1630.1 Purpose, applicability, and construction.  
  (a)  Purpose. The purpose of this part is to implement title I of the
Americans with Disabilities Act (42 U.S.C.  12101, et seq.) (ADA), requiring
equal employment opportunities for qualified individuals with disabilities, and
sections 3(2), 3(3), 501, 503, 506(e), 508, 510, and 511 of the ADA as those
sections pertain to the employment of qualified individuals with disabilities. 

 
 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.  
 
(b) Applicability. This part applies to 
covered entities  as defined at section 1630.2(b). 
 
(c) Construction. 
       (1) In general. Except as otherwise provided in this part, this part does
not apply a lesser standard than the standards applied under title V of the
Rehabilitation Act of 1973 (29 U.S.C. 790 - 794a), or the regulations issued by
Federal agencies pursuant to that title. 
       (2) Relationship to other laws. This part does not invalidate or limit
the remedies, rights, and procedures of any Federal law or law of any State or
political subdivision of any State or jurisdiction that provides greater or
equal protection for the rights of individuals with disabilities than are
afforded by this part.  
 
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 culd 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 schools 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. 

1630.2 Definitions. 
  (a)  Commission means the Equal Employment Opportunity Commission established
by Section 705 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-4). 
 
  (b)  Covered Entity means an employer, employment agency, labor organization,
or joint labor management committee. 
 
  (c)  Person, labor organization, employment agency, commerce and industry
affecting commerce shall have the same meaning given those terms in Section 701
of the Civil Rights Act of 1964 (42 U.S.C. 2000e). 
 
  (d)  State means each of the several States, the District of Columbia, the
Commonwealth of Puerto Rico, Guam, American Samoa, the Virgin Islands, the Trust
Territory of the Pacific Islands, and the Commonwealth of the Northern Mariana
Islands. 
 
  (e)  Employer.  (1) In general.  The term 
employer  means a person engaged in an industry affecting commerce who has 15
or more employees for each working day in each of 20 or more calendar weeks in
the current or preceding calendar year, and any agent of such person, except
that, from July 26, 1992 through July 25, 1994, an employer means a person
engaged in an industry affecting commerce who has 25 or more employees for each
working day in each of 20 or more calendar weeks in the current or preceding
year and any agent of such person.  
 
  (2)  Exceptions. The  term  employer  does  not include  
 
  (i)   the United States, a corporation wholly owned by the government of the
United States, or an Indian tribe; or  
 
  (ii)  a bona fide private membership club (other than a labor organization)
that is exempt from taxation under Section 501(c) of the Internal Revenue Code
of 1986. 
 
  (f)  Employee means an individual employed by an employer.
 
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
ADAs 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 re
also covered by this part. Title II, which is enforced by the Department of
Justice, becomes effective on January 26, 1992.  See 28 CFR part 35. 
 
The term 
covered entity  is not found in title VII. However, the title VII definitions
of the entities included in the term 
covered entity  (e.g., employer, employment agency, etc.) are applicable to the
ADA. 
 
(g)    Disability means, with respect to an  
individual  
 
  (1)   a physical or mental impairment that substantially limits one or more
of the major life activities of such individual;  
 
  (2)   a record of such an impairment; or  
 
  (3)  being regarded as having such an impairment. 
 (See section 1630.3 for exceptions to this definition). 

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 persons 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.  
 
(h)    Physical or mental impairment means: 
 
  (1)  Any physiological disorder, or condition, cosmetic disfigurement, or
anatomical loss affecting one or more of the following body systems:
neurological, musculoskeletal, special sense organs, respiratory (including
speech organs), cardiovascular, reproductive, digestive, genito-urinary, hemic
and lymphatic, skin, and endocrine; or  
 
  (2)   Any mental or psychological disorder, such as mental retardation,
organic brain syndrome, emotional or mental illness, and specific learning
disabilities. 

 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. 
 
The existence of an impairment is to be determined without regard to mitigating
measures such as medicines, or assistive or prosthetic devices. See Senate
Report at 23; House Labor Report at 52; House Judiciary Report at 28. For
example, an individual with epilepsy would be considered to have an impairment
even if the symptoms of the disorder were completely controlled by medicine.
Similarly, an individual with hearing loss would be considered to have an
impairment even if the condition were correctable through the use of a hearing
aid.  
  
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 mpairments. 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.  

  (i)  Major Life Activities means functions such as caring for oneself,
performing manual tasks, walking, seeing, hearing, speaking, breathing,
learning, and working.  
 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. 

(j)    Substantially limits.  (1) The term 
substantially limits  means: 
 
  (i)   Unable to perform a major life activity that the average person in the
general population can perform; or  
 
  (ii)      Significantly restricted as to the condition, manner or duration
under which an individual can perform a particular major life activity as
compared to the condition, manner, or duration under which the average person
in the general population can perform that same major life activity. 
 
  (2)   The following factors should be considered in determining whether an
individual is substantially limited in a major life activity: 
                      (i)  The nature and severity of the impairment; 
                      (ii)  The duration or expected duration of the impairment;
and 
                      (iii)     The permanent or long term impact, or the
expected permanent or long term impact of or resulting from the impairment. 
 
  (3)  With respect to the major life activity of 

working    
 
  (i)  The term 
substantially limits  means significantly restricted in the ability to perform
either a class of jobs or a broad range of jobs in various classes as compared
to the average person having comparable training, skills and abilities. The
inability to perform a single, particular job does not constitute a substantial
limitation in the major life activity of working. 
 
  (ii)      In addition to the factors listed in paragraph (j)(2) of this
section, the following factors may be considered in determining whether an
individual is substantially limited in the major life activity of 
working : 
 
  (A)  The geographical area to which the individual has reasonable access; 
 
  (B)  The job from which the individual has been disqualified because of an
impairment, and the number and types of jobs utilizing similar training,
knowledge, skills or abilities, within that geographical area, from which the
individual is also disqualified because of the impairment (class of jobs);
and/or 
 
  (C)  The job from which the individual has been disqualified because of an
impairment, and the number and types of 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).   
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 impairmens
do not impact an individuals 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 individuals major life activities.
Multiple impairments that combine to substantially limit one or more of an
individuals major life activities also constitute a disability.  

