HHS OHR Guidance, Schedule A Persons with Disabilities

Effective Date 06/15/2020, Rev 5/22/2024

Document Change History

Approved:

/s/

Kimberly A. Steide, DPA
Associate Deputy Assistant Secretary for Human Capital
Office of Human Resources

Date: 05/22/2024

A. Purpose

This guidance clarifies the legal and 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, where specifically noted in this guidance.

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 permanent, time-limited, and temporary appointments under the excepted service Schedule A authority, 5 CFR §213.3102(u), for persons with intellectual disabilities, severe physical disabilities, or psychiatric disabilities (hereinafter “persons with disabilities” or ‘Schedule A Disability’). The authority must be cited on personnel actions when filling positions.

The Department will follow all requirements of 5 USC Chapter 71 involving bargaining conditions of employment for bargaining unit employees.  To the extent that provisions of this guidance are in specific conflict with a Collective Bargaining Agreement (CBA), the provisions of the CBA govern for bargaining unit positions only.

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 §3.1(b), 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 315-1, Probationary and Trial Periods
13. HHS Instruction 330-2, Priority Placement Programs (CTAP, ICTAP, RPL, PRL)
14. OPM Vet Guide, Veterans’ Preference in Appointments, Excepted Service Employment (for definition of administratively feasible)
15. OPM Standard Form (SF) 256, Self-Identification of Disability Form

D. Responsibilities

1. HHS Assistant Secretary for Administration, Office of Human Resources (OHR):
   1. Establishes 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 and actions to assure conformance with HHS and OPM policy and guidance, and all applicable federal laws and regulations.
2. OpDiv and StaffDiv Human Resources (HR) Centers:
   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 Disability authority.
   2. Establish internal recruitment procedures for the Schedule A Disability authority in accordance with the merit system principles (5 U.S.C. §2301), and the veterans’ preference and priority consideration requirements in 5 CFR §302.101(c) described in this guidance.
   3. Adhere to the time-limits for temporary and time-limited Schedule A appointments under 5 CFR §213.104.
   4. Document reasons for non-selection in accordance with the notification requirements in 5 CFR §§302.101(c).
   5. Maintain a recruitment case file for each selection covered in this guidance to defend agency action in case of third-party review, in accordance with Section P. of this guidance.

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 USAJOBS’ hiring paths.
   2. To be eligible for an appointment under this Schedule A authority, the candidate 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 they have a disability that is not on the SF-256 list, if they meet the requirements of 5 CFR §213.3102(u).
   3. To be eligible for an appointment, the candidate must provide proof of disability in the form of medical documentation from a licensed medical professional; licensed rehabilitation specialist; or any Federal, State, or District of Columbia (DC) agency that issues or provides disability benefits in accordance with 5 CFR §213.3102(u)(3).

   4. Prior to making a final job offer, the OpDiv/StaffDiv (e.g., Special Placement Program Coordinator (SPPC), servicing HR Specialist, etc.) must confirm the individual is eligible for appointment by verifying the authenticity of the medical documentation submitted by the applicant by contacting the medical professional.  Contact information should be independently verified (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.
       

      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. [Applicant’s Name] has provided the [enclosed or attached] medical documentation from you/your office.   To verify eligibility for the appointment, we ask your cooperation in confirming 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.  I only need to verify the authenticity of the [enclosed or attached] documentation. Please reply to this [letter/email] so I can confirm that [Applicant’s Name] is eligible for appointment to a federal position under the hiring authority for persons with disabilities.

