[Code of Federal Regulations]
[Title 29, Volume 4]
[Revised as of July 1, 2008]
From the U.S. Government Printing Office via GPO Access
[CITE: 29CFR1630 App]

[Page 367-390]

                             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. Appendix to Part 1630--Interpretive Guidance on Title I of the
                     Americans with Disabilities Act

                               Background

    The ADA is a Federal antidiscrimination statute designed to remove
barriers which prevent qualified individuals with disabilities from
enjoying the same employment opportunities that are available to persons
without disabilities.
    Like the Civil Rights Act of 1964 that prohibits discrimination on
the bases of race, color, religion, national origin, and sex, the ADA
seeks to ensure access to equal employment opportunities based on merit.
It does not guarantee equal results, establish quotas, or require
preferences favoring individuals with disabilities over those without
disabilities.
    However, while the Civil Rights Act of 1964 prohibits any
consideration of personal characteristics such as race or national
origin, the ADA necessarily takes a different approach. When an
individual's disability creates a barrier to employment opportunities,
the ADA requires employers to consider whether reasonable accommodation
could remove the barrier.
    The ADA thus establishes a process in which the employer must assess
a disabled individual's ability to perform the essential functions of
the specific job held or desired. While the ADA focuses on eradicating
barriers, the ADA does not relieve a disabled employee or applicant from
the obligation to perform the essential functions of the job. To the
contrary, the ADA is intended to enable disabled persons to compete in
the workplace based on the same performance standards and requirements
that employers expect of persons who are not disabled.
    However, where that individual's functional limitation impedes such
job performance, an employer must take steps to reasonably accommodate,
and thus help overcome the particular impediment, unless to do so would
impose an undue hardship. Such accommodations usually take the form of
adjustments to the way a job customarily is performed, or to the work
environment itself.
    This process of identifying whether, and to what extent, a
reasonable accommodation is required should be flexible and involve both
the employer and the individual with a disability. Of course, the
determination of whether an individual is qualified for a particular
position must necessarily be made on a case-by-case basis. No specific
form of accommodation is guaranteed for all individuals with a
particular disability. Rather, an accommodation must be tailored to
match the needs of the disabled individual with the needs of the job's
essential functions.
    This case-by-case approach is essential if qualified individuals of
varying abilities are to receive equal opportunities to compete for an
infinitely diverse range of jobs. For this reason, neither the ADA nor
this part can supply the ``correct'' answer in advance for each
employment decision concerning an individual with a disability. Instead,
the ADA simply establishes parameters to guide employers in how to
consider, and take into account, the disabling condition involved.

                              Introduction

    The Equal Employment Opportunity Commission (the Commission or EEOC)
is responsible for enforcement of title I of the Americans with
Disabilities Act (ADA), 42 U.S.C. 12101 et seq. (1990), which prohibits
employment discrimination on the basis of disability. The Commission
believes that it is essential to issue interpretive guidance
concurrently with the issuance of this part in order to ensure that
qualified individuals with disabilities understand their rights 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.

[[Page 368]]

         Section 1630.1 Purpose, Applicability and Construction

                        Section 1630.1(a) Purpose

    The Americans with Disabilities Act was signed into law on July 26,
1990. It is an antidiscrimination statute that requires that individuals
with disabilities be given the same consideration for employment that
individuals without disabilities are given. An individual who is
qualified for an employment opportunity cannot be denied that
opportunity because of the fact that the individual is disabled. The
purpose of title I and this part is to ensure that qualified individuals
with disabilities are protected from discrimination on the basis of
disability.
    The ADA uses the term ``disabilities'' rather than the term
``handicaps'' used in the Rehabilitation Act of 1973, 29 U.S.C. 701-796.
Substantively, these terms are equivalent. As noted by the House
Committee on the Judiciary, ``[t]he use of the term `disabilities'
instead of the term `handicaps' reflects the desire of the Committee to
use the most current terminology. It reflects the preference of persons
with disabilities to use that term rather than `handicapped' as used in
previous laws, such as the Rehabilitation Act of 1973 * * *.'' H.R. Rep.
No. 485 part 3, 101st Cong., 2d Sess. 26-27 (1990) (hereinafter House
Judiciary Report); see also S. Rep. No. 116, 101st Cong., 1st Sess. 21
(1989) (hereinafter Senate Report); H.R. Rep. No. 485 part 2, 101st
Cong., 2d Sess. 50-51 (1990) [hereinafter House Labor Report].
    The use of the term ``Americans'' in the title of the ADA is not
intended to imply that the Act only applies to United States citizens.
Rather, the ADA protects all qualified individuals with disabilities,
regardless of their citizenship status or nationality.

        Section 1630.1(b) and (c) Applicability and Construction

    Unless expressly stated otherwise, the standards applied in the ADA
are not intended to be lesser than the standards applied under the
Rehabilitation Act of 1973.
    The ADA does not preempt any Federal law, or any State or local law,
that grants to individuals with disabilities protection greater than or
equivalent to that provided by the ADA. This means that the existence of
a lesser standard of protection to individuals with disabilities under
the ADA will not provide a defense to failing to meet a higher standard
under another law. Thus, for example, title I of the ADA would not be a
defense to failing to collect information required to satisfy the
affirmative action requirements of section 503 of the Rehabilitation
Act. On the other hand, the existence of a lesser standard under another
law will not provide a defense to failing to meet a higher standard
under the ADA. See House Labor Report at 135; House Judiciary Report at
69-70.
    This also means that an individual with a disability could choose to
pursue claims under a State discrimination or tort law that does not
confer greater substantive rights, or even confers fewer substantive
rights, if the potential available remedies would be greater than those
available under the ADA and this part. The ADA does not restrict an
individual with a disability from pursuing such claims in addition to
charges brought under this part. House Judiciary at 69-70.
    The ADA does not automatically preempt medical standards or safety
requirements established by Federal law or regulations. It does not
preempt State, county, or local laws, ordinances or regulations that are
consistent with this part, and are designed to protect the public health
from individuals who pose a direct threat, that cannot be eliminated or
reduced by reasonable accommodation, to the health or safety of others.
However, the ADA does preempt inconsistent requirements established by
State or local law for safety or security sensitive positions. See
Senate Report at 27; House Labor Report at 57.
    An employer allegedly in violation of this part cannot successfully
defend its actions by relying on the obligation to comply with the
requirements of any State or local law that imposes prohibitions or
limitations on the eligibility of qualified individuals with
disabilities to practice any occupation or profession. For example,
suppose a municipality has an ordinance that prohibits individuals with
tuberculosis from teaching school children. If an individual with
dormant tuberculosis challenges a private school's refusal to hire him
or her because of the tuberculosis, the private school would not be able
to rely on the city ordinance as a defense under the ADA.

         Sections 1630.2(a)-(f) Commission, Covered Entity, etc.

    The definitions section of part 1630 includes several terms that are
identical, or almost identical, to the terms found in title VII of the
Civil Rights Act of 1964. Among these terms are ``Commission,''
``Person,'' ``State,'' and ``Employer.'' These terms are 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,

[[Page 369]]

which is enforced by the Department of Justice, becomes effective on
January 26, 1992. See 28 CFR part 35.
    The term ``covered entity'' is not found in title VII. However, the
title VII definitions of the entities included in the term ``covered
entity'' (e.g., employer, employment agency, etc.) are applicable to the
ADA.

