This electronic document was downloaded from the GPO web site, November 2003,
and is provided for information purposes only. The Code of Federal Regulations,
Title 29, is updated July 1 of each year.
The most current version of the regulations may be found at the
GPO web site.
[Code of Federal Regulations]
[Title 29, Volume 4]
[Revised as of July 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 29CFR1630]
[Page 340]
TITLE 29--LABOR
COMMISSION
PART 1630--REGULATIONS TO IMPLEMENT THE EQUAL EMPLOYMENT PROVISIONS OF THE
AMERICANS WITH DISABILITIES ACT--Table of Contents
Sec.
1630.1 Purpose, applicability, and construction.
1630.2 Definitions.
1630.3 Exceptions to the definitions of "Disability" and "Qualified
Individual with a Disability."
1630.4 Discrimination prohibited.
1630.5 Limiting, segregating, and classifying.
1630.6 Contractual or other arrangements.
1630.7 Standards, criteria, or methods of administration.
1630.8 Relationship or association with an individual with a
disability.
1630.9 Not making reasonable accommodation.
1630.10 Qualification standards, tests, and other selection criteria.
1630.11 Administration of tests.
1630.12 Retaliation and coercion.
1630.13 Prohibited medical examinations and inquiries.
1630.14 Medical examinations and inquiries specifically permitted.
1630.15 Defenses.
1630.16 Specific activities permitted.
Appendix to Part 1630--Interpretive Guidance on Title I of the Americans
with Disabilities Act
Authority: 42 U.S.C. 12116.
Source: 56 FR 35734, July 26, 1991, unless otherwise noted.
[Code of Federal Regulations]
[Title 29, Volume 4]
[Revised as of July 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 29CFR1630.1]
[Page 340]
TITLE 29--LABOR
COMMISSION
PART 1630--REGULATIONS TO IMPLEMENT THE EQUAL EMPLOYMENT PROVISIONS OF THE
AMERICANS WITH DISABILITIES ACT--Table of Contents
Sec. 1630.1 Purpose, applicability, and construction.
(a) Purpose. The purpose of this part is to implement title I of the
Americans with Disabilities Act (42 U.S.C. 12101, et seq.) (ADA),
requiring equal employment opportunities for qualified individuals with
disabilities, and sections 3(2), 3(3), 501, 503, 506(e), 508, 510, and
511 of the ADA as those sections pertain to the employment of qualified
individuals with disabilities.
(b) Applicability. This part applies to "covered entities" as
defined at Sec. 1630.2(b).
(c) Construction--(1) In general. Except as otherwise provided in
this part, this part does not apply a lesser standard than the standards
applied under title V of the Rehabilitation Act of 1973 (29 U.S.C. 790-
794a), or the regulations issued by Federal agencies pursuant to that
title.
(2) Relationship to other laws. This part does not invalidate or
limit the remedies, rights, and procedures of any Federal law or law of
any State or political subdivision of any State or jurisdiction that
provides greater or equal protection for the rights of individuals with
disabilities than are afforded by this part.
[Code of Federal Regulations]
[Title 29, Volume 4]
[Revised as of July 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 29CFR1630.2]
[Page 340-343]
TITLE 29--LABOR
COMMISSION
PART 1630--REGULATIONS TO IMPLEMENT THE EQUAL EMPLOYMENT PROVISIONS OF THE
AMERICANS WITH DISABILITIES ACT--Table of Contents
Sec. 1630.2 Definitions.
(a) Commission means the Equal Employment Opportunity Commission
established by section 705 of the Civil Rights Act of 1964 (42 U.S.C.
2000e-4).
(b) Covered Entity means an employer, employment agency, labor
organization, or joint labor management committee.
(c) Person, labor organization, employment agency, commerce and
industry affecting commerce shall have the same meaning given those
terms in section 701 of the Civil Rights Act of 1964 (42 U.S.C. 2000e).
(d) State means each of the several States, the District of
Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa, the
Virgin Islands, the Trust Territory of the Pacific Islands, and the
Commonwealth of the Northern Mariana Islands.
[[Page 341]]
(e) Employer--(1) In general. The term employer means a person
engaged in an industry affecting commerce who has 15 or more employees
for each working day in each of 20 or more calendar weeks in the current
or preceding calendar year, and any agent of such person, except that,
from July 26, 1992 through July 25, 1994, an employer means a person
engaged in an industry affecting commerce who has 25 or more employees
for each working day in each of 20 or more calendar weeks in the current
or preceding year and any agent of such person.
(2) Exceptions. The term employer does not include--
(i) The United States, a corporation wholly owned by the government
of the United States, or an Indian tribe; or
(ii) A bona fide private membership club (other than a labor
organization) that is exempt from taxation under section 501(c) of the
Internal Revenue Code of 1986.
(f) Employee means an individual employed by an employer.
(g) Disability means, with respect to an individual--
(1) A physical or mental impairment that substantially limits one or
more of the major life activities of such individual;
(2) A record of such an impairment; or
(3) Being regarded as having such an impairment.
(See Sec. 1630.3 for exceptions to this definition).
(h) Physical or mental impairment means:
(1) Any physiological disorder, or condition, cosmetic
disfigurement, or anatomical loss affecting one or more of the following
body systems: neurological, musculoskeletal, special sense organs,
respiratory (including speech organs), cardiovascular, reproductive,
digestive, genito-urinary, hemic and lymphatic, skin, and endocrine; or
(2) Any mental or psychological disorder, such as mental
retardation, organic brain syndrome, emotional or mental illness, and
specific learning disabilities.
(i) Major Life Activities means functions such as caring for
oneself, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working.
(j) Substantially limits--(1) The term substantially limits means:
(i) Unable to perform a major life activity that the average person
in the general population can perform; or
(ii) Significantly restricted as to the condition, manner or
duration under which an individual can perform a particular major life
activity as compared to the condition, manner, or duration under which
the average person in the general population can perform that same major
life activity.
(2) The following factors should be considered in determining
whether an individual is substantially limited in a major life activity:
(i) The nature and severity of the impairment;
(ii) The duration or expected duration of the impairment; and
(iii) The permanent or long term impact, or the expected permanent
or long term impact of or resulting from the impairment.
(3) With respect to the major life activity of working--
(i) The term substantially limits means significantly restricted in
the ability to perform either a class of jobs or a broad range of jobs
in various classes as compared to the average person having comparable
training, skills and abilities. The inability to perform a single,
particular job does not constitute a substantial limitation in the major
life activity of working.
(ii) In addition to the factors listed in paragraph (j)(2) of this
section, the following factors may be considered in determining whether
an individual is substantially limited in the major life activity of
"working":
(A) The geographical area to which the individual has reasonable
access;
(B) The job from which the individual has been disqualified because
of an impairment, and the number and types of jobs utilizing similar
training, knowledge, skills or abilities, within that geographical area,
from which the individual is also disqualified because of the impairment
(class of jobs); and/or
(C) The job from which the individual has been disqualified because
of an impairment, and the number and types of
[[Page 342]]
other jobs not utilizing similar training, knowledge, skills or
abilities, within that geographical area, from which the individual is
also disqualified because of the impairment (broad range of jobs in
various classes).
(k) Has a record of such impairment means has a history of, or has
been misclassified as having, a mental or physical impairment that
substantially limits one or more major life activities.
(l) Is regarded as having such an impairment means:
(1) Has a physical or mental impairment that does not substantially
limit major life activities but is treated by a covered entity as
constituting such limitation;
(2) Has a physical or mental impairment that substantially limits
major life activities only as a result of the attitudes of others toward
such impairment; or
(3) Has none of the impairments defined in paragraph (h) (1) or (2)
of this section but is treated by a covered entity as having a
substantially limiting impairment.
(m) Qualified individual with a disability means an individual with
a disability who satisfies the requisite skill, experience, education
and other job-related requirements of the employment position such
individual holds or desires, and who, with or without reasonable
accommodation, can perform the essential functions of such position.
(See Sec. 1630.3 for exceptions to this definition).
(n) Essential functions--(1) In general. The term essential
functions means the fundamental job duties of the employment position
the individual with a disability holds or desires. The term "essential
functions" does not include the marginal functions of the position.
(2) A job function may be considered essential for any of several
reasons, including but not limited to the following:
(i) The function may be essential because the reason the position
exists is to perform that function;
(ii) The function may be essential because of the limited number of
employees available among whom the performance of that job function can
be distributed; and/or
(iii) The function may be highly specialized so that the incumbent
in the position is hired for his or her expertise or ability to perform
the particular function.
(3) Evidence of whether a particular function is essential includes,
but is not limited to:
(i) The employer's judgment as to which functions are essential;
(ii) Written job descriptions prepared before advertising or
interviewing applicants for the job;
(iii) The amount of time spent on the job performing the function;
(iv) The consequences of not requiring the incumbent to perform the
function;
(v) The terms of a collective bargaining agreement;
(vi) The work experience of past incumbents in the job; and/or
(vii) The current work experience of incumbents in similar jobs.
(o) Reasonable accommodation. (1) The term reasonable accommodation
means:
(i) Modifications or adjustments to a job application process that
enable a qualified applicant with a disability to be considered for the
position such qualified applicant desires; or
(ii) Modifications or adjustments to the work environment, or to the
manner or circumstances under which the position held or desired is
customarily performed, that enable a qualified individual with a
disability to perform the essential functions of that position; or
(iii) Modifications or adjustments that enable a covered entity's
employee with a disability to enjoy equal benefits and privileges of
employment as are enjoyed by its other similarly situated employees
without disabilities.
(2) Reasonable accommodation may include but is not limited to:
(i) Making existing facilities used by employees readily accessible
to and usable by individuals with disabilities; and
(ii) Job restructuring; part-time or modified work schedules;
reassignment to a vacant position; acquisition or modifications of
equipment or devices; appropriate adjustment or modifications of
examinations, training materials, or policies; the provision of
qualified readers or interpreters; and other
[[Page 343]]
similar accommodations for individuals with disabilities.
(3) To determine the appropriate reasonable accommodation it may be
necessary for the covered entity to initiate an informal, interactive
process with the qualified individual with a disability in need of the
accommodation. This process should identify the precise limitations
resulting from the disability and potential reasonable accommodations
that could overcome those limitations.
(p) Undue hardship--(1) In general. Undue hardship means, with
respect to the provision of an accommodation, significant difficulty or
expense incurred by a covered entity, when considered in light of the
factors set forth in paragraph (p)(2) of this section.
(2) Factors to be considered. In determining whether an
accommodation would impose an undue hardship on a covered entity,
factors to be considered include:
(i) The nature and net cost of the accommodation needed under this
part, taking into consideration the availability of tax credits and
deductions, and/or outside funding;
(ii) The overall financial resources of the facility or facilities
involved in the provision of the reasonable accommodation, the number of
persons employed at such facility, and the effect on expenses and
resources;
(iii) The overall financial resources of the covered entity, the
overall size of the business of the covered entity with respect to the
number of its employees, and the number, type and location of its
facilities;
(iv) The type of operation or operations of the covered entity,
including the composition, structure and functions of the workforce of
such entity, and the geographic separateness and administrative or
fiscal relationship of the facility or facilities in question to the
covered entity; and
(v) The impact of the accommodation upon the operation of the
facility, including the impact on the ability of other employees to
perform their duties and the impact on the facility's ability to conduct
business.
(q) Qualification standards means the personal and professional
attributes including the skill, experience, education, physical,
medical, safety and other requirements established by a covered entity
as requirements which an individual must meet in order to be eligible
for the position held or desired.
(r) Direct Threat means a significant risk of substantial harm to
the health or safety of the individual or others that cannot be
eliminated or reduced by reasonable accommodation. The determination
that an individual poses a "direct threat" shall be based on an
individualized assessment of the individual's present ability to safely
perform the essential functions of the job. This assessment shall be
based on a reasonable medical judgment that relies on the most current
medical knowledge and/or on the best available objective evidence. In
determining whether an individual would pose a direct threat, the
factors to be considered include:
(1) The duration of the risk;
(2) The nature and severity of the potential harm;
(3) The likelihood that the potential harm will occur; and
(4) The imminence of the potential harm.
