In two recent executive orders, the new Administration has taken steps purporting to roll back hiring of disabled employees at the Federal Aviation Administration (FAA).
Under the Ford Act, 49 U.S.C. 40122, the FAA is exempted from a number of Title 5 employment laws and is authorized to establish its own personnel regulations separate from the systems established by the Office of Personnel Management. This exception, however, only applies to Title 5 of the U.S. Code. Federal sector employment laws in other titles of the U.S. Code still apply to the FAA, in particular the Rehabilitation Act (29 U.S.C. § 791, 794, 794a), which prohibits disability discrimination in federal agencies and requires reasonable accommodation of disabilities and affirmative action plans for federal agencies. Under the EEOC’s implementing regulations for the Rehabilitation Act (which also apply to the FAA), federal agencies are required to be ‘model employers’ of disabled employees, with more specific requirements for agencies’ affirmative action hiring programs. These statutes and regulations remain unmodified by the recent executive orders.
Under OPM personnel regulations, 5 C.F.R. § 213.3102(u), “Schedule A” hiring authority exists which permits excepted service appointments for applicants with severe disabilities outside of the normal hiring process. FAA followed “Schedule A” standards in its “On the Spot” direct hire authority, and also according to an advocacy group incorporated similar standards into another FAA hiring policy, EMP-1.26h (PWD/PWTD). As of the date of this blog post, the FAA’s hiring website still cited to “Schedule A” in its hiring procedures. Under “Schedule A” procedures, an applicant is only supposed to be permanently hired (or converted to a permanent hire from a temporary hire) once the hiring agency assesses that the applicant is able to perform the duties of the position. After a period of 2 years of successful performance, “Schedule A” permanent hires (at least, under the OPM Schedule A regulations) are able to be converted to a competitive service appointment.
The new executive orders, among other actions, require the FAA to review all hiring decisions made in the past 4 years, and to take actions “including the replacement of any individuals who do not meet qualification standards.” It is unclear if the Administration intends to cancel any future “Schedule A” hiring of disabled employees or to discharge current FAA employees who were originally hired under “Scheule A” authority—including those employees not in sensitive positions such as Air Traffic Controller positions (for example, support and administrative positions) that might not have any medical standards for the positions.
If you are an FAA employee and/or a “Schedule A” employee and wish to seek advice concerning your legal rights, consider contacting Gilbert Employment Law to request an initial consultation.