Medical Qualification Determinations, 5340-5354 [2017-00804]

Agencies

• Office of Personnel Management

[Federal Register Volume 82, Number 11 (Wednesday, January 18, 2017)]
[Rules and Regulations]
[Pages 5340-5354]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-00804]


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 OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 339

RIN 3206-AL14


Medical Qualification Determinations

AGENCY: U.S. Office of Personnel Management.

ACTION: Final rule.

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SUMMARY: The U.S. Office of Personnel Management (OPM) is issuing a 
final rule to revise its regulations for medical qualification 
determinations. The revised regulations update references and language; 
add and modify definitions; clarify coverage and applicability; address 
the need for medical documentation and medical examination and/or 
testing for an applicant or employee whose position may or may not have 
medical standards and/or physical requirements; and recommend the 
establishment of agency medical review boards. The final rule provides 
agencies guidance regarding medical evaluation procedures.

DATES: This rule is effective February 17, 2017.

FOR FURTHER INFORMATION CONTACT: Monica Butler, by telephone at (202) 
606-4209; by email at employ@opm.gov; by fax at (202) 606-0864; or by 
TTY at (202) 418-3134.

SUPPLEMENTARY INFORMATION: On December 27, 2007, OPM issued a proposed 
rule at 72 FR 73282 to revise regulations on medical qualification 
determinations. The public comment period on the proposed rule ended 
February 25, 2008. OPM received written comments from four agencies, a 
union, and an individual pertinent to the proposed rule. A discussion 
of the comments is provided under the respective subpart below.
    The final rule also replaces the verb ``shall'' with ``must'' for 
added clarity and readability. Any provisions in this part using the 
verb ``must'' have the same meaning and effect as previous provisions 
in this part using ``shall.'' The final rule also adds four authority 
citations to clarify the scope of applicability: (1) 5 U.S.C. 3312 
Preference eligibles; physical qualifications; waiver; (2) 5 U.S.C. 
3318 Competitive service; selection from certificates; (3) 5 U.S.C. 
3320 Excepted service; government of the District of Columbia; 
selection; and (4) 5 U.S.C. 3504 Preference eligibles; retention; 
physical qualifications; waiver.

[[Page 5341]]

Summary

Background--Summary

    The summary covers the basis for OPM issuance of the final rule and 
outlines the revisions that have been made to its regulations for 
medical qualification determinations.

Subpart A

Background--Subpart A

    Subpart A covers general information. The proposed subpart A added 
wording to clarify applicability of this regulation to excepted service 
positions; updated references to the Rehabilitation Act of 1973, as 
amended (Rehabilitation Act), and to portions of the Americans with 
Disabilities Act (ADA) of 1990, as amended by the ADA Amendments Act of 
2008 (ADAAA), that are applicable to the Federal Government through the 
Rehabilitation Act; added examples to the definition in Sec.  339.104 
of ``medical evaluation program''; added the definition of ``medical 
restriction,'' and separated and moved definitions of ``subtle 
incapacitation'' and ``sudden incapacitation.''
    In response to the comments on the proposed rule, which are 
discussed below, we have revised subpart A to--
    (1) Retain an example regarding removal of a preference eligible in 
Sec.  339.101.
    (2) Replace the word ``suitable'' with ``appropriate'' in Sec.  
339.102(c) to more accurately reflect the proper administrative action 
that an agency may render when an individual fails to meet an 
established condition of employment and to avoid confusion with 
suitability determinations.
    (3) Add language to Sec.  339.102(c) that failure of an applicant 
to be examined, after a tentative job offer is extended, may result in 
an applicant not being considered further for the position.
    (4) Add language to Sec.  339.102(c) that failure of an applicant, 
who received a tentative offer of employment, to provide medical 
documentation requested by the agency medical review officer or related 
hiring agency medical or human resources personnel, following a pre-
placement medical examination, may result in an applicant not being 
considered further for the position.
    (5) Add the term ``applicant'' where appropriate in subpart A.
    (6) Revise Sec.  339.103 to remove the phrase ``to the extent 
consistent with'' from the section in the proposed rule on compliance 
with disability laws and regulations. The new language clarifies that 
the statutory provisions of the Rehabilitation Act and the ADA apply to 
actions under this section.
    (7) Correct the reference to the definition of ``qualified 
individual with a disability'' in Sec.  339.103.
    (8) Clarify the definitions of ``medical documentation'' and 
``medical restriction'' in Sec.  339.104.
    (9) Add the definition of ``medical surveillance'' in Sec.  
339.104.
    (10) Clarify the definition of ``physical requirement'' in Sec.  
339.104.

Discussion of Comments--Subpart A

Section 339.101
    One agency stated that Sec.  339.101 of the current regulation 
provides an example, ``removal of a preference eligible employee in the 
excepted service under part 752,'' of a situation when medical issues 
arise in connection with an OPM regulation that governs a particular 
personnel decision. The agency stated the example did not appear in the 
proposed rule and recommended that it be retained because the example 
provides clarity. OPM agrees this example assists the reader in 
understanding the intent of the regulation and is retaining that 
example in the final Sec.  339.101.
Section 339.102
    One agency proposed adding the term ``physical fitness standards or 
testing'' to Sec.  339.102(c). The agency rationale was that this 
change clarifies the applicability of this provision. OPM has decided 
not to accept this comment. As discussed below, OPM has decided to 
remove the terms ``physical fitness standards'' and ``physical fitness 
testing'' from the final rule at this time.
    One agency proposed amending the language in proposed Sec.  
339.102(c) to delete the word ``suitable'' and replace it with the word 
``indicated.'' The word ``suitable'' was contained in the portion of 
the proposed rule that read failure to meet properly established 
medical standards or physical requirement under this part means that 
the applicant or employee is not qualified for the position unless a 
waiver or reasonable accommodation is ``suitable.'' The rationale of 
the commenter was that the word ``indicated'' more accurately reflected 
the appropriate administrative action that an agency may render when an 
individual fails to meet an established condition of employment. OPM 
agrees with the agency that the word ``suitable'' could lead to 
confusion, especially in relation to the suitability function 
administered by OPM pursuant to part 731 of this title. Instead of the 
word ``indicated,'' however, OPM has revised the section with the word 
``appropriate.'' The use of the word ``appropriate'' makes it clear 
that a waiver or a reasonable accommodation under Sec.  339.102(c) must 
meet certain conditions. OPM also revised the sentence to ``reasonable 
accommodation or a waiver is appropriate'' to track the order of the 
citations.
    OPM included an additional clarification to Sec.  339.102(c) by 
adding the phrase ``which may include psychological'' after ``medical'' 
to the sentence noting, when there are established medical standards 
and/or physical requirements for the position, the failure of an 
applicant to be examined may result in an applicant no longer being 
considered for the position. OPM receives frequent inquiries from 
agencies relative to proper handling of such instances. This 
clarification will enable Federal agencies to obtain applicants' 
cooperation with examination requirements in appropriate circumstances. 
This additional language also informs the reader of the possible scope 
of an agency-offered examination as well as the consequences of refusal 
to report. The provision now clearly states that such failure may be a 
basis for the agency to determine the applicant is not qualified when 
there are established medical (which may include psychological) 
standards and/or, physical requirements for the position.
    OPM included an additional clarification to Sec.  339.102(c) that 
failure of an applicant to provide medical documentation requested by 
the hiring agency medical or human resources personnel as part of a 
pre-placement medical examination also may result in an applicant not 
being considered further for the position. OPM receives inquiries from 
agencies relative to proper handling of such instances, and this 
clarification will enable Federal agencies to obtain applicant 
cooperation with appropriate examination requirements and prevent 
delays in filling critical vacancies. In addition, after a tentative 
job offer, agencies may request relevant documentation to determine 
whether there is a medical condition that will affect safe and 
efficient performance of the essential duties of the position. The 
clarifying language in this provision informs the reader of the 
consequences of failure to submit requested medical documentation.
Section 339.103
    One agency requested that the definition of ``qualified individual 
with a disability'' in proposed Sec.  339.103 be corrected, noting that 
the section misquoted 29 CFR 1630.2(r), which relates to the definition 
of direct threat.

[[Page 5342]]