                      Section 1630.2(g) Disability

    In addition to the term ``covered entity,'' there are several other
terms that are unique to the ADA. The first of these is the term
``disability.'' Congress adopted the definition of this term from the
Rehabilitation Act definition of the term ``individual with handicaps.''
By so doing, Congress intended that the relevant caselaw developed under
the Rehabilitation Act be generally applicable to the term
``disability'' as used in the ADA. Senate Report at 21; House Labor
Report at 50; House Judiciary Report at 27.
    The definition of the term ``disability'' is divided into three
parts. An individual must satisfy at least one of these parts in order
to be considered an individual with a disability for purposes of this
part. An individual is considered to have a ``disability'' if that
individual either (1) has a physical or mental impairment which
substantially limits one or more of that person's major life activities,
(2) has a record of such an impairment, or, (3) is regarded by the
covered entity as having such an impairment. To understand the meaning
of the term ``disability,'' it is necessary to understand, as a
preliminary matter, what is meant by the terms ``physical or mental
impairment,'' ``major life activity,'' and ``substantially limits.''
Each of these terms is discussed below.

             Section 1630.2(h) Physical or Mental Impairment

    This term adopts the definition of the term ``physical or mental
impairment'' found in the regulations implementing section 504 of the
Rehabilitation Act at 34 CFR part 104. It defines physical or mental
impairment as any physiological disorder or condition, cosmetic
disfigurement, or anatomical loss affecting one or more of several body
systems, or any mental or psychological disorder.
    It is important to distinguish between conditions that are
impairments and physical, psychological, environmental, cultural and
economic characteristics that are not impairments. The definition of the
term ``impairment'' does not include physical characteristics such as
eye color, hair color, left-handedness, or height, weight or muscle tone
that are within ``normal'' range and are not the result of a
physiological disorder. The definition, likewise, does not include
characteristic predisposition to illness or disease. Other conditions,
such as pregnancy, that are not the result of a physiological disorder
are also not impairments. Similarly, the definition does not include
common personality traits such as poor judgment or a quick temper where
these are not symptoms of a mental or psychological disorder.
Environmental, cultural, or economic disadvantages such as poverty, lack
of education or a prison record are not impairments. Advanced age, in
and of itself, is also not an impairment. However, various medical
conditions commonly associated with age, such as hearing loss,
osteoporosis, or arthritis would constitute impairments within the
meaning of this part. See Senate Report at 22-23; House Labor Report at
51-52; House Judiciary Report at 28-29.

                 Section 1630.2(i) Major Life Activities

    This term adopts the definition of the term ``major life
activities'' found in the regulations implementing section 504 of the
Rehabilitation Act at 34 CFR part 104. ``Major life activities'' are
those basic activities that the average person in the general population
can perform with little or no difficulty. Major life activities include
caring for oneself, performing manual tasks, walking, seeing, hearing,
speaking, breathing, learning, and working. This list is not exhaustive.
For example, other major life activities include, but are not limited
to, sitting, standing, lifting, reaching. See Senate Report at 22; House
Labor Report at 52; House Judiciary Report at 28.

                 Section 1630.2(j) Substantially Limits

    Determining whether a physical or mental impairment exists is only
the first step in determining whether or not an individual is disabled.
Many impairments do not impact an individual's life to the degree that
they constitute disabling impairments. An impairment rises to the level
of disability if the impairment substantially limits one or more of the
individual's major life activities. Multiple impairments that combine to
substantially limit one or more of an individual's major life activities
also constitute a disability.
    The ADA and this part, like the Rehabilitation Act of 1973, do not
attempt a ``laundry list'' of impairments that are ``disabilities.'' The
determination of whether an individual has a disability is not
necessarily based on the name or diagnosis of the impairment the 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.

[[Page 370]]

    On the other hand, temporary, non-chronic impairments of short
duration, with little or no long term or permanent impact, are usually
not disabilities. Such impairments may include, but are not limited to,
broken limbs, sprained joints, concussions, appendicitis, and influenza.
Similarly, except in rare circumstances, obesity is not considered a
disabling impairment.
    An impairment that prevents an individual from performing a major
life activity substantially limits that major life activity. For
example, an individual whose legs are paralyzed is substantially limited
in the major life activity of walking because he or she is unable, due
to the impairment, to perform that major life activity.
    Alternatively, an impairment is substantially limiting if it
significantly restricts the duration, manner or condition under which an
individual can perform a particular major life activity as compared to
the average person in the general population's ability to perform that
same major life activity. Thus, for example, an individual who, because
of an impairment, can only walk for very brief periods of time would be
substantially limited in the major life activity of walking.
    Part 1630 notes several factors that should be considered in making
the determination of whether an impairment is substantially limiting.
These factors are (1) the nature and severity of the impairment, (2) the
duration or expected duration of the impairment, and (3) the permanent
or long term impact, or the expected permanent or long term impact of,
or resulting from, the impairment. The term ``duration,'' as used in
this context, refers to the length of time an impairment persists, while
the term ``impact'' refers to the residual effects of an impairment.
Thus, for example, a broken leg that takes eight weeks to heal is an
impairment of fairly brief duration. However, if the broken leg heals
improperly, the ``impact'' of the impairment would be the resulting
permanent limp. Likewise, the effect on cognitive functions resulting
from traumatic head injury would be the ``impact'' of that impairment.
    The determination of whether an individual is substantially limited
in a major life activity must be made on a case by case basis. An
individual is not substantially limited in a major life activity if the
limitation, when viewed in light of the factors noted above, does not
amount to a significant restriction when compared with the abilities of
the average person. For example, an individual who had once been able to
walk at an extraordinary speed would not be substantially limited in the
major life activity of walking if, as a result of a physical impairment,
he or she were only able to walk at an average speed, or even at
moderately below average speed.
    It is important to remember that the restriction on the performance
of the major life activity must be the result of a condition that is an
impairment. As noted earlier, advanced age, physical or personality
characteristics, and environmental, cultural, and economic disadvantages
are not impairments. Consequently, even if such factors substantially
limit an individual's ability to perform a major life activity, this
limitation will not constitute a disability. For example, an individual
who is unable to read because he or she was never taught to read would
not be an individual with a disability because lack of education is not
an impairment. However, an individual who is unable to read because of
dyslexia would be an individual with a disability because dyslexia, a
learning disability, is an impairment.
    If an individual is not substantially limited with respect to any
other major life activity, the individual's ability to perform the major
life activity of working should be considered. If an individual is
substantially limited in any other major life activity, no determination
should be made as to whether the individual is substantially limited in
working. For example, if an individual is blind, i.e., substantially
limited in the major life activity of seeing, there is no need to
determine whether the individual is also substantially limited in the
major life activity of working. The determination of whether an
individual is substantially limited in working must also be made on a
case by case basis.
    This part lists specific factors that may be used in making the
determination of whether the limitation in working is ``substantial.''
These factors are:
    (1) The geographical area to which the individual has reasonable
access;
    (2) The job from which the individual has been disqualified because
of an impairment, and the number and types of jobs utilizing similar
training, knowledge, skills or abilities, within that geographical area,
from which the individual is also disqualified because of the impairment
(class of jobs); and/or
    (3) The job from which the individual has been disqualified because
of an impairment, and the number and types of other jobs not utilizing
similar training, knowledge, skills or abilities, within that
geographical area, from which the individual is also disqualified
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

