[Code of Federal Regulations]
[Title 29, Volume 4]
[Revised as of July 1, 2007]
From the U.S. Government Printing Office via GPO Access
[CITE: 29CFR1630.16]

[Page 364-389]
 
                             TITLE 29--LABOR
 
          CHAPTER XIV--EQUAL EMPLOYMENT OPPORTUNITY 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:
    (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

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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 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

[[Page 366]]

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 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.

[[Page 367]]

        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 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.

[[Page 368]]

             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 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

[[Page 369]]

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 
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

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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.

  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

[[Page 371]]

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.

        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

[[Page 372]]

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 
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

[[Page 373]]

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 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

[[Page 374]]

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 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

[[Page 375]]

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. 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

[[Page 376]]

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.'' 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.

[[Page 377]]

          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.
    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

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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 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

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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 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

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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 job application process, and to accommodations that enable the 
individual with a disability to enjoy equal benefits and privileges of 
employment. See Senate Report at 34-35; House Labor Report at 65-67.
    When a qualified individual with a disability has requested a 
reasonable accommodation to assist in the performance of a job, the 
employer, using a problem solving approach, should:
    (1) Analyze the particular job involved and determine its purpose 
and essential functions;
    (2) Consult with the individual with a disability to ascertain the 
precise job-related limitations imposed by the individual's disability 
and how those limitations could be overcome with a reasonable 
accommodation;
    (3) In consultation with the individual to be accommodated, identify 
potential accommodations and assess the effectiveness each would have in 
enabling the individual to perform the essential functions of the 
position; and
    (4) Consider the preference of the individual to be accommodated and 
select and implement the accommodation that is most appropriate for both 
the employee and the employer.
    In many instances, the appropriate reasonable accommodation may be 
so obvious to either or both the employer and the qualified individual 
with a disability that it may not be necessary to proceed in this step-
by-step fashion. For example, if an employee who uses a wheelchair 
requests that his or her desk be placed on blocks to elevate the desktop 
above the arms of the wheelchair and the employer complies, an 
appropriate accommodation has been requested, identified, and provided 
without either the employee or employer being aware of having engaged in 
any sort of ``reasonable accommodation process.''
    However, in some instances neither the individual requesting the 
accommodation nor the employer can readily identify the appropriate 
accommodation. For example, the individual needing the accommodation may 
not know enough about the equipment used by the employer or the exact 
nature of the work site to suggest an appropriate accommodation. 
Likewise, the employer may not know enough about the individual's 
disability or the limitations that disability would impose on the 
performance of the job to suggest an appropriate accommodation.

[[Page 381]]

Under such circumstances, it may be necessary for the employer to 
initiate a more defined problem solving process, such as the step-by-
step process described above, as part of its reasonable effort to 
identify the appropriate reasonable accommodation.
    This process requires the individual assessment of both the 
particular job at issue, and the specific physical or mental limitations 
of the particular individual in need of reasonable accommodation. With 
regard to assessment of the job, ``individual assessment'' means 
analyzing the actual job duties and determining the true purpose or 
object of the job. Such an assessment is necessary to ascertain which 
job functions are the essential functions that an accommodation must 
enable an individual with a disability to perform.
    After assessing the relevant job, the employer, in consultation with 
the individual requesting the accommodation, should make an assessment 
of the specific limitations imposed by the disability on the 
individual's performance of the job's essential functions. This 
assessment will make it possible to ascertain the precise barrier to the 
employment opportunity which, in turn, will make it possible to 
determine the accommodation(s) that could alleviate or remove that 
barrier.
    If consultation with the individual in need of the accommodation 
still does not reveal potential appropriate accommodations, then the 
employer, as part of this process, may find that technical assistance is 
helpful in determining how to accommodate the particular individual in 
the specific situation. Such assistance could be sought from the 
Commission, from State or local rehabilitation agencies, or from 
disability constituent organizations. It should be noted, however, that, 
as provided in Sec.  1630.9(c) of this part, the failure to obtain or 
receive technical assistance from the Federal agencies that administer 
the ADA will not excuse the employer from its reasonable accommodation 
obligation.
    Once potential accommodations have been identified, the employer 
should assess the effectiveness of each potential accommodation in 
assisting the individual in need of the accommodation in the performance 
of the essential functions of the position. If more than one of these 
accommodations will enable the individual to perform the essential 
functions or if the individual would prefer to provide his or her own 
accommodation, the preference of the individual with a disability should 
be given primary consideration. However, the employer providing the 
accommodation has the ultimate discretion to choose between effective 
accommodations, and may choose the less expensive accommodation or the 
accommodation that is easier for it to provide. It should also be noted 
that the individual's willingness to provide his or her own 
accommodation does not relieve the employer of the duty to provide the 
accommodation should the individual for any reason be unable or 
unwilling to continue to provide the accommodation.