[Code of Federal Regulations]
[Title 29, Volume 4]
[Revised as of July 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 29CFR1630.3]
[Page 343-344]
TITLE 29--LABOR
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PART 1630--REGULATIONS TO IMPLEMENT THE EQUAL EMPLOYMENT PROVISIONS OF THE
AMERICANS WITH DISABILITIES ACT--Table of Contents
Sec. 1630.3 Exceptions to the definitions of "Disability" and "Qualified
Individual with a Disability."
(a) The terms disability and qualified individual with a disability
do not include individuals currently engaging in the illegal use of
drugs, when the covered entity acts on the basis of such use.
(1) Drug means a controlled substance, as defined in schedules I
through V of section 202 of the Controlled Substances Act (21 U.S.C 812)
(2) Illegal use of drugs means the use of drugs the possession or
distribution of which is unlawful under the Controlled Substances Act,
as periodically updated by the Food and Drug Administration. This term
does not include the use of a drug taken under the supervision of a
licensed health care professional, or other uses authorized by the
Controlled Substances Act or other provisions of Federal law.
(b) However, the terms disability and qualified individual with a
disability may not exclude an individual who:
(1) Has successfully completed a supervised drug rehabilitation
program
[[Page 344]]
and is no longer engaging in the illegal use of drugs, or has otherwise
been rehabilitated successfully and is no longer engaging in the illegal
use of drugs; or
(2) Is participating in a supervised rehabilitation program and is
no longer engaging in such use; or
(3) Is erroneously regarded as engaging in such use, but is not
engaging in such use.
(c) It shall not be a violation of this part for a covered entity to
adopt or administer reasonable policies or procedures, including but not
limited to drug testing, designed to ensure that an individual described
in paragraph (b) (1) or (2) of this section is no longer engaging in the
illegal use of drugs. (See Sec. 1630.16(c) Drug testing).
(d) Disability does not include:
(1) Transvestism, transsexualism, pedophilia, exhibitionism,
voyeurism, gender identity disorders not resulting from physical
impairments, or other sexual behavior disorders;
(2) Compulsive gambling, kleptomania, or pyromania; or
(3) Psychoactive substance use disorders resulting from current
illegal use of drugs.
(e) Homosexuality and bisexuality are not impairments and so are not
disabilities as defined in this part.
[Code of Federal Regulations]
[Title 29, Volume 4]
[Revised as of July 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 29CFR1630.4]
[Page 344]
TITLE 29--LABOR
COMMISSION
PART 1630--REGULATIONS TO IMPLEMENT THE EQUAL EMPLOYMENT PROVISIONS OF THE
AMERICANS WITH DISABILITIES ACT--Table of Contents
Sec. 1630.4 Discrimination prohibited.
It is unlawful for a covered entity to discriminate on the basis of
disability against a qualified individual with a disability in regard
to:
(a) Recruitment, advertising, and job application procedures;
(b) Hiring, upgrading, promotion, award of tenure, demotion,
transfer, layoff, termination, right of return from layoff, and
rehiring;
(c) Rates of pay or any other form of compensation and changes in
compensation;
(d) Job assignments, job classifications, organizational structures,
position descriptions, lines of progression, and seniority lists;
(e) Leaves of absence, sick leave, or any other leave;
(f) Fringe benefits available by virtue of employment, whether or
not administered by the covered entity;
(g) Selection and financial support for training, including:
apprenticeships, professional meetings, conferences and other related
activities, and selection for leaves of absence to pursue training;
(h) Activities sponsored by a covered entity including social and
recreational programs; and
(i) Any other term, condition, or privilege of employment.
The term discrimination includes, but is not limited to, the acts
described in Secs. 1630.5 through 1630.13 of this part.
[Code of Federal Regulations]
[Title 29, Volume 4]
[Revised as of July 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 29CFR1630.5]
[Page 344]
TITLE 29--LABOR
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PART 1630--REGULATIONS TO IMPLEMENT THE EQUAL EMPLOYMENT PROVISIONS OF THE
AMERICANS WITH DISABILITIES ACT--Table of Contents
Sec. 1630.5 Limiting, segregating, and classifying.
It is unlawful for a covered entity to limit, segregate, or classify
a job applicant or employee in a way that adversely affects his or her
employment opportunities or status on the basis of disability.
[Code of Federal Regulations]
[Title 29, Volume 4]
[Revised as of July 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 29CFR1630.6]
[Page 344]
TITLE 29--LABOR
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PART 1630--REGULATIONS TO IMPLEMENT THE EQUAL EMPLOYMENT PROVISIONS OF THE
AMERICANS WITH DISABILITIES ACT--Table of Contents
Sec. 1630.6 Contractual or other arrangements.
(a) In qeneral. It is unlawful for a covered entity to participate
in a contractual or other arrangement or relationship that has the
effect of subjecting the covered entity's own qualified applicant or
employee with a disability to the discrimination prohibited by this
part.
(b) Contractual or other arrangement defined. The phrase contractual
or other arrangement or relationship includes, but is not limited to, a
relationship with an employment or referral agency; labor union,
including collective bargaining agreements; an organization providing
fringe benefits to an employee of the covered entity; or an organization
providing training and apprenticeship programs.
(c) Application. This section applies to a covered entity, with
respect to its own applicants or employees, whether the entity offered
the contract or initiated the relationship, or whether the entity
accepted the contract or acceded to the relationship. A covered entity
is not liable for the actions of the other party or parties to the
contract which only affect that other party's employees or applicants.
[[Page 345]]
[Code of Federal Regulations]
[Title 29, Volume 4]
[Revised as of July 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 29CFR1630.7]
[Page 345]
TITLE 29--LABOR
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PART 1630--REGULATIONS TO IMPLEMENT THE EQUAL EMPLOYMENT PROVISIONS OF THE
AMERICANS WITH DISABILITIES ACT--Table of Contents
Sec. 1630.7 Standards, criteria, or methods of administration.
It is unlawful for a covered entity to use standards, criteria, or
methods of administration, which are not job-related and consistent with
business necessity, and:
(a) That have the effect of discriminating on the basis of
disability; or
(b) That perpetuate the discrimination of others who are subject to
common administrative control.
[Code of Federal Regulations]
[Title 29, Volume 4]
[Revised as of July 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 29CFR1630.8]
[Page 345]
TITLE 29--LABOR
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PART 1630--REGULATIONS TO IMPLEMENT THE EQUAL EMPLOYMENT PROVISIONS OF THE
AMERICANS WITH DISABILITIES ACT--Table of Contents
Sec. 1630.8 Relationship or association with an individual with a disability.
It is unlawful for a covered entity to exclude or deny equal jobs or
benefits to, or otherwise discriminate against, a qualified individual
because of the known disability of an individual with whom the qualified
individual is known to have a family, business, social or other
relationship or association.
[Code of Federal Regulations]
[Title 29, Volume 4]
[Revised as of July 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 29CFR1630.9]
[Page 345]
TITLE 29--LABOR
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PART 1630--REGULATIONS TO IMPLEMENT THE EQUAL EMPLOYMENT PROVISIONS OF THE
AMERICANS WITH DISABILITIES ACT--Table of Contents
Sec. 1630.9 Not making reasonable accommodation.
(a) It is unlawful for a covered entity not to make reasonable
accommodation to the known physical or mental limitations of an
otherwise qualified applicant or employee with a disability, unless such
covered entity can demonstrate that the accommodation would impose an
undue hardship on the operation of its business.
(b) It is unlawful for a covered entity to deny employment
opportunities to an otherwise qualified job applicant or employee with a
disability based on the need of such covered entity to make reasonable
accommodation to such individual's physical or mental impairments.
(c) A covered entity shall not be excused from the requirements of
this part because of any failure to receive technical assistance
authorized by section 506 of the ADA, including any failure in the
development or dissemination of any technical assistance manual
authorized by that Act.
(d) A qualified individual with a disability is not required to
accept an accommodation, aid, service, opportunity or benefit which such
qualified individual chooses not to accept. However, if such individual
rejects a reasonable accommodation, aid, service, opportunity or benefit
that is necessary to enable the individual to perform the essential
functions of the position held or desired, and cannot, as a result of
that rejection, perform the essential functions of the position, the
individual will not be considered a qualified individual with a
disability.
[Code of Federal Regulations]
[Title 29, Volume 4]
[Revised as of July 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 29CFR1630.10]
[Page 345]
TITLE 29--LABOR
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PART 1630--REGULATIONS TO IMPLEMENT THE EQUAL EMPLOYMENT PROVISIONS OF THE
AMERICANS WITH DISABILITIES ACT--Table of Contents
Sec. 1630.10 Qualification standards, tests, and other selection criteria.
It is unlawful for a covered entity to use qualification standards,
employment tests or other selection criteria that screen out or tend to
screen out an individual with a disability or a class of individuals
with disabilities, on the basis of disability, unless the standard, test
or other selection criteria, as used by the covered entity, is shown to
be job-related for the position in question and is consistent with
business necessity.
[Code of Federal Regulations]
[Title 29, Volume 4]
[Revised as of July 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 29CFR1630.11]
[Page 345]
TITLE 29--LABOR
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PART 1630--REGULATIONS TO IMPLEMENT THE EQUAL EMPLOYMENT PROVISIONS OF THE
AMERICANS WITH DISABILITIES ACT--Table of Contents
Sec. 1630.11 Administration of tests.
It is unlawful for a covered entity to fail to select and administer
tests concerning employment in the most effective manner to ensure that,
when a test is administered to a job applicant or employee who has a
disability that impairs sensory, manual or speaking skills, the test
results accurately reflect the skills, aptitude, or whatever other
factor of the applicant or employee that the test purports to measure,
rather than reflecting the impaired sensory, manual, or speaking skills
of such employee or applicant (except where such skills are the factors
that the test purports to measure).
[Code of Federal Regulations]
[Title 29, Volume 4]
[Revised as of July 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 29CFR1630.12]
[Page 345]
TITLE 29--LABOR
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PART 1630--REGULATIONS TO IMPLEMENT THE EQUAL EMPLOYMENT PROVISIONS OF THE
AMERICANS WITH DISABILITIES ACT--Table of Contents
Sec. 1630.12 Retaliation and coercion.
(a) Retaliation. It is unlawful to discriminate against any
individual because that individual has opposed any act or practice made
unlawful by this part or because that individual made a charge,
testified, assisted, or participated in any manner in an investigation,
proceeding, or hearing to enforce any provision contained in this part.
(b) Coercion, interference or intimidation. It is unlawful to
coerce, intimidate, threaten, harass or interfere with any individual in
the exercise or enjoyment of, or because that individual aided or
encouraged any other individual in the exercise of, any right granted or
protected by this part.
[[Page 346]]
[Code of Federal Regulations]
[Title 29, Volume 4]
[Revised as of July 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 29CFR1630.13]
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TITLE 29--LABOR
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PART 1630--REGULATIONS TO IMPLEMENT THE EQUAL EMPLOYMENT PROVISIONS OF THE
AMERICANS WITH DISABILITIES ACT--Table of Contents
Sec. 1630.13 Prohibited medical examinations and inquiries.
(a) Pre-employment examination or inquiry. Except as permitted by
Sec. 1630.14, it is unlawful for a covered entity to conduct a medical
examination of an applicant or to make inquiries as to whether an
applicant is an individual with a disability or as to the nature or
severity of such disability.
(b) Examination or inquiry of employees. Except as permitted by
Sec. 1630.14, it is unlawful for a covered entity to require a medical
examination of an employee or to make inquiries as to whether an
employee is an individual with a disability or as to the nature or
severity of such disability.
