This Directive was canceled January 29, 2004.

U.S. Department of Transportation
Federal Highway Administration

June 28, 1996

Chapter 2: Employment
Section 4: Affirmative Action Program for the Hiring, Placement, and Advancement of Persons with Disabilities

Par.

1. Purpose

2. Scope

3. Background

4. References

5. Policy

6. Definitions

7. Responsibilities

8. Program Administration

9. Appointment Procedures

10. Unpaid Work Experience and Student/Summer Employment

11. Employment of Readers, Interpreters, and Personal Assistants

12. Reassignments in Lieu of Disability Retirement

13. Discrimination Complaint Procedures

14. Affirmative Action Plans and Accomplishment Reports

1. PURPOSE. To establish guidelines, procedures and reporting requirements for the Federal Highway Administration's (FHWA) Affirmative Action Program for the Hiring, Placement, and Advancement of Persons with Disabilities.

2. SCOPE. This section applies to all FHWA organizational elements.

3. BACKGROUND. The Rehabilitation Act of 1973 (Public Law 93-112), as amended, requires each agency to develop and implement affirmative action program plans for the hiring, placement and advancement of individuals with disabilities.

4. REFERENCES

   1. Rehabilitation Act of 1973, Public Law 93-112, Section 501, as amended, and Public Law 95-602, Section 505, as amended,

   2. Title 5, U.S. Code, Section 3102, Employment of Personal Assistants for Disabled Employees, Including Blind and Deaf Employees,

   3. Title 29, U.S. Code, Section 791, Employment of Individuals with Disabilities,

   4. Title 29, Code of Federal Regulations (CFR), Section 1613, Equal Employment Opportunity in the Federal Government, and

   5. Departmental Personnel Manual (DPM), Chapter 306, Selective Placement Programs.

5. POLICY. It is the policy of the FHWA to provide equal employment opportunity for persons with disabilities who are Federal employees or applicants for Federal employment. The FHWA will ensure that qualified persons with disabilities, including Federal employees who become disabled after appointment, have equitable opportunities to be hired, placed and advanced in FHWA jobs to the fullest extent possible.

6. DEFINITIONS

   1. Individual with a Disability - a person who: (1) has a physical or mental disability that substantially limits one or more of the person's major life activities; (2) has a record of such a disability; and (3) is perceived as having such a disability. The technical terminology formerly used to describe an individual with a disability included: handicapped, or physically or mentally impaired. These terms are no longer appropriately used to refer to a person with a disability.

   2. Physical or Mental Disabilities- (1) any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one ormore of the following body systems: neurological, musculoskeletal, special sense organs, respiratory, cardiovascular, reproductive, digestive, genitourinary, hemic, lymphatic, skin, endocrine and sense organs; or (2) any mental, emotional or psychological disorder, such as mental retardation, organic brain syndrome, and specific learning disabilities.

   3. Substantially Limiting - the degree to which the disability affects employability. A person with a disability who is likely to experience difficulty in securing or retaining employment or advancing in a position would be considered substantially limited.

   4. Major Life Activities - functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.

   5. Record of a Disability - a person has a history of a mental or physical disability that does not substantially limit one or more major life activities, and from which he/she may have recovered. However, as a result of the employer's attitudes, the person may be regarded as having a substantially limiting disability which affects his/her ability to secure, retain or advance in a job. It is also possible that the employee has been inappropriately classified or perceived as having a disability and may be experiencing discrimination based on this classification.

   6. Perception of a Disability - the perception of an individual by other employees or supervisors as being a person with a disability, whether a true disability exists or not. The perception may have a negative impact on the individual's ability to secure, retain, or advance in Federal employment.

   7. Developmentally Delayed - a chronic and lifelong condition of mental disability which may range from mild to profound. It is not a disease, nor a total absence of skill or aptitude. The majority ofdevelopmentally delayed individuals are capable of useful employment.

   8. Psychiatric Disability - Rehabilitated - an individual who has received professional treatment either in or outside of an institution for some emotional or mental difficulty which has substantially disrupted their employment because of the disability. The individual indicates that a disadvantage was created by this disability, but he/she is capable of resuming normal functioning including employment, and any residual disability is not job related.