              Reasonable Accommodation Process Illustrated

    The following example illustrates the informal reasonable 
accommodation process. Suppose a Sack Handler position requires that the 
employee pick up fifty pound sacks and carry them from the company 
loading dock to the storage room, and that a sack handler who is 
disabled by a back impairment requests a reasonable accommodation. Upon 
receiving the request, the employer analyzes the Sack Handler job and 
determines that the essential function and purpose of the job is not the 
requirement that the job holder physically lift and carry the sacks, but 
the requirement that the job holder cause the sack to move from the 
loading dock to the storage room.
    The employer then meets with the sack handler to ascertain precisely 
the barrier posed by the individual's specific disability to the 
performance of the job's essential function of relocating the sacks. At 
this meeting the employer learns that the individual can, in fact, lift 
the sacks to waist level, but is prevented by his or her disability from 
carrying the sacks from the loading dock to the storage room. The 
employer and the individual agree that any of a number of potential 
accommodations, such as the provision of a dolly, hand truck, or cart, 
could enable the individual to transport the sacks that he or she has 
lifted.
    Upon further consideration, however, it is determined that the 
provision of a cart is not a feasible effective option. No carts are 
currently available at the company, and those that can be purchased by 
the company are the wrong shape to hold many of the bulky and 
irregularly shaped sacks that must be moved. Both the dolly and the hand 
truck, on the other hand, appear to be effective options. Both are 
readily available to the company, and either will enable the individual 
to relocate the sacks that he or she has lifted. The sack handler 
indicates his or her preference for the dolly. In consideration of this 
expressed preference, and because the employer feels that the dolly will 
allow the individual to move more sacks at a time and so be more 
efficient than would a hand truck, the employer ultimately provides the 
sack handler with a dolly in fulfillment of the obligation to make 
reasonable accommodation.

                            Section 1630.9(b)

    This provision states that an employer or other covered entity 
cannot prefer or select a qualified individual without a disability

[[Page 382]]

over an equally qualified individual with a disability merely because 
the individual with a disability will require a reasonable 
accommodation. In other words, an individual's need for an accommodation 
cannot enter into the employer's or other covered entity's decision 
regarding hiring, discharge, promotion, or other similar employment 
decisions, unless the accommodation would impose an undue hardship on 
the employer. See House Labor Report at 70.

                            Section 1630.9(d)

    The purpose of this provision is to clarify that an employer or 
other covered entity may not compel a qualified individual with a 
disability to accept an accommodation, where that accommodation is 
neither requested nor needed by the individual. However, if a necessary 
reasonable accommodation is refused, the individual may not be 
considered qualified. For example, an individual with a visual 
impairment that restricts his or her field of vision but who is able to 
read unaided would not be required to accept a reader as an 
accommodation. However, if the individual were not able to read unaided 
and reading was an essential function of the job, the individual would 
not be qualified for the job if he or she refused a reasonable 
accommodation that would enable him or her to read. See Senate Report at 
34; House Labor Report at 65; House Judiciary Report at 71-72.

  Section 1630.10 Qualification Standards, Tests, and Other Selection 
                                Criteria

    The purpose of this provision is to ensure that individuals with 
disabilities are not excluded from job opportunities unless they are 
actually unable to do the job. It is to ensure that there is a fit 
between job criteria and an applicant's (or employee's) actual ability 
to do the job. Accordingly, job criteria that even unintentionally 
screen out, or tend to screen out, an individual with a disability or a 
class of individuals with disabilities because of their disability may 
not be used unless the employer demonstrates that that criteria, as used 
by the employer, are job-related to the position to which they are being 
applied and are consistent with business necessity. The concept of 
``business necessity'' has the same meaning as the concept of ``business 
necessity'' under section 504 of the Rehabilitation Act of 1973.
    Selection criteria that exclude, or tend to exclude, an individual 
with a disability or a class of individuals with disabilities because of 
their disability but do not concern an essential function of the job 
would not be consistent with business necessity.
    The use of selection criteria that are related to an essential 
function of the job may be consistent with business necessity. However, 
selection criteria that are related to an essential function of the job 
may not be used to exclude an individual with a disability if that 
individual could satisfy the criteria with the provision of a reasonable 
accommodation. Experience under a similar provision of the regulations 
implementing section 504 of the Rehabilitation Act indicates that 
challenges to selection criteria are, in fact, most often resolved by 
reasonable accommodation. It is therefore anticipated that challenges to 
selection criteria brought under this part will generally be resolved in 
a like manner.
    This provision is applicable to all types of selection criteria, 
including safety requirements, vision or hearing requirements, walking 
requirements, lifting requirements, and employment tests. See Senate 
Report at 37-39; House Labor Report at 70-72; House Judiciary Report at 
42. As previously noted, however, it is not the intent of this part to 
second guess an employer's business judgment with regard to production 
standards. (See section 1630.2(n) Essential Functions). Consequently, 
production standards will generally not be subject to a challenge under 
this provision.
    The Uniform Guidelines on Employee Selection Procedures (UGESP) 29 
CFR part 1607 do not apply to the Rehabilitation Act and are similarly 
inapplicable to this part.