[[Page 371]]

commercial airline co-pilot or a pilot for a courier service, would not
be substantially limited in the major life activity of working. Nor
would a professional baseball pitcher who develops a bad elbow and can
no longer throw a baseball be considered substantially limited in the
major life activity of working. In both of these examples, the
individuals are not substantially limited in the ability to perform any
other major life activity and, with regard to the major life activity of
working, are only unable to perform either a particular specialized job
or a narrow range of jobs. See Forrisi v. Bowen, 794 F.2d 931 (4th Cir.
1986); Jasany v. U.S. Postal Service, 755 F.2d 1244 (6th Cir. 1985); E.E
Black, Ltd. v. Marshall, 497 F. Supp. 1088 (D. Hawaii 1980).
    On the other hand, an individual does not have to be totally unable
to work in order to be considered substantially limited in the major
life activity of working. An individual is substantially limited in
working if the individual is significantly restricted in the ability to
perform a class of jobs or a broad range of jobs in various classes,
when compared with the ability of the average person with comparable
qualifications to perform those same jobs. For example, an individual
who has a back condition that prevents the individual from performing
any heavy labor job would be substantially limited in the major life
activity of working because the individual's impairment eliminates his
or her ability to perform a class of jobs. This would be so even if the
individual were able to perform jobs in another class, e.g., the class
of semi-skilled jobs. Similarly, suppose an individual has an allergy to
a substance found in most high rise office buildings, but seldom found
elsewhere, that makes breathing extremely difficult. Since this
individual would be substantially limited in the ability to perform the
broad range of jobs in various classes that are conducted in high rise
office buildings within the geographical area to which he or she has
reasonable access, he or she would be substantially limited in working.
    The terms ``number and types of jobs'' and ``number and types of
other jobs,'' as used in the factors discussed above, are not intended
to require an onerous evidentiary showing. Rather, the terms only
require the presentation of evidence of general employment demographics
and/or of recognized occupational classifications that indicate the
approximate number of jobs (e.g., ``few,'' ``many,'' ``most'') from
which an individual would be excluded because of an impairment.
    If an individual has a ``mental or physical impairment'' that
``substantially limits'' his or her ability to perform one or more
``major life activities,'' that individual will satisfy the first part
of the regulatory definition of ``disability'' and will be considered an
individual with a disability. An individual who satisfies this first
part of the definition of the term ``disability'' is not required to
demonstrate that he or she satisfies either of the other parts of the
definition. However, if an individual is unable to satisfy this part of
the definition, he or she may be able to satisfy one of the other parts
of the definition.

     Section 1630.2(k) Record of a Substantially Limiting Condition

    The second part of the definition provides that an individual with a
record of an impairment that substantially limits a major life activity
is an individual with a disability. The intent of this provision, in
part, is to ensure that people are not discriminated against because of
a history of disability. For example, this provision protects former
cancer patients from discrimination based on their prior medical
history. This provision also ensures that individuals are not
discriminated against because they have been misclassified as disabled.
For example, individuals misclassified as learning disabled are
protected from discrimination on the basis of that erroneous
classification. Senate Report at 23; House Labor Report at 52-53; House
Judiciary Report at 29.
    This part of the definition is satisfied if a record relied on by an
employer indicates that the individual has or has had a substantially
limiting impairment. The impairment indicated in the record must be an
impairment that would substantially limit one or more of the
individual's major life activities. There are many types of records that
could potentially contain this information, including but not limited
to, education, medical, or employment records.
    The fact that an individual has a record of being a disabled
veteran, or of disability retirement, or is classified as disabled for
other purposes does not guarantee that the individual will satisfy the
definition of ``disability'' under part 1630. Other statutes,
regulations and programs may have a definition of ``disability'' that is
not the same as the definition set forth in the ADA and contained in
part 1630. Accordingly, in order for an individual who has been
classified in a record as ``disabled'' for some other purpose to be
considered disabled for purposes of part 1630, the impairment indicated
in the record must be a physical or mental impairment that substantially
limits one or more of the individual's major life activities.

  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

[[Page 372]]

regarded by an employer or other covered entity as having an impairment
that substantially limits a major life activity is an individual with a
disability.
    There are three different ways in which an individual may satisfy
the definition of ``being regarded as having a disability'':
    (1) The individual may have an impairment which is not substantially
limiting but is perceived by the employer or other covered entity as
constituting a substantially limiting impairment;
    (2) The individual may have an impairment which is only
substantially limiting because of the attitudes of others toward the
impairment; or
    (3) The individual may have no impairment at all but is regarded by
the employer or other covered entity as having a substantially limiting
impairment.

Senate Report at 23; House Labor Report at 53; House Judiciary Report at
29.
    An individual satisfies the first part of this definition if the
individual has an impairment that is not substantially limiting, but the
covered entity perceives the impairment as being substantially limiting.
For example, suppose an employee has controlled high blood pressure that
is not substantially limiting. If an employer reassigns the individual
to less strenuous work because of unsubstantiated fears that the
individual will suffer a heart attack if he or she continues to perform
strenuous work, the employer would be regarding the individual as
disabled.
    An individual satisfies the second part of the ``regarded as''
definition if the individual has an impairment that is only
substantially limiting because of the attitudes of others toward the
condition. For example, an individual may have a prominent facial scar
or disfigurement, or may have a condition that periodically causes an
involuntary jerk of the head but does not limit the individual's major
life activities. If an employer discriminates against such an individual
because of the negative reactions of customers, the employer would be
regarding the individual as disabled and acting on the basis of that
perceived disability. See Senate Report at 24; House Labor Report at 53;
House Judiciary Report at 30-31.
    An individual satisfies the third part of the ``regarded as''
definition of ``disability'' if the employer or other covered entity
erroneously believes the individual has a substantially limiting
impairment that the individual actually does not have. This situation
could occur, for example, if an employer discharged an employee in
response to a rumor that the employee is infected with Human
Immunodeficiency Virus (HIV). Even though the rumor is totally unfounded
and the individual has no impairment at all, the individual is
considered an individual with a disability because the employer
perceived of this individual as being disabled. Thus, in this example,
the employer, by discharging this employee, is discriminating on the
basis of disability.
    The rationale for the ``regarded as'' part of the definition of
disability was articulated by the Supreme Court in the context of the
Rehabilitation Act of 1973 in School Board of Nassau County v. Arline,
480 U.S. 273 (1987). The Court noted that, although an individual may
have an impairment that does not in fact substantially limit a major
life activity, the reaction of others may prove just as disabling.
``Such an impairment might not diminish a person's physical or mental
capabilities, but could nevertheless substantially limit that person's
ability to work as a result of the negative reactions of others to the
impairment.'' 480 U.S. at 283. The Court concluded that by including
``regarded as'' in the Rehabilitation Act's definition, ``Congress
acknowledged that society's accumulated myths and fears about disability
and diseases are as handicapping as are the physical limitations that
flow from actual impairment.'' 480 U.S. at 284.
    An individual rejected from a job because of the ``myths, fears and
stereotypes'' associated with disabilities would be covered under this
part of the definition of disability, whether or not the employer's or
other covered entity's perception were shared by others in the field and
whether or not the individual's actual physical or mental condition
would be considered a disability under the first or second part of this
definition. As the legislative history notes, sociologists have
identified common attitudinal barriers that frequently result in
employers excluding individuals with disabilities. These include
concerns regarding productivity, safety, insurance, liability,
attendance, cost of accommodation and accessibility, workers'
compensation costs, and acceptance by coworkers and customers.
    Therefore, if an individual can show that an employer or other
covered entity made an employment decision because of a perception of
disability based on ``myth, fear or stereotype,'' the individual will
satisfy the ``regarded as'' part of the definition of disability. If the
employer cannot articulate a non-discriminatory reason for the
employment action, an inference that the employer is acting on the basis
of ``myth, fear or stereotype'' can be drawn.