   9. Qualified Person with a Disability - with respect to employment, a qualified person with a disability is one who, with or without reasonable accommodation, can perform the essential duties of the position in question without endangering the health and safety of the individual or others, and either: (1) meets the experience and/or education requirements (which may include passing a written test) of the position in question; or, (2) meets the criteria for appointment under one of the special appointing authorities for persons with disabilities.

   10. Selective Placement Coordinator - an FHWA employee who facilitates the hiring, placement and advancement of persons with disabilities and is responsible for developing and helping to implement an Affirmative Action plan for the hiring, placement and advancement of persons with disabilities. There is a Selective Placement Coordinator in the Washington Headquarters, in each regional office, and in each Federal Lands Highway Division Office.

7. RESPONSIBILITIES

   1. Director, Office of Personnel and Training (OPT). The Director, OPT is responsible for:

      (1) providing leadership and direction in developing, implementing and evaluating the effectiveness of the Affirmative Action Programfor the hiring, placement, and advancement of persons with disabilities;

      (2) making appropriate FHWA policy and program recommendations to the Executive Director through the Associate Administrator for Administration;

      (3) integrating selective placement into the functioning of the entire personnel staff so that employment of the person with a disability is not viewed solely as the responsibility of the Selective Placement Coordinator;

      (4) ensuring that staff members concerned with all personnel functions are familiar with the Affirmative Action Program in their areas of responsibility; and

      (5) keeping the position of Washington Headquarters Selective Placement Coordinator filled by a qualified staff member.

   2. Field Personnel Officers and Civil Rights Officers. These officials are responsible for assimilating and incorporating the Affirmative Action Plan for the hiring, placement, and advancement of persons with disabilities into their respective programs and local organizations to ensure FHWA-wide emphasis and program accomplishment. They are responsible for preparing and implementing Affirmative Action Plans with objectives tailored to their local needs. They are also responsible for identifying a Selective Placement Coordinator in their organizations and for ensuring that adequate resources are devoted to the program.

   3. Associate Administrators and Staff Office Directors. These officials are responsible for supporting and helping the FHWA to achieve its Affirmative Action Plan objective by providing full consideration to disabled applicants and employeesfor promotion opportunities, special programs, and awards.

   4. Selective Placement Coordinator. Coordinators are responsible for assisting their organizational heads in performing their responsibilities through continuous participation in and evaluation of program activities.

8. PROGRAM ADMINISTRATION

   1. The OPT will:

      (1) develop the FHWA Affirmative Action Plan for the Hiring, Placement, and Advancement of Persons with Disabilities. The plan, which will be reviewed annually and revised as necessary, will cover the period from October 1 to September 30 annually;

      (2) ensure that adequate guidance and instructions are provided to Washington Headquarters and field offices, and that Washington Headquarters and field offices understand and are carrying out their program responsibilities;

      (3) develop and collect the necessary statistical information for the annual Affirmative Action Plan and make this information available to Washington Headquarters and field offices for monitoring purposes; and

      (4) submit semi-annual and annual accomplishment reports to the Office of Personnel, Office of the Secretary of Transportation (OST).

   2. Selective Placement Coordinators, in conjunction with their organizational heads will:

      (1) prepare annual Affirmative Action Plans and semiannual and annual accomplishment reports (RCS HPT-22-03);

      (2) monitor and evaluate program status, including the extent of implementation of AffirmativeAction Plans, and the results in terms of both numbers employed and services performed in support of the program;

      (3) keep the organizational head informed of program status and identify any problems or deficiencies in the hiring, placement, and advancement of persons with disabilities; and

      (4) participate in disabled employee advisory committees.

9. APPOINTMENT PROCEDURES. Normal competitive procedures are used to employ persons with disabilities whenever possible. When such procedures are not practical, the following special appointment procedures are available:

   1. Physically Disabled

      (1) Temporary Trial Appointment. Temporary 700-hour appointments may be used to provide persons with disabilities an opportunity to demonstrate their ability to perform the duties of the position, and to overcome employer reluctance to hire them on a regular basis for fear that they will not be able to perform the job. The 700-hour appointment may be used for positions at grades General Schedule (GS)-1 through GS-15, and for positions covered by the Federal Wage System. The individual must meet the Office of Personnel Management (OPM) qualification standards for the position, including a written test if required, or the FHWA must obtain certification from a counselor of a Veterans Administration or State vocational rehabilitation agency attesting that the individual can perform the duties of the position.