                 Section 1630.11 Administration of Tests

    The intent of this provision is to further emphasize that 
individuals with disabilities are not to be excluded from jobs that they 
can actually perform merely because a disability prevents them from 
taking a test, or negatively influences the results of a test, that is a 
prerequisite to the job. Read together with the reasonable accommodation 
requirement of section 1630.9, this provision requires that employment 
tests be administered to eligible applicants or employees with 
disabilities that impair sensory, manual, or speaking skills in formats 
that do not require the use of the impaired skill.
    The employer or other covered entity is, generally, only required to 
provide such reasonable accommodation if it knows, prior to the 
administration of the test, that the individual is disabled and that the 
disability impairs sensory, manual or speaking skills. Thus, for 
example, it would be unlawful to administer a written employment test to 
an individual who has informed the employer, prior to the administration 
of the test, that he is disabled with dyslexia and unable to read. In 
such a case, as a reasonable accommodation and in accordance with this 
provision, an alternative oral test should be administered to that 
individual. By the same token, a written test may need to be substituted 
for an oral test if the applicant taking the test is an individual with 
a disability that impairs speaking skills or impairs the processing of 
auditory information.

[[Page 383]]

    Occasionally, an individual with a disability may not realize, prior 
to the administration of a test, that he or she will need an 
accommodation to take that particular test. In such a situation, the 
individual with a disability, upon becoming aware of the need for an 
accommodation, must so inform the employer or other covered entity. For 
example, suppose an individual with a disabling visual impairment does 
not request an accommodation for a written examination because he or she 
is usually able to take written tests with the aid of his or her own 
specially designed lens. When the test is distributed, the individual 
with a disability discovers that the lens is insufficient to distinguish 
the words of the test because of the unusually low color contrast 
between the paper and the ink, the individual would be entitled, at that 
point, to request an accommodation. The employer or other covered entity 
would, thereupon, have to provide a test with higher contrast, schedule 
a retest, or provide any other effective accommodation unless to do so 
would impose an undue hardship.
    Other alternative or accessible test modes or formats include the 
administration of tests in large print or braille, or via a reader or 
sign interpreter. Where it is not possible to test in an alternative 
format, the employer may be required, as a reasonable accommodation, to 
evaluate the skill to be tested in another manner (e.g., through an 
interview, or through education license, or work experience 
requirements). An employer may also be required, as a reasonable 
accommodation, to allow more time to complete the test. In addition, the 
employer's obligation to make reasonable accommodation extends to 
ensuring that the test site is accessible. (See Sec.  1630.9 Not Making 
Reasonable Accommodation) See Senate Report at 37-38; House Labor Report 
at 70-72; House Judiciary Report at 42; see also Stutts v. Freeman, 694 
F.2d 666 (11th Cir. 1983); Crane v. Dole, 617 F. Supp. 156 (D.D.C. 
1985).
    This provision does not require that an employer offer every 
applicant his or her choice of test format. Rather, this provision only 
requires that an employer provide, upon advance request, alternative, 
accessible tests to individuals with disabilities that impair sensory, 
manual, or speaking skills needed to take the test.
    This provision does not apply to employment tests that require the 
use of sensory, manual, or speaking skills where the tests are intended 
to measure those skills. Thus, an employer could require that an 
applicant with dyslexia take a written test for a particular position if 
the ability to read is the skill the test is designed to measure. 
Similarly, an employer could require that an applicant complete a test 
within established time frames if speed were one of the skills for which 
the applicant was being tested. However, the results of such a test 
could not be used to exclude an individual with a disability unless the 
skill was necessary to perform an essential function of the position and 
no reasonable accommodation was available to enable the individual to 
perform that function, or the necessary accommodation would impose an 
undue hardship.

      Section 1630.13 Prohibited Medical Examinations and Inquiries

        Section 1630.13(a) Pre-employment Examination or Inquiry

    This provision makes clear that an employer cannot inquire as to 
whether an individual has a disability at the pre-offer stage of the 
selection process. Nor can an employer inquire at the pre-offer stage 
about an applicant's workers' compensation history.
    Employers may ask questions that relate to the applicant's ability 
to perform job-related functions. However, these questions should not be 
phrased in terms of disability. An employer, for example, may ask 
whether the applicant has a driver's license, if driving is a job 
function, but may not ask whether the applicant has a visual disability. 
Employers may ask about an applicant's ability to perform both essential 
and marginal job functions. Employers, though, may not refuse to hire an 
applicant with a disability because the applicant's disability prevents 
him or her from performing marginal functions. See Senate Report at 39; 
House Labor Report at 72-73; House Judiciary Report at 42-43.

