\[Code of Federal Regulations\]

\[Title 5, Volume 1, Parts 1 to 699\]

\[Revised as of January 1, 2001\]

From the U.S. Government Printing Office via GPO Access

\[CITE: 5CFR339\]

\[Page 233-238\]

TITLE 5\--ADMINISTRATIVE PERSONNEL

CHAPTER I\--OFFICE OF PERSONNEL MANAGEMENT

PART 339\--MEDICAL QUALIFICATION DETERMINATIONS

Subpart A\--General

Sec.

339.101 Coverage.

339.102 Purpose and effect.

339.103 Compliance with EEOC regulations.

339.104 Definitions.

Subpart B\--Physical and Medical Qualifications

339.201 Disqualification by OPM.

339.202 Medical standards.

339.203 Physical requirements.

339.204 Waiver of standards and requirements.

339.205 Medical evaluation programs.

\[\[Page 234\]\]

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 Examination procedures.

339.304 Payment for examination.

339.305 Records and reports.

339.306 Processing medical eligibility determinations on certificates

of eligibles.

Authority: 5 U.S.C. 3301, 3302, 5112; E.O. 9830, February 24, 1947.

Source: 54 FR 9763, Mar. 8, 1989, unless otherwise noted.

Subpart A\--General

Sec. 339.101 Coverage.

This part applies to all applicants for and employees in competitive

service positions; and to excepted service employees when medical issues

arise in connection with an OPM regulation which governs a particular

personnel decision, for example, 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 medical

documentation may be acquired and examinations and evaluations conducted

to determine the nature of a medical condition which may affect safe and

efficient performance.

\(b\) Personnel decisions based wholly or in part on the review of

medical documentation and the results of medical examinations and

evaluations shall be made in accordance with appropriate parts of this

title.

\(c\) Failure to meet a properly established medical standard or

physical requirement under this part means that the individual is not

qualified for the position unless a waiver or reasonable accommodation

is indicated, as described in Secs. 339.103 and 339.204. An employee\'s

refusal to be examined in accordance with a proper agency order

authorized under this part is grounds for appropriate disciplinary or

adverse action.

\[54 FR 9763, Mar. 8, 1989, as amended at 60 FR 3061, Jan. 13, 1995\]

Sec. 339.103 Compliance with EEOC regulations.

Actions under this part must be consistent with 29 CFR 1613. 701 et

seq. Particularly relevant to medical qualification determinations are

Sec. 1613.704 (requiring reasonable accommodation of individuals with

handicaps); Sec. 1613.705 (prohibiting use of employment criteria that

screen out individuals with handicaps unless shown to be related to the

job in question) and Sec. 1614.706 (prohibiting pre-employment inquiries

related to handicap and pre-employment medical examinations, except

under specified circumstances). In addition, use of the term

\`\`qualified\'\' in these regulations shall be interpreted consistently

with Sec. 1613.702(f), which provides that a \`\`qualified handicapped

person\'\' is a handicapped person \`\`who, with or without reasonable

accommodation, can perform the essential functions of the position in

question without endangering the health and safety of the individual or

others.\'\'

Sec. 339.104 Definitions.

For purposes of this part\--

Accommodation means reasonable accommodation as described in 29 CFR

1613.704.

Arduous of hazardous positions means positions that are dangerous or

physically demanding to such a degree that an incumbent\'s medical

condition is necessarily an important consideration in determining

ability to perform safely and efficiently.

Medical condition means health impairment which results from injury

or disease, including psychiatric disease.