        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,

[[Page 373]]

such as possessing the appropriate educational background, employment
experience, skills, licenses, etc. For example, the first step in
determining whether an accountant who is paraplegic is qualified for a
certified public accountant (CPA) position is to examine the
individual's credentials to determine whether the individual is a
licensed CPA. This is sometimes referred to in the Rehabilitation Act
caselaw as determining whether the individual is ``otherwise qualified''
for the position. See Senate Report at 33; House Labor Report at 64-65.
(See Sec. 1630.9 Not Making Reasonable Accommodation).
    The second step is to determine whether or not the individual can
perform the essential functions of the position held or desired, with or
without reasonable accommodation. The purpose of this second step is to
ensure that individuals with disabilities who can perform the essential
functions of the position held or desired are not denied employment
opportunities because they are not able to perforn marginal functions of
the position. House Labor Report at 55.
    The determination of whether an individual with a disability is
qualified is to be made at the time of the employment decision. This
determination should be based on the capabilities of the individual with
a disability at the time of the employment decision, and should not be
based on speculation that the employee may become unable in the future
or may cause increased health insurance premiums or workers compensation
costs.

                  Section 1630.2(n) Essential Functions

    The determination of which functions are essential may be critical
to the determination of whether or not the individual with a disability
is qualified. The essential functions are those functions that the
individual who holds the position must be able to perform unaided or
with the assistance of a reasonable accommodation.
    The inquiry into whether a particular function is essential
initially focuses on whether the employer actually requires employees in
the position to perform the functions that the employer asserts are
essential. For example, an employer may state that typing is an
essential function of a position. If, in fact, the employer has never
required any employee in that particular position to type, this will be
evidence that typing is not actually an essential function of the
position.
    If the individual who holds the position is actually required to
perform the function the employer asserts is an essential function, the
inquiry will then center around whether removing the function would
fundamentally alter that position. This determination of whether or not
a particular function is essential will generally include one or more of
the following factors listed in part 1630.
    The first factor is whether the position exists to perform a
particular function. For example, an individual may be hired to
proofread documents. The ability to proofread the documents would then
be an essential function, since this is the only reason the position
exists.
    The second factor in determining whether a function is essential is
the number of other employees available to perform that job function or
among whom the performance of that job function can be distributed. This
may be a factor either because the total number of available employees
is low, or because of the fluctuating demands of the business operation.
For example, if an employer has a relatively small number of available
employees for the volume of work to be performed, it may be necessary
that each employee perform a multitude of different functions.
Therefore, the performance of those functions by each employee becomes
more critical and the options for reorganizing the work become more
limited. In such a situation, functions that might not be essential if
there were a larger staff may become essential because the staff size is
small compared to the volume of work that has to be done. See Treadwell
v. Alexander, 707 F.2d 473 (11th Cir. 1983).
    A similar situation might occur in a larger work force if the
workflow follows a cycle of heavy demand for labor intensive work
followed by low demand periods. This type of workflow might also make
the performance of each function during the peak periods more critical
and might limit the employer's flexibility in reorganizing operating
procedures. See Dexler v. Tisch, 660 F. Supp. 1418 (D. Conn. 1987).
    The third factor is the degree of expertise or skill required to
perform the function. In certain professions and highly skilled
positions the employee is hired for his or her expertise or ability to
perform the particular function. In such a situation, the performance of
that specialized task would be an essential function.
    Whether a particular function is essential is a factual
determination that must be made on a case by case basis. In determining
whether or not a particular function is essential, all relevant evidence
should be considered. Part 1630 lists various types of evidence, such as
an established job description, that should be considered in determining
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.

[[Page 374]]

    Although part 1630 does not require employers to develop or maintain
job descriptions, written job descriptions prepared before advertising
or interviewing applicants for the job, as well as the employer's
judgment as to what functions are essential are among the relevant
evidence to be considered in determining whether a particular function
is essential. The terms of a collective bargaining agreement are also
relevant to the determination of whether a particular function is
essential. The work experience of past employees in the job or of
current employees in similar jobs is likewise relevant to the
determination of whether a particular function is essential. See H.R.
Conf. Rep. No. 101-596, 101st Cong., 2d Sess. 58 (1990) [hereinafter
Conference Report]; House Judiciary Report at 33-34. See also Hall v.
U.S. Postal Service, 857 F.2d 1073 (6th Cir. 1988).
    The time spent performing the particular function may also be an
indicator of whether that function is essential. For example, if an
employee spends the vast majority of his or her time working at a cash
register, this would be evidence that operating the cash register is an
essential function. The consequences of failing to require the employee
to perform the function may be another indicator of whether a particular
function is essential. For example, although a firefighter may not
regularly have to carry an unconscious adult out of a burning building,
the consequence of failing to require the firefighter to be able to
perform this function would be serious.
    It is important to note that the inquiry into essential functions is
not intended to second guess an employer's business judgment with regard
to production standards, whether qualitative or quantitative, nor to
require employers to lower such standards. (See Sec. 1630.10
Qualification Standards, Tests and Other Selection Criteria). If an
employer requires its typists to be able to accurately type 75 words per
minute, it will not be called upon to explain why an inaccurate work
product, or a typing speed of 65 words per minute, would not be
adequate. Similarly, if a hotel requires its service workers to
thoroughly clean 16 rooms per day, it will not have to explain why it
requires thorough cleaning, or why it chose a 16 room rather than a 10
room requirement. However, if an employer does require accurate 75 word
per minute typing or the thorough cleaning of 16 rooms, it will have to
show that it actually imposes such requirements on its employees in
fact, and not simply on paper. It should also be noted that, if it is
alleged that the employer intentionally selected the particular level of
production to exclude individuals with disabilities, the employer may
have to offer a legitimate, nondiscriminatory reason for its selection.

               Section 1630.2(o) Reasonable Accommodation

    An individual is considered a ``qualified individual with a
disability'' if the individual can perform the essential functions of
the position held or desired with or without reasonable accommodation.
In general, an accommodation is any change in the work environment or in
the way things are customarily done that enables an individual with a
disability to enjoy equal employment opportunities. There are three
categories of reasonable accommodation. These are (1) accommodations
that are required to ensure equal opportunity in the application
process; (2) accommodations that enable the employer's employees with
disabilities to perform the essential functions of the position held or
desired; and (3) accommodations that enable the employer's employees
with disabilities to enjoy equal benefits and privileges of employment
as are enjoyed by employees without disabilities. It should be noted
that nothing in this part prohibits employers or other covered entities
from providing accommodations beyond those required by this part.
    Part 1630 lists the examples, specified in title I of the ADA, of
the most common types of accommodation that an employer or other covered
entity may be required to provide. There are any number of other
specific accommodations that may be appropriate for particular
situations but are not specifically mentioned in this listing. This
listing is not intended to be exhaustive of accommodation possibilities.
For example, other accommodations could include permitting the use of
accrued paid leave or providing additional unpaid leave for necessary
treatment, making employer provided transportation accessible, and
providing reserved parking spaces. Providing personal assistants, such
as a page turner for an employee with no hands or a travel attendant to
act as a sighted guide to assist a blind employee on occasional business
trips, may also be a reasonable accommodation. Senate Report at 31;
House Labor Report at 62; House Judiciary Report at 39.
    It may also be a reasonable accommodation to permit an individual
with a disability the opportunity to provide and utilize equipment, aids
or services that an employer is not required to provide as a reasonable
accommodation. For example, it would be a reasonable accommodation for
an employer to permit an individual who is blind to use a guide dog at
work, even though the employer would not be required to provide a guide
dog for the employee.
    The accommodations included on the list of reasonable accommodations
are generally self explanatory. However, there are a few that require
further explanation. One of