OPM agrees that the proposed rule inadvertently referenced 29 CFR 
1630.2(r). OPM also notes that citing to specific regulations of other 
agencies within this part poses a risk of future ambiguity because the 
text of the cited regulations are subject to change, as has occurred 
with the existing provisions. The final rule has been revised to 
reference the definition of ``qualified individual with a disability'' 
contained within the Rehabilitation Act, as amended, and the ADA, as 
amended as well as their implementing regulations for the Federal 
sector. In interpreting the meaning of these statutes, agencies can and 
should refer to current regulations and guidance promulgated pursuant 
to these Acts, see, e.g., 29 CFR part 1630, as well as case law 
construing these Acts, in consultation with agency counsel.
    One agency recommended the term ``applicants'' be added along with 
``employees'' to Sec.  339.103. The agency noted that 29 CFR 1630.13 
included references to both applicants and employees. As revised, Sec.  
339.103 no longer makes reference to either employees or applicants. 
OPM still agrees, however, that including applicants in the final rule 
was appropriate and has revised the entire rule accordingly.
    One agency recommended revising the language in proposed Sec.  
339.103 to remove the phrase ``to the extent consistent with'' from the 
section in the proposed rule on compliance with disability laws and 
regulations. The section stated ``the Equal Employment Opportunity 
Commission (EEOC) has issued regulations covering the equal employment 
provisions of the ADA in 29 CFR part 1630, which must be followed to 
the extent consistent with the Rehabilitation Act.'' The agency stated 
that under the Rehabilitation Act, agencies must follow the standards 
applied under title 1 of the ADA and the EEOC regulations reflect the 
ADA's nondiscrimination standards. OPM agrees that further 
clarification is needed and has amended the section to refer directly 
to compliance with the Rehabilitation Act, the ADA, as it applies to 
the Federal government, and their implementing regulations for the 
Federal sector. This language clarifies that the statutory, non-
discrimination provisions under the Rehabilitation Act and the ADA 
apply to actions under this section.
    One agency proposed adding three citations to the language on 
compliance with disability laws and regulations in Sec.  339.103. The 
agency concurred with the inclusion of specific sections of the EEOC's 
ADA regulations within this OPM regulation and suggested three 
additional citations relevant to medical qualification determinations. 
Two other citations, 29 CFR 1614.203(a) and 29 CFR 1614.203(b), were 
enforcement regulations and outside of the scope of this regulation. 
OPM has declined to accept this change. Upon further consideration, OPM 
has decided to remove all references to specific regulations of other 
agencies, because, as occurred with the current regulations, the 
outside citations changed, making the cross- references in the OPM 
regulations difficult to interpret. To avoid perpetuating this sort of 
ambiguity, OPM has decided to refer directly to compliance with the 
non-discrimination provisions of the Rehabilitation Act, the ADA, 
including the ADA Amendments Act of 2008, and their implementing 
regulations for the Federal sector.
    An individual proposed adding clarifying language to the definition 
of ``qualified individual with a disability'' in Sec.  339.103. The 
rationale of the commenter was that there may be job demands (e.g., 
overtime work) and conditions of employment (e.g., requirement of 
frequent travel) that are not, of themselves, essential functions of 
the job. OPM did not accept this comment but has revised the 
definition. As noted above, the meaning of ``qualified individual with 
a disability'' comes from the Rehabilitation Act, the ADA, and their 
implementing regulations for the Federal sector.
    One agency proposed that proposed Sec.  339.103 be revised to 
include a specific reference to the definition of ``direct threat'' 
contained in the EEOC's regulations, 29 CFR 1630.2(r). The agency did 
not provide a supporting rationale for this revision. OPM did not adopt 
this suggestion because the proposed rule only inadvertently referenced 
29 CFR 1630.2(r). As noted above, the final rule references the 
definition of ``qualified individual with a disability'' contained in 
the Rehabilitation Act, the ADA, and their implementing regulations for 
the Federal sector.
Section 339.104
Medical Documentation
    One agency requested that OPM insert the words ``as defined below'' 
after ``other appropriate practitioner'' under the definition of the 
term ``medical documentation'' to alert the reader that there is a 
definition of the term ``practitioner'' in Sec.  339.104. OPM agrees 
with the commenter but changed ``other appropriate practitioner'' to 
``licensed health practitioner'' for clarity and inserted the words 
``as these terms are defined below'' in the final rule to direct the 
reader to the applicable definitions.
    One agency requested that the words ``which have been obtained'' be 
removed from the sentence under the definition of ``medical 
documentation'' in proposed Sec.  339.104(2). The agency rationale was 
that the information may not have been initially provided by the 
applicant or employee, but the information may still be needed by the 
agency. Further, if the applicant or employee does not provide the 
information, the agency can request the applicant to obtain it, at his/
her expense, in order to be considered for the position. The agency 
indicated that if the definition is not changed, and the agency 
requests the information because it may not have been obtained, the 
agency will have to pay the associated costs for attaining the 
information. OPM agrees that this is a legitimate concern and has 
accepted the proposed change and deleted the term ``which have been 
obtained'' from item (2) in the definition of ``medical documentation'' 
to remove any suggestion that the agency would be expected to incur any 
costs associated with obtaining medical information the agency deems 
necessary when the agency needs to request an applicant or employee to 
submit additional information in order for the agency to render an 
informed employment decision. By changing ``and'' to ``and/or'' in the 
appropriate places, OPM also clarified that any, but not necessarily 
all, of the clinical findings listed in item (2) may need to be 
provided.
    One agency requested that the word ``and'' be changed to the word 
``or'' between (6) and (7) in the list of items contained in the 
definition of ``medical documentation'' in proposed Sec.  339.104 where 
it stated ``an acceptable diagnosis must include the following 
information, or parts of this information identified by the agency as 
necessary and relevant to its employment decision.'' The agency 
rationale was that the type and amount of medical information needed in 
each case may differ and the regulation does not require submission of 
documentation meeting all of the seven listed categories in this part. 
OPM has revised the section to insert the words ``and, either of the 
following:'' after the text for (5) and insert the word ``or'' between 
(6) and (7) to avoid any suggestion that all seven categories of 
information must be submitted. OPM made a similar change to item (2), 
by changing ``and'' to ``and/or'' to clarify and to be consistent with 
the opening statement of this item ``including any of the following.''

[[Page 5343]]

    Further, the same agency stated that the section conflicted with 
the Rehabilitation Act limitation on medical examinations because it 
effectively instructs agencies to obtain substantially more medical 
information than may be necessary to make an employment decision. OPM 
agrees that clarification was needed to eliminate any suggestion that 
documentation meeting all seven categories must be submitted. OPM has 
revised the section to insert the words ``and, either of the 
following:'' after the text for (5) and insert the word ``or'' between 
(6) and (7).
    One agency proposed amending the language in the definition of 
``medical documentation'' in Sec.  339.104 to state ``such medical 
documentation must include as much of the following types of 
information as is necessary and relevant to making the job-related 
decision for which the information is being requested.'' The agency 
rationale was that section 102(d)(4) of the ADA provides that an 
employer shall not require a medical examination or make inquiry of an 
employee unless such examination or inquiry is job-related and 
consistent with business necessity. The agency further stated any 
requirement for information outside of this express statutory 
limitation violates the Rehabilitation Act. OPM has clarified this 
section by revising the opening sentence to state medical documentation 
must contain ``necessary and relevant information to enable the agency 
to make an employment decision.'' OPM is retaining the remainder of the 
language in this sentence to maintain consistency with generally 
accepted medical practice and principle as to what constitutes an 
acceptable medical diagnosis. By limiting the scope of the requested 
information, however, to what is ``necessary and relevant'' the 
sentence also is consistent with the intent of the ADA and 
Rehabilitation Act with regard to the scope of an employer's medical 
inquiry.
    An individual proposed modifying the definition of ``medical 
documentation'' in Sec.  339.104 to include new language that medical 
documentation should include copies of actual medical office or 
hospital records, in addition to a written statement from a physician. 
The rationale provided by the commenter was that a statement by a 
physician, written or oral, must be supported by clinical findings 
obtained through a medical history, physical examination, and 
appropriate tests and diagnostic procedures. OPM agrees with the 
commenter that medical documentation includes copies of related medical 
office or hospital records and has amended the section to include these 
additional materials. Therefore, OPM further clarified the definition 
by stating the medical documentation must be ``dated'' and contain 
``necessary and relevant'' medical information to enable the agency to 
make an informed employment decision.
    A union proposed clarification of the definition of ``medical 
documentation'' in Sec.  339.104. The union stated the definition 
leaves agencies and supervisor's wide berth to determine what 
constitutes necessary or appropriate medical documentation, 
particularly in regards to absences. The union further stated that 
medical documentation for sick leave, whether extended or not, is often 
left to the discretion of individual supervisors. The union requested 
that OPM delineate the baseline for appropriate medical documentation 
and identify practices that should be avoided. OPM did not accept this 
suggestion of delineating acceptable and unacceptable forms of 
documentation because medical documentation needed by an agency can 
vary according to the situation. The modification made to the ``medical 
documentation'' definition, as noted directly above, however, now 
clarifies that a dated written statement from a licensed physician or 
practitioner should contain necessary and relevant information to 
enable it to make an employment decision. This revised language 
provides agencies with needed discretion in obtaining necessary and 
relevant information while preventing overly broad requests for medical 
records, consistent with the Rehabilitation Act and the ADA.
    OPM also will seek to issue guidance from time to time as to best 
practices with regard to working with healthcare providers to obtain 
appropriate information and materials responsive to the agency's 
request for information necessary and relevant to making its employment 
decision.
Medical Evaluation Program
    One agency proposed adding examples to the definition of ``medical 
evaluation program'' in Sec.  339.104, such as age adjusted periodic 
medical examinations or anthrax testing for certain employees. OPM did 
not adopt this suggestion because ``medical evaluation program'' covers 
a broad category of medical examination and clinical and diagnostic 
testing procedures.
Medical Record
    An individual proposed a definition for the term ``medical record'' 
and requested the inclusion of this new definition in Sec.  339.104, 
indicating that a physician's written statement should be supplemented 
with the medical history, physical examination and related testing and 
diagnostic procedures. The individual stated this will aid the reviewer 
in assessing the validity of the diagnosis and management plan for the 
medical or physical condition. OPM has not incorporated this proposed 
definition in the final rule. As noted above, the definition for 
medical documentation states that an agency may request necessary and 
relevant information to enable it to make an employment decision. OPM 
believes this revised definition is appropriate to allow an agency to 
obtain what is needed for its decision-making process while preventing 
overly broad requests for medical records, consistent with the 
Rehabilitation Act and the ADA.
Medical Restriction
    One agency noted that the definition of ``medical restriction'' in 
Sec.  339.104 as written in the proposed rule was too narrow because it 
only addressed physical requirements. The agency requested that the 
words ``physical requirements'' be replaced with the words ``type or 
duration of work or activity'' in order to cover both physical and 
medical requirements. OPM agrees with the agency proposal and has 
replaced the phrase ``physical requirements'' with the words ``type or 
duration of work or activity'' to clarify that the definition applies 
broadly to a variety of activities for which the individual is limited 
or prevented from performing due to medical conditions and/or physical 
limitations.
    One agency requested revising the definition of ``medical 
restriction'' in Sec.  339.104 to eliminate the phrase ``operative 
event'' or expound upon the meaning or intent for clarification 
purposes. OPM agrees with the proposed agency clarification and removed 
the term ``operative event.'' OPM revised the language to state that a 
medical restriction is a ``medical determination'' that an applicant or 
employee is limited or prevented from performing a certain type or 
duration of work or activity, or motion, because of a particular 
medical condition or physical limitation.
    An individual requested modifying the definition of ``medical 
restriction'' in Sec.  339.104 to include language that a restriction 
is medically warranted if the physician can support a conclusion that 
there is risk-avoiding or therapeutic value associated with the 
restriction. The rationale of the individual was that unless there is a 
risk-avoiding or