      (2) Excepted Appointment. The Schedule A, Section 213.3102(u) excepted appointment authority was developed to provide an alternate route for employment of severely physically disabled individuals. This includes identification, and, if required, restructuring or modification ofjob tasks and work environment of a specific position to accommodate the severely physically disabled individual. There are two methods in which a physically disabled person may be granted an excepted appointment.

      (a) Conversion from the 700-hour temporary trial appointment to a Schedule A appointment. The individual must have successfully demonstrated ability to do the job under the temporary trial appointment.

      (b) Direct Schedule A appointment without a prior temporary trial appointment. Certification from either the Veterans Administration or a State vocational rehabilitation agency may be accepted in lieu of successful job performance under a temporary trial appointment.

      (3) Promotion and Reassignment. Employees appointed under Section 213.3102(u) of the Schedule A authority are not subject to normal competitive ranking requirements, and may be informally referred and considered for a higher graded position at any time. Recertification may be required if either the physical or qualification requirements of the new position are substantially different. They may also submit an application for specific vacancies announced by FHWA, in accordance with the procedures described in the announcement. Such employees are advised, but not required, to indicate at the top of their application that they are serving under an excepted appointment. Although such employees may not compete under the FHWA Merit Promotion Program, if they are qualified, their names can be sent to the selecting official in a separate list or with other noncompetitive actions. If the selecting official wishes to select the person with a disability, the position may be filled through an excepted appointment.

      (4) Conversion to Competitive Appointment. After 2 years of successful performance in a permanent position, an employee serving in the excepted service under Schedule A, Section 213.3102(u) may be non-competitively converted to a career or career-conditional appointment upon the recommendation of his/her supervisor. While conversion to a competitive appointment is not mandatory, the supervisor should provide, in writing, through the appropriate Selective Placement Coordinator, substantive justification for not recommending conversion of an employee who has demonstrated successful job performance.

   2. Developmentally Delayed

      (1) Excepted Appointment. The Department of Transportation (DOT) has a written agreement with OPM (applicable to all the Department's components) which allows the appointment of developmentally delayed persons under Schedule A, Section 213.3102(t). This agreement requires certification of the employability of the developmentally delayed individual by a vocational rehabilitation agency. In addition, the agency agrees not to terminate a developmentally delayed person's employment without prior notification of the vocational counselor so that arrangements can be made for continued rehabilitation.

      (2) Promotion and Reassignment. Developmentally delayed persons may be promoted to any appropriate grade level provided they are properly certified by a State vocational rehabilitation counselor for the higher graded position. Application and referral procedures available to selecting officials for promotion or reassignment are the same as in paragraph 9a(3) above, with the addition of the requirement of the rehabilitation counselor certification. When assessing the potential for advancement of employees appointed under this authority, personnel offices should explore possibilities for converting them to career orcareer-conditional appointments through appropriate examinations, whenever possible.

      (3) Conversion to Competitive Appointment. Procedures for conversion to a career or career-conditional appointment from a Schedule A, Section 213.3102(t) appointment are the same as in paragraph 9a(4) above.

   3. Psychiatric Disability - Rehabilitated

      (1) Temporary Trial Appointment. Temporary 700-hour appointments may be used to provide mentally restored persons an opportunity to demonstrate their ability to perform the duties of a position. The 700-hour appointment of mentally restored persons may be used for positions at grades GS-1 through GS-15 and for positions covered by the Federal Wage System. The individual must meet the OPM qualification standard requirements, including a written test if required. After demonstrating the ability to perform the duties of the position, the person may be hired competitively, reinstated, or converted to the excepted service under a Schedule B, Section 213.3202(k) appointment.

      (2) Excepted Appointment. The excepted appointment authority in Section 213.3202(k) of Schedule B was developed to provide mentally restored persons an opportunity to update their skills and to establish a successful performance record to counteract prejudice on the part of the employer. Use of this authority requires the prior approval of OPM. Appointments under this authority are limited to temporary, not to exceed two years, and proposed appointees must meet the minimum OPM Handbook qualification requirements for the position and grade, including a written test, if required. The individual must also be certified by a Veterans Administration or State vocational rehabilitation counselor as being capable of performing in the position. Requests for OPM approval of appointments are to be made inWashington, D.C. to the Director, Technical Assistance and Operations Division, Office of Affirmative Employment Programs, or in the field to the Director of the appropriate OPM Regional Office.