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these is the accommodation of making existing facilities used by
employees readily accessible to, and usable by, individuals with
disabilities. This accommodation includes both those areas that must be
accessible for the employee to perform essential job functions, as well
as non-work areas used by the employer's employees for other purposes.
For example, accessible break rooms, lunch rooms, training rooms,
restrooms etc., may be required as reasonable accommodations.
    Another of the potential accommodations listed is ``job
restructuring.'' An employer or other covered entity may restructure a
job by reallocating or redistributing nonessential, marginal job
functions. For example, an employer may have two jobs, each of which
entails the performance of a number of marginal functions. The employer
hires a qualified individual with a disability who is able to perform
some of the marginal functions of each job but not all of the marginal
functions of either job. As an accommodation, the employer may
redistribute the marginal functions so that all of the marginal
functions that the qualified individual with a disability can perform
are made a part of the position to be filled by the qualified individual
with a disability. The remaining marginal functions that the individual
with a disability cannot perform would then be transferred to the other
position. See Senate Report at 31; House Labor Report at 62.
    An employer or other covered entity is not required to reallocate
essential functions. The essential functions are by definition those
that the individual who holds the job would have to perform, with or
without reasonable accommodation, in order to be considered qualified
for the position. For example, suppose a security guard position
requires the individual who holds the job to inspect identification
cards. An employer would not have to provide an individual who is
legally blind with an assistant to look at the identification cards for
the legally blind employee. In this situation the assistant would be
performing the job for the individual with a disability rather than
assisting the individual to perform the job. See Coleman v. Darden, 595
F.2d 533 (10th Cir. 1979).
    An employer or other covered entity may also restructure a job by
altering when and/or how an essential function is performed. For
example, an essential function customarily performed in the early
morning hours may be rescheduled until later in the day as a reasonable
accommodation to a disability that precludes performance of the function
at the customary hour. Likewise, as a reasonable accommodation, an
employee with a disability that inhibits the ability to write, may be
permitted to computerize records that were customarily maintained
manually.
    Reassignment to a vacant position is also listed as a potential
reasonable accommodation. In general, reassignment should be considered
only when accommodation within the individual's current position would
pose an undue hardship. Reassignment is not available to applicants. An
applicant for a position must be qualified for, and be able to perform
the essential functions of, the position sought with or without
reasonable accommodation.
    Reassignment may not be used to limit, segregate, or otherwise
discriminate against employees with disabilities by forcing
reassignments to undesirable positions or to designated offices or
facilities. Employers should reassign the individual to an equivalent
position, in terms of pay, status, etc., if the individual is qualified,
and if the position is vacant within a reasonable amount of time. A
``reasonable amount of time'' should be determined in light of the
totality of the circumstances. As an example, suppose there is no vacant
position available at the time that an individual with a disability
requests reassignment as a reasonable accommodation. The employer,
however, knows that an equivalent position for which the individual is
qualified, will become vacant next week. Under these circumstances, the
employer should reassign the individual to the position when it becomes
available.
    An employer may reassign an individual to a lower graded position if
there are no accommodations that would enable the employee to remain in
the current position and there are no vacant equivalent positions for
which the individual is qualified with or without reasonable
accommodation. An employer, however, is not required to maintain the
reassigned individual with a disability at the salary of the higher
graded position if it does not so maintain reassigned employees who are
not disabled. It should also be noted that an employer is not required
to promote an individual with a disability as an accommodation. See
Senate Report at 31-32; House Labor Report at 63.
    The determination of which accommodation is appropriate in a
particular situation involves a process in which the employer and
employee identify the precise limitations imposed by the disability and
explore potential accommodations that would overcome those limitations.
This process is discussed more fully in Sec. 1630.9 Not Making
Reasonable Accommodation.

                    Section 1630.2(p) Undue Hardship

    An employer or other covered entity is not required to provide an
accommodation that will impose an undue hardship on the operation of the
employer's or other covered entity's business. The term ``undue
hardship'' means significant difficulty or expense in, or resulting
from, the provision of the accommodation. The ``undue hardship''
provision takes into account the financial realities of the particular
employer or other covered entity. However, the concept of undue hardship

[[Page 376]]

is not limited to financial difficulty. ``Undue hardship'' refers to any
accommodation that would be unduly costly, extensive, substantial, or
disruptive, or that would fundamentally alter the nature or operation of
the business. See Senate Report at 35; House Labor Report at 67.
    For example, suppose an individual with a disabling visual
impairment that makes it extremely difficult to see in dim lighting
applies for a position as a waiter in a nightclub and requests that the
club be brightly lit as a reasonable accommodation. Although the
individual may be able to perform the job in bright lighting, the
nightclub will probably be able to demonstrate that that particular
accommodation, though inexpensive, would impose an undue hardship if the
bright lighting would destroy the ambience of the nightclub and/or make
it difficult for the customers to see the stage show. The fact that that
particular accommodation poses an undue hardship, however, only means
that the employer is not required to provide that accommodation. If
there is another accommodation that will not create an undue hardship,
the employer would be required to provide the alternative accommodation.
    An employer's claim that the cost of a particular accommodation will
impose an undue hardship will be analyzed in light of the factors
outlined in part 1630. In part, this analysis requires a determination
of whose financial resources should be considered in deciding whether
the accommodation is unduly costly. In some cases the financial
resources of the employer or other covered entity in its entirety should
be considered in determining whether the cost of an accommodation poses
an undue hardship. In other cases, consideration of the financial
resources of the employer or other covered entity as a whole may be
inappropriate because it may not give an accurate picture of the
financial resources available to the particular facility that will
actually be required to provide the accommodation. See House Labor
Report at 68-69; House Judiciary Report at 40-41; see also Conference
Report at 56-57.
    If the employer or other covered entity asserts that only the
financial resources of the facility where the individual will be
employed should be considered, part 1630 requires a factual
determination of the relationship between the employer or other covered
entity and the facility that will provide the accommodation. As an
example, suppose that an independently owned fast food franchise that
receives no money from the franchisor refuses to hire an individual with
a hearing impairment because it asserts that it would be an undue
hardship to provide an interpreter to enable the individual to
participate in monthly staff meetings. Since the financial relationship
between the franchisor and the franchise is limited to payment of an
annual franchise fee, only the financial resources of the franchise
would be considered in determining whether or not providing the
accommodation would be an undue hardship. See House Labor Report at 68;
House Judiciary Report at 40.
    If the employer or other covered entity can show that the cost of
the accommodation would impose an undue hardship, it would still be
required to provide the accommodation if the funding is available from
another source, e.g., a State vocational rehabilitation agency, or if
Federal, State or local tax deductions or tax credits are available to
offset the cost of the accommodation. If the employer or other covered
entity receives, or is eligible to receive, monies from an external
source that would pay the entire cost of the accommodation, it cannot
claim cost as an undue hardship. In the absence of such funding, the
individual with a disability requesting the accommodation should be
given the option of providing the accommodation or of paying that
portion of the cost which constitutes the undue hardship on the
operation of the business. To the extent that such monies pay or would
pay for only part of the cost of the accommodation, only that portion of
the cost of the accommodation that could not be recovered--the final net
cost to the entity--may be considered in determining undue hardship.
(See Sec. 1630.9 Not Making Reasonable Accommodation). See Senate
Report at 36; House Labor Report at 69.