[Code of Federal Regulations]
[Title 29, Volume 4]
[Revised as of July 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 29CFR1630.14]
[Page 346-347]
TITLE 29--LABOR
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PART 1630--REGULATIONS TO IMPLEMENT THE EQUAL EMPLOYMENT PROVISIONS OF THE
AMERICANS WITH DISABILITIES ACT--Table of Contents
Sec. 1630.14 Medical examinations and inquiries specifically permitted.
(a) Acceptable pre-employment inquiry. A covered entity may make
pre-employment inquiries into the ability of an applicant to perform
job-related functions, and/or may ask an applicant to describe or to
demonstrate how, with or without reasonable accommodation, the applicant
will be able to perform job-related functions.
(b) Employment entrance examination. A covered entity may require a
medical examination (and/or inquiry) after making an offer of employment
to a job applicant and before the applicant begins his or her employment
duties, and may condition an offer of employment on the results of such
examination (and/or inquiry), if all entering employees in the same job
category are subjected to such an examination (and/or inquiry)
regardless of disability.
(1) Information obtained under paragraph (b) of this section
regarding the medical condition or history of the applicant shall be
collected and maintained on separate forms and in separate medical files
and be treated as a confidential medical record, except that:
(i) Supervisors and managers may be informed regarding necessary
restrictions on the work or duties of the employee and necessary
accommodations;
(ii) First aid and safety personnel may be informed, when
appropriate, if the disability might require emergency treatment; and
(iii) Government officials investigating compliance with this part
shall be provided relevant information on request.
(2) The results of such examination shall not be used for any
purpose inconsistent with this part.
(3) Medical examinations conducted in accordance with this section
do not have to be job-related and consistent with business necessity.
However, if certain criteria are used to screen out an employee or
employees with disabilities as a result of such an examination or
inquiry, the exclusionary criteria must be job-related and consistent
with business necessity, and performance of the essential job functions
cannot be accomplished with reasonable accommodation as required in this
part. (See Sec. 1630.15(b) Defenses to charges of discriminatory
application of selection criteria.)
(c) Examination of employees. A covered entity may require a medical
examination (and/or inquiry) of an employee that is job-related and
consistent with business necessity. A covered entity may make inquiries
into the ability of an employee to perform job-related functions.
(1) Information obtained under paragraph (c) of this section
regarding the medical condition or history of any employee shall be
collected and maintained on separate forms and in separate medical files
and be treated as a confidential medical record, except that:
(i) Supervisors and managers may be informed regarding necessary
restrictions on the work or duties of the employee and necessary
accommodations;
(ii) First aid and safety personnel may be informed, when
appropriate, if the disability might require emergency treatment; and
(iii) Government officials investigating compliance with this part
shall be provided relevant information on request.
(2) Information obtained under paragraph (c) of this section
regarding the medical condition or history of any employee shall not be
used for any purpose inconsistent with this part.
(d) Other acceptable examinations and inquiries. A covered entity
may conduct voluntary medical examinations and
[[Page 347]]
activities, including voluntary medical histories, which are part of an
employee health program available to employees at the work site.
(1) Information obtained under paragraph (d) of this section
regarding the medical condition or history of any employee shall be
collected and maintained on separate forms and in separate medical files
and be treated as a confidential medical record, except that:
(i) Supervisors and managers may be informed regarding necessary
restrictions on the work or duties of the employee and necessary
accommodations;
(ii) First aid and safety personnel may be informed, when
appropriate, if the disability might require emergency treatment; and
(iii) Government officials investigating compliance with this part
shall be provided relevant information on request.
(2) Information obtained under paragraph (d) of this section
regarding the medical condition or history of any employee shall not be
used for any purpose inconsistent with this part.
[Code of Federal Regulations]
[Title 29, Volume 4]
[Revised as of July 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 29CFR1630.15]
[Page 347]
TITLE 29--LABOR
COMMISSION
PART 1630--REGULATIONS TO IMPLEMENT THE EQUAL EMPLOYMENT PROVISIONS OF THE
AMERICANS WITH DISABILITIES ACT--Table of Contents
Sec. 1630.15 Defenses.
Defenses to an allegation of discrimination under this part may
include, but are not limited to, the following:
(a) Disparate treatment charges. It may be a defense to a charge of
disparate treatment brought under Secs. 1630.4 through 1630.8 and
1630.11 through 1630.12 that the challenged action is justified by a
legitimate, nondiscriminatory reason.
(b) Charges of discriminatory application of selection criteria--(1)
In general. It may be a defense to a charge of discrimination, as
described in Sec. 1630.10, that an alleged application of qualification
standards, tests, or selection criteria that screens out or tends to
screen out or otherwise denies a job or benefit to an individual with a
disability has been shown to be job-related and consistent with business
necessity, and such performance cannot be accomplished with reasonable
accommodation, as required in this part.
(2) Direct threat as a qualification standard. The term
"qualification standard" may include a requirement that an individual
shall not pose a direct threat to the health or safety of the individual
or others in the workplace. (See Sec. 1630.2(r) defining direct threat.)
(c) Other disparate impact charges. It may be a defense to a charge
of discrimination brought under this part that a uniformly applied
standard, criterion, or policy has a disparate impact on an individual
with a disability or a class of individuals with disabilities that the
challenged standard, criterion or policy has been shown to be job-
related and consistent with business necessity, and such performance
cannot be accomplished with reasonable accommodation, as required in
this part.
(d) Charges of not making reasonable accommodation. It may be a
defense to a charge of discrimination, as described in Sec. 1630.9, that
a requested or necessary accommodation would impose an undue hardship on
the operation of the covered entity's business.
(e) Conflict with other Federal laws. It may be a defense to a
charge of discrimination under this part that a challenged action is
required or necessitated by another Federal law or regulation, or that
another Federal law or regulation prohibits an action (including the
provision of a particular reasonable accommodation) that would otherwise
be required by this part.
(f) Additional defenses. It may be a defense to a charge of
discrimination under this part that the alleged discriminatory action is
specifically permitted by Sec. 1630.14 or Sec. 1630.16.
[Code of Federal Regulations]
[Title 29, Volume 4]
[Revised as of July 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 29CFR1630.16]
[Page 347-372]
TITLE 29--LABOR
COMMISSION
PART 1630--REGULATIONS TO IMPLEMENT THE EQUAL EMPLOYMENT PROVISIONS OF THE
AMERICANS WITH DISABILITIES ACT--Table of Contents
Sec. 1630.16 Specific activities permitted.
(a) Religious entities. A religious corporation, association,
educational institution, or society is permitted to give preference in
employment to individuals of a particular religion to perform work
connected with the carrying on by that corporation, association,
educational institution, or society of its activities. A religious
entity may require that all applicants and employees conform to the
religious tenets of such organization. However, a religious entity may
not discriminate against a qualified individual, who satisfies the
permitted religious criteria, because of his or her disability.
(b) Regulation of alcohol and drugs. A covered entity:
[[Page 348]]
(1) May prohibit the illegal use of drugs and the use of alcohol at
the workplace by all employees;
(2) May require that employees not be under the influence of alcohol
or be engaging in the illegal use of drugs at the workplace;
(3) May require that all employees behave in conformance with the
requirements established under the Drug-Free Workplace Act of 1988 (41
U.S.C. 701 et seq.);
(4) May hold an employee who engages in the illegal use of drugs or
who is an alcoholic to the same qualification standards for employment
or job performance and behavior to which the entity holds its other
employees, even if any unsatisfactory performance or behavior is related
to the employee's drug use or alcoholism;
(5) May require that its employees employed in an industry subject
to such regulations comply with the standards established in the
regulations (if any) of the Departments of Defense and Transportation,
and of the Nuclear Regulatory Commission, regarding alcohol and the
illegal use of drugs; and
(6) May require that employees employed in sensitive positions
comply with the regulations (if any) of the Departments of Defense and
Transportation and of the Nuclear Regulatory Commission that apply to
employment in sensitive positions subject to such regulations.
(c) Drug testing--(1) General policy. For purposes of this part, a
test to determine the illegal use of drugs is not considered a medical
examination. Thus, the administration of such drug tests by a covered
entity to its job applicants or employees is not a violation of
Sec. 1630.13 of this part. However, this part does not encourage,
prohibit, or authorize a covered entity to conduct drug tests of job
applicants or employees to determine the illegal use of drugs or to make
employment decisions based on such test results.
(2) Transportation employees. This part does not encourage,
prohibit, or authorize the otherwise lawful exercise by entities subject
to the jurisdiction of the Department of Transportation of authority to:
(i) Test employees of entities in, and applicants for, positions
involving safety sensitive duties for the illegal use of drugs or for
on-duty impairment by alcohol; and
(ii) Remove from safety-sensitive positions persons who test
positive for illegal use of drugs or on-duty impairment by alcohol
pursuant to paragraph (c)(2)(i) of this section.
(3) Confidentiality. Any information regarding the medical condition
or history of any employee or applicant obtained from a test to
determine the illegal use of drugs, except information regarding the
illegal use of drugs, is subject to the requirements of Sec. 1630.14(b)
(2) and (3) of this part.
(d) Regulation of smoking. A covered entity may prohibit or impose
restrictions on smoking in places of employment. Such restrictions do
not violate any provision of this part.
(e) Infectious and communicable diseases; food handling jobs--(1) In
general. Under title I of the ADA, section 103(d)(1), the Secretary of
Health and Human Services is to prepare a list, to be updated annually,
of infectious and communicable diseases which are transmitted through
the handling of food. (Copies may be obtained from Center for Infectious
Diseases, Centers for Disease Control, 1600 Clifton Road, NE., Mailstop
C09, Atlanta, GA 30333.) If an individual with a disability is disabled
by one of the infectious or communicable diseases included on this list,
and if the risk of transmitting the disease associated with the handling
of food cannot be eliminated by reasonable accommodation, a covered
entity may refuse to assign or continue to assign such individual to a
job involving food handling. However, if the individual with a
disability is a current employee, the employer must consider whether he
or she can be accommodated by reassignment to a vacant position not
involving food handling.
(2) Effect on State or other laws. This part does not preempt,
modify, or amend any State, county, or local law, ordinance or
regulation applicable to food handling which:
(i) Is in accordance with the list, referred to in paragraph (e)(1)
of this section, of infectious or communicable
[[Page 349]]
diseases and the modes of transmissibility published by the Secretary of
Health and Human Services; and
(ii) Is designed to protect the public health from individuals who
pose a significant risk to the health or safety of others, where that
risk cannot be eliminated by reasonable accommodation.
(f) Health insurance, life insurance, and other benefit plans--(1)
An insurer, hospital, or medical service company, health maintenance
organization, or any agent or entity that administers benefit plans, or
similar organizations may underwrite risks, classify risks, or
administer such risks that are based on or not inconsistent with State
law.
(2) A covered entity may establish, sponsor, observe or administer
the terms of a bona fide benefit plan that are based on underwriting
risks, classifying risks, or administering such risks that are based on
or not inconsistent with State law.
(3) A covered entity may establish, sponsor, observe, or administer
the terms of a bona fide benefit plan that is not subject to State laws
that regulate insurance.
(4) The activities described in paragraphs (f) (1), (2), and (3) of
this section are permitted unless these activities are being used as a
subterfuge to evade the purposes of this part.
Appendix to Part 1630--Interpretive Guidance on Title I of the Americans
with Disabilities Act
Background
The ADA is a Federal antidiscrimination statute designed to remove
barriers which prevent qualified individuals with disabilities from
enjoying the same employment opportunities that are available to persons
without disabilities.
Like the Civil Rights Act of 1964 that prohibits discrimination on
the bases of race, color, religion, national origin, and sex, the ADA
seeks to ensure access to equal employment opportunities based on merit.
