29 C.F.R. 1614 Final Rule effective June 20, 2002
Implements the amendment of section 501 of the Rehabilitation Act, under the Rehabilitation Act Amendments of 1992. This rule continues the movement towards full integration of individuals with disabilities into the Federal workforce.
Highlights of the Final Rule
- Incorporates by reference the EEOC's ADA regulation, at 29 C.F.R. 1630.
- The regulatory limits on reassignment of federal employees with disabilities as a reasonable accommodation, formerly included in 29 C.F.R. 1614.203(g), have been deleted, and the ADA standard will now be applied. **
- Amends the federal sector disability regulation, 29 C.F.R. 1614.203, and sets for the obligation of the federal government to be the "model employer of individuals with disabilities."
** The ADA specifically lists "reassignment to a vacant position" as a form of reasonable accommodation. This type of reasonable accommodation must be provided to an employee who, because of a disability, can no longer perform the essential functions of his/her current position, with or without reasonable accommodation, unless the agency can show that it would be an undue hardship.
Before considering reassignment as a reasonable accommodation, the agency should first consider those accommodations that would enable an employee to remain in his/her current position. Reassignment is the reasonable accommodation of last resort and is required only after it has been determined that:
- there are no effective accommodations that will enable the employee to perform the essential functions of his/her current position, or
- all other reasonable accommodations would impose an undue hardship.
A vacant position means that the position is available when the employee asks for reasonable accommodation, or that the agency knows that it will become available. A position is considered vacant even if an employer has posted a notice or announcement seeking applications for that position. The employer does not have to bump an employee from a job in order to create a vacancy; nor does it have to create a new position.
If there is no vacant equivalent position, the employer must reassign the employee to a vacant lower level position for which the individual is qualified. Assuming there is more than one vacancy for which the employee is qualified, the employer must place the individual in the position that comes closest to the employee's current position in terms of pay, status, etc. The ADA contains no language limiting the obligation to reassign only to positions within an office, branch, agency, etc. Rather, the extent to which an agency must search for a vacant position will be an issue of undue hardship. If an employee is being reassigned to a different geographical area, the employer must pay for any relocation expenses if it routinely pays such expenses when granting voluntary transfers to other employees.
The Interactive Process
A request for reasonable accommodation and the informal interactive process are two distinct steps. The agency must engage in the interactive process if the disability or the type of accommodation needed are not obvious.