5 U.S.C. § 3521 — Definitions

Page 450 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 3504 dant in view of the subsequent limitation imposed by the words following ‘‘before’’. The words ‘‘make an ap- pointment from another source to that position’’ are substituted for ‘‘appoint additional employees from any other source for such position’’. Standard changes are made to conform with the defi- nitions applicable and the style of this title as outlined in the preface to the report. Editorial Notes AMENDMENTS 1979—Subsecs. (a), (b). Pub. L. 96–54 substituted ‘‘com- peting employee’’ for ‘‘preference eligible employed’’. 1978—Subsecs. (a), (b). Pub. L. 95–454 which directed the substitution of ‘‘competing employee’’ for ‘‘pref- erence eligible employee’’ was impossible to execute literally because the text contained reference to ‘‘pref- erence eligible employed’’. See 1979 Amendment note above. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1979 AMENDMENT Amendment by Pub. L. 96–54 effective July 12, 1979, see section 2(b) of Pub. L. 96–54, set out as a note under section 305 of this title. 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. § 3504. Preference eligibles; retention; physical qualifications; waiver (a) In determining qualifications of a pref- erence eligible for retention in a position in the competitive service, an Executive agency, or the government of the District of Columbia, the Of- fice of Personnel Management or other exam- ining 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 accred- ited physician, the preference eligible is phys- ically 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 eli- gible described in section 2108(3)(C) of this title who has a compensable service-connected dis- ability 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 exam- ining 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 au- thority 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 the response. When the Office has completed its review of the proposed disqualification on the basis of physical disability, it shall send its find- ings to the appointing authority and the pref- erence eligible. The appointing authority shall comply with the findings of the Office. The func- tions of the Office under this subsection may not be delegated. (Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 429; Pub. L. 95–454, title III, § 307(g), title IX, § 906(a)(2), (3), Oct. 13, 1978, 92 Stat. 1149, 1224.) HISTORICAL AND REVISION NOTES Derivation U.S. Code Revised Statutes and Statutes at Large .................. 5 U.S.C. 854 (1st 2 sentences, so much as relates to retention). June 27, 1944, ch. 287, § 5 (1st 2 sentences, so much as relates to retention), 58 Stat. 388. The words ‘‘in the competitive service, an Executive agency, or the government of the District of Columbia’’ are added on authority of former sections 851, 858, and 869 which are carried into this title. The words ‘‘pref- erence eligible’’ are substituted for ‘‘veteran’’. Standard changes are made to conform with the defi- nitions 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 Manage- ment’’ for ‘‘Civil Service Commission’’ and ‘‘Office’’ for ‘‘Commission’’, 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. SUBCHAPTER II—VOLUNTARY SEPARATION INCENTIVE PAYMENTS Editorial Notes PRIOR PROVISIONS A prior subchapter II of this chapter consisting of section 3551, related to restoration of positions of Fed- eral and District of Columbia employees upon release from duty in Reserves or National Guard, prior to re- peal by Pub. L. 103–353, §§ 2(b)(2)(B), 8, Oct. 13, 1994, 108 Stat. 3169, 3175, effective with respect to reemploy- ments initiated on or after first day after 60-day period beginning Oct. 13, 1994, with transition rules. § 3521. Definitions In this subchapter, the term— (1) ‘‘agency’’ means an Executive agency as defined under section 105 (other than the Gov- ernment Accountability Office); and (2) ‘‘employee’’— (A) means an employee as defined under section 2105 employed by an agency and an individual employed by a county committee established under section 8(b)(5) of the Soil Conservation and Domestic Allotment Act (16 U.S.C. 590h(b)(5)) who— (i) is serving under an appointment with- out time limitation; and (ii) has been currently employed for a continuous period of at least 3 years; and Page 451 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 3522 1 So in original. Probably should be ‘‘and’’. 