[[Page 5344]]

therapeutic value inherent in a physician's recommendation that a 
patient not engage in a particular kind of activity, the physician 
cannot justify the recommendation as medically warranted. OPM did not 
adopt this specific language. The modification made to the definition 
of ``medical restriction,'' as noted above, clearly defines the term 
without the potential confusion to a reader who may not have the 
medical knowledge or expertise to accurately interpret and apply the 
language proposed by the commenter.
Medical Standard
    An individual recommended replacing the term ``medical standard'' 
with ``medical qualification standard'' in Sec.  339.104 as well as the 
remainder of the regulations. The commenter described a ``medical 
qualification standard'' as a written description of the clinical 
findings associated with a health status or level of fitness below 
which the individual would be at an unacceptable level of potential 
risk for injury, harm or performance failure. OPM has not adopted the 
term ``medical qualification standard'' because its intent is covered 
by the existing definition. OPM has, however, revised the definition of 
``medical standard'' for clarity. As noted in the final rule, the term 
``medical standard'' represents the minimum medical requirements 
necessary for an applicant or employee to perform essential job duties 
as a condition of employment. By referencing the phrase ``condition of 
employment'' rather than the descriptive phrase in the proposed rule, 
the definition makes it clear this is an agency-established 
qualification standard that must be met prior to appointment and/or 
maintained during employment for successful performance. In addition, 
just inserting the term ``qualifications'' in the title could lead to 
confusion with the more general employment qualifications for Federal 
positions.
Medical Surveillance
    One agency requested adding a new definition of ``medical 
surveillance'' to Sec.  339.104 to clarify to the reader the 
distinction between medical surveillance, medical evaluation program, 
and medical examination and to ensure uniform application. OPM agrees 
that a clear understanding of the different terms is important and has 
incorporated a definition for ``medical surveillance'' into Sec.  
339.104. ``Medical surveillance'' is the collection and analysis of 
health data and trends, such as injuries or illnesses, to improve and 
protect the health and safety of employees. A ``medical evaluation 
program,'' however, refers to an overall program of recurring medical 
examinations or testing, established by written agency policy, to 
monitor employees whose work may subject them to significant health or 
safety risks due to occupational or environmental exposures.
Physical Requirement
    An individual commented that the definitions of ``physical 
requirement'' and ``physical fitness standard'' in Sec.  339.104 were 
virtually identical and suggested eliminating one of the definitions to 
avoid redundancy. OPM did not accept the comment but, as noted earlier, 
has decided to withdraw references to ``physical fitness standard'' and 
``physical fitness testing'' from the regulations at this time. OPM has 
taken the matter of appropriate definitions of the terms ``physical 
fitness standard'' and ``physical fitness testing'' under further 
consideration. OPM did revise the definition of ``physical 
requirement'' in the final rule to provide better harmony with the 
underlying statute. See 5 U.S.C. 3312.
Subtle Incapacitation/Sudden Incapacitation
    One agency recommended inclusion of a stand-alone definition for 
the term ``static or well stabilized'' along with the stand-alone 
definitions of ``subtle incapacitation'' and ``sudden incapacitation.'' 
In the alternative, the commenter recommended retaining all three terms 
only as part of the definition of the term ``medical documentation'' in 
Sec.  339.104. The commenter believed that for consistency, these terms 
should appear in the same manner. OPM is not including a stand-alone 
definition for the term ``static or well stabilized'' and is retaining, 
with some modification, the stand-alone definitions for the terms 
``subtle incapacitation'' and ``sudden incapacitation.'' As stated in 
Sec.  339.104, the term ``static or well stabilized'' is offered only 
for the purpose of clarification within the definition of ``medical 
documentation.'' In this context, the term is intended to mean a 
medical condition that is not likely to change as a consequence of the 
natural progression of the condition, specifically as a result of the 
normal aging process, or in response to the work environment or the 
work itself. In contrast, the terms ``subtle incapacitation'' and 
``sudden incapacitation'' remain as stand-alone definitions because 
they are not limited only to clarification of the definition of 
``medical documentation.'' These terms relate to the gradual or abrupt 
impairment of physical or mental function and are not only medical in 
nature, but also relate directly to safety, performance, and/or conduct 
issues that may undermine the agency's commitment to maintaining a safe 
working environment for all employees and others. OPM revised these 
terms further in the final rule to make the additional related issues 
clear.

Subpart B

Background--Subpart B

    Subpart B governs medical standards, physical requirements, and 
medical evaluation programs. We proposed changing the title of subpart 
B to clarify application of this part to medical evaluation programs. 
The proposed subpart B added language to clarify application of part 
339 to arbitrary disqualification; added ``medical surveillance'' to 
policies agencies may establish to safeguard employee health; provided 
an example of an immunization program; and changed ``incumbents'' to 
``employees'' to clarify Sec.  339.205. As explained above, OPM has 
withdrawn the physical fitness standards and physical fitness testing 
from the final regulation for further consideration. Consequently, 
these references have been removed from the title and other parts of 
this section, including Sec.  339.203.
    In response to the comments on the proposed rule which are 
discussed below, we have revised subpart B to--
    (1) Correct an erroneous reference to subpart C of part 731 of this 
chapter in Sec.  339.201.
    (2) Add a requirement to Sec.  339.202 that OPM approve medical 
standards established by agencies prior to implementation.
    (3) Provide language to Sec.  339.202 regarding performance and 
behavioral and personality characteristics.
    (4) Add a requirement to Sec.  339.202 that there must be a study 
validating medical standards to the specific occupation.
    (5) Include language in Sec.  339.204 on established timeframes for 
submission of medical documentation by an applicant or employee.
    (6) Re-title Sec.  339.204 as ``Waiver of standards and 
requirements and medical review boards.''
    (7) Change the term ``vaccine'' to ``vaccination'' and clarify the 
language relative to vaccinations in Sec.  339.205.
    (8) Change the term ``candidate'' to ``applicant or employee'' in 
Sec.  339.206.
    (9) Revise the reference to ``substantial harm'' in Sec.  339.206 
to provide that applicants and employees may be disqualified for 
positions based

[[Page 5345]]

on medical history when the condition (or recurrence) would pose a 
significant risk of substantial harm.
    (10) Change ``reasonable probability of substantial harm'' in Sec.  
339.206 to the ADA and Rehabilitation Act standard of ``significant 
risk of substantial harm.''

Discussion of Comments--Subpart B

Section 339.201
    One agency stated there was a need to reference subpart B, rather 
than subpart C, of 5 CFR part 731 in Sec.  339.201. The agency 
rationale was that subpart C relates to suitability action procedures, 
rather than the criteria authority used in making suitability 
determinations, which are covered in subpart B. After carefully 
considering the comment, OPM has decided to completely remove the 
reference to 5 CFR part 731 from 5 CFR 339.201. OPM has previously 
explained in four separate Federal Register notices that a sustained 
objection to an applicant, or a sustained request to pass over an 
applicant, is not a suitability determination. See 74 FR 30459 (June 
26, 2009); 73 FR 51245 (Sept. 2, 2008); 73 FR 20149 (Apr. 15, 2008); 72 
FR 2203 (Jan. 18, 2007). Regardless of whether a medical 
disqualification of an applicant is made under 5 U.S.C. 3312 or 3318, 
it is not a determination under 5 CFR part 731 that the applicant is 
unsuitable for employment in the competitive service. In fact, there is 
no suitability factor in 5 CFR part 731, subpart B, addressing medical 
disqualification. Further, as noted in 5 CFR part 339's authority 
citation, the part is issued only under rule II of E.O. 10577, as 
amended. It is not issued under rule V thereof, which authorizes OPM to 
order the removal of incumbent employees on grounds of fitness, 
pursuant to the President's standard-setting authority in 5 U.S.C. 
3301, 3302, and 7301, and consistent with OPM's administrative 
authority in 5 U.S.C. 1103(a)(5)(A) and 1302(a). Accordingly, OPM also 
is amending Sec.  339.201 to delete the text concerning directed 
removals of appointees based on physical or mental unfitness. OPM is 
retaining the reference to exclusion of applicants from examinations, 
which falls under OPM's authority in 5 U.S.C. 1302(a). OPM also is 
adding text to clarify that the procedures applicable to a medical 
disqualification under 5 U.S.C. 3312 or 3318 are in 5 CFR 339.306.
Section 339.202
    An individual proposed adding language to Sec.  339.202 relative to 
performance and human reliability demands. The rationale of the 
commenter was that the need for standards is to minimize the risk of 
human failure, rather than to predict successful performance. OPM 
agrees with the commenter's rationale but has amended the language to 
more plainly note the direct relationship between performance and the 
requirements needed to perform the duties of the position.
    One agency proposed revising Sec.  339.202 to add language 
regarding the requirement for OPM approval of medical standards 
established by agencies prior to implementation. The agency rationale 
was that although the current language states an agency may establish 
medical standards in certain circumstances, definitive language on OPM 
approval would provide clarity and eliminate agency questions. OPM 
agrees and amended the section to state that agencies are required to 
obtain OPM approval of all medical standards within the competitive 
service prior to implementation.
    One agency proposed revising Sec.  339.202 to add the requirement 
that there must be a study validating medical standards to that 
specific occupation. The agency rationale is that this section should 
clearly state that a medical standard for an occupation should be 
supported by a job analysis. OPM agrees generally with the comment and 
revised this section to clarify that there must be a study(ies) or 
evaluation(s) establishing the medical standard is job-related to one 
or more occupations (recognizing some medical requirements may be 
similar across occupations). A validation study generally is not 
required where there is no evidence of adverse action; therefore OPM 
did not wish to impose a higher legal standard here. See Uniform 
Guidelines on Employee Selection Procedures, 29 CFR part 1607. The 
``job-related'' standard is consistent with the non-discrimination 
provisions under Part 300 of this title and Title VII. OPM made a 
similar change to the definition of physical requirement, as discussed 
below.
    One agency stated that the language in parenthesis in Sec.  
339.202, ``(i.e., where the agency has 50 percent or more of the 
position(s) in a particular occupation)'', is confusing and 
restrictive. OPM disagrees and has not amended this language. The 
regulation states that an agency may establish medical standards for 
positions that predominate in that agency and the parenthetical gives 
an example of what may constitute a predominance of a particular 
occupation.
Section 339.203
    One agency proposed revising Sec.  339.203 to clarify the 
difference between ``physical requirements'' and ``physical fitness 
standards.'' The agency rationale was to eliminate potential confusion 
concerning requirements when applying Sec.  339.204, (re-titled 
``Waiver of Standards and Requirements and Medical Review Boards'' to 
Sec.  339.203. OPM agrees with the need to avoid confusion between 
these terms. Consequently, as noted above, OPM has withdrawn references 
to ``physical fitness standards or testing'' from the final rule for 
further consideration. This provision is revised and re-titled to 
``Physical requirements.''
    A union proposed that in relation to the physical requirements and 
physical fitness standards or testing in Sec.  339.203, OPM accept the 
role to carry out oversight and external validation for the positions 
to which agencies choose to apply a physical requirements standard. As 
a rationale, the union cited its experience with inconsistent use of 
the authority granted to agencies to establish physical requirements 
for individual positions without OPM approval. In addition, the union 
proposed that OPM further expand on procedures for the validation 
process. The union rationale was to provide consistency throughout the 
government of individuals who perform essentially the same functions, 
but work for different agencies. OPM has not accepted these comments. 
As noted, OPM has withdrawn the language related to ``physical fitness 
standards or testing'' at this time. In addition, as noted in the rule, 
approval by OPM remains available to agencies, but is not mandatory. 
Further, challenges to such policies or directives can be addressed 
through administrative processes or grievances or through the courts.
    OPM revised this section in the final rule for the reasons noted in 
section 202, supra, to clarify that there must be a study(ies) or 
evaluation(s) that establishes the physical requirement(s) is job-
related to one or more occupations (recognizing some physical 
requirements may be similar across occupations).
Section 339.204
    One agency proposed adding to Sec.  339.204, the waiver provision, 
examples of ``sufficient evidence'' and ``additional information'' that 
an applicant or employee may submit or any agency may obtain with 
regard to waiving a medical standard or physical requirement, to ensure 
uniform