Medical documentation or documentation of a medical condition means

a statement from a licensed physician or oher appropriate practitioner

which provides information the agency considers necessary to enable it

to make a employment decision. To be acceptable, the diagnosis or

clinical impression must be justified according to established

diagnostic criteria and the conclusions and recommendations must not be

inconsistent with generally accepted professional standards. The

determination that the diagnosis meets these criteria is made by or in

coordination with a physician or, if appropriate, a practitioner of the

same

\[\[Page 235\]\]

discipline as the one who issued the statement. An acceptable diagnosis

must include the following information, or parts identified by the

agency as necessary and relevant:

\(a\) The history of the medical conditions, including references to

findings from previous examinations, treatment, and responses to

treatment;

\(b\) Clinical findings from the most recent medical evaluation,

including any of the following which have been obtained: Findings of

physical examination; results of laboratory tests; X-rays; EKG\'s and

other special evaluations or diagnostic procedures; and, in the case of

psychiatric evaluation of psychological assessment, the findings of a

mental status examination and the results of psychological tests, if

appropriate;

\(c\) Diagnosis, including the current clinical status;

\(d\) Prognosis, including plans for future treatment and an estimate

of the expected date of full or partial recovery;

\(e\) An explanation of the impact of the medical condition on overall

health and activities, including the basis for any conclusion that

restrictions or accommodations are or are not warranted, and where they

are warranted, an explanation of their therapeutic of risk avoiding

value;

\(f\) An explanation of the medical basis for any conclusion which

indicates the likelihood that the individual is or is not expected to

suffer sudden or subtle incapacitation by carrying out, with or without

accommodation, the tasks or duties of a specific position;

\(g\) 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 individual may experience sudden

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, specifically as a result of the normal

aging process, or in response to the work environment or the work

itself. \`\`Subtle incapacitation\'\' means gradual, initially
imperceptible

impairment of physical or mental function whether reversible or not

which is likely to result in performance or conduct deficiencies.

\`\`Sudden incapacitation\'\' means abrupt onset of loss of control of

physical or mental function.

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.

Medical standard is a written description of the medical

requirements for a particular occupation based on a determination that a

certian level of fitness of health status is required for successful

performance.

Physical requirement is a written description of job-related

physical abilities which are normally considered essential for

successful performance in 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 and

licensed by a State to provide the service in question.

Subpart B\--Physical and Medical Qualifications

Sec. 339.201 Disqualification by OPM.

Subject to subpart C of part 731 of this chapter, OPM may deny an

applicant examination, deny an eligible appointment, and instruct an

agency to remove an appointee by reason of physical or mental unfitness

for the position for which he or she has applied, or to which he or she

has been appointed. An OPM decision under this section is separate and

distinct from a determination of disability under Sec. 831.502, 844.103,

844.202, or subpart L of part 831 of this title, and does not

necessarily entitle the employee to disability retirement under sections

8337 or 8451 of title 5, United States Code.

\[\[Page 236\]\]

Sec. 339.202 Medical standards.

OPM may establish or approve medical standards for a Governmentwide

occupation (i.e., an occupation common to more than one agency). An

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 position are arduous or hazardous,

or require a certain level of health status or fitness because the

nature of the positions involve a high degree of responsibility toward

the public or sensitive national security concerns. The rationale for

establishing the standard must be documented. Standards established by

OPM or an agency must be:

\(a\) Established by written directive and uniformly applied,

\(b\) Directly related to the actual requirements of the position, and

\(c\) Consistent with OPM instructions published in FPM chapter 339.

Sec. 339.203 Physical requirements.

Agencies are authorized to establish physical requirements for

individual positions without OPM approval when such requirements are

considered essential for successful job performance. The requirements

must be clearly supported by the actual duties of the position and

documented in the position description.

Sec. 339.204 Waiver of standards and requirements.

Agencies must waive a medical standard or physical requirement

established under this part when there is sufficient evidence that an

applicant or employee, with or without reasonable accommodation, can

perform the essential duties of the position without endangering the

health and safety of the individual or others.

Sec. 339.205 Medical evaluation programs.

Agencies may establish periodic examination or immunization programs

by written policies or directives 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. 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 incumbents notified in writing of the reasons for

including the positions in the program.

Sec. 339.206 Disqualification on the basis of medical history.

A candidate may not be disqualified for any position solely on the

basis of medical history. For positions with medical standards or

physical requirements, or positions subject to medical evaluation

programs, a history of a particular medical problem may result in

medical disqualification only if the condition at issue is itself

disqualifying, recurrence cannot medically be ruled out, and the duties

of the position are such that a recurrence would pose a reasonable

probability of substantial harm.