      (3) Promotion and Reassignment. Employees appointed under Section 213.3202(k) of Schedule B may be promoted or reassigned after 90 days from the effective date of the appointment. The appointment, however, is limited to 2 years and the promotion or reassignment will not change the effective date upon which the appointment terminates.

      (4) Conversion to Competitive Appointment. The Schedule B, Section 213.3202(k) appointment authority does not permit conversion to competitive appointment. Persons with psychiatric disabilities wishing to continue in the Federal service after 2 years must be appointed through competitive examination procedures, or have reinstatement or other noncompetitive eligibility.

10. UNPAID WORK EXPERIENCE AND STUDENT/SUMMER EMPLOYMENT

    1. The Rehabilitation Act of 1973 authorizes Federal agencies to provide unpaid work experience for clients of State vocational rehabilitation agencies. The work experience is to assist these individuals in acquiring skills and training which would enable them to compete for positions in the public and private sectors. The procedures for establishing programs of unpaid work experience for clients of State vocational rehabilitation agencies are in 5 CFR 308, Volunteer Service.

    2. The FHWA should consider persons with disabilities as a source of applicants under the student and summer employment programs. The Summer and Student Programs permit the appointment of developmentally delayed and severely physically disabled youths regardless of financial need.

    3. An exception to the prohibition against appointing sons and daughters of FHWA employees for student or summer employment is permitted in those cases where the son or daughter is severely physically disabled or mentally retarded.

11. EMPLOYMENT OF READERS, INTERPRETERS, AND PERSONAL ASSISTANTS. The FHWA may employ, with or without pay, personal assistants, readers, and interpreters, as is necessary, to enable disabled employees to perform their work. The FHWA can use its own employees or volunteers, or use outside sources such as nonprofit organizations, or funds provided by the handicapped employee, or the State vocational rehabilitation office for this purpose. For additional information, see 5 CFR 315.711, Employment of Readers, Interpreters, and Personal Assistants serving under Schedule A appointments.

12. REASSIGNMENTS IN LIEU OF DISABILITY RETIREMENT.

    1. The FHWA emphasizes the desirability of continued utilization through reassignment of on-board employees who, because of illness or injury, are unable to continue in their current positions.

    2. The FHWA is responsible for initiating action to secure disability retirement of eligible employees who are truly unfit for useful and efficient service because of physical or mental disability. There is, however, a further responsibility to consider reassigning an employee, who, though unfit for service in his or her present position, is medically and otherwise qualified to perform service in another position without detriment to him/herself or the Federal Government.

13. DISCRIMINATION COMPLAINT PROCEDURES.

    1. Qualified persons with disabilities may file a complaint on the basis that they have been discriminated against in connection with employment because of a physical or mental disability. Any qualified person with a disability who is employed in or is an applicant to the FHWA can file a complaint.

    2. Applicants who believe they have been discriminated against because of a physical or mental disability, should contact the Washington Headquarters or field Civil Rights Office where the alleged discrimination occurred, for information on the discrimination complaint process. Disabled employees should contact their designated Equal Employment Opportunity Counselor for counseling and assistance.

14. AFFIRMATIVE ACTION PLANS AND ACCOMPLISHMENT REPORTS

    1. The FHWA Washington Headquarters, regional and Federal Lands Highway Division Offices will prepare goal-oriented Affirmative Action Plans which are operational in nature. Plans will be composed of action items which will achieve objectives and are tailored to local needs. Plans would be availablefor review by the Office of the Secretary and the Equal Employment Opportunity Commission.

    2. The FHWA will prepare semi-annual accomplishment reports during the fiscal year (RCS HPT-22-03). These reports will cover the six-month periods ending March 31 and September 30. Regional and Federal Lands Highway Division Offices will submit reports to the Personnel Operations Division by April 30 and October 31. The Personnel Operations Division will submit consolidated reports to the Office of Personnel in the Office of the Secretary by April 31 and November 30.

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