[[Page 5346]]

application and to provide clarity. OPM has not accepted this comment 
because the regulatory language is clear and the standards are best 
elucidated by case law.
    One agency proposed including language in Sec.  339.204 to state 
the established timeframe an applicant or employee has to provide 
sufficient medical evidence or that an agency has to obtain additional 
information prior to rendering a final decision. The agency was 
concerned the existing language implied that documentation could be 
supplied at any time, which could tax the agency administrative 
workload and affect and/or indefinitely extend the timeframe for 
rendering an employment decision. OPM agrees with the agency concerns 
and has clarified the language to state that an agency may establish 
timeframes, in writing, for submission of initial or additional 
information for consideration, with allowance for reasonable 
extensions.
    A union proposed mandating review panels at agencies. The union 
rationale was that these review panels will assist agencies in 
determining appropriate accommodation of a disability or review of 
medical ineligibility determinations. OPM agrees that medical review 
boards can assist agencies in making determinations under this section 
and included language permitting agencies to establish medical review 
boards. Consequently, OPM has re-titled Sec.  339.204 as ``Waiver of 
standards and requirements and medical review boards.'' At this time, 
however, OPM believes agencies should be given discretion in 
determining whether and how best to use medical review boards, so the 
creation of such boards is not mandatory. OPM plans to confer 
periodically with agencies regarding their use of medical review 
boards. OPM also will seek to issue guidance from time to time as to 
best practices with regard to the composition and use of medical review 
boards.
Section 339.205
    An individual proposed replacing the term ``vaccine'' with 
``vaccination'' and clarifying that the need for a medical evaluation 
program ``must be clearly supported by the nature of the exposures 
incurred in the course of the work'' in Sec.  339.205. The commenter 
stated only that the need for these inclusions were ``self-evident.'' 
OPM agrees the term ``vaccine'' should be replaced with the term 
``vaccination'' and amended the term to reflect the act of receiving a 
vaccine. OPM did not include the additional language above. The 
existing language conveys the same meaning and the commenter provided 
no supporting or convincing rationale for further change.
    A union commented that although Sec.  339.205 of the proposed rule 
would mandate that employees be vaccinated under certain circumstances 
limited to work, and although this requirement may be imposed only upon 
written notification, only limited guidance is provided in the 
regulation concerning the circumstance under which such vaccinations 
may be compelled. In addition, the union stated that agencies should be 
allowed to retroactively impose an immunization requirement on an 
employee only if the employee was notified of the requirement prior to 
acceptance of the position through the vacancy announcement or position 
description. OPM recognizes the need for some clarification and has 
amended the language to clarify that any vaccinations required by this 
section must be FDA-approved. OPM does not otherwise accept this 
comment. As noted in the rule, agencies that choose to implement one or 
more of the programs noted in Sec.  339.205 must have written policies 
or directives. Challenges to such policies or directives can be 
addressed through administrative processes or grievances or through the 
courts.
    One agency recommended that the proposed language in Sec.  339.205 
be expanded to read ``this may include, but is not limited to the 
requirement to undergo vaccination with FDA approved vaccines (e.g., 
for national security reasons or in order to safely carry out an agency 
program.'' The rationale of the agency was that the modification 
eliminated the possibility that an applicant or employee could 
challenge an agency requirement to undergo a vaccination under the 
contention that the FDA may have licensed the vaccination, but had not 
``mandated'' its use.'' OPM agrees with the rationale of the commenter 
and has amended Sec.  339.205 to state vaccinations may include FDA-
approved vaccines.
    One agency requested clarification of what is meant by ``mandatory 
vaccines'' in Sec.  339.205. Further, the agency states an example 
would be helpful (e.g., in the event of a pandemic flu when the 
position does not permit the accomplishment of work at home or in 
isolation). OPM has not accepted this comment. OPM has included 
situational examples but has not included specific vaccination examples 
to allow flexibility to address changes in environmental, situational, 
and other circumstances wherein agencies determine and document the 
need for certain vaccinations.
Section 339.206
    An individual proposed replacing the reference to reasonable 
probability of substantial harm in Sec.  339.206 with a provision that 
applicants and employees may be disqualified for positions only if the 
condition(s) at issue is disqualifying ``and a recurrence would pose an 
unacceptable risk of injury or harm to the individual or others, or 
would present an unacceptable risk of human failure.'' The rationale 
provided was that the decision in this type of situation must be based 
on minimum/maximum criteria, not probability criteria. The commenter 
also noted that if a recurrence is possible and the consequences of a 
recurrence are unacceptable, it does not matter how small the 
probability. OPM recognizes the concern of the individual and based in 
part on this comment and another comment described below has amended 
the section to read that a history of a medical condition may result in 
medical disqualification only if the condition is itself disqualifying, 
``recurrence of the condition is a reasonable medical probability, and 
the duties of the position are such that a recurrence of the condition 
would pose a significant risk to the health and safety of the applicant 
or employee or others that cannot be eliminated or reduced by 
reasonable accommodation or any other agency efforts to mitigate 
risk.'' This revised language is clearer and consistent with the ADA, 
as amended, and applied through the Rehabilitation Act.
    One agency recommended referring to ``significant risk'' of 
substantial harm in Sec.  339.206 instead of ``reasonable probability 
of substantial harm'' because the latter is less exacting than the ADA 
and Rehabilitation Act standard of ``significant risk'' of substantial 
harm. OPM disagrees with the commenter's view as to which term is 
``less exacting.'' OPM does agree, however, that, in order to avoid any 
ambiguity, Sec.  339.206 should be consistent with the statutory 
language. Therefore, as discussed above, this provision has been 
revised.
    One agency recommended changing the term ``candidate'' to 
``applicant or employee'' for clarity and consistency. OPM agrees that 
using the phrase ``applicant or employee'' is clearer and should be 
used consistently throughout this regulation. OPM has amended Sec.  
339.206 accordingly.
    One agency recommended adding an example of a disqualifying 
condition to Sec.  339.206 for clarification purposes. OPM has not 
accepted this comment. Medical disqualifications must be made

[[Page 5347]]

on a case-by-case, fact-based, individualized assessment prior to 
reaching a conclusion as to the applicant's or employee's 
qualifications for a particular position.
    One agency recommended inclusion of a reference in Sec.  339.206 to 
recent behavioral or mental health history as a subset for 
disqualification. The agency requested consideration of language that 
an individual's previous ``mental health treatment shall not be a basis 
for a psychiatric examination or psychological assessment unless the 
individual has been hospitalized within the past seven years for a 
mental health related condition.'' The agency rationale was that this 
seems to be an area of potential employee medical disqualifiers that 
does not neatly fit into a category (i.e. medical standard) that 
applies to positions with and without medical standards and physical 
requirements, and where an employee may pose substantial harm to 
himself and others. OPM is not adopting this approach to amending Sec.  
339.206. With respect to mental health histories, mental health 
conditions are evaluated to determine whether they are temporary, 
transient, transitional or self-limiting, as opposed to mental health 
difficulties that are chronic and on-going with no perceivable end in 
sight. While behavioral traits, personality characteristics, 
temperaments, attitudes and biases, may be linked to mental health 
problems, they in and of themselves would not normally rise to a level 
supporting a clinical diagnosis of a mental condition. See, e.g. 
Diagnostic and Statistical Manual of Mental Disorders(DSM) published by 
the American Psychiatric Association. Moreover, medical 
disqualifications based on mental health must be made on a case-by-
case, fact-based, individualized assessment prior to reaching a 
conclusion as to the applicant's or employee's qualifications for a 
particular position.