It does not guarantee equal results, establish quotas, or require
preferences favoring individuals with disabilities over those without
disabilities.
However, while the Civil Rights Act of 1964 prohibits any
consideration of personal characteristics such as race or national
origin, the ADA necessarily takes a different approach. When an
individual's disability creates a barrier to employment opportunities,
the ADA requires employers to consider whether reasonable accommodation
could remove the barrier.
The ADA thus establishes a process in which the employer must assess
a disabled individual's ability to perform the essential functions of
the specific job held or desired. While the ADA focuses on eradicating
barriers, the ADA does not relieve a disabled employee or applicant from
the obligation to perform the essential functions of the job. To the
contrary, the ADA is intended to enable disabled persons to compete in
the workplace based on the same performance standards and requirements
that employers expect of persons who are not disabled.
However, where that individual's functional limitation impedes such
job performance, an employer must take steps to reasonably accommodate,
and thus help overcome the particular impediment, unless to do so would
impose an undue hardship. Such accommodations usually take the form of
adjustments to the way a job customarily is performed, or to the work
environment itself.
This process of identifying whether, and to what extent, a
reasonable accommodation is required should be flexible and involve both
the employer and the individual with a disability. Of course, the
determination of whether an individual is qualified for a particular
position must necessarily be made on a case-by-case basis. No specific
form of accommodation is guaranteed for all individuals with a
particular disability. Rather, an accommodation must be tailored to
match the needs of the disabled individual with the needs of the job's
essential functions.
This case-by-case approach is essential if qualified individuals of
varying abilities are to receive equal opportunities to compete for an
infinitely diverse range of jobs. For this reason, neither the ADA nor
this part can supply the "correct" answer in advance for each
employment decision concerning an individual with a disability. Instead,
the ADA simply establishes parameters to guide employers in how to
consider, and take into account, the disabling condition involved.
Introduction
The Equal Employment Opportunity Commission (the Commission or EEOC)
is responsible for enforcement of title I of the Americans with
Disabilities Act (ADA), 42 U.S.C. 12101 et seq. (1990), which prohibits
employment discrimination on the basis of disability. The Commission
believes that it is essential to issue interpretive guidance
concurrently with the issuance of this part in order to ensure that
qualified individuals with disabilities understand their rights
[[Page 350]]
under this part and to facilitate and encourage compliance by covered
entities. This appendix represents the Commission's interpretation of
the issues discussed, and the Commission will be guided by it when
resolving charges of employment discrimination. The appendix addresses
the major provisions of this part and explains the major concepts of
disability rights.
The terms "employer" or "employer or other covered entity" are
used interchangeably throughout the appendix to refer to all covered
entities subject to the employment provisions of the ADA.
Section 1630.1 Purpose, Applicability and Construction
Section 1630.1(a) Purpose
The Americans with Disabilities Act was signed into law on July 26,
1990. It is an antidiscrimination statute that requires that individuals
with disabilities be given the same consideration for employment that
individuals without disabilities are given. An individual who is
qualified for an employment opportunity cannot be denied that
opportunity because of the fact that the individual is disabled. The
purpose of title I and this part is to ensure that qualified individuals
with disabilities are protected from discrimination on the basis of
disability.
The ADA uses the term "disabilities" rather than the term
"handicaps" used in the Rehabilitation Act of 1973, 29 U.S.C. 701-796.
Substantively, these terms are equivalent. As noted by the House
Committee on the Judiciary, "[t]he use of the term `disabilities'
instead of the term `handicaps' reflects the desire of the Committee to
use the most current terminology. It reflects the preference of persons
with disabilities to use that term rather than `handicapped' as used in
previous laws, such as the Rehabilitation Act of 1973 * * *." H.R. Rep.
No. 485 part 3, 101st Cong., 2d Sess. 26-27 (1990) (hereinafter House
Judiciary Report); see also S. Rep. No. 116, 101st Cong., 1st Sess. 21
(1989) (hereinafter Senate Report); H.R. Rep. No. 485 part 2, 101st
Cong., 2d Sess. 50-51 (1990) [hereinafter House Labor Report].
The use of the term "Americans" in the title of the ADA is not
intended to imply that the Act only applies to United States citizens.
Rather, the ADA protects all qualified individuals with disabilities,
regardless of their citizenship status or nationality.
Section 1630.1(b) and (c) Applicability and Construction
Unless expressly stated otherwise, the standards applied in the ADA
are not intended to be lesser than the standards applied under the
Rehabilitation Act of 1973.
The ADA does not preempt any Federal law, or any State or local law,
that grants to individuals with disabilities protection greater than or
equivalent to that provided by the ADA. This means that the existence of
a lesser standard of protection to individuals with disabilities under
the ADA will not provide a defense to failing to meet a higher standard
under another law. Thus, for example, title I of the ADA would not be a
defense to failing to collect information required to satisfy the
affirmative action requirements of section 503 of the Rehabilitation
Act. On the other hand, the existence of a lesser standard under another
law will not provide a defense to failing to meet a higher standard
under the ADA. See House Labor Report at 135; House Judiciary Report at
69-70.
This also means that an individual with a disability could choose to
pursue claims under a State discrimination or tort law that does not
confer greater substantive rights, or even confers fewer substantive
rights, if the potential available remedies would be greater than those
available under the ADA and this part. The ADA does not restrict an
individual with a disability from pursuing such claims in addition to
charges brought under this part. House Judiciary at 69-70.
The ADA does not automatically preempt medical standards or safety
requirements established by Federal law or regulations. It does not
preempt State, county, or local laws, ordinances or regulations that are
consistent with this part, and are designed to protect the public health
from individuals who pose a direct threat, that cannot be eliminated or
reduced by reasonable accommodation, to the health or safety of others.
However, the ADA does preempt inconsistent requirements established by
State or local law for safety or security sensitive positions. See
Senate Report at 27; House Labor Report at 57.
An employer allegedly in violation of this part cannot successfully
defend its actions by relying on the obligation to comply with the
requirements of any State or local law that imposes prohibitions or
limitations on the eligibility of qualified individuals with
disabilities to practice any occupation or profession. For example,
suppose a municipality has an ordinance that prohibits individuals with
tuberculosis from teaching school children. If an individual with
dormant tuberculosis challenges a private school's refusal to hire him
or her because of the tuberculosis, the private school would not be able
to rely on the city ordinance as a defense under the ADA.
Sections 1630.2(a)-(f) Commission, Covered Entity, etc.
The definitions section of part 1630 includes several terms that are
identical, or almost identical, to the terms found in title VII of the
Civil Rights Act of 1964. Among these terms are "Commission,"
"Person," "State," and "Employer." These terms are
[[Page 351]]
to be given the same meaning under the ADA that they are given under
title VII.
In general, the term "employee" has the same meaning that it is
given under title VII. However, the ADA's definition of "employee"
does not contain an exception, as does title VII, for elected officials
and their personal staffs. It should be further noted that all State and
local governments are covered by title II of the ADA whether or not they
are also covered by this part. Title II, which is enforced by the
Department of Justice, becomes effective on January 26, 1992. See 28 CFR
part 35.
The term "covered entity" is not found in title VII. However, the
title VII definitions of the entities included in the term "covered
entity" (e.g., employer, employment agency, etc.) are applicable to the
ADA.
Section 1630.2(g) Disability
In addition to the term "covered entity," there are several other
terms that are unique to the ADA. The first of these is the term
"disability." Congress adopted the definition of this term from the
Rehabilitation Act definition of the term "individual with handicaps."
By so doing, Congress intended that the relevant caselaw developed under
the Rehabilitation Act be generally applicable to the term
"disability" as used in the ADA. Senate Report at 21; House Labor
Report at 50; House Judiciary Report at 27.
The definition of the term "disability" is divided into three
parts. An individual must satisfy at least one of these parts in order
to be considered an individual with a disability for purposes of this
part. An individual is considered to have a "disability" if that
individual either (1) has a physical or mental impairment which
substantially limits one or more of that person's major life activities,
(2) has a record of such an impairment, or, (3) is regarded by the
covered entity as having such an impairment. To understand the meaning
of the term "disability," it is necessary to understand, as a
preliminary matter, what is meant by the terms "physical or mental
impairment," "major life activity," and "substantially limits."
Each of these terms is discussed below.
Section 1630.2(h) Physical or Mental Impairment
This term adopts the definition of the term "physical or mental
impairment" found in the regulations implementing section 504 of the
Rehabilitation Act at 34 CFR part 104. It defines physical or mental
impairment as any physiological disorder or condition, cosmetic
disfigurement, or anatomical loss affecting one or more of several body
systems, or any mental or psychological disorder.
It is important to distinguish between conditions that are
impairments and physical, psychological, environmental, cultural and
economic characteristics that are not impairments. The definition of the
term "impairment" does not include physical characteristics such as
eye color, hair color, left-handedness, or height, weight or muscle tone
that are within "normal" range and are not the result of a
physiological disorder. The definition, likewise, does not include
characteristic predisposition to illness or disease. Other conditions,
such as pregnancy, that are not the result of a physiological disorder
are also not impairments. Similarly, the definition does not include
common personality traits such as poor judgment or a quick temper where
these are not symptoms of a mental or psychological disorder.
Environmental, cultural, or economic disadvantages such as poverty, lack
of education or a prison record are not impairments. Advanced age, in
and of itself, is also not an impairment. However, various medical
conditions commonly associated with age, such as hearing loss,
osteoporosis, or arthritis would constitute impairments within the
meaning of this part. See Senate Report at 22-23; House Labor Report at
51-52; House Judiciary Report at 28-29.
Section 1630.2(i) Major Life Activities
This term adopts the definition of the term "major life
activities" found in the regulations implementing section 504 of the
Rehabilitation Act at 34 CFR part 104. "Major life activities" are
those basic activities that the average person in the general population
can perform with little or no difficulty. Major life activities include
caring for oneself, performing manual tasks, walking, seeing, hearing,
speaking, breathing, learning, and working. This list is not exhaustive.
For example, other major life activities include, but are not limited
to, sitting, standing, lifting, reaching. See Senate Report at 22; House
Labor Report at 52; House Judiciary Report at 28.
Section 1630.2(j) Substantially Limits
Determining whether a physical or mental impairment exists is only
the first step in determining whether or not an individual is disabled.
Many impairments do not impact an individual's life to the degree that
they constitute disabling impairments. An impairment rises to the level
of disability if the impairment substantially limits one or more of the
individual's major life activities. Multiple impairments that combine to
substantially limit one or more of an individual's major life activities
also constitute a disability.
The ADA and this part, like the Rehabilitation Act of 1973, do not
attempt a "laundry list" of impairments that are "disabilities." The
determination of whether an individual has a disability is not
necessarily based on the name or diagnosis of the impairment the
[[Page 352]]
person has, but rather on the effect of that impairment on the life of
the individual. Some impairments may be disabling for particular
individuals but not for others, depending on the stage of the disease or
disorder, the presence of other impairments that combine to make the
impairment disabling or any number of other factors.
Other impairments, however, such as HIV infection, are inherently
substantially limiting.
On the other hand, temporary, non-chronic impairments of short
duration, with little or no long term or permanent impact, are usually
not disabilities. Such impairments may include, but are not limited to,
broken limbs, sprained joints, concussions, appendicitis, and influenza.
Similarly, except in rare circumstances, obesity is not considered a
disabling impairment.
An impairment that prevents an individual from performing a major
life activity substantially limits that major life activity. For
example, an individual whose legs are paralyzed is substantially limited
in the major life activity of walking because he or she is unable, due
to the impairment, to perform that major life activity.
Alternatively, an impairment is substantially limiting if it
significantly restricts the duration, manner or condition under which an
individual can perform a particular major life activity as compared to
the average person in the general population's ability to perform that
same major life activity. Thus, for example, an individual who, because
of an impairment, can only walk for very brief periods of time would be
substantially limited in the major life activity of walking.