The ADA and this part, like the Rehabilitation Act of 1973, do not attempt a 
laundry list  of impairments that are 
disabilities.  The determination of whether an individual has a disability is
not necessarily based on the name or diagnosis of the impairment the person has,
but rather on the effect of that impairment on the life of the individual. Some
impairments may be disabling for particular individuals but not for others,
depending on the stage of the disease or disorder, the presence of other
impairments that combine to make the impairment disabling or any number of other
factors. Other impairments, however, such as HIV infection, are inherently
substantially limiting.  
 
On the other hand, temporary, non-chronic impairments of short duration, with
little or no long term or permanent impact, are usually not disabilities. Such
impairments may include, but are not limited to, broken limbs, sprained joints,
concussions, appendicitis, and influenza.  Similarly, except in rare
circumstances, obesity is not considered a disabling impairment. 
 
An impairment that prevents an individual from performing a major life activity
substantially limits that major life activity. For example, an individual whose
legs are paralyzed is substantially limited in the major life activity of
walking because he or she is unable, due to the impairment, to perform that
major life activity.  
 
Alternatively, an impairment is substantially limiting if it significantly
restricts the duration, manner or condition under which an individual can
perform a particular major life activity as compared to the average person in
the general populations 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. An individual who uses artificial legs would likewise be
substantially limited in the major life activity of walking because the
individual is unable to walk without the aid of prosthetic devices. Similarly,
a diabetic who without insulin would lapse into a coma would be substantially
limited because the individual cannot  perform major life activities without the
aid of medication. See Senate Report at 23; House Labor Report at 52. It should
be noted that the term 
average person  is not intended to imply a precise mathematical 
average.   
 
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, without regard to mitigating
measures such as medicines, or assistive or prosthetic devices. 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 f 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 individuals 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 individuals ability to perform the major life activity of
working should be considered. If an individual is substantially limited in any
other major life activity, no determination should be made as to whether the
individual is substantially limited in working. For example, if an individual
is blind, i.e., substantially limited in the major life activity of seeing,
there is no need to determine whether the individual is also substantially
limited in the major life activity of working. The determination of whether an
individual is substantially limited in working must also be made on a case by
case basis.  

 This part lists specific factors that may be used in making the determination
of whether the limitation in working is 
substantial.  These factors are: 
 
(1) the geographical area to which the individual has reasonable access; 
 
(2) the job from which the individual has been disqualified because of an
impairment, and the number and types of jobs utilizing similar training,
knowledge, skills or abilities, within that geographical area, from which the
individual is also disqualified because of the impairment (class of jobs);
and/or 
 
(3) the job from which the individual has been disqualified because of an
impairment, and the number and types of other jobs not utilizing similar
training, knowledge, skills or abilities, within that geographical area, from
which the individual is also disqualified because of the impairment (broad range
of jobs in various classes).   
  
Thus, an individual is not substantially limited in working just because he or
she is unable to perform a particular job for one employer, or because he or she
is unable to perform a specialized job or profession requiring extraordinary
skill, prowess or talent. For example, an individual who cannot be a commercial
airline pilot because of a minor vision impairment, but who can be a commercial
airline co-pilot or a pilot for a courier service, would not be substantially
limited in the major life activity of working. Nor would a professional baseball
pitcher who develops a bad elbow and can no longer throw a baseball be
considered substantially limited in the major life activity of working. In both
of these examples, the individuals are not substantially limited in the ability
to perform any other major life activity and, with regard to the major life
activity of working, are only unable to perform either a particular specialized
job or a narrow range of jobs. See Forrisi v. Bowen, 794 F.2d 931 (4th Cir.
1986); Jasany v. U.S. Postal Service, 755 F.2d 1244 (6th Cir. 1985); E.E Black,
Ltd. v. Marshall, 497 F. Supp. 1088 (D. Hawaii 1980). 
 
On the other hand, an individual does not have to be totally unable to work in
order to be considered substantially limited in the major life activity of
working. An individual is substantially limited in working if the individual is
significantly restricted in the ability to perform a class of jobs or a broad
range of jobs in various classes, when compared with the ability of the average
person with comparable qualifications to perform those same jobs. For example,
an individual who has a back condition that prevents the individual from
performing any heavy labor job would be substantially imited in the major life
activity of working because the individuals 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. 

 
(k)    Has a record of such impairment means has a history of, or has been
misclassified as having, a mental or physical impairment that substantially
limits one or more major life activities. 
 
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 individuals 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 individuals major life
activities.   
  
(l)    Is regarded as having such an impairment means: 
  (1)  Has a physical or mental impairment that does not substantially limit
major life activities but is treated by a covered enity as constituting such
limitation;  
 
  (2)  Has a physical or mental impairment that substantially limits major life
activities only as a result of the attitudes of others toward such impairment;
or  
 
  (3)  Has none of the impairments defined in paragraphs (h)(1) or (2) of this
section but is treated by a covered entity as having a substantially limiting
impairment.  
 
Section 1630.2(l) Regarded as Substantially Limited in a Major Life Activity 
If an individual cannot satisfy either the first part of the definition of 
disability  or the second 
record of  part of the definition, he or she may be able to satisfy the third
part of the definition. The third part of the definition provides that an
individual who is regarded by an employer or other covered entity as having an
impairment that substantially limits a major life activity is an individual with
a disability.  
 
There are three different ways in which an individual may satisfy the definition
of 
being regarded as having a disability :       
    
(1) The individual may have an impairment which is not substantially limiting
but is perceived by the employer or other covered entity as constituting a
substantially limiting impairment;  
 
(2) the individual may have an impairment which is only substantially limiting
because of the attitudes of others toward the impairment; or  
 
(3) the individual may have no impairment at all but is regarded by the employer
or other covered entity as having a substantially limiting impairment.  
Senate Report at 23; House Labor Report at 53; House Judiciary Report at 29. 
 
An individual satisfies the first part of this definition if the individual has
an impairment that is not substantially limiting, but the covered entity
perceives the impairment as being substantially limiting. For example, suppose
an employee has controlled high blood pressure that is not substantially
limiting. If an employer reassigns the individual to less strenuous work because
of unsubstantiated fears that the individual will suffer a heart attack if he
or she continues to perform strenuous work, the employer would be regarding the
individual as disabled. 
 