Subpart C

Background--Subpart C

    Subpart C governs medical examinations. The proposed subpart C 
incorporated minor corrections in references, spelling and punctuation; 
added wording to clarify examinations the agency may require and 
provide examples of ``benefits'' in Sec.  339.304; and added wording to 
clarify applicability of this regulation to excepted service positions 
when requesting a medical disqualification or a passover of a 
preference eligible in Sec.  339.306.
    In response to the comments on the proposed rule which are 
discussed below, we have revised subpart C to--
    (1) Add language to Sec.  339.301(b) regarding return to work from 
medically based absence in addition to reemployment from medically 
based absence.
    (2) Revise the language in Sec.  339.301(b)(1) to be consistent 
with the ADA prohibition against employers making disability inquiries 
or conducting medical examinations of job applicants' prior to an offer 
of employment.
    (3) Clarify Sec.  339.301(b)(3) to state an agency may require an 
individual to report for a medical examination ``whenever the agency 
has a reasonable belief, based on objective evidence, that there is a 
question about an employee's continued capacity to meet the medical 
standards or physical requirements of a position.''
    (4) Add language to Sec.  339.301(c) relative to the Federal 
Employees' Compensation Act.
    (5) Include language in Sec.  339.301(e) addressing vulnerability 
of business operation and information systems to potential threats.
    (6) Add clarifying language to Sec.  339.301(e) relative to the 
licensing of physicians conducting psychiatric examinations.
    (7) Add language to Sec.  339.303(a) that an agency may establish 
timeframes, in writing, for submission of medical documentation, with 
allowances for reasonable extensions dependent on the nature of the 
condition and the availability of qualified physicians.
    (8) Add the term ``applicant'' to Sec.  339.303(a).
    (9) Revise Sec.  339.303(a) and (b) to add the requirement that an 
applicant or employee must furnish and authorize the release of medical 
documentation generated as a result of a medical examination and 
relevant medical documentation from his or her private physician, to 
authorized agency representatives.
    (10) Revise Sec.  339.303(a)(2) in relation to above to further 
state an employee may be subject to adverse action if he or she fails 
or refuses to authorize release of the above referenced medical 
documentation.
    (11) Revise the language in Sec.  339.303(b) to address situations 
where medical documentation from the applicant or employee's private 
physician or practitioner is contradictory to, and cannot be resolved 
by, documentation from the examining physician or the agency medical 
review officer.
    (12) In Sec.  339.304, clarify when an agency is financially 
responsible, versus when an applicant or employee is financially 
responsible, for the cost of medical examinations, testing and related 
documentation.
    (13) Removed references to ``physical fitness standards or 
testing'' from throughout this section in light of OPM's decision, as 
discussed earlier, to withdraw these terms for further consideration.

Discussion of Comments--Subpart C

Section 339.301
    An individual proposed adding ``appropriate for the purpose of 
obtaining and recording baseline medical information'' following the 
term ``pre-employment medical examination'' in Sec.  339.301(a). OPM 
did not include this language because the section is intended only to 
define when a routine pre-employment examination is appropriate, which 
is following a tentative offer of employment and only for a position 
with specific medical standards, physical requirements, or covered by a 
medical evaluation program.
    An individual proposed adding language in Sec.  339.301(b) 
concerning the return to work from medically based absence. The 
rationale provided by the individual was that if there is reason to 
suspect that a medical condition has caused or contributed to the 
failure of an employee to perform the essential functions of the 
position in an acceptable manner or meet the conditions of employment, 
including a demand for human reliability, then a complete medical 
evaluation may be appropriate. OPM agrees with the concerns noted by 
the commenter and has amended the section to include language to make 
clear that this provision includes employees returning to work from 
medically based absences.
    One agency proposed revising the language in Sec.  339.301(b)(1) to 
be consistent with the ADA prohibition against employers making 
disability inquiries or conducting medical examinations of job 
applicants' prior to an offer of employment. OPM agrees that revising 
the language would eliminate any confusion as to when disability 
inquiries can be made. Consequently, OPM has accepted the proposed 
language and amended the section to read ``subsequent to a tentative 
offer of employment or reemployment,'' rather than the previous 
language of ``prior to appointment or selection,'' to be more 
consistent with the Rehabilitation Act and ADA prohibition of 
disability

[[Page 5348]]

inquiries or medical examinations prior to a tentative job offer.
    One agency proposed revising Sec.  339.301(b)(2) to state that 
regularly recurring examinations are to be limited to persons in 
positions affecting public safety. The agency rationale was that the 
language in the proposed regulation was overbroad in allowing an 
employer to conduct medical examinations of current employees ``on a 
regularly recurring, periodic basis after appointment.'' The agency 
stated that the standard that the examination be job related and 
consistent with business necessity applies to all employer efforts to 
obtain medical information from employees. Further, the agency noted 
that there is EEOC guidance stating that any such regularly occurring 
examinations should be limited to persons in positions affecting public 
safety. OPM did not accept this comment. As noted in the provision, 
this section applies to positions that have ``medical standards and/or 
physical requirements'' and must be applied in a manner consistent with 
disability laws. Thus, OPM intends this provision to apply to all 
positions that may require medical examinations due to the nature of 
the work and/or the vulnerability of business operation and information 
systems to potential threats. This includes, but is not limited to, 
public safety positions.
    One agency proposed revising Sec.  339.301(b)(3), which, in the 
proposed rule, stated that an agency may require an individual to 
report for a medical examination ``whenever there is a direct question 
about an employee's continued capacity to meet the physical or medical 
or physical fitness requirements of a position.'' The agency proposed 
clarifying language to define the above medical and physical 
components. Another agency proposed revising Sec.  339.301(b)(3) to 
replace ``direct question'' with ``reasonable belief based on objective 
evidence.'' The agency's rationale was that the section intended to 
specify the circumstances under which an agency may require an employee 
to undergo a medical or psychiatric examination. The agency noted that 
the basic rule establishing when an employee examination may be 
required is that the requirement must be job related and consistent 
with business necessity. The agency proposed revising the language to 
read ``whenever the agency has a reasonable belief based on objective 
evidence, that there is a question about an employee's capacity to meet 
the physical or medical or physical fitness requirements of a 
position.'' OPM agrees with both comments that further clarification 
was appropriate and amended the section. The relevant clause now reads 
``whenever the agency has a reasonable belief, based on objective 
evidence, that there is a question about an employee's continued 
capacity to meet the medical standards and/or physical requirements.'' 
An example of where this section could be triggered includes a 
situation where medical opinions submitted by an applicant or employee 
are at variance with one another or there is insufficient medical 
documentation.
    An individual proposed clarifying the language in Sec.  339.301(c) 
to state that an agency may require an employee who has applied for or 
is receiving continuation of pay or compensation as a result of an 
injury or disease ``covered under the provisions of the Federal 
Employee's Compensation Act (FECA)'' to report for an examination to 
determine medical limitations that may affect placement decisions. OPM 
agrees and has amended the section by inserting the specific reference 
to FECA in order to provide more definitive guidance. An examination 
under FECA is ordered for compensation purposes. An examination under 5 
CFR 339 is ordered to determine medical limitation that may affect job 
placement decisions.
    One agency proposed expanding Sec.  339.301(d) to include the term 
``physical fitness standards or testing'' to the existing terms 
``medical standards'' or ``physical requirements'' for clarification 
purposes. OPM declines to adopt this comment. As noted previously, OPM 
has withdrawn these terms from the final rule for further 
consideration.
    One agency proposed revising Sec.  339.301(e)(1) to address when an 
agency may require an employee to undergo a medical or psychiatric 
examination. The agency states that the basic rule is that an 
examination requirement for employees must be job related and 
consistent with business necessity. The agency recommended revising the 
section to read ``an agency may order a psychiatric examination 
(including a psychological assessment) only when it has a reasonable 
belief, based on objective evidence, that the employee appears unable 
to meet the physical or mental or physical fitness requirements of a 
position.'' OPM did not accept inclusion of the proposed additional 
language. The existing provision limits a psychiatric examination or 
psychological assessment to circumstances where there is no physical-
based reason for the employment-related difficulty or where such 
examination/assessment is an articulated condition of employment.
    One agency proposed adding language relative to potential threats 
to Federal Government equipment and systems. The rationale provided by 
the agency was in relation to situations where an individual may not be 
a threat to individuals, but because of the nature of the position, 
could be a threat to agency equipment and systems. OPM agrees that 
threats to infrastructure by individuals is within the scope of these 
regulations, and has amended Sec.  339.301(e) to include a reference to 
vulnerability of business operation and information systems to 
potential threats to enhance understanding of the need to safeguard 
agency information and security systems.
    An individual proposed that Sec.  339.301(e)(1)(i) be revised to 
state that an agency may order a psychiatric examination including a 
psychological assessment only when ``the physician who has performed a 
current general medical examination that the agency has the authority 
to order under this section identifies a basis upon which a psychiatric 
examination is medically warranted.'' The individual also requested 
clarifying Sec.  339.301(e)(2) relative to the licensing of physicians 
conducting psychiatric examinations to state that a psychiatric 
examination or psychological assessment must be conducted in accordance 
with accepted professional standards ``by a licensed physician 
certified in psychiatry by the American Board of Psychiatry and 
Neurology.'' The rationale of the commenter was that, if a medical 
qualification standard for a position includes criteria for mental 
status and function, and there is a reason to suspect that a medical 
condition has caused or contributed to failure of the employee to 
perform the essential functions of the position, including a demand for 
human reliability, then a complete medical evaluation may be 
appropriate. The commenter further explained that such an evaluation 
would begin with a complete medical examination by, most likely, a 
specialist in internal medicine who would determine what additional 
specialty evaluations are medically warranted, including a psychiatric 
examination. OPM declines to adopt the comment related to Sec.  
339.301(e)(1)(i). OPM believes the existing language in this section 
clearly states when an agency may order a psychiatric examination or 
psychological assessment. OPM did modify the language in Sec.  
339.301(e)(2), and included references to clarify the licensing of 
physicians relative to psychiatric examinations. The language now 
states that the examination must be