Part 1630 notes several factors that should be considered in making
the determination of whether an impairment is substantially limiting.
These factors are (1) the nature and severity of the impairment, (2) the
duration or expected duration of the impairment, and (3) the permanent
or long term impact, or the expected permanent or long term impact of,
or resulting from, the impairment. The term "duration," as used in
this context, refers to the length of time an impairment persists, while
the term "impact" refers to the residual effects of an impairment.
Thus, for example, a broken leg that takes eight weeks to heal is an
impairment of fairly brief duration. However, if the broken leg heals
improperly, the "impact" of the impairment would be the resulting
permanent limp. Likewise, the effect on cognitive functions resulting
from traumatic head injury would be the "impact" of that impairment.
The determination of whether an individual is substantially limited
in a major life activity must be made on a case by case basis. An
individual is not substantially limited in a major life activity if the
limitation, when viewed in light of the factors noted above, does not
amount to a significant restriction when compared with the abilities of
the average person. For example, an individual who had once been able to
walk at an extraordinary speed would not be substantially limited in the
major life activity of walking if, as a result of a physical impairment,
he or she were only able to walk at an average speed, or even at
moderately below average speed.
It is important to remember that the restriction on the performance
of the major life activity must be the result of a condition that is an
impairment. As noted earlier, advanced age, physical or personality
characteristics, and environmental, cultural, and economic disadvantages
are not impairments. Consequently, even if such factors substantially
limit an individual's ability to perform a major life activity, this
limitation will not constitute a disability. For example, an individual
who is unable to read because he or she was never taught to read would
not be an individual with a disability because lack of education is not
an impairment. However, an individual who is unable to read because of
dyslexia would be an individual with a disability because dyslexia, a
learning disability, is an impairment.
If an individual is not substantially limited with respect to any
other major life activity, the individual's ability to perform the major
life activity of working should be considered. If an individual is
substantially limited in any other major life activity, no determination
should be made as to whether the individual is substantially limited in
working. For example, if an individual is blind, i.e., substantially
limited in the major life activity of seeing, there is no need to
determine whether the individual is also substantially limited in the
major life activity of working. The determination of whether an
individual is substantially limited in working must also be made on a
case by case basis.
This part lists specific factors that may be used in making the
determination of whether the limitation in working is "substantial."
These factors are:
(1) The geographical area to which the individual has reasonable
access;
(2) The job from which the individual has been disqualified because
of an impairment, and the number and types of jobs utilizing similar
training, knowledge, skills or abilities, within that geographical area,
from which the individual is also disqualified because of the impairment
(class of jobs); and/or
(3) The job from which the individual has been disqualified because
of an impairment, and the number and types of other jobs not utilizing
similar training, knowledge, skills or abilities, within that
geographical area, from which the individual is also disqualified
[[Page 353]]
because of the impairment (broad range of jobs in various classes).
Thus, an individual is not substantially limited in working just
because he or she is unable to perform a particular job for one
employer, or because he or she is unable to perform a specialized job or
profession requiring extraordinary skill, prowess or talent. For
example, an individual who cannot be a commercial airline pilot because
of a minor vision impairment, but who can be a commercial airline co-
pilot or a pilot for a courier service, would not be substantially
limited in the major life activity of working. Nor would a professional
baseball pitcher who develops a bad elbow and can no longer throw a
baseball be considered substantially limited in the major life activity
of working. In both of these examples, the individuals are not
substantially limited in the ability to perform any other major life
activity and, with regard to the major life activity of working, are
only unable to perform either a particular specialized job or a narrow
range of jobs. See Forrisi v. Bowen, 794 F.2d 931 (4th Cir. 1986);
Jasany v. U.S. Postal Service, 755 F.2d 1244 (6th Cir. 1985); E.E Black,
Ltd. v. Marshall, 497 F. Supp. 1088 (D. Hawaii 1980).
On the other hand, an individual does not have to be totally unable
to work in order to be considered substantially limited in the major
life activity of working. An individual is substantially limited in
working if the individual is significantly restricted in the ability to
perform a class of jobs or a broad range of jobs in various classes,
when compared with the ability of the average person with comparable
qualifications to perform those same jobs. For example, an individual
who has a back condition that prevents the individual from performing
any heavy labor job would be substantially limited in the major life
activity of working because the individual's impairment eliminates his
or her ability to perform a class of jobs. This would be so even if the
individual were able to perform jobs in another class, e.g., the class
of semi-skilled jobs. Similarly, suppose an individual has an allergy to
a substance found in most high rise office buildings, but seldom found
elsewhere, that makes breathing extremely difficult. Since this
individual would be substantially limited in the ability to perform the
broad range of jobs in various classes that are conducted in high rise
office buildings within the geographical area to which he or she has
reasonable access, he or she would be substantially limited in working.
The terms "number and types of jobs" and "number and types of
other jobs," as used in the factors discussed above, are not intended
to require an onerous evidentiary showing. Rather, the terms only
require the presentation of evidence of general employment demographics
and/or of recognized occupational classifications that indicate the
approximate number of jobs (e.g., "few," "many," "most") from
which an individual would be excluded because of an impairment.
If an individual has a "mental or physical impairment" that
"substantially limits" his or her ability to perform one or more
"major life activities," that individual will satisfy the first part
of the regulatory definition of "disability" and will be considered an
individual with a disability. An individual who satisfies this first
part of the definition of the term "disability" is not required to
demonstrate that he or she satisfies either of the other parts of the
definition. However, if an individual is unable to satisfy this part of
the definition, he or she may be able to satisfy one of the other parts
of the definition.
Section 1630.2(k) Record of a Substantially Limiting Condition
The second part of the definition provides that an individual with a
record of an impairment that substantially limits a major life activity
is an individual with a disability. The intent of this provision, in
part, is to ensure that people are not discriminated against because of
a history of disability. For example, this provision protects former
cancer patients from discrimination based on their prior medical
history. This provision also ensures that individuals are not
discriminated against because they have been misclassified as disabled.
For example, individuals misclassified as learning disabled are
protected from discrimination on the basis of that erroneous
classification. Senate Report at 23; House Labor Report at 52-53; House
Judiciary Report at 29.
This part of the definition is satisfied if a record relied on by an
employer indicates that the individual has or has had a substantially
limiting impairment. The impairment indicated in the record must be an
impairment that would substantially limit one or more of the
individual's major life activities. There are many types of records that
could potentially contain this information, including but not limited
to, education, medical, or employment records.
The fact that an individual has a record of being a disabled
veteran, or of disability retirement, or is classified as disabled for
other purposes does not guarantee that the individual will satisfy the
definition of "disability" under part 1630. Other statutes,
regulations and programs may have a definition of "disability" that is
not the same as the definition set forth in the ADA and contained in
part 1630. Accordingly, in order for an individual who has been
classified in a record as "disabled" for some other purpose to be
considered disabled for purposes of part 1630, the impairment indicated
in the record must be a physical or mental impairment that substantially
limits one or more of the individual's major life activities.
[[Page 354]]
Section 1630.2(l) Regarded as Substantially Limited in a Major Life
Activity
If an individual cannot satisfy either the first part of the
definition of "disability" or the second "record of" part of the
definition, he or she may be able to satisfy the third part of the
definition. The third part of the definition provides that an individual
who is regarded by an employer or other covered entity as having an
impairment that substantially limits a major life activity is an
individual with a disability.
There are three different ways in which an individual may satisfy
the definition of "being regarded as having a disability":
(1) The individual may have an impairment which is not substantially
limiting but is perceived by the employer or other covered entity as
constituting a substantially limiting impairment;
(2) The individual may have an impairment which is only
substantially limiting because of the attitudes of others toward the
impairment; or
(3) The individual may have no impairment at all but is regarded by
the employer or other covered entity as having a substantially limiting
impairment.
Senate Report at 23; House Labor Report at 53; House Judiciary Report at
29.
An individual satisfies the first part of this definition if the
individual has an impairment that is not substantially limiting, but the
covered entity perceives the impairment as being substantially limiting.
For example, suppose an employee has controlled high blood pressure that
is not substantially limiting. If an employer reassigns the individual
to less strenuous work because of unsubstantiated fears that the
individual will suffer a heart attack if he or she continues to perform
strenuous work, the employer would be regarding the individual as
disabled.
An individual satisfies the second part of the "regarded as"
definition if the individual has an impairment that is only
substantially limiting because of the attitudes of others toward the
condition. For example, an individual may have a prominent facial scar
or disfigurement, or may have a condition that periodically causes an
involuntary jerk of the head but does not limit the individual's major
life activities. If an employer discriminates against such an individual
because of the negative reactions of customers, the employer would be
regarding the individual as disabled and acting on the basis of that
perceived disability. See Senate Report at 24; House Labor Report at 53;
House Judiciary Report at 30-31.
An individual satisfies the third part of the "regarded as"
definition of "disability" if the employer or other covered entity
erroneously believes the individual has a substantially limiting
impairment that the individual actually does not have. This situation
could occur, for example, if an employer discharged an employee in
response to a rumor that the employee is infected with Human
Immunodeficiency Virus (HIV). Even though the rumor is totally unfounded
and the individual has no impairment at all, the individual is
considered an individual with a disability because the employer
perceived of this individual as being disabled. Thus, in this example,
the employer, by discharging this employee, is discriminating on the
basis of disability.
The rationale for the "regarded as" part of the definition of
disability was articulated by the Supreme Court in the context of the
Rehabilitation Act of 1973 in School Board of Nassau County v. Arline,
480 U.S. 273 (1987). The Court noted that, although an individual may
have an impairment that does not in fact substantially limit a major
life activity, the reaction of others may prove just as disabling.
"Such an impairment might not diminish a person's physical or mental
capabilities, but could nevertheless substantially limit that person's
ability to work as a result of the negative reactions of others to the
impairment." 480 U.S. at 283. The Court concluded that by including
"regarded as" in the Rehabilitation Act's definition, "Congress
acknowledged that society's accumulated myths and fears about disability
and diseases are as handicapping as are the physical limitations that
flow from actual impairment." 480 U.S. at 284.
An individual rejected from a job because of the "myths, fears and
stereotypes" associated with disabilities would be covered under this
part of the definition of disability, whether or not the employer's or
other covered entity's perception were shared by others in the field and
whether or not the individual's actual physical or mental condition
would be considered a disability under the first or second part of this
definition. As the legislative history notes, sociologists have
identified common attitudinal barriers that frequently result in
employers excluding individuals with disabilities. These include
concerns regarding productivity, safety, insurance, liability,
attendance, cost of accommodation and accessibility, workers'
compensation costs, and acceptance by coworkers and customers.
Therefore, if an individual can show that an employer or other
covered entity made an employment decision because of a perception of
disability based on "myth, fear or stereotype," the individual will
satisfy the "regarded as" part of the definition of disability. If the
employer cannot articulate a non-discriminatory reason for the
employment action, an inference that the employer is acting on the basis
of "myth, fear or stereotype" can be drawn.
[[Page 355]]
Section 1630.2(m) Qualified Individual With a Disability
The ADA prohibits discrimination on the basis of disability against
qualified individuals with disabilities. The determination of whether an
individual with a disability is "qualified" should be made in two
steps. The first step is to determine if the individual satisfies the
prerequisites for the position, such as possessing the appropriate
educational background, employment experience, skills, licenses, etc.
For example, the first step in determining whether an accountant who is
paraplegic is qualified for a certified public accountant (CPA) position
is to examine the individual's credentials to determine whether the
individual is a licensed CPA. This is sometimes referred to in the
Rehabilitation Act caselaw as determining whether the individual is
"otherwise qualified" for the position. See Senate Report at 33; House
Labor Report at 64-65. (See Sec. 1630.9 Not Making Reasonable
Accommodation).