Subpart C\--Medical Examinations

Sec. 339.301 Authority to require an examination.

\(a\) A routine preappointment examination is appropriate only for a

position which has specific medical standards, physical requirements, or

is covered by a medical evaluation program established under these

regulations.

\(b\) Subject to Sec. 339.103 of this part, an agency may require an

individual who has applied for or occupies a position which has medical

standards or physical requirements or which is part of an established

medical evaluation program, to report for a medical examination:

\(1\) Prior to appointment or selection (including reemployment on the

basis of full or partial recovery from a medical condition);

\(2\) On a regularly recurring, periodic basis after appointment; or

\(3\) Whenever there is a direct question about an employee\'s

continued capacity to meet the physical or medical 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 on-the-

job injury or disease to report for an examination

\[\[Page 237\]\]

to determine medical limitations that may affect placement decisions.

\(d\) An agency may require an employee who is released from his or

her competitive level in a reduction in force to undergo a relevant

medical evaluation if the position to which the employee has

reassignment rights has medical standards or specific physical

requirements which 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 which the

agency has the authority to order under this section indicates no

physical explanation for behavior or actions which may affect the safe

and efficient performance of the individual or others, or

\(ii\) A phychiatric examination is specifically called for in a

position having medical standards or subject to a medical evaluation

program established under this part.

\(2\) A psychiatric examination or psychological assessment authorized

under (i) or (ii) above must be conducted in accordance with accepted

professional standards, by a licensed practitioner or physician

authorized to conduct such examinations, and may only be used to make

legitimate inquiry into a person\'s mental fitness to successfully

perform the duties of his or her position without undue hazard to the

individual or others.

Sec. 339.302 Authority to offer examinations.

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

a psychiatric evaluation) in any situation where the agency needs

additional medical documentation to make an informed management

decision. This may include situations where an individual requests for

medical reasons a change in duty status, assignment, working conditions,

or any other benefit or special treatment (including reasonable

accommodation or reemployment on the basis of full or partial recovery

from a medical condition) or where the individual has a performance or

conduct problem which may require agency action. Reasons for offering an

examination must be documented. An offer of an examination shall be

carried out and used in accordance with 29 CFR 1613.706.

Sec. 339.303 Examination procedures.

\(a\) When an agency orders or offers a medical examination under this

subpart, it must inform the applicant or employee in writing of its

reasons for doing so and the consequences of failure to cooperate. (A

single notification is sufficient to cover a series of regularly

recurring or periodic examinations ordered under this subpart.)

\(b\) The agency designates the examining physician or other

appropriate practitioner, but must offer the individual an opportunity

to submit medical documentation from his or her personal physician or

practitioner. The agency must review and consider all such documentation

supplied by the individual\'s personal physician or practitioner.

Sec. 339.304 Payment for examination.

Agencies shall pay for all examinations ordered or offered under

this subpart, whether conducted by the agency\'s physician or the

applicant\'s or employee\'s physician. Applicants and employees must pay

for a medical examination conducted by a private physician (or

practitioner) where the purpose of the examination is to secure a

benefit sought by the applicant or employee.

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

instructions provided by OPM, under provisions of 5 CFR part 293,

subpart E.

\(b\) 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), Department of Labor, a copy of all medical

documentation and reports of examinations of individuals who are

receiving or have applied for injury compensation benefits including

continuation of pay. The agency must

\[\[Page 238\]\]

also report to the OWCP the failure of such individuals to report for

examinations that the agency orders under this subpart. When the

individual has applied for disability retirement, this information must

be forwarded to OPM.

Sec. 339.306 Processing medical eligibility determinations on

certificates of eligibles.

\(a\) 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 on a

certificate in place of a nonpreference eligible,

\(2\) Medically disqualify or pass over a 30 percent or more

compensably 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, or

\(4\) Medically disqualify a 30 percent or more disabled veteran for

noncompetitive appointment.