[[Page 5349]]

conducted by a licensed physician ``certified in psychiatry by the 
American Board of Psychiatry and Neurology or the American Osteopathic 
Board of Psychiatry and Neurology,'' ``or by a licensed psychologist or 
clinical neuropsychologist.''
    One agency proposed amending Sec.  339.301(e) to provide that an 
individual's previous mental health treatment will not be a basis for a 
psychiatric examination or psychological assessment unless the 
individual has been hospitalized for a mental health related condition 
within the past seven years. The agency stated that there ``seems to be 
one area of potential employee medical disqualifiers that doesn't 
neatly `fit' into a category . . . that applies to positions with and 
without medical standards and physical requirements, and where an 
employee may pose `substantial harm' to themselves and others . . . .'' 
OPM is not adopting this approach to amending Sec.  339.301(e). With 
respect to mental health histories, mental health conditions are 
evaluated to determine whether they are temporary, transient, 
transitional or self-limiting, as opposed to mental health difficulties 
that are chronic and on-going with no perceivable end in sight. While 
behavioral traits, personality characteristics, temperaments, attitudes 
and biases, may be linked to mental health problems, they in and of 
themselves would not normally rise to a level supporting a clinical 
diagnosis of a mental health condition. See, e.g. Diagnostic and 
Statistical Manual of Mental Disorders (DSM-5; American Psychiatric 
Association, 2013).
Section 339.302
    An individual recommended deleting the authority to offer 
examinations covered in Sec.  339.302 and retain only the section on 
authority to order an examination. The commenter believed there are no 
circumstances under which an employer needs medical information to 
manage an employee's duty or employment status unless there are already 
medical qualification standards in place for the position. OPM has not 
accepted this comment. This regulation clearly distinguishes situations 
wherein an agency can order or offer an examination.
Section 339.303
    One agency stated that, in Sec.  339.303(a) of the proposed rule, a 
refusal or failure to report for a medical examination ordered by the 
agency could result in the agency determining that the employee is not 
qualified for the position. The agency proposed adding the term 
``applicant'' along with ``employee'' to Sec.  339.303(a) as this 
section also applies to applicants. OPM agrees and has amended this 
section on medical examination procedures to make clear the application 
of this rule to both applicants and employees.
    One agency recommended language be added to Sec.  339.303 that 
states that employees must be given a reasonable amount of time to 
provide medical documentation, based upon the nature of the condition 
and the accessibility of qualified individuals. The agency rationale is 
that this change would afford a level of protection to the employee and 
takes into consideration accessibility and availability of appropriate 
healthcare providers. OPM agrees with the needed clarification and has 
amended Sec.  339.303(a) to state that ``an agency may establish 
timeframes, in writing, for submission of medical documentation, with 
allowances for reasonable extensions.''
    One agency proposed adding language to Sec.  339.303 requiring an 
applicant or employee to provide medical documentation generated as a 
result of a medical examination. The agency questioned whether an 
agency could find that an applicant or employee is not qualified for 
the position if the individual reported for the examination, but 
refused to authorize release of any resulting medical documentation to 
the agency. The agency also recommended adding the requirement that an 
individual must furnish and authorize release of relevant medical 
documentation from his or her private physician to authorized agency 
representatives. OPM agrees there is a need for clarification and has 
amended Sec.  339.303 to state that refusal or failure by an applicant 
or employee to authorize release of any results from an agency ordered 
or offered medical examination, or the results of any previous medical 
treatments or evaluations relative to the identified issue, to 
authorized agency representatives, including the agency physician or 
independent medical specialists, may be a basis for disqualification 
for the position by the hiring agency. In addition, the employee may be 
subject to adverse action. Relevant medical documentation is needed in 
order for agency representatives, such as the agency physician or 
medical review officer, to render an informed medical and/or management 
decision relative to the health and safety of the applicant, employee, 
coworkers, and the public they serve.
    One agency requested clarifying Sec.  339.303(b) to address 
situations where medical documentation from the applicant or employee's 
private physician or practitioner is contradictory to, and cannot be 
resolved by, the examining physician or the agency medical review 
officer. OPM agrees and has amended the section to state that in 
situations where medical documentation of the private physician or 
practitioner is contradictory and cannot be resolved by the examining 
physician or the agency medical review officer, the agency may, at its 
option, pursue a third opinion from an appropriate specialist (e.g. 
independent medical specialist). This enables the hiring agency to make 
an informed management decision relative to the medical eligibility 
determination of an applicant or employee.
Section 339.304
    Two agencies proposed revising Sec.  339.304 to clarify 
circumstances where an agency is financially responsible, versus when 
the applicant or employee is financially responsible, for the cost of 
medical examinations, testing and related documentation, noting that 
this issue has caused confusion in the past. OPM agrees that this can 
be a confusing issue for managers, applicants and employees. OPM has 
amended the section to clearly state when an agency is responsible, and 
when an applicant or employee is responsible, for payment of medical 
examinations, related testing, and documentation.
Section 339.305
    An individual proposed revising Sec.  339.305 relative to workers 
compensation issues. Specifically, the individual stated the section 
was confusing. The individual also stated he did not understand the 
purpose of the communication and information interchange with the 
Office of Workers Compensation (OWCP) and requested to discuss the 
objectives further. OPM has not accepted this comment or request. This 
section provides that agencies must forward to OWCP copies of medical 
documentation and examinations of employees who are receiving or have 
applied for injury compensation benefits, including continuation of 
pay. The results of these employee evaluations are significant to the 
agency and to OWCP in that this information and any related periodic 
updates are critical to determining medical limitations that may affect 
job placement decisions.
    The final part 339 is published in its entirety for the convenience 
of the reader.

[[Page 5350]]

E.O. 12866, Regulatory Review

    This rule has been reviewed by the Office of Management and Budget 
in accordance with E.O. 12866.

Regulatory Flexibility Act (5 U.S.C. 601, et seq.)

    I certify that these regulations would not have a significant 
economic impact on a substantial number of small entities because it 
affects only Federal agencies and employees.

E.O. 13132, Federalism

    This regulation will not have substantial direct effects on the 
States, on the relationship between the National Government and the 
States, or on distribution of power and responsibilities among the 
various levels of government. Therefore, in accordance with Executive 
Order 13132, it is determined that this rule does not have sufficient 
federalism implications to warrant preparation of a Federalism 
Assessment.

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local or 
tribal governments of more than $100 million annually. Thus, no written 
assessment of unfunded mandates is required.

Paperwork Reduction Act

    These proposed regulations impose no new reporting or recordkeeping 
requirements subject to the Paperwork Reduction Act of 1995.

List of Subjects in 5 CFR Part 339

    Equal employment opportunity, Government employees, Health, 
Individuals with disabilities.

U.S. Office of Personnel Management.
Beth F. Colbert,
Director.

0
Accordingly, OPM is revising 5 CFR part 339 to read as follows:

PART 339--MEDICAL QUALIFICATION DETERMINATIONS

0
1. Revise part 339 to read as follows:
Subpart A--General
Sec.
339.101 Coverage.
339.102 Purpose and effect.
339.103 Compliance with disability laws.
339.104 Definitions.
Subpart B--Medical Standards, Physical Requirements, and Medical 
Evaluation Programs
339.201 Disqualification by OPM.
339.202 Medical standards.
339.203 Physical requirements
339.204 Waiver of standards and requirements and medical review 
boards.
339.205 Medical evaluation programs.
339.206 Disqualification on the basis of medical history.
Subpart C--Medical Examinations
339.301 Authority to require an examination.
339.302 Authority to offer examinations.
339.303 Medical examination procedures.
339.304 Payment for examination.
339.305 Records and reports.
339.306 Processing medical eligibility determinations.

    Authority:  5 U.S.C. 1104(a), 1302(a), 3301, 3302, 3304, 3312, 
3318, 3320, 3504, 5112; 39 U.S.C. 1005, Executive Order 10577, Rule 
II, codified as amended in 5 CFR 2.1(a).

Subpart A--General


Sec.  339.101  Coverage.

    This part applies to--
    (a) Applicants for and employees in competitive service positions; 
and
    (b) Applicants for and employees in positions excepted from the 
competitive service when medical issues arise in connection with an OPM 
regulation that governs a particular personnel action, such as removal 
of a preference eligible employee in the excepted service under part 
752.


Sec.  339.102   Purpose and effect.

    (a) This part defines the circumstances under which OPM permits 
medical documentation to be required and examinations and/or 
evaluations conducted to determine the nature of a medical condition 
that affects safe and efficient performance.
    (b) Personnel decisions based wholly or in part on the review of 
medical documentation, as defined below, and the results of medical 
examinations and evaluations must be made in accordance with 
appropriate sections of this part.
    (c) Failure to meet medical (which may include psychological) 
standards and/or physical requirements established under this part 
means that the applicant or employee is not qualified for the position, 
unless reasonable accommodation or a waiver is appropriate, in 
accordance with Sec. Sec.  339.103 and 339.204. An employee's refusal 
to be examined or provide medical documentation, as defined below, in 
accordance with a proper agency order authorized under this part, 
constitutes a basis for appropriate disciplinary or adverse action. 
After a tentative job offer of employment conditioned on completion of 
a medical examination, an applicant's refusal to be examined or provide 
medical documentation, as defined below, may result in the applicant's 
removal from further consideration for the position.