The second step is to determine whether or not the individual can
perform the essential functions of the position held or desired, with or
without reasonable accommodation. The purpose of this second step is to
ensure that individuals with disabilities who can perform the essential
functions of the position held or desired are not denied employment
opportunities because they are not able to perforn marginal functions of
the position. House Labor Report at 55.
The determination of whether an individual with a disability is
qualified is to be made at the time of the employment decision. This
determination should be based on the capabilities of the individual with
a disability at the time of the employment decision, and should not be
based on speculation that the employee may become unable in the future
or may cause increased health insurance premiums or workers compensation
costs.
Section 1630.2(n) Essential Functions
The determination of which functions are essential may be critical
to the determination of whether or not the individual with a disability
is qualified. The essential functions are those functions that the
individual who holds the position must be able to perform unaided or
with the assistance of a reasonable accommodation.
The inquiry into whether a particular function is essential
initially focuses on whether the employer actually requires employees in
the position to perform the functions that the employer asserts are
essential. For example, an employer may state that typing is an
essential function of a position. If, in fact, the employer has never
required any employee in that particular position to type, this will be
evidence that typing is not actually an essential function of the
position.
If the individual who holds the position is actually required to
perform the function the employer asserts is an essential function, the
inquiry will then center around whether removing the function would
fundamentally alter that position. This determination of whether or not
a particular function is essential will generally include one or more of
the following factors listed in part 1630.
The first factor is whether the position exists to perform a
particular function. For example, an individual may be hired to
proofread documents. The ability to proofread the documents would then
be an essential function, since this is the only reason the position
exists.
The second factor in determining whether a function is essential is
the number of other employees available to perform that job function or
among whom the performance of that job function can be distributed. This
may be a factor either because the total number of available employees
is low, or because of the fluctuating demands of the business operation.
For example, if an employer has a relatively small number of available
employees for the volume of work to be performed, it may be necessary
that each employee perform a multitude of different functions.
Therefore, the performance of those functions by each employee becomes
more critical and the options for reorganizing the work become more
limited. In such a situation, functions that might not be essential if
there were a larger staff may become essential because the staff size is
small compared to the volume of work that has to be done. See Treadwell
v. Alexander, 707 F.2d 473 (11th Cir. 1983).
A similar situation might occur in a larger work force if the
workflow follows a cycle of heavy demand for labor intensive work
followed by low demand periods. This type of workflow might also make
the performance of each function during the peak periods more critical
and might limit the employer's flexibility in reorganizing operating
procedures. See Dexler v. Tisch, 660 F. Supp. 1418 (D. Conn. 1987).
The third factor is the degree of expertise or skill required to
perform the function. In certain professions and highly skilled
positions the employee is hired for his or her expertise or ability to
perform the particular function. In such a situation, the performance of
that specialized task would be an essential function.
Whether a particular function is essential is a factual
determination that must be made on a case by case basis. In determining
whether or not a particular function is essential, all relevant evidence
should be considered. Part 1630 lists various types of evidence, such as
an established job description, that should be considered in determining
[[Page 356]]
whether a particular function is essential. Since the list is not
exhaustive, other relevant evidence may also be presented. Greater
weight will not be granted to the types of evidence included on the list
than to the types of evidence not listed.
Although part 1630 does not require employers to develop or maintain
job descriptions, written job descriptions prepared before advertising
or interviewing applicants for the job, as well as the employer's
judgment as to what functions are essential are among the relevant
evidence to be considered in determining whether a particular function
is essential. The terms of a collective bargaining agreement are also
relevant to the determination of whether a particular function is
essential. The work experience of past employees in the job or of
current employees in similar jobs is likewise relevant to the
determination of whether a particular function is essential. See H.R.
Conf. Rep. No. 101-596, 101st Cong., 2d Sess. 58 (1990) [hereinafter
Conference Report]; House Judiciary Report at 33-34. See also Hall v.
U.S. Postal Service, 857 F.2d 1073 (6th Cir. 1988).
The time spent performing the particular function may also be an
indicator of whether that function is essential. For example, if an
employee spends the vast majority of his or her time working at a cash
register, this would be evidence that operating the cash register is an
essential function. The consequences of failing to require the employee
to perform the function may be another indicator of whether a particular
function is essential. For example, although a firefighter may not
regularly have to carry an unconscious adult out of a burning building,
the consequence of failing to require the firefighter to be able to
perform this function would be serious.
It is important to note that the inquiry into essential functions is
not intended to second guess an employer's business judgment with regard
to production standards, whether qualitative or quantitative, nor to
require employers to lower such standards. (See Sec. 1630.10
Qualification Standards, Tests and Other Selection Criteria). If an
employer requires its typists to be able to accurately type 75 words per
minute, it will not be called upon to explain why an inaccurate work
product, or a typing speed of 65 words per minute, would not be
adequate. Similarly, if a hotel requires its service workers to
thoroughly clean 16 rooms per day, it will not have to explain why it
requires thorough cleaning, or why it chose a 16 room rather than a 10
room requirement. However, if an employer does require accurate 75 word
per minute typing or the thorough cleaning of 16 rooms, it will have to
show that it actually imposes such requirements on its employees in
fact, and not simply on paper. It should also be noted that, if it is
alleged that the employer intentionally selected the particular level of
production to exclude individuals with disabilities, the employer may
have to offer a legitimate, nondiscriminatory reason for its selection.
Section 1630.2(o) Reasonable Accommodation
An individual is considered a "qualified individual with a
disability" if the individual can perform the essential functions of
the position held or desired with or without reasonable accommodation.
In general, an accommodation is any change in the work environment or in
the way things are customarily done that enables an individual with a
disability to enjoy equal employment opportunities. There are three
categories of reasonable accommodation. These are (1) accommodations
that are required to ensure equal opportunity in the application
process; (2) accommodations that enable the employer's employees with
disabilities to perform the essential functions of the position held or
desired; and (3) accommodations that enable the employer's employees
with disabilities to enjoy equal benefits and privileges of employment
as are enjoyed by employees without disabilities. It should be noted
that nothing in this part prohibits employers or other covered entities
from providing accommodations beyond those required by this part.
Part 1630 lists the examples, specified in title I of the ADA, of
the most common types of accommodation that an employer or other covered
entity may be required to provide. There are any number of other
specific accommodations that may be appropriate for particular
situations but are not specifically mentioned in this listing. This
listing is not intended to be exhaustive of accommodation possibilities.
For example, other accommodations could include permitting the use of
accrued paid leave or providing additional unpaid leave for necessary
treatment, making employer provided transportation accessible, and
providing reserved parking spaces. Providing personal assistants, such
as a page turner for an employee with no hands or a travel attendant to
act as a sighted guide to assist a blind employee on occasional business
trips, may also be a reasonable accommodation. Senate Report at 31;
House Labor Report at 62; House Judiciary Report at 39.
It may also be a reasonable accommodation to permit an individual
with a disability the opportunity to provide and utilize equipment, aids
or services that an employer is not required to provide as a reasonable
accommodation. For example, it would be a reasonable accommodation for
an employer to permit an individual who is blind to use a guide dog at
work, even though the employer would not be required to provide a guide
dog for the employee.
The accommodations included on the list of reasonable accommodations
are generally
[[Page 357]]
self explanatory. However, there are a few that require further
explanation. One of these is the accommodation of making existing
facilities used by employees readily accessible to, and usable by,
individuals with disabilities. This accommodation includes both those
areas that must be accessible for the employee to perform essential job
functions, as well as non-work areas used by the employer's employees
for other purposes. For example, accessible break rooms, lunch rooms,
training rooms, restrooms etc., may be required as reasonable
accommodations.
Another of the potential accommodations listed is "job
restructuring." An employer or other covered entity may restructure a
job by reallocating or redistributing nonessential, marginal job
functions. For example, an employer may have two jobs, each of which
entails the performance of a number of marginal functions. The employer
hires a qualified individual with a disability who is able to perform
some of the marginal functions of each job but not all of the marginal
functions of either job. As an accommodation, the employer may
redistribute the marginal functions so that all of the marginal
functions that the qualified individual with a disability can perform
are made a part of the position to be filled by the qualified individual
with a disability. The remaining marginal functions that the individual
with a disability cannot perform would then be transferred to the other
position. See Senate Report at 31; House Labor Report at 62.
An employer or other covered entity is not required to reallocate
essential functions. The essential functions are by definition those
that the individual who holds the job would have to perform, with or
without reasonable accommodation, in order to be considered qualified
for the position. For example, suppose a security guard position
requires the individual who holds the job to inspect identification
cards. An employer would not have to provide an individual who is
legally blind with an assistant to look at the identification cards for
the legally blind employee. In this situation the assistant would be
performing the job for the individual with a disability rather than
assisting the individual to perform the job. See Coleman v. Darden, 595
F.2d 533 (10th Cir. 1979).
An employer or other covered entity may also restructure a job by
altering when and/or how an essential function is performed. For
example, an essential function customarily performed in the early
morning hours may be rescheduled until later in the day as a reasonable
accommodation to a disability that precludes performance of the function
at the customary hour. Likewise, as a reasonable accommodation, an
employee with a disability that inhibits the ability to write, may be
permitted to computerize records that were customarily maintained
manually.
Reassignment to a vacant position is also listed as a potential
reasonable accommodation. In general, reassignment should be considered
only when accommodation within the individual's current position would
pose an undue hardship. Reassignment is not available to applicants. An
applicant for a position must be qualified for, and be able to perform
the essential functions of, the position sought with or without
reasonable accommodation.
Reassignment may not be used to limit, segregate, or otherwise
discriminate against employees with disabilities by forcing
reassignments to undesirable positions or to designated offices or
facilities. Employers should reassign the individual to an equivalent
position, in terms of pay, status, etc., if the individual is qualified,
and if the position is vacant within a reasonable amount of time. A
"reasonable amount of time" should be determined in light of the
totality of the circumstances. As an example, suppose there is no vacant
position available at the time that an individual with a disability
requests reassignment as a reasonable accommodation. The employer,
however, knows that an equivalent position for which the individual is
qualified, will become vacant next week. Under these circumstances, the
employer should reassign the individual to the position when it becomes
available.
An employer may reassign an individual to a lower graded position if
there are no accommodations that would enable the employee to remain in
the current position and there are no vacant equivalent positions for
which the individual is qualified with or without reasonable
accommodation. An employer, however, is not required to maintain the
reassigned individual with a disability at the salary of the higher
graded position if it does not so maintain reassigned employees who are
not disabled. It should also be noted that an employer is not required
to promote an individual with a disability as an accommodation. See
Senate Report at 31-32; House Labor Report at 63.
The determination of which accommodation is appropriate in a
particular situation involves a process in which the employer and
employee identify the precise limitations imposed by the disability and
explore potential accommodations that would overcome those limitations.
This process is discussed more fully in Sec. 1630.9 Not Making
Reasonable Accommodation.
Section 1630.2(p) Undue Hardship
An employer or other covered entity is not required to provide an
accommodation that will impose an undue hardship on the operation of the
employer's or other covered entity's business. The term "undue
hardship" means significant difficulty or expense in, or resulting
from, the provision of the accommodation. The "undue hardship"
provision
[[Page 358]]
takes into account the financial realities of the particular employer or
other covered entity. However, the concept of undue hardship is not
limited to financial difficulty. "Undue hardship" refers to any
accommodation that would be unduly costly, extensive, substantial, or
disruptive, or that would fundamentally alter the nature or operation of
the business. See Senate Report at 35; House Labor Report at 67.
For example, suppose an individual with a disabling visual
impairment that makes it extremely difficult to see in dim lighting
applies for a position as a waiter in a nightclub and requests that the
club be brightly lit as a reasonable accommodation. Although the
individual may be able to perform the job in bright lighting, the
nightclub will probably be able to demonstrate that that particular
accommodation, though inexpensive, would impose an undue hardship if the
bright lighting would destroy the ambience of the nightclub and/or make
it difficult for the customers to see the stage show. The fact that that
particular accommodation poses an undue hardship, however, only means
that the employer is not required to provide that accommodation. If
there is another accommodation that will not create an undue hardship,
the employer would be required to provide the alternative accommodation.