An individual satisfies the second part of the 
regarded as  definition if the individual has an impairment that is only
substantially limiting because of the attitudes of others toward the condition.
For example, an individual may have a prominent facial scar or disfigurement,
or may have a condition that periodically causes an involuntary jerk of the head
but does not limit the individuals 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 persons physical or mental capabilities,
but could nevertheless substantially limit that persons ability to work as a
result of the negative reactions of others to the impairment.   480 U.. at 283. 
The Court concluded that by including 
regarded as  in the Rehabilitation Acts definition, 
Congress acknowledged that societys 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 sterotypes  associated with disabilities would be covered under
this part of the definition of disability, whether or not the employers or other
covered entitys perception were shared by others in the field and whether or not
the individuals 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. 
 
  (m)       Qualified individual with a disability means an individual with a
disability who satisfies the requisite skill, experience, education and other
job-related requirements of the employment position such individual holds or
desires, and who, with or without reasonable accommodation, can perform the
essential functions of such position. (See section 1630.3 for exceptions to this
definition). 
 
Section 1630.2(m) Qualified Individual with a Disability 
The ADA prohibits discrimination on the basis of disability against qualified
individuals with disabilities. The determination of whether an individual with
a disability is 
qualified  should be made in two steps. The first step is to determine if the
individual satisfies the prerequisites for the position, such as possessing the
appropriate educational background, employment experience, skills, licenses,
etc. For example, the first step in determining whether an accountant who is
paraplegic is qualified for a certified public accountant (CPA) position is to
examine the individuals 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 section 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
perform 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.  

(n)    Essential functions. - 
 
  (1)  In general. The term 
essential functions  means the fundamental job duties of the employment position
the individual with a disability holds o desires. The term 
essential functions  does not include the marginal functions of the position. 
 
  (2)  A job function may be considered essential for any of several reasons,
including but not limited to the following: 
 
  (i)  The function may be essential because the reason the position exists is
to perform that function;  
 
  (ii)      The function may be essential because of the limited number of
employees available among whom the performance of that job function can be
distributed; and/or 
 
  (iii)     The function may be highly specialized so that the incumbent in the
position is hired for his or her expertise or ability to perform the particular
function. 
 
  (3)   Evidence of whether a particular function is essential includes, but is
not limited to: 
 
  (i)  The employers judgment as to which functions are essential; 
  (ii)      Written job descriptions prepared before advertising or interviewing
applicants for the job; 
 
  (iii)     The amount of time spent on the job performing the function; 
 
  (iv)      The consequences of not requiring the incumbent to perform the
function; 
 
  (v)  The terms of a collective bargaining agreement; 
 
  (vi)      The work experience of past incumbents in the job; and/or  
 
  (vii)      The current work experience of incumbents in similar jobs.   
 
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 employers flexibility in
reorganizing operating rocedures. See Dexler v. Tisch, 660 F. Supp. 1418 (D.
Conn. 1987). 
 
The third factor is the degree of expertise or skill required to perform the
function. In certain professions and highly skilled positions the employee is
hired for his or her expertise or ability to perform the particular function.
In such a situation, the performance of that specialized task would be an
essential function.  
 
Whether a particular function is essential is a factual determination that must
be made on a case by case basis. In determining whether or not a particular
function is essential, all relevant evidence should be considered. Part 1630
lists various types of evidence, such as an established job description, that
should be considered in determining whether a particular function is essential.
Since the list is not exhaustive, other relevant evidence may also be presented.
Greater weight will not be granted to the types of evidence included on the list
than to the types of evidence not listed.   
 
Although part 1630 does not require employers to develop or maintain job
descriptions, written job descriptions prepared before advertising or
interviewing applicants for the job, as well as the employers 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 employers business judgment with regard to
production standards, whether qualitative or quantitative, nor to require
employers to lower such standards. (See section 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. 
 
(o)    Reasonable accommodation.  (1) The term 
reasonable accommodation  means: 
  
  (i)  Modifications or adjustments to a job application process that enable a
qualified applicant with a disability to be considered for the position such
qualified applicant desires; or 
 
  (ii)      Modifications or adjustments to the work environment, or to the
manner or circumstances under which the position held or desired is customarily
performed, that enable a qualified individual with  disability to perform the
essential functions of that position; or 
 
  (iii)     Modifications or adjustments that enable a covered entitys employee
with a disability to enjoy equal benefits and privileges of employment as are
enjoyed by its other similarly situated employees without disabilities.  
 
  (2)  Reasonable accommodation may include but is not limited to: 
 
  (i)  Making existing facilities used by employees readily accessible to and
usable by individuals with disabilities; and 
 
  (ii)      Job restructuring; part-time or modified work schedules;
reassignment to a vacant position; acquisition or modifications of equipment or
devices; appropriate adjustment or modifications of examinations, training
materials, or policies; the provision of qualified readers or interpreters; and
other similar accommodations for individuals with disabilities. 
 
  (3)  To determine the appropriate reasonable accommodation it may be necessary
for the covered entity to initiate an informal, interactive process with the
qualified individual with a disability in need of the accommodation. This
process should identify the precise limitations resulting from the disability
and potential reasonable accommodations that could overcome those limitations. 
 
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 employers employees with disabilities to perform
the essential functions of the position held or desired; and (3) accommodations
that enable the employers employees with disabilities to enjoy equal benefits
and privileges of employment as are enjoyed by employees without disabilities. 
It should be noted that nothing in this part prohibits employers or other
covered entities from providing accommodations beyond those required by this
part.  
 
Part 1630 lists the examples, specified in title I of the ADA, of the most
common types of accommodation that an employer or other covered entity may be
required to provide. There are any number of other specific accommodations that
may be appropriate for particular situations but are not specifically mentioned
in this listing. This listing is not intended to be exhaustive of accommodation
possibilities. For example, other accommodations could include permitting the
use of accrued paid leave or providing additional unpaid leave for necessary
treatment, making employer provided transportation accessible, and providing
reserved parking spaces. Providing personal assistants, such as a page turner
for an employee with no hands or a travel attendant to act as a sighted guide
to assist a blind employee on occasional business trips, may also be a
reasonable accommodation. Senate Report at 31; House Labor Report at 62; House
Judiciary Report at 39.  
 