                     Section 1630.2(r) Direct Threat

    An employer may require, as a qualification standard, that an
individual not pose a direct threat to the health or safety of himself/
herself or others. Like any other qualification standard, such a
standard must apply to all applicants or employees and not just to
individuals with disabilities. If, however, an individual poses a direct
threat as a result of a disability, the employer must determine whether
a reasonable accommodation would either eliminate the risk or reduce it
to an acceptable level. If no accommodation exists that would either
eliminate or reduce the risk, the employer may refuse to hire an
applicant or may discharge an employee who poses a direct threat.
    An employer, however, is not permitted to deny an employment
opportunity to an individual with a disability merely because of a
slightly increased risk. The risk can only be considered when it poses a
significant risk, i.e., high probability, of substantial harm; a
speculative or remote risk is insufficient. See Senate Report at 27;
House Report Labor Report at 56-57; House Judiciary Report at 45.
    Determining whether an individual poses a significant risk of
substantial harm to others must be made on a case by case basis. The
employer should identify the specific risk posed by the individual. For
individuals with mental or emotional disabilities, the

[[Page 377]]

employer must identify the specific behavior on the part of the
individual that would pose the direct threat. For individuals with
physical disabilities, the employer must identify the aspect of the
disability that would pose the direct threat. The employer should then
consider the four factors listed in part 1630:
    (1) The duration of the risk;
    (2) The nature and severity of the potential harm;
    (3) The likelihood that the potential harm will occur; and
    (4) The imminence of the potential harm.
    Such consideration must rely on objective, factual evidence--not on
subjective perceptions, irrational fears, patronizing attitudes, or
stereotypes--about the nature or effect of a particular disability, or
of disability generally. See Senate Report at 27; House Labor Report at
56-57; House Judiciary Report at 45-46. See also Strathie v. Department
of Transportation, 716 F.2d 227 (3d Cir. 1983). Relevant evidence may
include input from the individual with a disability, the experience of
the individual with a disability in previous similar positions, and
opinions of medical doctors, rehabilitation counselors, or physical
therapists who have expertise in the disability involved and/or direct
knowledge of the individual with the disability.
    An employer is also permitted to require that an individual not pose
a direct threat of harm to his or her own safety or health. If
performing the particular functions of a job would result in a high
probability of substantial harm to the individual, the employer could
reject or discharge the individual unless a reasonable accommodation
that would not cause an undue hardship would avert the harm. For
example, an employer would not be required to hire an individual,
disabled by narcolepsy, who frequently and unexpectedly loses
consciousness for a carpentry job the essential functions of which
require the use of power saws and other dangerous equipment, where no
accommodation exists that will reduce or eliminate the risk.
    The assessment that there exists a high probability of substantial
harm to the individual, like the assessment that there exists a high
probability of substantial harm to others, must be strictly based on
valid medical analyses and/or on other objective evidence. This
determination must be based on individualized factual data, using the
factors discussed above, rather than on stereotypic or patronizing
assumptions and must consider potential reasonable accommodations.
Generalized fears about risks from the employment environment, such as
exacerbation of the disability caused by stress, cannot be used by an
employer to disqualify an individual with a disability. For example, a
law firm could not reject an applicant with a history of disabling
mental illness based on a generalized fear that the stress of trying to
make partner might trigger a relapse of the individual's mental illness.
Nor can generalized fears about risks to individuals with disabilities
in the event of an evacuation or other emergency be used by an employer
to disqualify an individual with a disability. See Senate Report at 56;
House Labor Report at 73-74; House Judiciary Report at 45. See also
Mantolete v. Bolger, 767 F.2d 1416 (9th Cir. 1985); Bentivegna v. U.S.
Department of Labor, 694 F.2d 619 (9th Cir.1982).

   Section 1630.3 Exceptions to the Definitions of ``Disability'' and
               ``Qualified Individual with a Disability''

           Section 1630.3 (a) through (c) Illegal Use of Drugs

    Part 1630 provides that an individual currently engaging in the
illegal use of drugs is not an individual with a disability for purposes
of this part when the employer or other covered entity acts on the basis
of such use. Illegal use of drugs refers both to the use of unlawful
drugs, such as cocaine, and to the unlawful use of prescription drugs.
    Employers, for example, may discharge or deny employment to persons
who illegally use drugs, on the basis of such use, without fear of being
held liable for discrimination. The term ``currently engaging'' is not
intended to be limited to the use of drugs on the day of, or within a
matter of days or weeks before, the employment action in question.
Rather, the provision is intended to apply to the illegal use of drugs
that has occurred recently enough to indicate that the individual is
actively engaged in such conduct. See Conference Report at 64.
    Individuals who are erroneously perceived as engaging in the illegal
use of drugs, but are not in fact illegally using drugs are not excluded
from the definitions of the terms ``disability'' and ``qualified
individual with a disability.'' Individuals who are no longer illegally
using drugs and who have either been rehabilitated successfully or are
in the process of completing a rehabilitation program are, likewise, not
excluded from the definitions of those terms. The term ``rehabilitation
program'' refers to both in-patient and out-patient programs, as well as
to appropriate employee assistance programs, professionally recognized
self-help programs, such as Narcotics Anonymous, or other programs that
provide professional (not necessarily medical) assistance and counseling
for individuals who illegally use drugs. See Conference Report at 64;
see also House Labor Report at 77; House Judiciary Report at 47.
    It should be noted that this provision simply provides that certain
individuals are not excluded from the definitions of ``disability'' and
``qualified individual with a disability.'' Consequently, such
individuals are still required to establish that they satisfy the
requirements of these definitions in order to be

[[Page 378]]

protected by the ADA and this part. An individual erroneously regarded
as illegally using drugs, for example, would have to show that he or she
was regarded as a drug addict in order to demonstrate that he or she
meets the definition of ``disability'' as defined in this part.
    Employers are entitled to seek reasonable assurances that no illegal
use of drugs is occurring or has occurred recently enough so that
continuing use is a real and ongoing problem. The reasonable assurances
that employers may ask applicants or employees to provide include
evidence that the individual is participating in a drug treatment
program and/or evidence, such as drug test results, to show that the
individual is not currently engaging in the illegal use of drugs. An
employer, such as a law enforcement agency, may also be able to impose a
qualification standard that excludes individuals with a history of
illegal use of drugs if it can show that the standard is job-related and
consistent with business necessity. (See Sec. 1630.10 Qualification
Standards, Tests and Other Selection Criteria) See Conference Report at
64.

                Section 1630.4 Discrimination Prohibited

    This provision prohibits discrimination against a qualified
individual with a disability in all aspects of the employment
relationship. The range of employment decisions covered by this
nondiscrimination mandate is to be construed in a manner consistent with
the regulations implementing section 504 of the Rehabilitation Act of
1973.
    Part 1630 is not intended to limit the ability of covered entities
to choose and maintain a qualified workforce. Employers can continue to
use job-related criteria to select qualified employees, and can continue
to hire employees who can perform the essential functions of the job.

