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OHR Guidance 02-2020, Schedule A Persons With Disabilities

Effective Date 06/15/2020, Rev 10/30/2020

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
2 10/30/2020 Revision based on regulatory changes to 5 CFR Part 302 published 11/06/2020 which lists the Schedule A Persons with Disabilities authority (213.3102(u)) under 5 CFR Part 302.101(c).   Office of Human Resources Policy & Accountability Division employmentpolicy@hhs.gov

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

Date:
2020-10-30


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.

When provisions of this guidance differ from changes in applicable law or regulation, the changes in law or regulation apply.

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 302.101(c), Positions Exempt from Appointment Procedures
  10. 5 CFR §315.709, Appointment for Persons with Disabilities
  11. 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
  12. HHS Instruction 330-2, Priority Placement Programs (CTAP, ICTAP, RPL, PRL)
  13. OPM Vet Guide, Veterans' Preference in Appointments, Excepted Service Employment (for definition of administratively feasible)
  14. OPM Standard Form (SF) 256, Self-Identification of Disability Form
  15. Uniform Guidelines on Employee Selection Procedures

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 and OPM policy and guidance, and all applicable federal laws and regulations when making appointments under the Schedule A, Persons with Disabilities, authority.
    2. Establish written internal recruitment procedures for persons with disabilities , ensuring procedures are applied uniformly and positions are filled in accordance with the merit system principles, the principle of veterans' preference, and the requirements under 5 CFR §302.101(c).
    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.
    4. Recommended Language:

      [Name of doctor/medical professional]:

      [Applicant Name] has applied for a position at the U.S. Department of Health and Human Services under a hiring authority for persons with intellectual disabilities, severe physical disabilities, or psychiatric disabilities. [Mr./Ms. Applicant's Name] has provided the [enclosed or attached] medical documentation from you/your office dated [date] that states [he/she] has the following disability/medical condition:

      [Disability/medical condition listed on medical documentation provided by applicant]

      We ask your cooperation in verifying the [enclosed or attached] medical documentation your patient provided in his/her employment application was completed and/or authorized by you/your office. Please DO NOT submit a copy of the patient's medical records.

      Please reply to this [letter/email] so I can confirm that [Mr./Ms. Applicant's Name] is eligible for appointment to a federal position under the hiring authority for persons with disabilities.

      Thank you,

    5. 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.
    6. 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. 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. Such Schedule A applicants are placed on an excepted service certificate with other Schedule A applicants and are assessed and 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, then 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.
  2. Recruitment, Assessment, and Selection for positions filled via Schedule A, 5 CFR §213.3102(u):
    1. Schedule A Persons with Disabilities appointments are exempt from the excepted service hiring procedures; however, hiring procedures must adhere to the merit system principles and the requirements under 5 CFR §302.101(c).
    2. Recruitment. OpDiv/StaffDivs must use recruitment methods that notify potential applicants of vacancies within HHS 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. OpDiv/StaffDiv HR Centers must establish procedures on their recruitment methods and assessment procedures, and apply them uniformly to all applicants.
    3. Qualification Requirements. Schedule A, Persons with Disabilities, applicants must meet the OPM qualification requirements for the position (series/grade) they are selected.
    4. Veterans' Preference (5 CFR §302.101(c) and OPM Vet Guide, Veterans' Preference in Appointments, Excepted Service Employment). When considering more than one (1) Schedule A applicant and one (1) or more applicant is a preference eligible, HR Centers:
      1. Must apply veteran's preference as far as administratively feasible, i.e. military service is a positive factor when assessing candidates. Applicant lists will annotate which applicants are veterans.
      2. Must provide preference eligible applicants the reason(s) for non-selection upon request.
    5. HHS Priority Reemployment List (PRL). Selection priority must be provided to former HHS excepted service employees who are registered on HHS Priority Reemployment List (PRL) before referring the names of other qualified candidates, in accordance with 5 CFR §302.101(c) and HHS Instruction 330-2, Priority Placement Programs. Sufficient documentation must be retained to demonstrate PRL clearance for each vacancy.

      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).
    6. When a non-preference eligible applicant is selected over a preference eligible applicant, the pass over procedures under 5 U.S.C. 3318 are not required to be followed (Jarrad vs DOJ, 669 F.3d 1320 (9th Cir. 2012); however HR Centers must document reasons for non-selection (see 3.d. above).

G. Promotions.

  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, otherwise the action is a prohibited personnel practice (5 U.S.C. §§2301 and 2302).
  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. Adverse Actions and Appeals.

  1. Excepted service employees who meet the definition of 'employee' under 5 U.S.C. § 7511(a)(1)(B-C) generally have appeal rights to the Merit Systems Protection Board for adverse actions.
  2. Servicing Employee Relations staff should be consulted when dealing with unacceptable performance and/or employee misconduct to ensure actions are in compliance with law, regulations, HHS policy, and applicable collective bargaining agreement(s).
  3. Individuals entitled to priority consideration who are preference eligibles, or suffered compensable injury, have appeal rights to the MSPB if they believe their reemployment rights were violated (5 CFR §§302.101(c); 302.103; and 302.501).

J. Documentation and Accountability.

  1. Records associated with personnel actions, including all documentation sufficient for third party reconstruction purposes, must be retained according to the record disposition schedule. Generally, all records created in a given year must be retained for a total of three (3) full years. Records involved in litigation and grievance processes may be destroyed only after official notification is received from OPM, Department of Justice, courts, the Office of the General Counsel etc. that the matter has been fully litigated, or resolved, and closed.
  2. HHS OHR will conduct periodic accountability reviews to analyze compliance with this guidance, HHS and OPM policy and guidance, and all applicable federal laws and regulations.

K. Guidance Information

Owned by: Office of Human Resources, Policy and Accountability Division (PAD)
Effective date: 06/15/2020, Rev 10/30/2020
Contact Information:
employmentpolicy@hhs.gov

Content created by Assistant Secretary for Public Affairs (ASPA)
Content last reviewed on November 23, 2020