It may also be a reasonable accommodation to permit an individual with a
disability the opportunity to provide and utilize equipment, aids or services
that an employer is not required to provide as a reasonable accommodation. For
example, it would be a reasonable accommodation for an employer to permit an
individual who is blind to use a guide dog at work, even though the employer
would not be required to provide a guide dog for the employee.  
 
The accommodations included on the list of reasonable accommodations are
generally self explanatory. However, there are a few that require further
explanation. One of these is the accommodation of making existing facilities
used by employees readily accessible to, and usable by, individuals with
disabilities. This accommodation includes both those areas that must be
accessible for the employee to perform essential job functions, as well as
non-work areas used by the employers employees fr 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 individuals 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 n 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 section 1630.9 Not Making Reasonable Accommodation. 

(p)    Undue hardship.   
 
  (1)   In general. 
Undue hardship  means, with respect to the provision of an accommodation,
significant difficulty or expense incurred by a covered entity, when considered
in light of the factors set forth in paragraph (p)(2) of this section. 
 
  (2)  Factors to be considered. In determining whether an accommodation would
impose an undue hardship on a covered entity, factors to be considered include: 
 
  (i)  The nature and net cost of the accommodation needed under this part,
taking into consideration the availability of tax credits and deductions, and/or
outside funding; 
 
  (ii)      The overall financial resources of the facility or facilities
involved in the provision of the reasonable accommodation, the number of persons
employed at such facility, and the effect on expenses and resources;  
 
  (iii)     The overall financial resources of the covered entity, the overall
size of the business of the covered entity with respect to the number of its
employees, and the number, type and location of its facilities;   
 
  (iv)      The type of operation or operations of the covered entity, including
the composition, structure and functions of the workforce of such entity, and
the geographic separateness and administrative or fiscal relationship of the
facility or facilities in question to the covered entity; and 
 
  (v)  The impact of the accommodation upon the operation of the facility,
including the impact on the ability of other employees to perform their duties
and the impact on the facilitys ability to conduct business.          
                                                      
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 employers or other
covered entitys business. The term 
undue hardship  means significant difficulty or expense in, or resulting from,
the provision of the accommodation. The 
undue hardship  provision takes into account the financial realities of the
particular employer or other covered entity. However, the concept of undue
hardship is not limited to financial difficulty. 
Undue hardship  refers to any accommodation that would be unduly costly,
extensive, substantial, or disruptive, or that would fundamentally alter the
nature or operation of the business. See Senate Report at 35; House Labor Report
at 67. 
 
For example, suppose an individual with a disabling visual impairment that makes
it extremely difficult to see in dim lighting applies for a position as a waiter
in a nightclub and requests that the club be brightly lit as a reasonable
accommodation. Although the individual may be able to perform the job in bright
lighting, the nightclub will probably be able to demonstrate that that
particular accommodation, though inexpensive, would impose an undue hardship if
the bright lighting would destroy the ambience of the nightclub and/or make it
difficult for the customers to see the stage show. The fact that that particular
accommodation poses an undue hardship, however, only means that the employer is
not required to provide that accommodation. If there is another accommodation
that will not create an undue hardship, the employer would be required to
provide the alternative accommodation.  
 
An employers 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 he 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 section 1630.9 Not Making Reasonable
Accommodation). See Senate Report at 36; House Labor Report at 69.  

(q)     Qualification standards means the personal and professional attributes
including the skill, experience, education, physical, medical, safety and other
requirements established by a covered entity as requirements which an individual
must meet in order to be eligible for the position held or desired.  
 
(r)    Direct Threat means a significant risk of substantial harm to the health
or safety of the individual or others that cannot be eliminated or reduced by
reasonable accommodation. The determination that an individual poses a 
direct threat  shall be based on an individualized assessment of the individuals
present ability to safely perform the essential functions of the job. This
assessment shall be based on a reasonable medical judgment that relies on the
most current medical knowledge and/or on the best available objective evidence. 
In determining whether an individual would pose a direct threat, the factors to
be considered include: 
 
  (1)  The duration of the risk; 
 
  (2)   The nature and severity of the potential harm;  
 
  (3)  The likelihood that the potential harm will occur; and 
 
  (4)   The imminence of the potential harm. 

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 ith 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 Labor Report at 56-57; House Judiciary Report at
45.  
 
Determining whether an individual poses a significant risk of substantial harm
to others must be made on a case by case basis. The employer should identify the
specific risk posed by the individual. For individuals with mental or emotional
disabilities, the employer must identify the specific behavior on the part of
the individual that would pose the direct threat. For individuals with physical
disabilities, the employer must identify the aspect of the disability that would
pose the direct threat. The employer should then consider the four factors
listed in part 1630:  
 
(1) the duration of the risk; 
(2) the nature and severity of the potential harm;   
(3) the likelihood that the potential harm will occur; and 
(4) the imminence of the potential harm. 
 
Such consideration must rely on objective, factual evidence - - not on
subjective perceptions, irrational fears, patronizing attitudes, or stereotypes
- - about the nature or effect of a particular disability, or of disability
generally. See Senate Report at 27; House Labor Report at 56-57; House Judiciary
Report at 45-46. See also Strathie v. Department of Transportation, 716 F.2d 227
(3d Cir. 1983). Relevant evidence may include input from the individual with a
disability, the experience of the individual with a disability in previous
similar positions, and opinions of medical doctors, rehabilitation counselors,
or physical therapists who have expertise in the disability involved and/or
direct knowledge of the individual with the disability. 
 
