§ 731.202 Criteria for making suitability and fitness determinations.

(a) General. OPM, or an agency to which OPM has delegated suitability authority, must base its suitability determination on the presence or absence of one or more of the specific factors in paragraph (b) of this section. An agency is responsible for making a fitness determination for an excepted service position covered by this part but must apply the specific factors in paragraph (b) as the minimum standards for making the determination. When applying these criteria, an agency must also apply guidance in supplemental issuances, as described in § 731.102(b). If using these factors to also make a Personal Identity Verification (PIV) Credential determination as outlined in OPM issuances regarding PIV credentialing eligibility, an agency must also ensure they have verified the individual's identity. (b) Specific factors. Only OPM may take a suitability action considering the factors in paragraph (b)(3) or (7) of this section. Agencies may use the factor in paragraph (b)(8) of this section in applicant and appointee suitability cases but not employee cases; however, OPM may use this factor in employee cases. When making a suitability determination, OPM or an agency will consider only the following factors to determine if one is suitable. When making fitness determinations, an agency must consider these factors as a minimum standard, but it may prescribe additional factors to protect the integrity and promote the efficiency of the service, when job-related and consistent with business necessity. (1) Misconduct or negligence in employment; (2) Criminal conduct; (3) Material, intentional false statement, or deception or fraud, in examination or appointment; (4) Dishonest conduct; (5) Excessive alcohol use, without evidence of rehabilitation, of a nature and duration that suggests the applicant or appointee would be prevented from performing the duties of the position in question, or would constitute a direct threat to the property or safety of the applicant, appointee, or others; (6) Illegal use of narcotics, drugs, or other controlled substances, without evidence of rehabilitation; (7) Knowing and willful engagement in acts or activities designed to overthrow the U.S. Government by force; (8) Any statutory or regulatory bar that prevents the lawful employment of the individual in the position in question; and (9) Violent conduct. (c) Additional considerations. OPM and an agency must consider any of the following additional considerations to the extent OPM or the relevant agency, in its sole discretion, deems any of them pertinent to the individual case: (1) The nature of the position for which the individual is applying or in which the individual is employed; (2) The nature and seriousness of the conduct; (3) The circumstances surrounding the conduct; (4) The recency of the conduct; (5) The age of the individual involved at the time of the conduct; (6) Contributing societal conditions; and (7) The absence or presence of rehabilitation or efforts toward rehabilitation.