An employer's claim that the cost of a particular accommodation will
impose an undue hardship will be analyzed in light of the factors
outlined in part 1630. In part, this analysis requires a determination
of whose financial resources should be considered in deciding whether
the accommodation is unduly costly. In some cases the financial
resources of the employer or other covered entity in its entirety should
be considered in determining whether the cost of an accommodation poses
an undue hardship. In other cases, consideration of the financial
resources of the employer or other covered entity as a whole may be
inappropriate because it may not give an accurate picture of the
financial resources available to the particular facility that will
actually be required to provide the accommodation. See House Labor
Report at 68-69; House Judiciary Report at 40-41; see also Conference
Report at 56-57.
If the employer or other covered entity asserts that only the
financial resources of the facility where the individual will be
employed should be considered, part 1630 requires a factual
determination of the relationship between the employer or other covered
entity and the facility that will provide the accommodation. As an
example, suppose that an independently owned fast food franchise that
receives no money from the franchisor refuses to hire an individual with
a hearing impairment because it asserts that it would be an undue
hardship to provide an interpreter to enable the individual to
participate in monthly staff meetings. Since the financial relationship
between the franchisor and the franchise is limited to payment of an
annual franchise fee, only the financial resources of the franchise
would be considered in determining whether or not providing the
accommodation would be an undue hardship. See House Labor Report at 68;
House Judiciary Report at 40.
If the employer or other covered entity can show that the cost of
the accommodation would impose an undue hardship, it would still be
required to provide the accommodation if the funding is available from
another source, e.g., a State vocational rehabilitation agency, or if
Federal, State or local tax deductions or tax credits are available to
offset the cost of the accommodation. If the employer or other covered
entity receives, or is eligible to receive, monies from an external
source that would pay the entire cost of the accommodation, it cannot
claim cost as an undue hardship. In the absence of such funding, the
individual with a disability requesting the accommodation should be
given the option of providing the accommodation or of paying that
portion of the cost which constitutes the undue hardship on the
operation of the business. To the extent that such monies pay or would
pay for only part of the cost of the accommodation, only that portion of
the cost of the accommodation that could not be recovered--the final net
cost to the entity--may be considered in determining undue hardship.
(See Sec. 1630.9 Not Making Reasonable Accommodation). See Senate Report
at 36; House Labor Report at 69.
Section 1630.2(r) Direct Threat
An employer may require, as a qualification standard, that an
individual not pose a direct threat to the health or safety of himself/
herself or others. Like any other qualification standard, such a
standard must apply to all applicants or employees and not just to
individuals with disabilities. If, however, an individual poses a direct
threat as a result of a disability, the employer must determine whether
a reasonable accommodation would either eliminate the risk or reduce it
to an acceptable level. If no accommodation exists that would either
eliminate or reduce the risk, the employer may refuse to hire an
applicant or may discharge an employee who poses a direct threat.
An employer, however, is not permitted to deny an employment
opportunity to an individual with a disability merely because of a
slightly increased risk. The risk can only be considered when it poses a
significant risk, i.e., high probability, of substantial harm; a
speculative or remote risk is insufficient. See Senate Report at 27;
House Report Labor Report at 56-57; House Judiciary Report at 45.
Determining whether an individual poses a significant risk of
substantial harm to others must be made on a case by case basis.
[[Page 359]]
The employer should identify the specific risk posed by the individual.
For individuals with mental or emotional disabilities, the employer must
identify the specific behavior on the part of the individual that would
pose the direct threat. For individuals with physical disabilities, the
employer must identify the aspect of the disability that would pose the
direct threat. The employer should then consider the four factors listed
in part 1630:
(1) The duration of the risk;
(2) The nature and severity of the potential harm;
(3) The likelihood that the potential harm will occur; and
(4) The imminence of the potential harm.
Such consideration must rely on objective, factual evidence--not on
subjective perceptions, irrational fears, patronizing attitudes, or
stereotypes--about the nature or effect of a particular disability, or
of disability generally. See Senate Report at 27; House Labor Report at
56-57; House Judiciary Report at 45-46. See also Strathie v. Department
of Transportation, 716 F.2d 227 (3d Cir. 1983). Relevant evidence may
include input from the individual with a disability, the experience of
the individual with a disability in previous similar positions, and
opinions of medical doctors, rehabilitation counselors, or physical
therapists who have expertise in the disability involved and/or direct
knowledge of the individual with the disability.
An employer is also permitted to require that an individual not pose
a direct threat of harm to his or her own safety or health. If
performing the particular functions of a job would result in a high
probability of substantial harm to the individual, the employer could
reject or discharge the individual unless a reasonable accommodation
that would not cause an undue hardship would avert the harm. For
example, an employer would not be required to hire an individual,
disabled by narcolepsy, who frequently and unexpectedly loses
consciousness for a carpentry job the essential functions of which
require the use of power saws and other dangerous equipment, where no
accommodation exists that will reduce or eliminate the risk.
The assessment that there exists a high probability of substantial
harm to the individual, like the assessment that there exists a high
probability of substantial harm to others, must be strictly based on
valid medical analyses and/or on other objective evidence. This
determination must be based on individualized factual data, using the
factors discussed above, rather than on stereotypic or patronizing
assumptions and must consider potential reasonable accommodations.
Generalized fears about risks from the employment environment, such as
exacerbation of the disability caused by stress, cannot be used by an
employer to disqualify an individual with a disability. For example, a
law firm could not reject an applicant with a history of disabling
mental illness based on a generalized fear that the stress of trying to
make partner might trigger a relapse of the individual's mental illness.
Nor can generalized fears about risks to individuals with disabilities
in the event of an evacuation or other emergency be used by an employer
to disqualify an individual with a disability. See Senate Report at 56;
House Labor Report at 73-74; House Judiciary Report at 45. See also
Mantolete v. Bolger, 767 F.2d 1416 (9th Cir. 1985); Bentivegna v. U.S.
Department of Labor, 694 F.2d 619 (9th Cir.1982).
Section 1630.3 Exceptions to the Definitions of "Disability" and
"Qualified Individual with a Disability"
Section 1630.3 (a) through (c) Illegal Use of Drugs
Part 1630 provides that an individual currently engaging in the
illegal use of drugs is not an individual with a disability for purposes
of this part when the employer or other covered entity acts on the basis
of such use. Illegal use of drugs refers both to the use of unlawful
drugs, such as cocaine, and to the unlawful use of prescription drugs.
Employers, for example, may discharge or deny employment to persons
who illegally use drugs, on the basis of such use, without fear of being
held liable for discrimination. The term "currently engaging" is not
intended to be limited to the use of drugs on the day of, or within a
matter of days or weeks before, the employment action in question.
Rather, the provision is intended to apply to the illegal use of drugs
that has occurred recently enough to indicate that the individual is
actively engaged in such conduct. See Conference Report at 64.
Individuals who are erroneously perceived as engaging in the illegal
use of drugs, but are not in fact illegally using drugs are not excluded
from the definitions of the terms "disability" and "qualified
individual with a disability." Individuals who are no longer illegally
using drugs and who have either been rehabilitated successfully or are
in the process of completing a rehabilitation program are, likewise, not
excluded from the definitions of those terms. The term "rehabilitation
program" refers to both in-patient and out-patient programs, as well as
to appropriate employee assistance programs, professionally recognized
self-help programs, such as Narcotics Anonymous, or other programs that
provide professional (not necessarily medical) assistance and counseling
for individuals who illegally use drugs. See Conference Report at 64;
see also House Labor Report at 77; House Judiciary Report at 47.
It should be noted that this provision simply provides that certain
individuals are not excluded from the definitions of "disability" and
"qualified individual with a disability."
[[Page 360]]
Consequently, such individuals are still required to establish that they
satisfy the requirements of these definitions in order to be protected
by the ADA and this part. An individual erroneously regarded as
illegally using drugs, for example, would have to show that he or she
was regarded as a drug addict in order to demonstrate that he or she
meets the definition of "disability" as defined in this part.
Employers are entitled to seek reasonable assurances that no illegal
use of drugs is occurring or has occurred recently enough so that
continuing use is a real and ongoing problem. The reasonable assurances
that employers may ask applicants or employees to provide include
evidence that the individual is participating in a drug treatment
program and/or evidence, such as drug test results, to show that the
individual is not currently engaging in the illegal use of drugs. An
employer, such as a law enforcement agency, may also be able to impose a
qualification standard that excludes individuals with a history of
illegal use of drugs if it can show that the standard is job-related and
consistent with business necessity. (See Sec. 1630.10 Qualification
Standards, Tests and Other Selection Criteria) See Conference Report at
64.
Section 1630.4 Discrimination Prohibited
This provision prohibits discrimination against a qualified
individual with a disability in all aspects of the employment
relationship. The range of employment decisions covered by this
nondiscrimination mandate is to be construed in a manner consistent with
the regulations implementing section 504 of the Rehabilitation Act of
1973.
Part 1630 is not intended to limit the ability of covered entities
to choose and maintain a qualified workforce. Employers can continue to
use job-related criteria to select qualified employees, and can continue
to hire employees who can perform the essential functions of the job.
Section 1630.5 Limiting, Segregating and Classifying
This provision and the several provisions that follow describe
various specific forms of discrimination that are included within the
general prohibition of Sec. 1630.4. Covered entities are prohibited from
restricting the employment opportunities of qualified individuals with
disabilities on the basis of stereotypes and myths about the
individual's disability. Rather, the capabilities of qualified
individuals with disabilities must be determined on an individualized,
case by case basis. Covered entities are also prohibited from
segregating qualified employees with disabilities into separate work
areas or into separate lines of advancement.
Thus, for example, it would be a violation of this part for an
employer to limit the duties of an employee with a disability based on a
presumption of what is best for an individual with such a disability, or
on a presumption about the abilities of an individual with such a
disability. It would be a violation of this part for an employer to
adopt a separate track of job promotion or progression for employees
with disabilities based on a presumption that employees with
disabilities are uninterested in, or incapable of, performing particular
jobs. Similarly, it would be a violation for an employer to assign or
reassign (as a reasonable accommodation) employees with disabilities to
one particular office or installation, or to require that employees with
disabilities only use particular employer provided non-work facilities
such as segregated break-rooms, lunch rooms, or lounges. It would also
be a violation of this part to deny employment to an applicant or
employee with a disability based on generalized fears about the safety
of an individual with such a disability, or based on generalized
assumptions about the absenteeism rate of an individual with such a
disability.
In addition, it should also be noted that this part is intended to
require that employees with disabilities be accorded equal access to
whatever health insurance coverage the employer provides to other
employees. This part does not, however, affect pre-existing condition
clauses included in health insurance policies offered by employers.
Consequently, employers may continue to offer policies that contain such
clauses, even if they adversely affect individuals with disabilities, so
long as the clauses are not used as a subterfuge to evade the purposes
of this part.
So, for example, it would be permissible for an employer to offer an
insurance policy that limits coverage for certain procedures or
treatments to a specified number per year. Thus, if a health insurance
plan provided coverage for five blood transfusions a year to all covered
employees, it would not be discriminatory to offer this plan simply
because a hemophiliac employee may require more than five blood
transfusions annually. However, it would not be permissible to limit or
deny the hemophiliac employee coverage for other procedures, such as
heart surgery or the setting of a broken leg, even though the plan would
not have to provide coverage for the additional blood transfusions that
may be involved in these procedures. Likewise, limits may be placed on
reimbursements for certain procedures or on the types of drugs or
procedures covered (e.g. limits on the number of permitted X-rays or
non-coverage of experimental drugs or procedures), but that limitation
must be applied equally to individuals with and without disabilities.