          Section 1630.5 Limiting, Segregating and Classifying

    This provision and the several provisions that follow describe
various specific forms of discrimination that are included within the
general prohibition of Sec. 1630.4. Covered entities are prohibited
from restricting the employment opportunities of qualified individuals
with disabilities on the basis of stereotypes and myths about the
individual's disability. Rather, the capabilities of qualified
individuals with disabilities must be determined on an individualized,
case by case basis. Covered entities are also prohibited from
segregating qualified employees with disabilities into separate work
areas or into separate lines of advancement.
    Thus, for example, it would be a violation of this part for an
employer to limit the duties of an employee with a disability based on a
presumption of what is best for an individual with such a disability, or
on a presumption about the abilities of an individual with such a
disability. It would be a violation of this part for an employer to
adopt a separate track of job promotion or progression for employees
with disabilities based on a presumption that employees with
disabilities are uninterested in, or incapable of, performing particular
jobs. Similarly, it would be a violation for an employer to assign or
reassign (as a reasonable accommodation) employees with disabilities to
one particular office or installation, or to require that employees with
disabilities only use particular employer provided non-work facilities
such as segregated break-rooms, lunch rooms, or lounges. It would also
be a violation of this part to deny employment to an applicant or
employee with a disability based on generalized fears about the safety
of an individual with such a disability, or based on generalized
assumptions about the absenteeism rate of an individual with such a
disability.
    In addition, it should also be noted that this part is intended to
require that employees with disabilities be accorded equal access to
whatever health insurance coverage the employer provides to other
employees. This part does not, however, affect pre-existing condition
clauses included in health insurance policies offered by employers.
Consequently, employers may continue to offer policies that contain such
clauses, even if they adversely affect individuals with disabilities, so
long as the clauses are not used as a subterfuge to evade the purposes
of this part.
    So, for example, it would be permissible for an employer to offer an
insurance policy that limits coverage for certain procedures or
treatments to a specified number per year. Thus, if a health insurance
plan provided coverage for five blood transfusions a year to all covered
employees, it would not be discriminatory to offer this plan simply
because a hemophiliac employee may require more than five blood
transfusions annually. However, it would not be permissible to limit or
deny the hemophiliac employee coverage for other procedures, such as
heart surgery or the setting of a broken leg, even though the plan would
not have to provide coverage for the additional blood transfusions that
may be involved in these procedures. Likewise, limits may be placed on
reimbursements for certain procedures or on the types of drugs or
procedures covered (e.g. limits on the number of permitted X-rays or
non-coverage of experimental drugs or procedures), but that limitation
must be applied equally to individuals with and without disabilities.
See Senate Report at 28-29; House Labor Report at 58-59; House Judiciary
Report at 36.
    Leave policies or benefit plans that are uniformly applied do not
violate this part

[[Page 379]]

simply because they do not address the special needs of every individual
with a disability. Thus, for example, an employer that reduces the
number of paid sick leave days that it will provide to all employees, or
reduces the amount of medical insurance coverage that it will provide to
all employees, is not in violation of this part, even if the benefits
reduction has an impact on employees with disabilities in need of
greater sick leave and medical coverage. Benefits reductions adopted for
discriminatory reasons are in violation of this part. See Alexander v.
Choate, 469 U.S. 287 (1985). See Senate Report at 85; House Labor Report
at 137. (See also, the discussion at Sec. 1630.16(f) Health Insurance,
Life Insurance, and Other Benefit Plans).

            Section 1630.6 Contractual or Other Arrangements

    An employer or other covered entity may not do through a contractual
or other relationship what it is prohibited from doing directly. This
provision does not affect the determination of whether or not one is a
``covered entity'' or ``employer'' as defined in Sec. 1630.2.
    This provision only applies to situations where an employer or other
covered entity has entered into a contractual relationship that has the
effect of discriminating against its own employees or applicants with
disabilities. Accordingly, it would be a violation for an employer to
participate in a contractual relationship that results in discrimination
against the employer's employees with disabilities in hiring, training,
promotion, or in any other aspect of the employment relationship. This
provision applies whether or not the employer or other covered entity
intended for the contractual relationship to have the discriminatory
effect.
    Part 1630 notes that this provision applies to parties on either
side of the contractual or other relationship. This is intended to
highlight that an employer whose employees provide services to others,
like an employer whose employees receive services, must ensure that
those employees are not discriminated against on the basis of
disability. For example, a copier company whose service representative
is a dwarf could be required to provide a stepstool, as a reasonable
accommodation, to enable him to perform the necessary repairs. However,
the employer would not be required, as a reasonable accommodation, to
make structural changes to its customer's inaccessible premises.
    The existence of the contractual relationship adds no new
obligations under part 1630. The employer, therefore, is not liable
through the contractual arrangement for any discrimination by the
contractor against the contractors own employees or applicants, although
the contractor, as an employer, may be liable for such discrimination.
    An employer or other covered entity, on the other hand, cannot evade
the obligations imposed by this part by engaging in a contractual or
other relationship. For example, an employer cannot avoid its
responsibility to make reasonable accommodation subject to the undue
hardship limitation through a contractual arrangement. See Conference
Report at 59; House Labor Report at 59-61; House Judiciary Report at 36-
37.
    To illustrate, assume that an employer is seeking to contract with a
company to provide training for its employees. Any responsibilities of
reasonable accommodation applicable to the employer in providing the
training remain with that employer even if it contracts with another
company for this service. Thus, if the training company were planning to
conduct the training at an inaccessible location, thereby making it
impossible for an employee who uses a wheelchair to attend, the employer
would have a duty to make reasonable accommodation unless to do so would
impose an undue hardship. Under these circumstances, appropriate
accommodations might include (1) having the training company identify
accessible training sites and relocate the training program; (2) having
the training company make the training site accessible; (3) directly
making the training site accessible or providing the training company
with the means by which to make the site accessible; (4) identifying and
contracting with another training company that uses accessible sites; or
(5) any other accommodation that would result in making the training
available to the employee.
    As another illustration, assume that instead of contracting with a
training company, the employer contracts with a hotel to host a
conference for its employees. The employer will have a duty to ascertain
and ensure the accessibility of the hotel and its conference facilities.
To fulfill this obligation the employer could, for example, inspect the
hotel first-hand or ask a local disability group to inspect the hotel.
Alternatively, the employer could ensure that the contract with the
hotel specifies it will provide accessible guest rooms for those who
need them and that all rooms to be used for the conference, including
exhibit and meeting rooms, are accessible. If the hotel breaches this
accessibility provision, the hotel may be liable to the employer, under
a non-ADA breach of contract theory, for the cost of any accommodation
needed to provide access to the hotel and conference, and for any other
costs accrued by the employer. (In addition, the hotel may also be
independently liable under title III of the ADA). However, this would
not relieve the employer of its responsibility under this part nor
shield it from charges of discrimination by its own

[[Page 380]]

employees. See House Labor Report at 40; House Judiciary Report at 37.