An employer is also permitted to require that an individual not pose a direct
threat of harm to his or her own safety or health. If performing the particular
functions of a job would result in a high probability of substantial harm to the
individual, the employer could reject or discharge the individual unless a
reasonable accommodation that would not cause an undue hardship would avert the
harm. For example, an employer would not be required to hire an individual,
disabled by narcolepsy, who frequently and unexpectedly loses consciousness for
a carpentry job the essential functions of which require the use 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 individuals 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. Deartment of Labor, 694 F.2d 619 (9th Cir. 1982).                        
                                       
 
1630.3 Exceptions to the definitions of 
Disability  and 
Qualified Individual with a Disability.  
  (a)  The terms disability and qualified individual with a disability do not
include individuals currently engaging in the illegal use of drugs, when the
covered entity acts on the basis of such use. 
 
  (1)  Drug means a controlled substance, as defined in schedules I through V
of Section 202 of the Controlled Substances Act (21 U.S.C 812).  
 
  (2)  Illegal use of drugs means the use of drugs the possession or
distribution of which is unlawful under the Controlled Substances Act, as
periodically updated by the Food and Drug Administration. This term does not
include the use of a drug taken under the supervision of a licensed health care
professional, or other uses authorized by the Controlled Substances Act or other
provisions of Federal law. 
  
  (b)  However, the terms 
disability  and 
qualified  individual with a disability may not exclude an individual who: 
 
  (1)  Has successfully completed a supervised drug rehabilitation program and
is no longer engaging in the illegal use of drugs, or has otherwise been
rehabilitated successfully and is no longer engaging in the illegal use of
drugs; or 

  (2)   Is participating in a supervised rehabilitation program and is no longer
engaging in such use; or  
 
  (3)  Is erroneously regarded as engaging in such use, but is not engaging in
such use.  
 
  (c)  It shall not be a violation of this part for a covered entity to adopt
or administer reasonable policies or procedures, including but not limited to
drug testing, designed to ensure that an individual described in paragraph
(b)(1) or (2) of this section is no longer engaging in the illegal use of drugs. 
(See section 1630.16(c) Drug testing).  
 
  (d)  Disability does not include: 
 
  (1)  Transvestism, transsexualism, pedophilia, exhibitionism, voyeurism,
gender identity disorders not resulting from physical impairments, or other
sexual behavior disorders; 
 
  (2)  Compulsive gambling, kleptomania, or pyromania; or 
 
  (3)   Psychoactive substance use disorders resulting from current illegal use
of drugs.  
 
  (e)  Homosexuality and bisexuality are not impairments and so are not
disabilities as defined in this part. 
 
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 a Narcotics Anonymous, or other programs that provide
professional (not necessarily medical) assistance and counseling for individuals
who illegally use drugs. See Conference Report at 64; see also House Labor
Report at 77; House Judiciary Report at 47. 
 
It should be noted that this provision simply provides that certain individuals
are not excluded from the definitions of 
disability  and 
qualified individual with a disability.  Consequently, such individuals are
still required to establish that they satisfy the requirements of these
definitions in order to be protected by the ADA and this part. An individual
erroneously regarded as illegally using drugs, for example, would have to show
that he or she was regarded as a drug addict in order to demonstrate that he or
she meets the definition of 
disability  as defined in this part.   
 
Employers are entitled to seek reasonable assurances that no illegal use of
drugs is occurring or has occurred recently enough so that continuing use is a
real and ongoing problem. The reasonable assurances that employers may ask
applicants or employees to provide include evidence that the individual is
participating in a drug treatment program and/or evidence, such as drug test
results, to show that the individual is not currently engaging in the illegal
use of drugs. An employer, such as a law enforcement agency, may also be able
to impose a qualification standard that excludes individuals with a history of
illegal use of drugs if it can show that the standard is job-related and
consistent with business necessity. (See section 1630.10 Qualification
Standards, Tests and Other Selection Criteria) See Conference Report at 64.   

1630.4 Discrimination prohibited.  
  It is unlawful for a covered entity to discriminate on the basis of disability
against a qualified individual with a disability in regard to: 
 
  (a)  Recruitment, advertising, and job application procedures;  
 
  (b)  Hiring, upgrading, promotion, award of tenure, demotion, transfer,
layoff, termination, right of return from layoff, and rehiring; 
 
  (c)  Rates of pay or any other form of compensation and changes in
compensation; 
 
  (d)  Job assignments, job classifications, organizational structures, position
descriptions, lines of progression, and seniority lists; 
 
  (e)  Leaves of absence, sick leave, or any other leave; 
 
  (f)  Fringe benefits available by virtue of employment, whether or not
administered by the covered entity; 
 
  (g)  Selection and financial support for training, including: apprenticeships,
professional meetings, conferences and other related activities, and selection
for leaves of absence to pursue training; 
  (h)  Activities sponsored by a covered entity including social and
recreational programs; and 
 
  (i)  Any other term, condition, or privilege of employment.  
 
  The term 
discrimination  includes, but is not limited to, the acts described in sections
1630.5 through 1630.13 of this part. 
 
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.  

1630.5 Limiting, segregating, and classifying.  
  It is unlawful for a covered entity to limit, segregate, or classify a job
applicant or employee in a way that adversely affects his or her employment
opportunities or status on the basis of disability. 
 
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
section 1630.4. overed entities are prohibited from restricting the employment
opportunities of qualified individuals with disabilities on the basis of
stereotypes and myths about the individuals disability. Rather, the capabilities
of qualified individuals with disabilities must be determined on an
individualized, case by case basis. Covered entities are also prohibited from
segregating qualified employees with disabilities into separate work areas or
into separate lines of advancement. 
 
Thus, for example, it would be a violation of this part for an employer to limit
the duties of an employee with a disability based on a presumption of what is
best for an individual with such a disability, or on a presumption about the
abilities of an individual with such a disability.  It would be a violation of
this part for an employer to adopt a separate track of job promotion or
progression for employees with disabilities based on a presumption that
employees with disabilities are uninterested in, or incapable of, performing
particular jobs.  Similarly, it would be a violation for an employer to assign
or reassign (as a reasonable accommodation) employees with disabilities to one
particular office or installation, or to require that employees with
disabilities only use particular employer provided non-work facilities such as
segregated break-rooms, lunch rooms, or lounges.  It would also be a violation
of this part to deny employment to an applicant or employee with a disability
based on generalized fears about the safety of an individual with such a
disability, or based on generalized assumptions about the absenteeism rate of
an individual with such a disability. 
 
