### §3312. Preference eligibles; physical qualifications; waiver

(a) In determining qualifications of a preference eligible for examination for, appointment in, or reinstatement in the competitive service, the Office of Personnel Management or other examining agency shall waive—

(1) requirements as to age, height, and weight, unless the requirement is essential to the performance of the duties of the position; and

(2) physical requirements if, in the opinion of the Office or other examining agency, after considering the recommendation of an accredited physician, the preference eligible is physically able to perform efficiently the duties of the position.

(b) If an examining agency determines that, on the basis of evidence before it, a preference eligible under section 2108(3)(C) of this title who has a compensable service-connected disability of 30 percent or more is not able to fulfill the physical requirements of the position, the examining agency shall notify the Office of the determination and, at the same time, the examining agency shall notify the preference eligible of the reasons for the determination and of the right to respond, within 15 days of the date of the notification, to the Office. The Office shall require a demonstration by the appointing authority that the notification was timely sent to the preference eligible's last known address and shall, before the selection of any other person for the position, make a final determination on the physical ability of the preference eligible to perform the duties of the position, taking into account any additional information provided in any such response. When the Office has completed its review of the proposed disqualification on the basis of physical disability, it shall send its findings to the appointing authority and the preference eligible. The appointing authority shall comply with the findings of the Office. The functions of the Office under this subsection may not be delegated.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 420; Pub. L. 95–454, title III, §307(c), title IX, §906(a)(2), (3), Oct. 13, 1978, 92 Stat. 1148, 1224.)

| Derivation | U.S. Code | Revised Statutes and Statutes at Large |
| --- | --- | --- |
| | 5 U.S.C. 854 (1st 2 sentences, less so much as relates to promotion, retention, and transfer). | June 27, 1944, ch. 287, §5 (1st 2 sentences, less so much as relates to promotion, retention, and transfer), 58 Stat. 388. |

Statutes at Large

The section is restated for clarity and conciseness. The words "for which examination is given" and "for which the examination is given" are omitted as surplusage. The application of this section to the excepted service in the executive branch and the government of the District of Columbia is preserved by section 3320.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

#### **Editorial Notes**

#### Amendments

1978—Pub. L. 95–454 designated existing provisions as subsec. (a), substituted "Office of Personnel Management" and "Office" for "Civil Service Commission" and "Commission", respectively, and added subsec. (b).

#### **Statutory Notes and Related Subsidiaries**

#### Effective Date of 1978 Amendment

Amendment by Pub. L. 95–454 effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95–454, set out as a note under section 1101 of this title.