         Section 1630.13(b) Examination or Inquiry of Employees

    The purpose of this provision is to prevent the administration to 
employees of medical tests or inquiries that do not serve a legitimate 
business purpose. For example, if an employee suddenly starts to use 
increased amounts of sick leave or starts to appear sickly, an employer 
could not require that employee to be tested for AIDS, HIV infection, or 
cancer unless the employer can demonstrate that such testing is job-
related and consistent with business necessity. See Senate Report at 39; 
House Labor Report at 75; House Judiciary Report at 44.

    Section 1630.14 Medical Examinations and Inquiries Specifically 
                                Permitted

                Section 1630.14(a) Pre-employment Inquiry

    Employers are permitted to make pre-employment inquiries into the 
ability of an applicant to perform job-related functions. This inquiry 
must be narrowly tailored. The employer may describe or demonstrate the 
job function and inquire whether or not the applicant can perform that 
function with or without reasonable accommodation. For example, an 
employer may explain that the job requires assembling small parts and 
ask if

[[Page 384]]

the individual will be able to perform that function, with or without 
reasonable accommodation. See Senate Report at 39; House Labor Report at 
73; House Judiciary Report at 43.
    An employer may also ask an applicant to describe or to demonstrate 
how, with or without reasonable accommodation, the applicant will be 
able to perform job-related functions. Such a request may be made of all 
applicants in the same job category regardless of disability. Such a 
request may also be made of an applicant whose known disability may 
interfere with or prevent the performance of a job-related function, 
whether or not the employer routinely makes such a request of all 
applicants in the job category. For example, an employer may ask an 
individual with one leg who applies for a position as a home washing 
machine repairman to demonstrate or to explain how, with or without 
reasonable accommodation, he would be able to transport himself and his 
tools down basement stairs. However, the employer may not inquire as to 
the nature or severity of the disability. Therefore, for example, the 
employer cannot ask how the individual lost the leg or whether the loss 
of the leg is indicative of an underlying impairment.
    On the other hand, if the known disability of an applicant will not 
interfere with or prevent the performance of a job-related function, the 
employer may only request a description or demonstration by the 
applicant if it routinely makes such a request of all applicants in the 
same job category. So, for example, it would not be permitted for an 
employer to request that an applicant with one leg demonstrate his 
ability to assemble small parts while seated at a table, if the employer 
does not routinely request that all applicants provide such a 
demonstration.
    An employer that requires an applicant with a disability to 
demonstrate how he or she will perform a job-related function must 
either provide the reasonable accommodation the applicant needs to 
perform the function or permit the applicant to explain how, with the 
accommodation, he or she will perform the function. If the job-related 
function is not an essential function, the employer may not exclude the 
applicant with a disability because of the applicant's inability to 
perform that function. Rather, the employer must, as a reasonable 
accommodation, either provide an accommodation that will enable the 
individual to perform the function, transfer the function to another 
position, or exchange the function for one the applicant is able to 
perform.
    An employer may not use an application form that lists a number of 
potentially disabling impairments and ask the applicant to check any of 
the impairments he or she may have. In addition, as noted above, an 
employer may not ask how a particular individual became disabled or the 
prognosis of the individual's disability. The employer is also 
prohibited from asking how often the individual will require leave for 
treatment or use leave as a result of incapacitation because of the 
disability. However, the employer may state the attendance requirements 
of the job and inquire whether the applicant can meet them.
    An employer is permitted to ask, on a test announcement or 
application form, that individuals with disabilities who will require a 
reasonable accommodation in order to take the test so inform the 
employer within a reasonable established time period prior to the 
administration of the test. The employer may also request that 
documentation of the need for the accommodation accompany the request. 
Requested accommodations may include accessible testing sites, modified 
testing conditions and accessible test formats. (See Sec.  1630.11 
Administration of Tests).
    Physical agility tests are not medical examinations and so may be 
given at any point in the application or employment process. Such tests 
must be given to all similarly situated applicants or employees 
regardless of disability. If such tests screen out or tend to screen out 
an individual with a disability or a class of individuals with 
disabilities, the employer would have to demonstrate that the test is 
job-related and consistent with business necessity and that performance 
cannot be achieved with reasonable accommodation. (See Sec.  1630.9 Not 
Making Reasonable Accommodation: Process of Determining the Appropriate 
Reasonable Accommodation).
    As previously noted, collecting information and inviting individuals 
to identify themselves as individuals with disabilities as required to 
satisfy the affirmative action requirements of section 503 of the 
Rehabilitation Act is not restricted by this part. (See Sec.  1630.1 (b) 
and (c) Applicability and Construction).