In addition, it should also be noted that this part is intended to require that
employees with disabilities be accorded equal access to whatever health
insurance coverage the employer provides to other employees.  This part does
not, however, affect pre-existing condition clauses included in health insurance
policies offered by employers. Consequently, employers may continue to offer
policies that contain such clauses, even if they adversely affect individuals
with disabilities, so long as the clauses are not used as a subterfuge to evade
the purposes of this part.   
 
So, for example, it would be permissible for an employer to offer an insurance
policy that limits coverage for certain procedures or treatments to a specified
number per year. Thus, if a health insurance plan provided coverage for five
blood transfusions a year to all covered employees, it would not be
discriminatory to offer this plan simply because a hemophiliac employee may
require more than five blood transfusions annually.  However, it would not be
permissible to limit or deny the hemophiliac employee coverage for other
procedures, such as heart surgery or the setting of a broken leg, even though
the plan would not have to provide coverage for the additional blood
transfusions that may be involved in these procedures. Likewise, limits may be
placed on reimbursements for certain procedures or on the types of drugs or
procedures covered (e.g. limits on the number of permitted X-rays or
non-coverage of experimental drugs or procedures), but that limitation must be
applied equally to individuals with and without disabilities. See Senate Report
at 28-29; House Labor Report at 58-59; House Judiciary Report at 36. 
 
Leave policies or benefit plans that are uniformly applied do not violate this
part simply because they do not address the special needs of every individual
with a disability. Thus, for example, an employer that reduces the number of
paid sick leave days that it will provide to all employees, or reduces the
amount of medical insurance coverage that it will provide to all employees, is
not in violation of this part, even if the benefits reduction has an impact on
employees with disabilities in need of greater sick leave and medical coverage.
Benefits reductions adopted for discriminatory reasons are in violation of this
part. See Alexander v. Choate, 469 U.S. 287 (1985).  See Senate Report at 85;
House Labor Report at 137. (See also, the discussion at section 1630.16(f)
Health Insurance, Life Insurance, and Other Benefit Plans). 
 
1630.6 Contractual or other arrangements.   
  (a)  In general.  It s unlawful for a covered entity to participate in a
contractual or other arrangement or relationship that has the effect of
subjecting the covered entitys own qualified applicant or employee with a
disability to the discrimination prohibited by this part.  
 
  (b)  Contractual or other arrangement defined.  The phrase 
contractual or other arrangement or relationship  includes, but is not limited
to, a relationship with an employment or referral agency; labor union, including
collective bargaining agreements; an organization providing fringe benefits to
an employee of the covered entity; or an organization providing training and
apprenticeship programs.  
 
  (c)  Application.  This section applies to a covered entity, with respect to
its own applicants or employees, whether the entity offered the contract or
initiated the relationship, or whether the entity accepted the contract or
acceded to the relationship. A covered entity is not liable for the actions of
the other party or parties to the contract which only affect that other partys
employees or applicants.  
 
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 section 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 employers
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 customers 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) hving the training company
make the training site accessible; (3) directly making the training site
accessible or providing the training company with the means by which to make the
site accessible; (4) identifying and contracting with another training company
that uses accessible sites; or (5) any other accommodation that would result in
making the training available to the employee.  
 
As another illustration, assume that instead of contracting with a training
company, the employer contracts with a hotel to host a conference for its
employees. The employer will have a duty to ascertain and ensure the
accessibility of the hotel and its conference facilities.  To fulfill this
obligation the employer could, for example, inspect the hotel first-hand or ask
a local disability group to inspect the hotel.  Alternatively, the employer
could ensure that the contract with the hotel specifies it will provide
accessible guest rooms for those who need them and that all rooms to be used for
the conference, including exhibit and meeting rooms, are accessible. If the
hotel breaches this accessibility provision, the hotel may be liable to the
employer, under a non-ADA breach of contract theory, for the cost of any
accommodation needed to provide access to the hotel and conference, and for any
other costs accrued by the employer. (In addition, the hotel may also be
independently liable under title III of the ADA). However, this would not
relieve the employer of its responsibility under this part nor shield it from
charges of discrimination by its own employees. See House Labor Report at 40;
House Judiciary Report at 37. 
 
1630.7 Standards, criteria, or methods of administration.  
  It is unlawful for a covered entity to use standards, criteria, or methods of
administration, which are not job-related and consistent with business
necessity, and: 
 
  (a)  That have the effect of discriminating on the basis of disability; or  
 
  (b)  That perpetuate the discrimination of others who are subject to common
administrative control. 
 
1630.8 Relationship or association with an individual with a disability.  
  It is unlawful for a covered entity to exclude or deny equal jobs or benefits
to, or otherwise discriminate against, a qualified individual because of the
known disability of an individual with whom the qualified individual is known
to have a family, business, social or other relationship or association.  

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 a 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. 
 
1630.9 Not making reasonable accommodation.  
  (a)  It is unlawful for a covered entity not to make reasonable accommodation
to the known physical or mental limitations of an otherwise qualified applicant
or employee with a disability, unless such covered entity can demonstrate that
the accommodation would impose an undue hardship on the operation of its
business.   
 
  (b)  It is unlawful for a covered entity to deny employment opportunities to
an otherwise qualified job applicant or employee with a disability based on the
need of such covered entity to make reasonable accommodation to such individuals
physical or mental impairments.   
 
  (c)  A covered entity shall not be excused from the requirements of this part
because of any failure to receive technical assistance authorized by section 
506 of the ADA, including any failure in the development or dissemination of any
technical assistance manual authorized by that Act. 
 
  (d)  A qualified individual with a disability is not required to accept an
accommodation, aid, service, opportunity or benefit which such qualified
individual chooses not to accept. However, if such individual rejects a
reasonable accommodation, aid, service, opportunity or benefit that is necessary
to enable the individual to perform the essential functions of the position held
or desired, and cannot, as a result of that rejection, perform the essential
functions of the position, the individual will not be considered a qualified
individual with a disability. 
 