2 So in original. Probably should be ‘‘Director’’. (B) shall not include— (i) a reemployed annuitant under sub- chapter III of chapter 83 or 84 or another retirement system for employees of the Government; (ii) an employee having a disability on the basis of which such employee is or would be eligible for disability retirement under subchapter III of chapter 83 or 84 or another retirement system for employees of the Government; (iii) an employee who is in receipt of a decision notice of involuntary separation for misconduct or unacceptable perform- ance; (iv) an employee who has previously re- ceived any voluntary separation incentive payment from the Federal Government under this subchapter or any other author- ity; (v) an employee covered by statutory re- employment rights who is on transfer em- ployment with another organization; or (vi) any employee who— (I) during the 36-month period pre- ceding the date of separation of that em- ployee, performed service for which a student loan repayment benefit was or is to be paid under section 5379; (II) during the 24-month period pre- ceding the date of separation of that em- ployee, performed service for which a re- cruitment or relocation bonus was or is to be paid under section 5753; or (III) during the 12-month period pre- ceding the date of separation of that em- ployee, performed service for which a re- tention bonus was or is to be paid under section 5754. (Added Pub. L. 107–296, title XIII, § 1313(a)(1)(A), Nov. 25, 2002, 116 Stat. 2291; amended Pub. L. 112–74, div. G, title I, § 1401(b), Dec. 23, 2011, 125 Stat. 1134.) Editorial Notes AMENDMENTS 2011—Par. (1). Pub. L. 112–74 substituted ‘‘section 105 (other than the Government Accountability Office)’’ for ‘‘section 105’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2011 AMENDMENT Amendment by Pub. L. 112–74 applicable to voluntary separation incentive payments made during fiscal year 2012 or any succeeding fiscal year, see section 1401(c) of Pub. L. 112–74, set out as a note under section 4505 of Title 2, The Congress. EFFECTIVE DATE Pub. L. 107–296, title XIII, § 1313(a)(4), Nov. 25, 2002, 116 Stat. 2294, provided that: ‘‘This subsection [enacting this subchapter and provisions set out as notes under this section] shall take effect 60 days after the date of enactment of this Act [Nov. 25, 2002].’’ SMITHSONIAN INSTITUTION EMPLOYEES Pub. L. 108–72, § 5, Aug. 15, 2003, 117 Stat. 889, provided that: ‘‘The Secretary of the Smithsonian Institution may establish a program for making voluntary separa- tion incentive payments for employees of the Smithso- nian Institution which is substantially similar to the program established under subchapter II of chapter 35 of title 5, United States Code (as added by section 1313(a) of the Homeland Security Act of 2002 [Pub. L. 107–296]).’’ JUDICIAL BRANCH EMPLOYEES Pub. L. 107–296, title XIII, § 1313(a)(2), Nov. 25, 2002, 116 Stat. 2294, provided that: ‘‘The Director of the Adminis- trative Office of the United States Courts may, by reg- ulation, establish a program substantially similar to the program established under paragraph (1) [enacting this subchapter] for individuals serving in the judicial branch.’’ CONTINUATION OF OTHER AUTHORITY Pub. L. 107–296, title XIII, § 1313(a)(3), Nov. 25, 2002, 116 Stat. 2294, provided that: ‘‘Any agency exercising any voluntary separation incentive authority in effect on the effective date of this subsection [see Effective Date note above] may continue to offer voluntary separation incentives consistent with that authority until that authority expires.’’ SENSE OF CONGRESS Pub. L. 107–296, title XIII, § 1313(c), Nov. 25, 2002, 116 Stat. 2296, provided that: ‘‘It is the sense of Congress that the implementation of this section [enacting this subchapter, amending sections 8336 and 8414 of this title, enacting provisions set out as notes under this section and section 8336 of this title, and repealing pro- visions set out as notes under sections 8336 and 8414 of this title] is intended to reshape the Federal workforce and not downsize the Federal workforce.’’ § 3522. Agency plans; approval (a) Before obligating any resources for vol- untary separation incentive payments, the head of each agency shall submit to the Office of Per- sonnel Management a plan outlining the in- tended use of such incentive payments and a proposed organizational chart for the agency once such incentive payments have been com- pleted. (b) The plan of an agency under subsection (a) shall include— (1) the specific positions and functions to be reduced or eliminated; (2) a description of which categories of em- ployees will be offered incentives; (3) the time period during which incentives may be paid; (4) the number and amounts of voluntary separation incentive payments to be offered; and (5) a description of how the agency will oper- ate without the eliminated positions and func- tions. (c) The Director of the Office of Personnel Management shall review each agency’s plan an 1 may make any appropriate modifications in the plan, in consultation with the Director of the Office of Management and Budget. A plan under this section may not be implemented without the approval of the Directive 2 of the Of- fice of Personnel Management. (Added Pub. L. 107–296, title XIII, § 1313(a)(1)(A), Nov. 25, 2002, 116 Stat. 2292.)