   5. In cases where a medical provider refuses to verify in writing the authenticity of the medical documentation provided by the applicant and will only verbally verify, the HR professional may certify that verification was verbally provided by the medical provider.  The recruitment case file must contain the method(s) the medical professional’s contact information was verified; the name of the medical provider who provides verbal confirmation; date(s) contacted including the date the medical provider verbally verified; and full name/title and office of the HR professional.
   6. 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 candidate has a disability).  If this proof is not provided by the candidate, then the documentation must be verified following the procedures in (d) and (e) immediately above.
   7. Per the SF-256, employees hired via the Schedule A Disability 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 Processes.  Persons with disabilities may be hired via the:
   1. Competitive hiring process – Persons with disabilities may choose not to claim a Schedule A disability and apply under the competitive hiring process (e.g., via a delegated examining or merit promotion job opportunity announcement (JOA)).  They are considered for federal positions in the same manner as applicants without disabilities, then appointed via the hiring authority for the position for which they applied.
   2. Veterans Hiring Authorities – Veterans with disabilities may 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.
   3. Non-competitive Schedule A hiring process which is exempt from the competitive hiring process.  OPM additionally exempted the Schedule A Disability authority from the 5 CFR Part 302 hiring procedures (5 CFR §302.101(c)(11)); however, 5 CFR §302.101(c) does not exempt the authority from the merit system principles.  Schedule A Disability recruitment and selection is required to adhere to the merit system principles,¹ including the veterans’ preference and priority consideration requirements in 5 CFR §302.101(c).  Applicants who claim a Schedule A disability are appointed via Schedule A, 5 CFR §213.3102(u), following the Schedule A hiring process described below.
2. Recruitment Methods.  An OpDiv/StaffDiv’s recruitment method(s) must be designed to recruit qualified individuals consistent with the merit system principle of fair and open competition.²
   1. HR Centers may open delegated examining, merit promotion, etc. vacancy announcements to persons with disabilities.  Applicants who apply to these announcements and claim a Schedule A Disability are placed on a separate certificate with other qualified Schedule A Disability candidates who applied to the vacancy and evaluated in accordance with F. 3.-6. below. (Applicants who do not claim a Schedule A disability in their application are considered in accordance with F.1.a. above.)
   2. HR Centers may specifically recruit persons with disabilities via the Schedule A, 5 CFR 213.3102(u), authority.
      1. Notification options:
         1. A notice on the HHS or division’s public facing career page; third-party online job board(s), or a traditional vacancy announcement on USAJOBS.
         2. A notice on the OpDiv/StaffDiv intranet career page may be considered in cases where a sufficient number of qualified internal Schedule A Disability candidates are available for the vacant position(s).
         3. Strategic outreach that includes job fairs, universities, and/or disability-related publications and organizations may be considered in addition to 1) and 2) immediately above.
      2. Job notices/vacancy announcements must include information about the vacancy including salary; duties; geographic location; qualification requirements; the potential for conversion to the competitive service (5 CFR §213.3102(u)(6)); promotion potential (career ladder), if applicable; and information on how to apply. Strategic outreach should provide the same job information or a link to the vacancy notice on the career page, job board, etc.
      3. Excepted service job notices/vacancy announcements cannot be restricted to ‘status’ candidates because employees generally acquire competitive status when they hold or previously held a permanent competitive service position.
3. Qualification Requirements.  Schedule A Disability applicants must meet OPM’s Qualification Requirements for the position (series/grade) they are selected.
4. Veterans’ Preference as far as administratively feasible, 5 CFR §302.101(c); Patterson v. Department of Interior, 424 F.3d 1151 (Fed. Cir. 2005); Pope v. U.S. Department of Transportation., 421 F.3d 480, 482 (7th Cir. 2005;, Jarrard v. Social Security Administration, 115 M.S.P.R. 397, 407 (Oct. 28, 2010);  and OPM Vet Guide/Excepted Service Employment.
   
   When considering more than one (1) Schedule A candidate and one (1) or more candidates is a preference eligible:
   1. At a minimum, military service must be considered a positive factor when assessing candidates.  Applicant lists will annotate which candidates are veterans.
   2. Alternatively, OpDivs/StaffDivs may elect to apply veteran’s preference as a tiebreaker when comparing candidates with similar levels of knowledge, skills, and abilities, thus offering the vacant position to the preference eligible candidate.  If electing this option, the servicing HR Center’s Schedule A Disability recruitment procedures must include this practice and apply it consistently to all Schedule A Disability applicants.
   3. 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).
   4. Qualified preference eligible applicants must be provided the reason(s) for non-selection upon request, as required by 5 CFR §302.101(c).
   5. The Indian Health Service shall give selection priority in accordance with 25 U.S.C. §5117 prior to applying veterans’ preference provisions.
5. HHS Priority Reemployment List (PRL).  Selection priority must be provided to former HHS Schedule A Disability employees who are registered on HHS Priority Reemployment List (PRL) before referring the names of other qualified Schedule A Disability 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 excepted service vacancy.  (Note: The Career Transition Assistance Plan (CTAP), Interagency Career Transition Assistance Plan (ICTAP) and the Reemployment Priority List (RPL) do not apply to excepted service vacancies (5 CFR §§ 330.211(i); 330.609(i); and 330.707(g)).)
6. Internal Procedures.  HR Centers must establish written procedures on their recruitment methods and assessment procedures consistent with this guidance and apply them uniformly to Schedule A Disability candidates.  HR Centers should consult its servicing legal staff concerning questions whether its recruitment practices uphold the merit system principles (5 U.S.C. §§2301). 