Section 1630.9 Not Making Reasonable Accommodation 
The obligation to make reasonable accommodation is a form of non-discrimination.
It applies to all employment decisions and to the job application process. This
obligation does not extend to the provision of adjustments or modifications that
are primarily for the personal benefit of the individual with a disability.
Thus, if an adjustment or modification is job-related, e.g., specifically
assists the individual in performing the duties of a particular job, it will be
considered a type of reasonable accommodation. On the other hand, if an
adjustment or modification assists the individual throughout his or her daily
activities, on and off the job, it will be considered a personal item that the
employer is not required to provide. Accordingly, an employer would generally
not be required to provide an employee with a disability with a prosthetic limb,
wheelchair, or eyeglasses. Nor would an employer have to provide as an
accommodation any amenity or convenience that is not job-related, such as a
private hot plate, hot pot or refrigerator that is not provided to employees
without disabilities. See Senate Report at 31; House Labor Report at 62. 
 
It should be noted, however, that the provision of such items may be required
as a reasonable accommodation where such items are specifically designed or
required to meet job-related rather than personal needs. An employer, for
example, may have to provide an individual with a disabling visual impairment
with eyeglasses specifically designed to enable the individual to use the office
computer monitors, but that are not otherwise needed by the individual outside
of the office.  
 
The term 
supported employment,  which has been applied to a wide variety of programs to
assist individuals with severe disabilities in both competitive and
non-competitive employment, is not synonymous with reasonable accommodation.
Examples of supported employment include modified training materials,
restructuring essential functions to enable an individual to perform a job, or
hiring an outside professional (
job coach ) to assist in job training.  Whether a particular form of assistance
would be required as a reasonable accommodation must be determined on an
individualized,case by case basis without regard to whether that assistance is
referred to as 
supported employment.  For example, an employer, under certain circumstances,
may be required to provide modified training materials or a temporary 
job coach  to assist in the training of a qualified individual with a disability
as a reasonable accommodation.  However, an employer would not be required to
restructure the essential functions of a position to fit the skills of an
individual with a disability who is not otherwise qualified to perform the
position, as is done in certain supported employment programs.  See 34 CFR part
363. It should be noted that it would not be a violation of this part for an
employer to provide any of these personal modifications or adjustments, or to
engage in supported employment or similar rehabilitative programs. 
 
The obligation to make reasonable accommodation applies to all services and
programs provided in connection with employment, and to all non-work facilities
provided or maintained by an employer for use by its employees. Accordingly, the
obligation to accommodate is applicable to employer sponsored placement or
counseling services, and to employer provided cafeterias, lounges, gymnasiums,
auditoriums, transportation and the like. 
 
The reasonable accommodation requirement is best understood as a means by which
barriers to the equal employment opportunity of an individual with a disability
are removed or alleviated. These barriers may, for example, be physical or
structural obstacles that inhibit or prevent the access of an individual with
a disability to job sites, facilities or equipment. Or they may be rigid work
schedules that permit no flexibility as to when work is performed or when breaks
may be taken, or inflexible job procedures that unduly limit the modes of
communication that are used on the job, or the way in which particular tasks are
accomplished. 
 
The term 
otherwise qualified  is intended to make clear that the obligation to make
reasonable accommodation is owed only to an individual with a disability who is
qualified within the meaning of section 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 jobs 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 at 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 (D.C. 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 are known to the employer. Thus, an employer would not
be expected to accommodate disabilities of which it is unaware. If an employee
with a known disability is having difficulty performing his or her job, an
employer may inquire whether the employee is in need of a reasonable
accommodation. In general, however, it is the responsibility of the individual
with a disability to inform the employer that an accommodation is needed. When
the need for an accommodation is not obvious, an employer, before providing a
reasonable accommodation, may require that the individual with a disability
provide documentation of the need for accommodation.  See Senate Report at 34;
House Labor Report at 65. 

Process of Determining the Appropriate Reasonable Accommodation 
 
Once a qualified individual with a disability has requested provision of a
reasonable accommodation, the employer must make a reasonable effort to
determine the appropriate accommodation. The appropriate reasonable
accommodation is best determined through a flexible, interactive process that
involves both the employer and the qualified individual with a disability. 
Although this process is described below in terms of accommodations that enable
the individual with a disability to perform the essential functions of the
position held or desired, it is equally applicable to accommodations involving
the job application process, and to accommodations that enable the individual
with a disability to enjoy equal benefits and privileges of employment. See
Senate Report at 34-35; House Labor Report at 65-67. 
 
When a qualified individual with a disability has requested a reasonable
accommodation to assist in the performance of a job, the employer, using a
problem solving approach, should: 
 
(1) analyze the particular job involved and determine its purpose and essential
functions; 
 
(2) consult with the individual with a disability to ascertain the precise
job-related limitations imposed by the individuals 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 individuals 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 reaonable
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 individuals performance
of the jobs 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 section 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
individuals willingness to provide his or her own accommodation does not relieve
the employer of the duty to provide the accommodation should the individual for
any reason be unable or unwilling to continue to provide the accommodation. 
 
Reasonable Accommodation Process Illustrated 
 
The following example illustrates the informal reasonable accommodation process.
Suppose a Sack Handler position requires that the employee pick up fifty pound
sacks and carry them from the company loading dock to the storage room, and that
a sack handler who is disabled by a back impairment requests a reasonable
accommodation. Upon receiving the request, the employer analyzes the Sack
Handler job and determines that the essential function and purpose of the job
is not the requirement that the job holder physically lift and carry the sacks,
but the requirement that the job holder cause the sack to move from the loading
dock to the storage room.   
 
The employer then meets with the sack handler to ascertain precisely the barrier
posed by the individuals specific disability to the performance of the jobs
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 he 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 individuals need for
an accommodation cannot enter into the employers or other covered entitys
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. 
 
1630.10 Qualification standards, tests, and other selection criteria.   
  It is unlawful for a covered entity to use qualification standards, employment
tests or other selection criteria that screen out or tend to screen out an
individual with a disability or a class of individuals with disabilities, on the
basis of disability, unless the standard, test or other selection criteria, as
used by the covered entity, is shown to be job-related for the position in
question and is consistent with business necessity.  

