EEOC finalizes rule on federal employees with disabilities - but will it survive the "freeze"?

Louise Davies

On January 3, the Equal Employment Opportunity Commission issued final regulations intended to increase the number of individuals with disabilities employed by federal agencies. The new regulations require that each federal agency aim to have a workforce of which 12 percent have disabilities and 2 percent of that 12 percent have "targeted" or severe disabilities. A list of targeted disabilities is found in the EEOC’s Q&A on the final regulations.

As part of the regulations, federal agencies are also required to provide personal assistance services, such as assistance with eating or using the restroom.  However, such services do not include medical care.

These regulations, if they take effect, will apply only to federal agencies. They will not apply to private employers, or to local or state governments. 

This affirmative action rule for the federal government is significantly broader than the requirements that apply to federal contractors. The regulations implementing Section 503 of the Rehabilitation Act set a national utilization goal of 7 percent for each job group within a contractor’s workforce and do not set a separate goal for targeted disabilities.

Although the rule will not be enforced until January 3, 2018, the effective date is March 6, 2017. Because the rule has not yet become effective, it is subject to the Trump Administration’s “regulatory freeze,” which delays all yet-to-become-effective regulations until 60 days from the Inauguration, which took place on January 20. With respect to this particular rule, the freeze would result in a two-week delay of the effective date, until March 20, 2017. However, the EEOC could propose a formal rule to further delay this effective date as permitted by the President’s Memorandum on pending regulations.

Even if the rule does take effect, the President's hiring freeze may render the rule moot for many federal agencies and agency positions.

UPDATE (1/25/17, 4:03 p.m. EST): Law360 reported this afternoon that President Trump has appointed Victoria Lipnic as Acting Chair of the Equal Employment Opportunity Commission, replacing Jenny Yang, whose term will expire in July. Ms. Lipnic was an EEOC Commissioner under former President Obama and was Assistant Secretary of Labor for Employment Standards under former President George W. Bush. The appointment of Ms. Lipnic to the top position at the EEOC (at least, on an interim basis) makes it somewhat more likely that the EEOC will seek to extend the regulatory freeze on these regulations beyond March 20, 2017.

Louise Davies is an Affirmative Action Paralegal in Constangy’s Winston-Salem, North Carolina, office. For more than 15 years, she has helped employers develop affirmative action plans and respond to audits and on-site investigations by the Office of Federal Contract Compliance Programs. She also conducts diversity training for employers. Louise is a graduate of Wesleyan College in Macon, Georgia.

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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