US Laws, Codes, Statutes & Cases

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[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
  January 24, 2002 and December 19, 2002]
[CITE: 5USC3504]

 
             TITLE 5--GOVERNMENT ORGANIZATION AND EMPLOYEES
 
                           PART III--EMPLOYEES
 
                   Subpart B--Employment and Retention
 
    CHAPTER 35--RETENTION PREFERENCE, VOLUNTARY SEPARATION INCENTIVE 
                 PAYMENTS, RESTORATION, AND REEMPLOYMENT
 
                   SUBCHAPTER I--RETENTION PREFERENCE
 
Sec. 3504. Preference eligibles; retention; physical 
        qualifications; waiver
        
    (a) In determining qualifications of a preference eligible for 
retention in a position in the competitive service, an Executive agency, 
or the government of the District of Columbia, 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 described in 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 the 
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. 429; Pub. L. 95-454, title III, 
Sec. 307(g), title IX, Sec. 906(a)(2), (3), Oct. 13, 1978, 92 Stat. 
1149, 1224.)

                      Historical and Revision Notes
------------------------------------------------------------------------
                                                    Revised Statutes and
     Derivation                U.S. Code             Statutes at Large
------------------------------------------------------------------------
                     5 U.S.C. 854 (1st 2           June 27, 1944, ch.
                      sentences, so much as         287, Sec.  5 (1st 2
                      relates to retention).        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 ``preference eligible'' are substituted for ``veteran''.
    Standard changes are made to conform with the definitions applicable 
and the style of this title as outlined in the preface to the report.


                               Amendments

    1978--Pub. L. 95-454 designated existing provisions as subsec. (a), 
substituted ``Office of Personnel Management'' for ``Civil Service 
Commission'' and ``Office'' for ``Commission'', and added subsec. (b).


                    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.

                  Section Referred to in Other Sections

    This section is referred to in sections 2302, 3501 of this title; 
title 22 section 1438.