G. Promotions

1. Promotions within the Excepted Service.
   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.
   2. The employee must compete or have previously competed for the proposed position/grade level consistent with the merit system principles.³   Temporary promotions or details to a higher graded position for 120 days or less are permitted without competition.
2. Promotions Upon Conversion.  Schedule A Disability employees may be promoted upon conversion to the competitive service under the following conditions:
   1. If the employee is in an excepted service position with a career ladder and the employee competed for the proposed position/grade level, and
   2. The employee meets the qualification requirements for the competitive service position at the time of conversion, then promotion upon conversion is allowed 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.  The 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. Employees on a permanent or time-limited (i.e., with a NTE date) Schedule A Disability appointment may be noncompetitively converted to a career or career-conditional appointment in the competitive service and acquire competitive status immediately upon conversion, if an employee meets the following requirements (5 CFR §3.1(b); 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. Classification

See HHS Instruction 302-1, Excepted Service.

J. Citizenship Requirement

See HHS Instruction 302-1, Excepted Service, Section 302-1-100, for citizenship requirements for excepted service positions.

Citizenship is a requirement for competitive service positions (8 U.S.C. §1408; 5 CFR §7.3; 5 CFR §338.101; and Executive Order 11935).

K. Appointment Time Limits

See HHS Instruction 302-1, Excepted Service.

L. Trial Periods

1. HHS excepted service employees serve a two (2) year trial period.
2. Schedule A Disability employees additionally serve an initial one (1) year probationary period upon conversion to the competitive service (5 CFR §315.801(e)). Previous service may be creditable towards completion of an initial probationary period, in accordance with HHS Instruction 315-1, Probationary and Trial Periods.
3. See HHS Instruction 315-1, Probationary and Trial Periods for rules on initial trial and probationary periods; creditable time; calculating service; and actions taken for failure to complete a trial or probationary period, including grievances and appeal rights.

M. Details and Reassignments

See HHS Instruction 302-1, Excepted Service.

N. Appeals

See HHS Instruction 302-1, Excepted Service.

O. Personnel Actions and Tenure

See HHS Instruction 302-1, Excepted Service.  Effective dates are established consistent with OPM’s Guide to Processing Personnel Actions, Chapter 3. 

P. Documentation and Accountability

1. Recruitment case files, including documentation sufficient for third-party review, must be retained for a total of five (5) full years after appointment, declination of offer, or the candidate is no longer under consideration, in accordance with the National Archives and Records Administration, General Records Schedule 2.1 (Schedule A Disability authority).
2. Records involved in litigation that are subject to a litigation hold must be preserved until an official litigation hold lift notice is received from OPM, Department of Justice, courts, or the Office of the General Counsel, etc. that the matter has been fully litigated, or resolved and closed.
3. ASA/OHR may conduct periodic accountability reviews to analyze compliance with this Instruction, HHS and OPM policy and guidance, and applicable federal laws and regulations.

Q. Guidance Information

Guidance Owned by: Office of Human Resources, Policy and Accountability Division (PAD)
Effective Date: 06/15/2020, Rev 05/22/2024 
Contact Information: employmentpolicy@hhs.gov

Endnotes

¹  5 U.S.C. §§2301, 2302(a)(2)(B) and (b)(12); OPM Special Study, Excepted Service Hiring Authorities, July 18, 2018

²  “Recruitment should be from qualified individuals from appropriate sources in an endeavor to achieve a work force from all segments of society, and selection and advancement should be determined solely on the basis of relative ability, knowledge, and skills, after fair and open competition which assures that all receive equal opportunity” (5 U.S.C. §2301(b)(1)).

³  ‘Selection and advancement should be determined solely on the basis of relative ability, knowledge, and skills, after fair and open competition which assures that all receive equal opportunity’ (5 U.S.C. §2301(b)(1)).