualification requirements for the competitive service position at the time of conversion, then promotion upon conversion is permissible as follows:
      1. The promotion action is processed first, while the employee is a Schedule A employee, then
      2. The non-competitive conversion to the competitive service is processed as the second personnel action.
  3. Promotions After Conversion. Competitive service rules, including time-in-grade, apply.

H. Conversions

  1. Employees on a temporary Schedule A, Persons with Disabilities, appointment are not eligible for non-competitive conversion to the competitive service. Time served in a temporary appointment under 5 CFR § 213.3102(u) does not count toward the two (2) year service requirement for non-competitive conversion (5 CFR §§ 213.3102(u)(6)(ii) and 315.709(a)(1)).
  2. An employee on a permanent or time-limited (i.e., with a NTE date) appointment may be non-competitively converted to a career or career-conditional appointment in the competitive service if the employee meets the following requirements (5 CFR Part 3; 5 CFR §§ 213.3102(u)(6) and 315.709):
    1. Completes two (2) or more years of satisfactory service, without a break of more than 30 days, on a non-temporary appointment under 5 CFR §213.3102(u);
    2. Is recommended for conversion by his or her supervisor;
    3. Meets all requirements and conditions governing career and career-conditional appointment, except those requirements concerning competitive selection from a register and medical qualifications; and
    4. Is converted without a break in service of one (1) workday.

I. Guidance Information

Owned by: Office of Human Resources, Policy and Accountability Division (PAD)
Effective date: June 15, 2020
Contact Information: employmentpolicy@hhs.gov

Content created by Assistant Secretary for Public Affairs (ASPA)
Content last reviewed on June 24, 2020