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    42 USC Sec. 12111                                            01/22/02
 
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    TITLE 42 - THE PUBLIC HEALTH AND WELFARE
 
    CHAPTER 126 - EQUAL OPPORTUNITY FOR INDIVIDUALS WITH DISABILITIES
 
    SUBCHAPTER I - EMPLOYMENT
 
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    Sec. 12111. Definitions
 
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      As used in this subchapter:
 
      (1) Commission
 
        The term "Commission" means the Equal Employment Opportunity
 
      Commission established by section 2000e-4 of this title.
 
      (2) Covered entity
 
        The term "covered entity" means an employer, employment
 
      agency, labor organization, or joint labor-management committee.
 
      (3) Direct threat
 
        The term "direct threat" means a significant risk to the
 
      health or safety of others that cannot be eliminated by
 
      reasonable accommodation.
 
      (4) Employee
 
        The term "employee" means an individual employed by an
 
      employer.  With respect to employment in a foreign country, such
 
      term includes an individual who is a citizen of the United
 
      States.
 
      (5) Employer
 
        (A) In general
 
          The term "employer" means a person engaged in an industry
 
        affecting commerce who has 15 or more employees for each
 
        working day in each of 20 or more calendar weeks in the current
 
        or preceding calendar year, and any agent of such person,
 
        except that, for two years following the effective date of this
 
        subchapter, an employer means a person engaged in an industry
 
        affecting commerce who has 25 or more employees for each
 
        working day in each of 20 or more calendar weeks in the current
 
        or preceding year, and any agent of such person.
 
        (B) Exceptions
 
          The term "employer" does not include -
 
            (i) the United States, a corporation wholly owned by the
 
          government of the United States, or an Indian tribe; or
 
            (ii) a bona fide private membership club (other than a
 
          labor organization) that is exempt from taxation under
 
          section 501(c) of title 26.
 
      (6) Illegal use of drugs
 
        (A) In general
 
          The term "illegal use of drugs" means the use of drugs, the
 
        possession or distribution of which is unlawful under the
 
        Controlled Substances Act (21 U.S.C. 801 et seq.).  Such term
 
        does not include the use of a drug taken under supervision by a
 
        licensed health care professional, or other uses authorized by
 
        the Controlled Substances Act or other provisions of Federal
 
        law.
 
        (B) Drugs
 
          The term "drug" means a controlled substance, as defined in
 
        schedules I through V of section 202 of the Controlled
 
        Substances Act (21 U.S.C. 812).
 
      (7) Person, etc.
 
        The terms "person", "labor organization", "employment
 
      agency", "commerce", and "industry affecting commerce",
 
      shall have the same meaning given such terms in section 2000e of
 
      this title.
 
      (8) Qualified individual with a disability
 
        The term "qualified individual with a disability" means an
 
      individual with a disability who, with or without reasonable
 
      accommodation, can perform the essential functions of the
 
      employment position that such individual holds or desires.  For
 
      the purposes of this subchapter, consideration shall be given to
 
      the employer's judgment as to what functions of a job are
 
      essential, and if an employer has prepared a written description
 
      before advertising or interviewing applicants for the job, this
 
      description shall be considered evidence of the essential
 
      functions of the job.
 
      (9) Reasonable accommodation
 
        The term "reasonable accommodation" may include -
 
          (A) making existing facilities used by employees readily
 
        accessible to and usable by individuals with disabilities; and
 
          (B) job restructuring, part-time or modified work schedules,
 
        reassignment to a vacant position, acquisition or modification
 
        of equipment or devices, appropriate adjustment or
 
        modifications of examinations, training materials or policies,
 
        the provision of qualified readers or interpreters, and other
 
        similar accommodations for individuals with disabilities.
 
      (10) Undue hardship
 
        (A) In general
 
          The term "undue hardship" means an action requiring
 
        significant difficulty or expense, when considered in light of
 
        the factors set forth in subparagraph (B).
 
        (B) Factors to be considered
 
          In determining whether an accommodation would impose an undue
 
        hardship on a covered entity, factors to be considered include
 
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            (i) the nature and cost of the accommodation needed under
 
          this chapter;
 
            (ii) the overall financial resources of the facility or
 
          facilities involved in the provision of the reasonable
 
          accommodation; the number of persons employed at such
 
          facility; the effect on expenses and resources, or the impact
 
          otherwise of such accommodation upon the operation of the
 
          facility;
 
            (iii) the overall financial resources of the covered
 
          entity; the overall size of the business of a covered entity
 
          with respect to the number of its employees; the number,
 
          type, and location of its facilities; and
 
            (iv) the type of operation or operations of the covered
 
          entity, including the composition, structure, and functions
 
          of the workforce of such entity; the geographic separateness,
 
          administrative, or fiscal relationship of the facility or
 
          facilities in question to the covered entity.
 
-SOURCE-
 
    (Pub. L. 101-336, title I, Sec. 101, July 26, 1990, 104 Stat. 330;
 
    Pub. L. 102-166, title I, Sec. 109(a), Nov. 21, 1991, 105 Stat.
 
    1077.)
 
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                             REFERENCES IN TEXT
 
      The effective date of this subchapter, referred to in par.
 
    (5)(A), is 24 months after July 26, 1990, see section 108 of Pub.
 
    L. 101-336, set out as an Effective Date note below.
 
      The Controlled Substances Act, referred to in par. (6)(A), is
 
    title II of Pub. L. 91-513, Oct. 27, 1970, 84 Stat. 1242, as
 
    amended, which is classified principally to subchapter I (Sec. 801
 
    et seq.) of chapter 13 of Title 21, Food and Drugs. For complete
 
    classification of this Act to the Code, see Short Title note set
 
    out under section 801 of Title 21 and Tables.
 
      This chapter, referred to in par. (10)(B)(i), was in the original
 
    "this Act", meaning Pub. L. 101-336, July 26, 1990, 104 Stat.
 
    327, which is classified principally to this chapter.  For complete
 
    classification of this Act to the Code, see Short Title note set
 
    out under section 12101 of this title and Tables.
 
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                                 AMENDMENTS
 
      1991 - Par. (4). Pub. L. 102-166 inserted at end "With respect
 
    to employment in a foreign country, such term includes an
 
    individual who is a citizen of the United States."
 
                      EFFECTIVE DATE OF 1991 AMENDMENT
 
      Amendment by Pub. L. 102-166 inapplicable to conduct occurring
 
    before Nov. 21, 1991, see section 109(c) of Pub. L. 102-166, set
 
    out as a note under section 2000e of this title.
 
                               EFFECTIVE DATE
 
      Section 108 of title I of Pub. L. 101-336 provided that: "This
 
    title (enacting this subchapter) shall become effective 24 months
 
    after the date of enactment (July 26, 1990)."
 
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                   SECTION REFERRED TO IN OTHER SECTIONS
 
      This section is referred to in sections 5057, 12581, 12594, 12635
 
    of this title.