           Section 1630.14(b) Employment Entrance Examination

    An employer is permitted to require post-offer medical examinations 
before the employee actually starts working. The employer may condition 
the offer of employment on the results of the examination, provided that 
all entering employees in the same job category are subjected to such an 
examination, regardless of disability, and that the confidentiality 
requirements specified in this part are met.
    This provision recognizes that in many industries, such as air 
transportation or construction, applicants for certain positions are 
chosen on the basis of many factors including physical and psychological 
criteria, some of which may be identified as a result of post-offer 
medical examinations given prior to entry on duty. Only those employees

[[Page 385]]

who meet the employer's physical and psychological criteria for the job, 
with or without reasonable accommodation, will be qualified to receive 
confirmed offers of employment and begin working.
    Medical examinations permitted by this section are not required to 
be job-related and consistent with business necessity. However, if an 
employer withdraws an offer of employment because the medical 
examination reveals that the employee does not satisfy certain 
employment criteria, either the exclusionary criteria must not screen 
out or tend to screen out an individual with a disability or a class of 
individuals with disabilities, or they must be job-related and 
consistent with business necessity. As part of the showing that an 
exclusionary criteria is job-related and consistent with business 
necessity, the employer must also demonstrate that there is no 
reasonable accommodation that will enable the individual with a 
disability to perform the essential functions of the job. See Conference 
Report at 59-60; Senate Report at 39; House Labor Report at 73-74; House 
Judiciary Report at 43.
    As an example, suppose an employer makes a conditional offer of 
employment to an applicant, and it is an essential function of the job 
that the incumbent be available to work every day for the next three 
months. An employment entrance examination then reveals that the 
applicant has a disabling impairment that, according to reasonable 
medical judgment that relies on the most current medical knowledge, will 
require treatment that will render the applicant unable to work for a 
portion of the three month period. Under these circumstances, the 
employer would be able to withdraw the employment offer without 
violating this part.
    The information obtained in the course of a permitted entrance 
examination or inquiry is to be treated as a confidential medical record 
and may only be used in a manner not inconsistent with this part. State 
workers' compensation laws are not preempted by the ADA or this part. 
These laws require the collection of information from individuals for 
State administrative purposes that do not conflict with the ADA or this 
part. Consequently, employers or other covered entities may submit 
information to State workers' compensation offices or second injury 
funds in accordance with State workers' compensation laws without 
violating this part.
    Consistent with this section and with Sec.  1630.16(f) of this part, 
information obtained in the course of a permitted entrance examination 
or inquiry may be used for insurance purposes described in Sec.  
1630.16(f).

               Section 1630.14(c) Examination of Employees

    This provision permits employers to make inquiries or require 
medical examinations (fitness for duty exams) when there is a need to 
determine whether an employee is still able to perform the essential 
functions of his or her job. The provision permits employers or other 
covered entities to make inquiries or require medical examinations 
necessary to the reasonable accommodation process described in this 
part. This provision also permits periodic physicals to determine 
fitness for duty or other medical monitoring if such physicals or 
monitoring are required by medical standards or requirements established 
by Federal, State, or local law that are consistent with the ADA and 
this part (or in the case of a Federal standard, with section 504 of the 
Rehabilitation Act) in that they are job-related and consistent with 
business necessity.
    Such standards may include Federal safety regulations that regulate 
bus and truck driver qualifications, as well as laws establishing 
medical requirements for pilots or other air transportation personnel. 
These standards also include health standards promulgated pursuant to 
the Occupational Safety and Health Act of 1970, the Federal Coal Mine 
Health and Safety Act of 1969, or other similar statutes that require 
that employees exposed to certain toxic and hazardous substances be 
medically monitored at specific intervals. See House Labor Report at 74-
75.
    The information obtained in the course of such examination or 
inquiries is to be treated as a confidential medical record and may only 
be used in a manner not inconsistent with this part.

     Section 1630.14(d) Other Acceptable Examinations and Inquiries

    Part 1630 permits voluntary medical examinations, including 
voluntary medical histories, as part of employee health programs. These 
programs often include, for example, medical screening for high blood 
pressure, weight control counseling, and cancer detection. Voluntary 
activities, such as blood pressure monitoring and the administering of 
prescription drugs, such as insulin, are also permitted. It should be 
noted, however, that the medical records developed in the course of such 
activities must be maintained in the confidential manner required by 
this part and must not be used for any purpose in violation of this 
part, such as limiting health insurance eligibility. House Labor Report 
at 75; House Judiciary Report at 43-44.