  Section 1630.8 Relationship or Association With an Individual With a
                               Disability

    This provision is intended to protect any qualified individual,
whether or not that individual has a disability, from discrimination
because that person is known to have an association or relationship with
an individual who has a known disability. This protection is not limited
to those who have a familial relationship with an individual with a
disability.
    To illustrate the scope of this provision, assume that a qualified
applicant without a disability applies for a job and discloses to the
employer that his or her spouse has a disability. The employer thereupon
declines to hire the applicant because the employer believes that the
applicant would have to miss work or frequently leave work early in
order to care for the spouse. Such a refusal to hire would be prohibited
by this provision. Similarly, this provision would prohibit an employer
from discharging an employee because the employee does volunteer work
with people who have AIDS, and the employer fears that the employee may
contract the disease.
    This provision also applies to other benefits and privileges of
employment. For example, an employer that provides health insurance
benefits to its employees for their dependents may not reduce the level
of those benefits to an employee simply because that employee has a
dependent with a disability. This is true even if the provision of such
benefits would result in increased health insurance costs for the
employer.
    It should be noted, however, that an employer need not provide the
applicant or employee without a disability with a reasonable
accommodation because that duty only applies to qualified applicants or
employees with disabilities. Thus, for example, an employee would not be
entitled to a modified work schedule as an accommodation to enable the
employee to care for a spouse with a disability. See Senate Report at
30; House Labor Report at 61-62; House Judiciary Report at 38-39.

           Section 1630.9 Not Making Reasonable Accommodation

    The obligation to make reasonable accommodation is a form of non-
discrimination. It applies to all employment decisions and to the job
application process. This obligation does not extend to the provision of
adjustments or modifications that are primarily for the personal benefit
of the individual with a disability. Thus, if an adjustment or
modification is job-related, e.g., specifically assists the individual
in performing the duties of a particular job, it will be considered a
type of reasonable accommodation. On the other hand, if an adjustment or
modification assists the individual throughout his or her daily
activities, on and off the job, it will be considered a personal item
that the employer is not required to provide. Accordingly, an employer
would generally not be required to provide an employee with a disability
with a prosthetic limb, wheelchair, or eyeglasses. Nor would an employer
have to provide as an accommodation any amenity or convenience that is
not job-related, such as a private hot plate, hot pot or refrigerator
that is not provided to employees without disabilities. See Senate
Report at 31; House Labor Report at 62.
    It should be noted, however, that the provision of such items may be
required as a reasonable accommodation where such items are specifically
designed or required to meet job-related rather than personal needs. An
employer, for example, may have to provide an individual with a
disabling visual impairment with eyeglasses specifically designed to
enable the individual to use the office computer monitors, but that are
not otherwise needed by the individual outside of the office.
    The term ``supported employment,'' which has been applied to a wide
variety of programs to assist individuals with severe disabilities in
both competitive and non-competitive employment, is not synonymous with
reasonable accommodation. Examples of supported employment include
modified training materials, restructuring essential functions to enable
an individual to perform a job, or hiring an outside professional (``job
coach'') to assist in job training. Whether a particular form of
assistance would be required as a reasonable accommodation must be
determined on an individualized, case by case basis without regard to
whether that assistance is referred to as ``supported employment.'' For
example, an employer, under certain circumstances, may be required to
provide modified training materials or a temporary ``job coach'' to
assist in the training of a qualified individual with a disability as a
reasonable accommodation. However, an employer would not be required to
restructure the essential functions of a position to fit the skills of
an individual with a disability who is not otherwise qualified to
perform the position, as is done in certain supported employment
programs. See 34 CFR part 363. It should be noted that it would not be a
violation of this part for an employer to provide any of these personal
modifications or adjustments, or to engage in supported employment or
similar rehabilitative programs.
    The obligation to make reasonable accommodation applies to all
services and programs provided in connection with employment, and to all
non-work facilities provided or maintained by an employer for use by its

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employees. Accordingly, the obligation to accommodate is applicable to
employer sponsored placement or counseling services, and to employer
provided cafeterias, lounges, gymnasiums, auditoriums, transportation
and the like.
    The reasonable accommodation requirement is best understood as a
means by which barriers to the equal employment opportunity of an
individual with a disability are removed or alleviated. These barriers
may, for example, be physical or structural obstacles that inhibit or
prevent the access of an individual with a disability to job sites,
facilities or equipment. Or they may be rigid work schedules that permit
no flexibility as to when work is performed or when breaks may be taken,
or inflexible job procedures that unduly limit the modes of
communication that are used on the job, or the way in which particular
tasks are accomplished.
    The term ``otherwise qualified'' is intended to make clear that the
obligation to make reasonable accommodation is owed only to an
individual with a disability who is qualified within the meaning of
Sec. 1630.2(m) in that he or she satisfies all the skill, experience,
education and other job-related selection criteria. An individual with a
disability is ``otherwise qualified,'' in other words, if he or she is
qualified for a job, except that, because of the disability, he or she
needs a reasonable accommodation to be able to perform the job's
essential functions.
    For example, if a law firm requires that all incoming lawyers have
graduated from an accredited law school and have passed the bar
examination, the law firm need not provide an accommodation to an
individual with a visual impairment who has not met these selection
criteria. That individual is not entitled to a reasonable accommodation
because the individual is not ``otherwise qualified'' for the position.
    On the other hand, if the individual has graduated from an
accredited law school and passed the bar examination, the individual
would be ``otherwise qualified.'' The law firm would thus be required to
provide a reasonable accommodation, such as a machine that magnifies
print, to enable the individual to perform the essential functions of
the attorney position, unless the necessary accommodation would impose
an undue hardship on the law firm. See Senate Report at 33-34; House
Labor Report at 64-65.
    The reasonable accommodation that is required by this part should
provide the qualified individual with a disability with an equal
employment opportunity. Equal employment opportunity means an
opportunity to attain the same level of performance, or to enjoy the
same level of benefits and privileges of employment as are available to
the average similarly situated employee without a disability. Thus, for
example, an accommodation made to assist an employee with a disability
in the performance of his or her job must be adequate to enable the
individual to perform the essential functions of the relevant position.
The accommodation, however, does not have to be the ``best''
accommodation possible, so long as it is sufficient to meet the job-
related needs of the individual being accommodated. Accordingly, an
employer would not have to provide an employee disabled by a back
impairment with a state-of-the art mechanical lifting device if it
provided the employee with a less expensive or more readily available
device that enabled the employee to perform the essential functions of
the job. See Senate Report at 35; House Labor Report at 66; see also
Carter v. Bennett, 840 F.2d 63 (DC Cir. 1988).
    Employers are obligated to make reasonable accommodation only to the
physical or mental limitations resulting from the disability of a
qualified individual with a disability that is known to the employer.
Thus, an employer would not be expected to accommodate disabilities of
which it is unaware. If an employee with a known disability is having
difficulty performing his or her job, an employer may inquire whether
the employee is in need of a reasonable accommodation. In general,
however, it is the responsibility of the individual with a disability to
inform the employer that an accommodation is needed. When the need for
an accommodation is not obvious, an employer, before providing a
reasonable accommodation, may require that the individual with a
disability provide documentation of the need for accommodation.
    See Senate Report at 34; House Labor Report at 65.

     Process of Determining the Appropriate Reasonable Accommodation

    Once a qualified individual with a disability has requested
provision of a reasonable accommodation, the employer must make a
reasonable effort to determine the appropriate accommodation. The
appropriate reasonable accommodation is best determined through a
flexible, interactive process that involves both the employer and the
qualified individual with a disability. Although this process is
described below in terms of accommodations that enable the individual
with a disability to perform the essential functions of the position
held or desired, it is equally applicable to accommodations involving
the 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:

[[Page 382]]

    (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. 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

[[Page 383]]

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 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-

[[Page 384]]

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.
    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

[[Page 385]]

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 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

[[Page 386]]

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
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.

[[Page 387]]

    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.

             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

[[Page 388]]

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.

    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

[[Page 389]]

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 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

[[Page 390]]

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 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]