Sec.  339.103   Compliance with disability laws.

    (a) The Americans with Disabilities Act (ADA) of 1990, as amended 
by the Amendments Act of 2008 (collectively the ADA), establishes 
prohibitions against discrimination and the requirements for reasonable 
accommodation that apply to the Federal Government through the 
Rehabilitation Act of 1973, as amended, 29 U.S.C. 791(f). Consequently, 
actions under this part must comply with the non-discrimination 
provisions of the Rehabilitation Act, the non-discrimination provisions 
of the ADA, and their implementing regulations.
    (b) Use of the term ``qualified'' in this part must comply with the 
Rehabilitation Act, as amended, and the ADA, as amended. Specifically, 
a ``qualified individual with a disability'' means that the individual 
possess the requisite skill, experience, education, and other job-
related requirements of an employment position that the individual 
holds or seeks, and can perform the essential functions of the position 
with or without reasonable accommodation.


Sec.  339.104   Definitions.

    For purposes of this part--
    Accommodation means reasonable accommodation as described in the 
ADA.
    Arduous or hazardous positions means positions that are dangerous 
or physically demanding to such a degree that an employee's medical 
and/or physical condition is necessarily an important consideration in 
determining ability to perform safely and efficiently.
    Medical condition means a health impairment which results from 
birth, injury or disease, including mental disorder.
    Medical documentation or documentation of a medical condition means 
a copy of a dated, written and signed statement, or a dated copy of 
actual medical office or hospital records, from a licensed physician or 
other licensed health practitioner, as these terms are defined below, 
that contains necessary and relevant information to enable the agency 
to make an employment decision. To be acceptable, the diagnosis or 
clinical impression must be justified according to established 
diagnostic criteria and the conclusions and recommendations must be 
consistent with generally accepted professional standards. The 
determination that the diagnosis meets these criteria is made by or in 
coordination with a licensed physician or, if appropriate, a 
practitioner of the same discipline as the one who issued the 
documentation. An acceptable

[[Page 5351]]

diagnosis must include the information identified by the agency as 
necessary and relevant to its employment decision. This information may 
include, but is not limited to, the following:
    (1) The history of the medical condition(s), including references 
to findings from previous examinations, treatment, and responses to 
treatment;
    (2) Clinical findings from the most recent medical evaluation, 
including any of the following: Findings of physical examination; 
results of laboratory tests; X-rays; EKGs and/or other special 
evaluations or diagnostic procedures; and, in the case of psychiatric 
examination or psychological assessment, the findings of a mental 
status examination and/or the results of psychological tests, if 
appropriate;
    (3) Diagnosis, including the current clinical status;
    (4) Prognosis, including plans for future treatment and an estimate 
of the expected date of full or partial recovery;
    (5) An explanation of the impact of the medical condition(s) on 
overall health and activities, including the basis for any conclusion 
as to whether restrictions or accommodations are necessary and, if 
determined to be necessary, an explanation supporting that 
determination; and, either of the following:
    (6) An explanation of the medical basis for any conclusion that 
indicates the likelihood that the applicant or employee will suffer 
sudden incapacitation or subtle incapacitation by carrying out, with or 
without accommodation, the tasks or duties of a specific position; or
    (7) Narrative explanation of the medical basis for any conclusion 
that the medical condition has or has not become static or well-
stabilized and the likelihood that the applicant or employee may 
experience sudden incapacitation or subtle incapacitation as a result 
of the medical condition. In this context, ``static or well-
stabilized'' medical condition means a medical condition which is not 
likely to change as a consequence of the natural progression of the 
condition, such as a result of the normal aging process, or in response 
to the work environment or the work itself.
    Medical evaluation program means a program of recurring medical 
examinations or tests established by written agency policy or 
directive, to safeguard the health of employees whose work may subject 
them or others to significant health or safety risks due to 
occupational or environmental exposure or demands. For example, an 
agency policy or directive may include medical clearances and medical 
surveillance to test for occupational exposure to biological, chemical, 
and/or radiological hazardous agents, occupational diseases, and 
occupational risk.
    Medical restriction is a medical determination that an applicant or 
employee is limited, or prevented from performing a certain type or 
duration of work or activity (e.g., standing and/or ability to 
concentrate) or motion (e.g., bending, lifting, pulling), because of a 
particular medical condition or physical limitation. The purpose of a 
medical restriction is to try to prevent aggravation, acceleration, 
exacerbation, or permanent worsening of the medical condition or 
physical limitation.
    Medical standard is a written description of the minimum medical 
requirements necessary for an applicant or employee to perform 
essential job duties as a condition of employment.
    Medical surveillance is the on-going systematic collection and 
analysis of health data to improve and protect the health and safety of 
employees in the workplace, and to monitor for health trends both in 
individual workers and in population of workers. Medical surveillance 
can include the tracking of occupational injuries, illnesses, hazards, 
and exposures, as well as laboratory and examination-based medical 
data, in order to identify findings that could provide an early warning 
of, or indicate the risk for, an occupational disease. Medical 
surveillance also is part of compliance with those Federal and state 
regulations that require medical monitoring when employees use or are 
exposed to certain hazardous materials.
    Physical requirement is a written description of job-related 
physical abilities that are essential for performance of the duties of 
a specific position.
    Physician means a licensed Doctor of Medicine or Doctor of 
Osteopathy, or a physician who is serving on active duty in the 
uniformed services and is designated by the uniformed service to 
conduct examinations under this part.
    Practitioner means a person providing health services who is not a 
medical doctor, but who is certified by a national organization, 
licensed by a State, and/or registered as a health professional to 
provide the health service in question.
    Subtle incapacitation means gradual, initially imperceptible 
impairment of physical or mental function, whether reversible or not, 
which is likely to result in safety, performance and/or conduct issues 
that may undermine the agency's commitment to maintaining a safe 
working environment for all employees and others.
    Sudden incapacitation means abrupt onset of loss of control of 
physical or mental function(s), whether reversible or not, which is 
likely to result in safety, performance or conduct issues that may 
undermine the agency's commitment to maintaining a safe working 
environment for all employees and others.

Subpart B--Medical Standards, Physical Requirements, and Medical 
Evaluation Programs


Sec.  339.201   Disqualification by OPM.

    OPM must review and decide upon an agency's request to pass over a 
candidate, who is a preference eligible, on medical grounds pursuant to 
Sec.  339.306. OPM may deny an applicant employment by reason of 
physical or mental unfitness for the position for which he or she has 
applied. An OPM decision under this section or Sec.  339.306 is 
separate and distinct from a determination of disability pursuant to 
statutory provisions for disability retirement under the Civil Service 
Retirement System and the Federal Employees' Retirement System.


Sec.  339.202   Medical standards.

    OPM may establish and/or approve medical standards for a 
Governmentwide occupation (i.e., an occupation common to more than one 
agency) or approve revisions to its established medical standards. An 
individual agency may establish medical standards for positions that 
predominate in that agency (i.e., where the agency has 50 percent or 
more of the positions in a particular occupation). Such standards must 
be justified on the basis that the duties of the positions are arduous 
or hazardous, or require a certain level of health status for 
successful performance when the nature of the positions involves a high 
degree of responsibility toward the public or sensitive national 
security concerns. The rationale for establishing the standard must be 
documented and supported by a study(ies) or evaluation(s) establishing 
the medical standard is job-related to the occupation(s). Medical 
standards established by agencies must be approved by OPM prior to 
implementation. Standards established by OPM or an agency must be:
    (a) Established by written directive and uniformly applied, and
    (b) Directly related to the actual performance and requirements 
necessary for the performance of the duties of the position.


Sec.  339.203   Physical requirements.

    (a) An agency may establish physical requirements for individual 
positions

[[Page 5352]]

without OPM approval when such requirements are considered essential 
for performance of the duties of a specific position. Physical 
requirements must be clearly supported by the actual duties of the 
position, documented in the position description, and supported by a 
study(ies) or evaluation(s) establishing physical requirement(s) is 
job-related to the occupation(s).
    (b) An applicant or employee may not be disqualified arbitrarily on 
the basis of physical requirements or other criteria that do not relate 
specifically to performance of the duties of a specific position.


Sec.  339.204   Waiver of standards and requirements and medical review 
boards.

    (a) An agency must waive a medical standard or physical requirement 
established under this part when an applicant or employee, unable to 
meet that standard or requirement, presents sufficient evidence that 
the applicant or employee, with or without reasonable accommodation, 
can perform the essential duties of the position without endangering 
the health and safety of the applicant or employee or others. 
Additional information obtained by the agency may be considered in 
determining whether a waiver is appropriate. An agency may establish 
timeframes, in writing, for submission of initial or additional 
information for consideration, with allowance for reasonable 
extensions.
    (b) Agencies may, but are not required to, establish medical review 
boards to help the agency provide a case-by-case, fact-based, 
individualized assessment whenever an individual is found to not meet 
agency medical standards or physical requirements. An agency may also 
use a medical review board as a forum for a higher level of review 
within the agency when medical questions or issues arise. If 
established, the Board is expected to recommend administrative actions 
that are consistent with applicable law, as well as applicable and 
current medical practice standards of care, through the combined 
expertise of its members.
    (c) The use and composition of a medical review board will be 
determined by the agency. Upon request, an agency will provide to OPM 
information regarding the composition and use of medical review boards. 
OPM may issue guidance from time to time as to best practices with 
respect to the composition and use of such boards.


Sec.  339.205  Medical evaluation programs.