                        Section 1630.15 Defenses

    The section on defenses in part 1630 is not intended to be 
exhaustive. However, it is intended to inform employers of some of the 
potential defenses available to a charge of discrimination under the ADA 
and this part.

[[Page 386]]

             Section 1630.15(a) Disparate Treatment Defenses

    The ``traditional'' defense to a charge of disparate treatment under 
title VII, as expressed in McDonnell Douglas Corp. v. Green, 411 U.S. 
792 (1973), Texas Department of Community Affairs v. Burdine, 450 U.S. 
248 (1981), and their progeny, may be applicable to charges of disparate 
treatment brought under the ADA. See Prewitt v. U.S. Postal Service, 662 
F.2d 292 (5th Cir. 1981). Disparate treatment means, with respect to 
title I of the ADA, that an individual was treated differently on the 
basis of his or her disability. For example, disparate treatment has 
occurred where an employer excludes an employee with a severe facial 
disfigurement from staff meetings because the employer does not like to 
look at the employee. The individual is being treated differently 
because of the employer's attitude towards his or her perceived 
disability. Disparate treatment has also occurred where an employer has 
a policy of not hiring individuals with AIDS regardless of the 
individuals' qualifications.
    The crux of the defense to this type of charge is that the 
individual was treated differently not because of his or her disability 
but for a legitimate nondiscriminatory reason such as poor performance 
unrelated to the individual's disability. The fact that the individual's 
disability is not covered by the employer's current insurance plan or 
would cause the employer's insurance premiums or workers' compensation 
costs to increase, would not be a legitimate nondiscriminatory reason 
justifying disparate treatment of an individual with a disability. 
Senate Report at 85; House Labor Report at 136 and House Judiciary 
Report at 70. The defense of a legitimate nondiscriminatory reason is 
rebutted if the alleged nondiscriminatory reason is shown to be 
pretextual.

          Section 1630.15 (b) and (c) Disparate Impact Defenses

    Disparate impact means, with respect to title I of the ADA and this 
part, that uniformly applied criteria have an adverse impact on an 
individual with a disability or a disproportionately negative impact on 
a class of individuals with disabilities. Section 1630.15(b) clarifies 
that an employer may use selection criteria that have such a disparate 
impact, i.e., that screen out or tend to screen out an individual with a 
disability or a class of individuals with disabilities only when they 
are job-related and consistent with business necessity.
    For example, an employer interviews two candidates for a position, 
one of whom is blind. Both are equally qualified. The employer decides 
that while it is not essential to the job it would be convenient to have 
an employee who has a driver's license and so could occasionally be 
asked to run errands by car. The employer hires the individual who is 
sighted because this individual has a driver's license. This is an 
example of a uniformly applied criterion, having a driver's permit, that 
screens out an individual who has a disability that makes it impossible 
to obtain a driver's permit. The employer would, thus, have to show that 
this criterion is job-related and consistent with business necessity. 
See House Labor Report at 55.
    However, even if the criterion is job-related and consistent with 
business necessity, an employer could not exclude an individual with a 
disability if the criterion could be met or job performance accomplished 
with a reasonable accommodation. For example, suppose an employer 
requires, as part of its application process, an interview that is job-
related and consistent with business necessity. The employer would not 
be able to refuse to hire a hearing impaired applicant because he or she 
could not be interviewed. This is so because an interpreter could be 
provided as a reasonable accommodation that would allow the individual 
to be interviewed, and thus satisfy the selection criterion.
    With regard to safety requirements that screen out or tend to screen 
out an individual with a disability or a class of individuals with 
disabilities, an employer must demonstrate that the requirement, as 
applied to the individual, satisfies the ``direct threat'' standard in 
Sec.  1630.2(r) in order to show that the requirement is job-related and 
consistent with business necessity.
    Section 1630.15(c) clarifies that there may be uniformly applied 
standards, criteria and policies not relating to selection that may also 
screen out or tend to screen out an individual with a disability or a 
class of individuals with disabilities. Like selection criteria that 
have a disparate impact, non-selection criteria having such an impact 
may also have to be job-related and consistent with business necessity, 
subject to consideration of reasonable accommodation.
    It should be noted, however, that some uniformly applied employment 
policies or practices, such as leave policies, are not subject to 
challenge under the adverse impact theory. ``No-leave'' policies (e.g., 
no leave during the first six months of employment) are likewise not 
subject to challenge under the adverse impact theory. However, an 
employer, in spite of its ``no-leave'' policy, may, in appropriate 
circumstances, have to consider the provision of leave to an employee 
with a disability as a reasonable accommodation, unless the provision of 
leave would impose an undue hardship. See discussion at Sec.  1630.5 
Limiting, Segregating and Classifying, and Sec.  1630.10 Qualification 
Standards, Tests, and Other Selection Criteria.