See Senate Report at 28-29; House Labor Report at 58-59; House Judiciary
Report at 36.
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Leave policies or benefit plans that are uniformly applied do not
violate this part simply because they do not address the special needs
of every individual with a disability. Thus, for example, an employer
that reduces the number of paid sick leave days that it will provide to
all employees, or reduces the amount of medical insurance coverage that
it will provide to all employees, is not in violation of this part, even
if the benefits reduction has an impact on employees with disabilities
in need of greater sick leave and medical coverage. Benefits reductions
adopted for discriminatory reasons are in violation of this part. See
Alexander v. Choate, 469 U.S. 287 (1985). See Senate Report at 85; House
Labor Report at 137. (See also, the discussion at Sec. 1630.16(f) Health
Insurance, Life Insurance, and Other Benefit Plans).
Section 1630.6 Contractual or Other Arrangements
An employer or other covered entity may not do through a contractual
or other relationship what it is prohibited from doing directly. This
provision does not affect the determination of whether or not one is a
"covered entity" or "employer" as defined in Sec. 1630.2.
This provision only applies to situations where an employer or other
covered entity has entered into a contractual relationship that has the
effect of discriminating against its own employees or applicants with
disabilities. Accordingly, it would be a violation for an employer to
participate in a contractual relationship that results in discrimination
against the employer's employees with disabilities in hiring, training,
promotion, or in any other aspect of the employment relationship. This
provision applies whether or not the employer or other covered entity
intended for the contractual relationship to have the discriminatory
effect.
Part 1630 notes that this provision applies to parties on either
side of the contractual or other relationship. This is intended to
highlight that an employer whose employees provide services to others,
like an employer whose employees receive services, must ensure that
those employees are not discriminated against on the basis of
disability. For example, a copier company whose service representative
is a dwarf could be required to provide a stepstool, as a reasonable
accommodation, to enable him to perform the necessary repairs. However,
the employer would not be required, as a reasonable accommodation, to
make structural changes to its customer's inaccessible premises.
The existence of the contractual relationship adds no new
obligations under part 1630. The employer, therefore, is not liable
through the contractual arrangement for any discrimination by the
contractor against the contractors own employees or applicants, although
the contractor, as an employer, may be liable for such discrimination.
An employer or other covered entity, on the other hand, cannot evade
the obligations imposed by this part by engaging in a contractual or
other relationship. For example, an employer cannot avoid its
responsibility to make reasonable accommodation subject to the undue
hardship limitation through a contractual arrangement. See Conference
Report at 59; House Labor Report at 59-61; House Judiciary Report at 36-
37.
To illustrate, assume that an employer is seeking to contract with a
company to provide training for its employees. Any responsibilities of
reasonable accommodation applicable to the employer in providing the
training remain with that employer even if it contracts with another
company for this service. Thus, if the training company were planning to
conduct the training at an inaccessible location, thereby making it
impossible for an employee who uses a wheelchair to attend, the employer
would have a duty to make reasonable accommodation unless to do so would
impose an undue hardship. Under these circumstances, appropriate
accommodations might include (1) having the training company identify
accessible training sites and relocate the training program; (2) having
the training company make the training site accessible; (3) directly
making the training site accessible or providing the training company
with the means by which to make the site accessible; (4) identifying and
contracting with another training company that uses accessible sites; or
(5) any other accommodation that would result in making the training
available to the employee.
As another illustration, assume that instead of contracting with a
training company, the employer contracts with a hotel to host a
conference for its employees. The employer will have a duty to ascertain
and ensure the accessibility of the hotel and its conference facilities.
To fulfill this obligation the employer could, for example, inspect the
hotel first-hand or ask a local disability group to inspect the hotel.
Alternatively, the employer could ensure that the contract with the
hotel specifies it will provide accessible guest rooms for those who
need them and that all rooms to be used for the conference, including
exhibit and meeting rooms, are accessible. If the hotel breaches this
accessibility provision, the hotel may be liable to the employer, under
a non-ADA breach of contract theory, for the cost of any accommodation
needed to provide access to the hotel and conference, and for any other
costs accrued by the employer. (In addition, the hotel may also be
independently liable under title III of the ADA). However, this would
not relieve the employer of its responsibility under this part nor
shield
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it from charges of discrimination by its own employees. See House Labor
Report at 40; House Judiciary Report at 37.
Section 1630.8 Relationship or Association With an Individual With a
Disability
This provision is intended to protect any qualified individual,
whether or not that individual has a disability, from discrimination
because that person is known to have an association or relationship with
an individual who has a known disability. This protection is not limited
to those who have a familial relationship with an individual with a
disability.
To illustrate the scope of this provision, assume that a qualified
applicant without a disability applies for a job and discloses to the
employer that his or her spouse has a disability. The employer thereupon
declines to hire the applicant because the employer believes that the
applicant would have to miss work or frequently leave work early in
order to care for the spouse. Such a refusal to hire would be prohibited
by this provision. Similarly, this provision would prohibit an employer
from discharging an employee because the employee does volunteer work
with people who have AIDS, and the employer fears that the employee may
contract the disease.
This provision also applies to other benefits and privileges of
employment. For example, an employer that provides health insurance
benefits to its employees for their dependents may not reduce the level
of those benefits to an employee simply because that employee has a
dependent with a disability. This is true even if the provision of such
benefits would result in increased health insurance costs for the
employer.
It should be noted, however, that an employer need not provide the
applicant or employee without a disability with a reasonable
accommodation because that duty only applies to qualified applicants or
employees with disabilities. Thus, for example, an employee would not be
entitled to a modified work schedule as an accommodation to enable the
employee to care for a spouse with a disability. See Senate Report at
30; House Labor Report at 61-62; House Judiciary Report at 38-39.
Section 1630.9 Not Making Reasonable Accommodation
The obligation to make reasonable accommodation is a form of non-
discrimination. It applies to all employment decisions and to the job
application process. This obligation does not extend to the provision of
adjustments or modifications that are primarily for the personal benefit
of the individual with a disability. Thus, if an adjustment or
modification is job-related, e.g., specifically assists the individual
in performing the duties of a particular job, it will be considered a
type of reasonable accommodation. On the other hand, if an adjustment or
modification assists the individual throughout his or her daily
activities, on and off the job, it will be considered a personal item
that the employer is not required to provide. Accordingly, an employer
would generally not be required to provide an employee with a disability
with a prosthetic limb, wheelchair, or eyeglasses. Nor would an employer
have to provide as an accommodation any amenity or convenience that is
not job-related, such as a private hot plate, hot pot or refrigerator
that is not provided to employees without disabilities. See Senate
Report at 31; House Labor Report at 62.
It should be noted, however, that the provision of such items may be
required as a reasonable accommodation where such items are specifically
designed or required to meet job-related rather than personal needs. An
employer, for example, may have to provide an individual with a
disabling visual impairment with eyeglasses specifically designed to
enable the individual to use the office computer monitors, but that are
not otherwise needed by the individual outside of the office.
The term "supported employment," which has been applied to a wide
variety of programs to assist individuals with severe disabilities in
both competitive and non-competitive employment, is not synonymous with
reasonable accommodation. Examples of supported employment include
modified training materials, restructuring essential functions to enable
an individual to perform a job, or hiring an outside professional ("job
coach") to assist in job training. Whether a particular form of
assistance would be required as a reasonable accommodation must be
determined on an individualized, case by case basis without regard to
whether that assistance is referred to as "supported employment." For
example, an employer, under certain circumstances, may be required to
provide modified training materials or a temporary "job coach" to
assist in the training of a qualified individual with a disability as a
reasonable accommodation. However, an employer would not be required to
restructure the essential functions of a position to fit the skills of
an individual with a disability who is not otherwise qualified to
perform the position, as is done in certain supported employment
programs. See 34 CFR part 363. It should be noted that it would not be a
violation of this part for an employer to provide any of these personal
modifications or adjustments, or to engage in supported employment or
similar rehabilitative programs.
The obligation to make reasonable accommodation applies to all
services and programs provided in connection with employment, and to all
non-work facilities provided
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or maintained by an employer for use by its employees. Accordingly, the
obligation to accommodate is applicable to employer sponsored placement
or counseling services, and to employer provided cafeterias, lounges,
gymnasiums, auditoriums, transportation and the like.
The reasonable accommodation requirement is best understood as a
means by which barriers to the equal employment opportunity of an
individual with a disability are removed or alleviated. These barriers
may, for example, be physical or structural obstacles that inhibit or
prevent the access of an individual with a disability to job sites,
facilities or equipment. Or they may be rigid work schedules that permit
no flexibility as to when work is performed or when breaks may be taken,
or inflexible job procedures that unduly limit the modes of
communication that are used on the job, or the way in which particular
tasks are accomplished.
The term "otherwise qualified" is intended to make clear that the
obligation to make reasonable accommodation is owed only to an
individual with a disability who is qualified within the meaning of
Sec. 1630.2(m) in that he or she satisfies all the skill, experience,
education and other job-related selection criteria. An individual with a
disability is "otherwise qualified," in other words, if he or she is
qualified for a job, except that, because of the disability, he or she
needs a reasonable accommodation to be able to perform the job's
essential functions.
For example, if a law firm requires that all incoming lawyers have
graduated from an accredited law school and have passed the bar
examination, the law firm need not provide an accommodation to an
individual with a visual impairment who has not met these selection
criteria. That individual is not entitled to a reasonable accommodation
because the individual is not "otherwise qualified" for the position.
On the other hand, if the individual has graduated from an
accredited law school and passed the bar examination, the individual
would be "otherwise qualified." The law firm would thus be required to
provide a reasonable accommodation, such as a machine that magnifies
print, to enable the individual to perform the essential functions of
the attorney position, unless the necessary accommodation would impose
an undue hardship on the law firm. See Senate Report at 33-34; House
Labor Report at 64-65.
The reasonable accommodation that is required by this part should
provide the qualified individual with a disability with an equal
employment opportunity. Equal employment opportunity means an
opportunity to attain the same level of performance, or to enjoy the
same level of benefits and privileges of employment as are available to
the average similarly situated employee without a disability. Thus, for
example, an accommodation made to assist an employee with a disability
in the performance of his or her job must be adequate to enable the
individual to perform the essential functions of the relevant position.
The accommodation, however, does not have to be the "best"
accommodation possible, so long as it is sufficient to meet the job-
related needs of the individual being accommodated. Accordingly, an
employer would not have to provide an employee disabled by a back
impairment with a state-of-the art mechanical lifting device if it
provided the employee with a less expensive or more readily available
device that enabled the employee to perform the essential functions of
the job. See Senate Report at 35; House Labor Report at 66; see also
Carter v. Bennett, 840 F.2d 63 (DC Cir. 1988).
Employers are obligated to make reasonable accommodation only to the
physical or mental limitations resulting from the disability of a
qualified individual with a disability that is known to the employer.
Thus, an employer would not be expected to accommodate disabilities of
which it is unaware. If an employee with a known disability is having
difficulty performing his or her job, an employer may inquire whether
the employee is in need of a reasonable accommodation. In general,
however, it is the responsibility of the individual with a disability to
inform the employer that an accommodation is needed. When the need for
an accommodation is not obvious, an employer, before providing a
reasonable accommodation, may require that the individual with a
disability provide documentation of the need for accommodation.
See Senate Report at 34; House Labor Report at 65.
Process of Determining the Appropriate Reasonable Accommodation
Once a qualified individual with a disability has requested
provision of a reasonable accommodation, the employer must make a
reasonable effort to determine the appropriate accommodation. The
appropriate reasonable accommodation is best determined through a
flexible, interactive process that involves both the employer and the
qualified individual with a disability. Although this process is
described below in terms of accommodations that enable the individual
with a disability to perform the essential functions of the position
held or desired, it is equally applicable to accommodations involving
the jo