Editorial Note on Part 1046
Editorial Note: Nomenclature changes to part 1046 appear at 88 FR 41295, June 26, 2023.

§ 1046.15 Review of medical certification disqualification. ( a ) *Temporary medical and physical conditions.* Should the PPMD determine that an individual is disqualified from medical certification because of a temporary medical or physical condition which results in the individual not being able to perform any of the essential functions of the job classification, the employer may assign the individual to alternate, limited duty, if available, until the individual is again medically certified by the PPMD. However, this limited duty may only include assignment to duties in a job classification where all essential functions for that job classification can be safely and efficiently performed. Medical certification is required to remain in armed status. A temporary medical certification disqualification may not exceed a period of twelve months regardless of whether medical removal protection is authorized. Before the end of the twelve-month period, the PPMD must determine whether the individual is permanently disqualified from medical certification because of a continuing medical or physical condition which results in the individual not being able to perform all essential functions of the job classification. The individual may request an Independent Review of the disqualification at any time the twelve-month period.
( b ) *Permanent medical and physical conditions.* If the PPMD determines that an individual is disqualified from medical certification because of a permanent medical or physical condition which results in the individual not being able to perform all essential functions of the job classification, and the individual requests an Independent Review, the employer may assign the individual to alternate, limited duty, if available. This limited duty may include assignment to duties in any job classification where all essential functions can be safely and efficiently performed. Subject to the one year limit as identified in § 1046.14, assignment to alternate, limited duty, may remain in effect until an Independent Review determination, and if applicable, the Final Review determination by the DOE Office of Hearings and Appeals.
( c ) *Independent review.* An individual PF member disqualified from medical certification, temporarily or permanently, by the PPMD may request an Independent Review of the case. The individual initiating such a review must submit the request for an Independent Review in writing to EHSS-1 within ten working days of the date of notification (date of written correspondence) of disqualification. A copy of the request must be sent to the individual's employer and to the local ODFSA: for DOE HQ sites, to the Director, Office of Security Operations; for NNSA sites, to the cognizant NNSA Security Director; and for any other DOE sites, to the cognizant DOE Security Director. ( 1 ) EHSS-1, in coordination with the respective PPMD, must provide for the Independent Review. The Independent Review must be conducted within sixty calendar days of the receipt of the request for an Independent Review. The Independent Review must include a complete review of the record of the case.
( 2 ) The disqualified individual may select a representative during the Independent Review process. The individual or representative may provide additional evidence relating solely to the medical or physical readiness of the individual. The individual must execute a consent document authorizing the release of relevant medical information to EHSS-1.
( 3 ) The disqualified individual must provide a copy of the request for Independent Review and the signed consent document for the release of medical information to the respective PPMD and the individual's employer within ten working days of the submission of the request to EHSS-1.
( 4 ) Within ten working days of receipt of a copy of the request for an Independent Review, the disqualified individual's employer must provide EHSS-1 with the following: ( i ) A copy of the job analysis (JA)/mission essential task list (METL) available to the respective Designated Physician at the time of the individual's medical evaluation;
( ii ) A listing of the essential functions for the individual's PF job classification; and
( iii ) Any additional information relating to the medical or physical readiness of the requestor that EHSS-1 may request.
( 5 ) EHSS-1 must provide the information in paragraph (c)(4) of this section to the Independent Physician for use in the independent review.
( 6 ) A medical examination of the disqualified individual must be conducted by an Independent Physician approved by EHSS-1. The Independent Physician must not have served as the requestor's personal physician in any capacity or have been previously involved in the requestor's case on behalf of the Department or a Department contractor. The Independent Review must confirm or disagree with the medical certification disqualification and must consider: ( i ) The validity of the stated physical requirements and essential function(s) for the applicable job classification;
( ii ) The PPMD's medical determination of the individual's inability to perform essential functions or to undertake training or the physical readiness qualification test without undue medical risk to the health and safety of the individual;
( iii ) The completeness of the medical information available to the PPMD; and
( iv ) If applicable, the determination by the PPMD that the performance of the individual poses a direct threat to self or others.
( 7 ) The results of the Independent Physician's medical examination of the individual must be provided to EHSS-1 for review. EHSS-1 must then recommend a final determination confirming or reversing the medical certification disqualification. The recommendation of EHSS-1 must be forwarded to the applicable local ODFSA (for DOE HQ sites, the Director, Office of Security Operations; for NNSA sites, the cognizant local NNSA Security Director; and for any other DOE sites, the cognizant local DOE Security Director) and the respective PPMD. This individual will either adopt or reject the recommendation of EHSS-1.
( 8 ) EHSS-1 must provide the results of the Independent Review and the final determination regarding the individual's medical disqualification to the requestor, the respective PPMD, the respective local ODFSA, and the requestor's employer.
( 9 ) If the Independent Review determination confirms the individual is disqualified from medical certification, the individual must be removed from the PF job classification by the individual's employer. If the Independent Review disagrees with the medical certification disqualification, the individual must be reinstated to the PF job classification by the individual's employer, subject to successful completion of any required qualifications or training requirements that were due during the temporary disqualification, and subject to subsequent annual medical examinations and the ability to meet applicable physical readiness requirements.
( d ) *Final review.* An individual receiving an unfavorable Independent Review Determination may request a Final Review of the Independent Review Determination by the Office of Hearings and Appeals. The individual must submit a request for a Final Review to the Office of Hearings and Appeals, in writing, within 30 days of receiving an unfavorable determination, and notify EHSS-1 of the request for appeal. In the request for a Final Review, the individual must state with specificity the basis for disagreement with the Independent Review confirming the medical certification disqualification. EHSS-1 must transmit the complete record in the case to the Office of Hearings and Appeals within five business days of receiving notice from the individual that the SPO has filed an appeal of the Independent Review Determination. The Office of Hearings and Appeals may request additional information, if necessary, to clarify any issue on appeal. Within 45 days of the closing of the record, the Office of Hearings and Appeals must issue a Decision and Order setting forth its findings on appeal and its conclusions based on the record before it. Upon receipt of an unfavorable Final Review decision by the Office of Hearings and Appeals, the individual must be permanently removed from that PF job classification, SO or SPO (FPRS, BRS, ARS, or SRT member) by the employer. However, nothing in the Final Review decision shall prevent the employee from being allowed to qualify for a less strenuous physical readiness job classification given the availability of said position, subject to successful completion of any other required qualifications or training requirements. Upon receipt of a favorable Final Review decision from the Office of Hearings and Appeals, the individual must be reinstated to the PF job classification by the employer, subject to successful completion of any required qualifications or training requirements due during the temporary disqualification, and future ability to be medically certified for the PF job classification and to meet applicable physical readiness standards.
[78 FR 55184, Sept. 10, 2013, as amended at 80 FR 57083, Sept. 22, 2015; 88 FR 41295, June 26, 2023]