[[Page 387]]

    Section 1630.15(d) Defense To Not Making Reasonable Accommodation

    An employer or other covered entity alleged to have discriminated 
because it did not make a reasonable accommodation, as required by this 
part, may offer as a defense that it would have been an undue hardship 
to make the accommodation.
    It should be noted, however, that an employer cannot simply assert 
that a needed accommodation will cause it undue hardship, as defined in 
Sec.  1630.2(p), and thereupon be relieved of the duty to provide 
accommodation. Rather, an employer will have to present evidence and 
demonstrate that the accommodation will, in fact, cause it undue 
hardship. Whether a particular accommodation will impose an undue 
hardship for a particular employer is determined on a case by case 
basis. Consequently, an accommodation that poses an undue hardship for 
one employer at a particular time may not pose an undue hardship for 
another employer, or even for the same employer at another time. 
Likewise, an accommodation that poses an undue hardship for one employer 
in a particular job setting, such as a temporary construction worksite, 
may not pose an undue hardship for another employer, or even for the 
same employer at a permanent worksite. See House Judiciary Report at 42.
    The concept of undue hardship that has evolved under section 504 of 
the Rehabilitation Act and is embodied in this part is unlike the 
``undue hardship'' defense associated with the provision of religious 
accommodation under title VII of the Civil Rights Act of 1964. To 
demonstrate undue hardship pursuant to the ADA and this part, an 
employer must show substantially more difficulty or expense than would 
be needed to satisfy the ``de minimis'' title VII standard of undue 
hardship. For example, to demonstrate that the cost of an accommodation 
poses an undue hardship, an employer would have to show that the cost is 
undue as compared to the employer's budget. Simply comparing the cost of 
the accommodation to the salary of the individual with a disability in 
need of the accommodation will not suffice. Moreover, even if it is 
determined that the cost of an accommodation would unduly burden an 
employer, the employer cannot avoid making the accommodation if the 
individual with a disability can arrange to cover that portion of the 
cost that rises to the undue hardship level, or can otherwise arrange to 
provide the accommodation. Under such circumstances, the necessary 
accommodation would no longer pose an undue hardship. See Senate Report 
at 36; House Labor Report at 68-69; House Judiciary Report at 40-41.
    Excessive cost is only one of several possible bases upon which an 
employer might be able to demonstrate undue hardship. Alternatively, for 
example, an employer could demonstrate that the provision of a 
particular accommodation would be unduly disruptive to its other 
employees or to the functioning of its business. The terms of a 
collective bargaining agreement may be relevant to this determination. 
By way of illustration, an employer would likely be able to show undue 
hardship if the employer could show that the requested accommodation of 
the upward adjustment of the business' thermostat would result in it 
becoming unduly hot for its other employees, or for its patrons or 
customers. The employer would thus not have to provide this 
accommodation. However, if there were an alternate accommodation that 
would not result in undue hardship, the employer would have to provide 
that accommodation.
    It should be noted, moreover, that the employer would not be able to 
show undue hardship if the disruption to its employees were the result 
of those employees fears or prejudices toward the individual's 
disability and not the result of the provision of the accommodation. Nor 
would the employer be able to demonstrate undue hardship by showing that 
the provision of the accommodation has a negative impact on the morale 
of its other employees but not on the ability of these employees to 
perform their jobs.

  Section 1630.15(e) Defense--Conflicting Federal Laws and Regulations

    There are several Federal laws and regulations that address medical 
standards and safety requirements. If the alleged discriminatory action 
was taken in compliance with another Federal law or regulation, the 
employer may offer its obligation to comply with the conflicting 
standard as a defense. The employer's defense of a conflicting Federal 
requirement or regulation may be rebutted by a showing of pretext, or by 
showing that the Federal standard did not require the discriminatory 
action, or that there was a nonexclusionary means to comply with the 
standard that would not conflict with this part. See House Labor Report 
at 74.

              Section 1630.16 Specific Activities Permitted

                  Section 1630.16(a) Religious Entities

    Religious organizations are not exempt from title I of the ADA or 
this part. A religious corporation, association, educational 
institution, or society may give a preference in employment to 
individuals of the particular religion, and may require that applicants 
and employees conform to the religious tenets of the organization. 
However, a religious organization may not discriminate against an 
individual who satisfies the permitted religious criteria because that 
individual is disabled. The religious entity, in other words, is 
required to consider qualified individuals with disabilities who satisfy 
the

[[Page 388]]

permitted religious criteria on an equal basis with qualified 
individuals without disabilities who similarly satisfy the religious 
criteria. See Senate Report at 42; House Labor Report at 76-77; House 
Judiciary Report at 46.