    Agencies may establish periodic medical examinations, medical 
surveillance, or immunization programs by written policies or 
directives to safeguard the health of employees whose work may expose 
them or others to significant health or safety risks due to 
occupational or environmental exposure or demands. This may include the 
requirement to undergo vaccination with products approved by the Food 
and Drug Administration (e.g., for national security reasons or in 
order to fulfill the duties of a position designated as national 
security sensitive). The need for a medical evaluation program must be 
clearly supported by the nature of the work. The specific positions 
covered must be identified and the applicants or employees notified in 
writing of the reasons for including the positions in the program.


Sec.  339.206  Disqualification on the basis of medical history.

    An employee or applicant may not be disqualified for any position 
solely on the basis of medical history. For positions subject to 
medical standards and/or physical requirements, and for positions under 
medical evaluation programs, a history of a particular medical 
condition may result in medical disqualification only if the condition 
at issue is itself disqualifying, recurrence of the condition is based 
on reasonable medical judgment, and the duties of the position are such 
that a recurrence of the condition would pose a significant risk of 
substantial harm to the health and safety of the applicant or employee 
or others that cannot be eliminated or reduced by reasonable 
accommodation or any other agency efforts to mitigate risk.

Subpart C--Medical Examinations


Sec.  339.301  Authority to require an examination.

    (a) A routine pre-employment medical examination is appropriate 
only for a position with specific medical standards and/or physical 
requirements, or that is covered by a medical evaluation program 
established under this part.
    (b) Subject to Sec.  339.103, an agency may require an applicant or 
employee who has applied for or occupies a position that has medical 
standards and/or physical requirements, or is covered by a medical 
evaluation program established under this part, to report for a medical 
examination:
    (1) Subsequent to a tentative offer of employment or reemployment 
(including return to work from medically based absence on the basis of 
a medical condition);
    (2) On a regularly recurring, periodic basis after appointment in 
accordance with Sec.  339.205; or
    (3) Whenever the agency has a reasonable belief, based on objective 
evidence, that there is a question about an employee's continued 
capacity to meet the medical standards or physical requirements of a 
position.
    (c) An agency may require an employee who has applied for or is 
receiving continuation of pay or compensation as a result of an injury 
or disease covered under the provisions of the Federal Employees' 
Compensation Act to report for an examination to determine medical 
limitations that may affect job placement decisions.
    (d) An agency may require an employee who is released from his or 
her competitive level in a reduction in force under part 351 of this 
chapter to undergo a relevant medical evaluation if the position to 
which the employee has assignment rights has medical standards and/or 
physical requirements, that are different from those required in the 
employee's current position.
    (e)(1) An agency may order a psychiatric examination (including a 
psychological assessment) only when:
    (i) The result of a current general medical examination that the 
agency has the authority to order under this section indicates no 
physical explanation for behavior or actions that may affect the safe 
and efficient performance of the applicant or employee, the safety of 
others, and/or the vulnerability of business operation and information 
systems to potential threats, or
    (ii) A psychiatric examination or psychological assessment is part 
of the medical standards for a position having medical standards or 
required under a medical evaluation program established under this 
part.
    (2) A psychiatric examination or psychological assessment 
authorized under paragraphs (e)(1) of this section must be conducted in 
accordance with accepted professional standards by a licensed physician 
certified in psychiatry by the American Board of Psychiatry and 
Neurology or the American Osteopathic Board of Psychiatry and 
Neurology, or by a licensed psychologist or clinical neuropsychologist, 
and may only be used to make inquiry into a person's mental fitness as 
it directly relates to successfully performing the duties of the 
position without significant risk to the applicant or employee or 
others, and/or to the vulnerability of business operation and 
information systems to potential threats.


Sec.  339.302   Authority to offer examinations.

    An agency may, at its option, offer a medical examination 
(including a

[[Page 5353]]

psychiatric examination or psychological assessment) in situations 
where the agency needs additional medical documentation to make an 
informed management decision. This may include situations where an 
employee requests, for medical reasons, a change in duty status, 
assignment, working conditions, or any other different treatment 
(including reasonable accommodation or return to work on the basis of 
full or partial recovery from a medical condition) or where the 
employee has a performance or conduct problem that may require agency 
action. Reasons for offering an examination must be documented. When an 
offer of an examination has been made by an agency and the offer has 
been accepted by the applicant or employee, the examination must be 
carried out in accordance with the authorities cited in Sec.  339.103. 
The results of the examination must also be used in accordance with the 
authorities cited in Sec.  339.103.


Sec.  339.303   Medical examination procedures.

    (a) When an agency requires or offers a medical or psychiatric 
examination or psychological assessment under this subpart, it must 
inform the applicant or employee in writing of its reasons for doing 
so, the consequences of failure to cooperate, and the right to submit 
medical information from his or her private physician or practitioner. 
A single written notification is sufficient to cover a series of 
regularly recurring or periodic examinations ordered under this 
subpart. An agency may establish timeframes, in writing, for submission 
of medical documentation, with allowances for reasonable extensions.
    (1) Refusal or failure to report for a medical examination ordered 
by the agency may be a basis for a determination that the applicant or 
employee is not qualified for the position. In addition, an employee 
may be subject to adverse action.
    (2) Refusal or failure on the part of an applicant or the employee 
to authorize release of any results from an agency ordered or offered 
medical examination issued in accordance with Sec. Sec.  339.301 or 
339.302, or the results of any previous medical treatments or 
evaluations relative to the identified medical issue, to authorized 
agency representatives, including the agency physician or medical 
review officer and/or independent medical specialists, may be a basis 
for disqualification for the position by the hiring agency. In 
addition, an employee may be subject to adverse action.
    (b) The agency designates the examining physician or other 
appropriate practitioner, but must offer the applicant or employee an 
opportunity to submit medical documentation from his or her private 
physician or practitioner for consideration in the medical examination 
process. The agency must review and consider all such documentation 
supplied by the private physician or practitioner. The applicant or 
employee must authorize release of this documentation to all authorized 
agency representatives. In situations where the medical documentation 
of the applicant or employee's private physician or practitioner is 
contradictory and cannot be resolved by the examining physician or the 
agency physician or medical review officer, the agency may, at its 
option, pursue another opinion from an appropriate specialist at agency 
expense. An applicant or employee also may, at his or her option, 
pursue another opinion from an appropriate specialist at his or her 
expense in the event of conflicting or contradictory medical 
documentation.


Sec.  339.304  Payment for examination.

    (a) An agency must pay for all medical and/or psychological and/or 
psychiatric examinations required or offered by the agency under this 
subpart, whether conducted by the agency's physician or medical review 
officer, an independent medical evaluation specialist (e.g., 
occupational audiologist) identified by the agency, or a licensed 
physician or practitioner chosen by the applicant or employee. This 
includes special evaluations or diagnostic procedures required by an 
agency.
    (b) Following conclusion of the initial medical, psychological, 
and/or psychiatric examination, the agency physician or medical review 
officer will render a final medical determination. In certain final 
medical ineligibility determinations, the agency physician or medical 
review officer may reference supplemental medical examination, testing 
or documentation, which the applicant or employee may submit to the 
agency for consideration and further review relative to potential 
medical eligibility. Under these circumstances, the applicant or 
employee is responsible for payment of this further examination, 
testing and documentation.
    (c) An applicant or employee must pay to obtain all relevant 
medical documentation from his or her private licensed physician or 
required practitioners in instances where no medical examination is 
required or offered by the agency, but where the agency requests the 
applicant or employee to provide medical documentation relative to an 
identified medical or physical condition in question or where the 
agency needs medical documentation to render an informed management 
decision.
    (d) An applicant or employee must pay for a medical examination 
conducted by his or her private licensed physician or practitioner 
where the purpose of the examination is to secure a change sought by an 
applicant (e.g., new employment) or by an employee (e.g., a request for 
change in duty status, reasonable accommodation, and/or job 
modification).


Sec.  339.305   Records and reports.

    (a) Agencies will receive and maintain all medical documentation 
and records of examinations obtained under this part in accordance with 
part 293, subpart E, of this chapter.
    (b) The report of an examination conducted under this subpart must 
be made available to the applicant or employee under the provisions of 
part 297 of this chapter.
    (c) Agencies must forward to the Office of Workers' Compensation 
Programs (OWCP), Employment Standards Administration, Department of 
Labor, a copy of all medical documentation and reports of examinations 
of employees who are receiving or have applied for injury compensation 
benefits under 5 U.S.C. chapter 81, including continuation of pay. The 
agency must also report to OWCP the failure of such employees to report 
for examinations that the agency orders under this subpart. When the 
employee has applied for disability retirement, this information and 
any medical documentation or reports of examination must be forwarded 
to OPM.


Sec.  339.306   Processing medical eligibility determinations.

    (a) In accordance with the provisions of this part, agencies are 
authorized to medically disqualify a nonpreference eligible. A 
nonpreference eligible so disqualified has a right to a higher level 
review of the determination within the agency.
    (b) OPM must approve the sufficiency of the agency's reasons to:
    (1) Medically disqualify or pass over a preference eligible in 
order to select a nonpreference eligible for:
    (i) A competitive service position under part 332 of this chapter; 
or
    (ii) An excepted service position in the executive branch subject 
to title 5, U.S. Code;
    (2) Medically disqualify or pass over a 30 percent or more 
compensably

[[Page 5354]]

disabled veteran for a position in the U.S. Postal Service in favor of 
a nonpreference eligible;
    (3) Medically disqualify a 30 percent or more compensably disabled 
veteran for assignment to another position in a reduction in force 
under Sec.  351.702(d) of this chapter; or
    (4) Medically disqualify a 30 percent or more disabled veteran for 
noncompetitive appointment, for example, under Sec.  316.302(b)(4) of 
this chapter.

[FR Doc. 2017-00804 Filed 1-17-17; 8:45 am]
 BILLING CODE 6325-39-P