           Section 1630.16(b) Regulation of Alcohol and Drugs

    This provision permits employers to establish or comply with certain 
standards regulating the use of drugs and alcohol in the workplace. It 
also allows employers to hold alcoholics and persons who engage in the 
illegal use of drugs to the same performance and conduct standards to 
which it holds all of its other employees. Individuals disabled by 
alcoholism are entitled to the same protections accorded other 
individuals with disabilities under this part. As noted above, 
individuals currently engaging in the illegal use of drugs are not 
individuals with disabilities for purposes of part 1630 when the 
employer acts on the basis of such use.

                     Section 1630.16(c) Drug Testing

    This provision reflects title I's neutrality toward testing for the 
illegal use of drugs. Such drug tests are neither encouraged, authorized 
nor prohibited. The results of such drug tests may be used as a basis 
for disciplinary action. Tests for the illegal use of drugs are not 
considered medical examinations for purposes of this part. If the 
results reveal information about an individual's medical condition 
beyond whether the individual is currently engaging in the illegal use 
of drugs, this additional information is to be treated as a confidential 
medical record. For example, if a test for the illegal use of drugs 
reveals the presence of a controlled substance that has been lawfully 
prescribed for a particular medical condition, this information is to be 
treated as a confidential medical record. See House Labor Report at 79; 
House Judiciary Report at 47.

 Section 1630.16(e) Infectious and Communicable Diseases; Food Handling 
                                  Jobs

    This provision addressing food handling jobs applies the ``direct 
threat'' analysis to the particular situation of accommodating 
individuals with infectious or communicable diseases that are 
transmitted through the handling of food. The Department of Health and 
Human Services is to prepare a list of infectious and communicable 
diseases that are transmitted through the handling of food. If an 
individual with a disability has one of the listed diseases and works in 
or applies for a position in food handling, the employer must determine 
whether there is a reasonable accommodation that will eliminate the risk 
of transmitting the disease through the handling of food. If there is an 
accommodation that will not pose an undue hardship, and that will 
prevent the transmission of the disease through the handling of food, 
the employer must provide the accommodation to the individual. The 
employer, under these circumstances, would not be permitted to 
discriminate against the individual because of the need to provide the 
reasonable accommodation and would be required to maintain the 
individual in the food handling job.
    If no such reasonable accommodation is possible, the employer may 
refuse to assign, or to continue to assign the individual to a position 
involving food handling. This means that if such an individual is an 
applicant for a food handling position the employer is not required to 
hire the individual. However, if the individual is a current employee, 
the employer would be required to consider the accommodation of 
reassignment to a vacant position not involving food handling for which 
the individual is qualified. Conference Report at 61-63. (See Sec.  
1630.2(r) Direct Threat).

 Section 1630.16(f) Health Insurance, Life Insurance, and Other Benefit 
                                  Plans

    This provision is a limited exemption that is only applicable to 
those who establish, sponsor, observe or administer benefit plans, such 
as health and life insurance plans. It does not apply to those who 
establish, sponsor, observe or administer plans not involving benefits, 
such as liability insurance plans.
    The purpose of this provision is to permit the development and 
administration of benefit plans in accordance with accepted principles 
of risk assessment. This provision is not intended to disrupt the 
current regulatory structure for self-insured employers. These employers 
may establish, sponsor, observe, or administer the terms of a bona fide 
benefit plan not subject to State laws that regulate insurance. This 
provision is also not intended to disrupt the current nature of 
insurance underwriting, or current insurance industry practices in 
sales, underwriting, pricing, administrative and other services, claims 
and similar insurance related activities based on classification of 
risks as regulated by the States.
    The activities permitted by this provision do not violate part 1630 
even if they result in limitations on individuals with disabilities, 
provided that these activities are not used as a subterfuge to evade the 
purposes of this part. Whether or not these activities are being used as 
a subterfuge is to be determined without regard to the date the 
insurance plan or employee benefit plan was adopted.
    However, an employer or other covered entity cannot deny a qualified 
individual with a disability equal access to insurance or subject a 
qualified individual with a disability to different terms or conditions 
of insurance based on disability alone, if the disability

[[Page 389]]

does not pose increased risks. Part 1630 requires that decisions not 
based on risk classification be made in conformity with non-
discrimination requirements. See Senate Report at 84-86; House Labor 
Report at 136-138; House Judiciary Report at 70-71. See the discussion 
of Sec.  1630.5 Limiting, Segregating and Classifying.

[56 FR 35734, July 26, 1991, as amended at 65 FR 36327, June 8, 2000]