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 applicants (or employees) 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 prvision
of the regulations implementing Section 504 of the Rehabilitation Act indicates
that challenges to selection criteria are, in fact, most often resolved by
reasonable accommodation. It is therefore anticipated that challenges to
selection criteria brought under this part will generally be resolved in a like
manner.  
 
This provision is applicable to all types of selection criteria, including
safety requirements, vision or hearing requirements, walking requirements,
lifting requirements, and employment tests. See Senate Report at 37-39; House
Labor Report at 70-72; House Judiciary Report at 42. As previously noted,
however, it is not the intent of this part to second guess an employers 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. 
  
1630.11 Administration of tests.   
  It is unlawful for a covered entity to fail to select and administer tests
concerning employment in the most effective manner to ensure that, when a test
is administered to a job applicant or employee who has a disability that impairs
sensory, manual or speaking skills, the test results accurately reflect the
skills, aptitude, or whatever other factor of the applicant or employee that the
test purports to measure, rather than reflecting the impaired sensory, manual,
or speaking skills of such employee or applicant (except where such skills are
the factors that the test purports to measure).  
 
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. If, 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 a 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
employers obligation to make reasonable accommodation extends to ensuring that
the test site is accessible. (See section 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.  
 
1630.12 Retaliation and coercion.   
  (a)  Retaliation.  It is unlawful to discriminate against any individual
because that individual has opposed any act or practice made unlawful by this
part or because that individual made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or hearing to
enforce any provision contained in this part.  
 
  (b)  Coercion, interference or intimidation.  It is unlawful to coerce,
intimidate, threaten, harass or interfere with any individual in the exercise
or enjoyment of, or because that individual aided or encouraged any other
individual in the exercise of, any right granted or protected by this part.  
 
1630.13 Prohibited medical examinations and inquiries.  
  (a)  Pre-employment examination or inquiry.  Except as permitted by section
1630.14, it is unlawful for a covered entity to conduct a medical examination
of an applicant or to make inquiries as to whether an applicant is an individual
with a disability or as to the nature or severity of such disability.  
             
  (b)  Examination or inquiry of employees. Except as permitted by section
1630.14, it is unlawful for a covered entity to require a medical examination
of an employee or to make inquiries as to whether an employee is an individual
with a disability or as to the nature or severity of such disability.     
1630.14 Medical examinations and inquiries specifically permitted.  

Section 1630.13 Prohibited Medical Examinations and Inquiries  
Section 1630.13(a) Pre-employment Examination or Inquiry  
This provision makes clear that an employer cannot inquire as to whether an
individual has a disability at the pre-offer stage of the selection process. 
Nor can an employer inquire at the pre-offer stage about an applicants workers
compensation history.  
 
Employers may ask questions that relate to the applicants 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
drivers license, if driving is a job function, but ma not ask whether the
applicant has a visual disability. Employers may ask about an applicants ability
to perform both essential and marginal job functions. Employers, though, may not
refuse to hire an applicant with a disability because the applicants 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.  

1630.14 Medical Examinations and Inquiries Specifically Permitted 
  (a)  Acceptable pre-employment inquiry.  A covered entity may make
pre-employment inquiries into the ability of an applicant to perform job-related
functions, and/or may ask an applicant to describe or to demonstrate how, with
or without reasonable accommodation, the applicant will be able to perform
job-related functions. 
  
  (b)  Employment entrance examination.  A covered entity may require a medical
examination (and/or inquiry) after making an offer of employment to a job
applicant and before the applicant begins his or her employment duties, and may
condition an offer of employment on the results of such examination (and/or
inquiry), if all entering employees in the same job category are subjected to
such an examination (and/or inquiry) regardless of disability.  
 
  (1)   Information obtained under paragraph (b) of this section regarding the
medical condition or history of the applicant shall be collected and maintained
on separate forms and in separate medical files and be treated as a confidential
medical record, except that: 
 
  (i)  Supervisors and managers may be informed regarding necessary restrictions
on the work or duties of the employee and necessary accommodations; 
 
  (ii)      First aid and safety personnel may be informed, when appropriate,
if the disability might require emergency treatment; and  
 
  (iii)     Government officials investigating compliance with this part shall
be provided relevant information on request. 
 
  (2)  The results of such examination shall not be used for any purpose
inconsistent with this part.  
 
  (3)  Medical examinations conducted in accordance with this section do not
have to be job-related and consistent with business necessity. However, if
certain criteria are used to screen out an employee or employees with
disabilities as a result of such an examination or inquiry, the exclusionary
criteria must be job-related and consistent with business necessity, and
performance of the essential job functions cannot be accomplished with
reasonable accommodation as required in this part. (See section

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 mde 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 applicants
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 individuals
disability. The employer is also prohibited from asking how often the individual
will require leave for treatment or use leave as a result of incapacitation
because of the disability. However, the employer may state the attendance
requirements of the job and inquire whether the applicant can meet them.   
 
An employer is permitted to ask, on a test announcement or application form,
that individuals with disabilities who will require a reasonable accommodation
in order to take the test so inform the employer within a reasonable established
time period prior to the administration of the test. The employer may also
request that documentation of the need for the accommodation accompany the
request. Requested accommodations may include accessible testing sites, modified
testing conditions and accessible test formats. (See section 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 section
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 section 1630.1(b) and (c) Applicability and
Construction).  
 
Section 1630.14(b) Employment Entrance Examination 
An employer is permitted to require post-offer medcal 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 employers 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 section 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 section 1630.16(f). 

Section 1630.14(c) Examination of employees 
This provision permits employers to make inquiries or require medical
examinations (fitness for duty exams) when there is a need to determine whether
an employee is still able to perform the essential functions of his or her job.
The provision permits employers or other covered entities to make inquiries or
require medical examinations necessary to the reasonable accommodation process
described in this part. This provision also permits periodic physicals to
determine fitness for duty or other medical monitoring if such physicals or
monitoring are required by medical standards or requirements established by
Federal, state, or local law that are consistent with the ADA and this part (or
in the case of a federal standard, with Section 504 of the Rehabilitation Act)
in that they are job-related and consistent with business necessity.   
 
Such standards may include federal safety regulations that regulate bus and
truck driver qualifications, as well as laws establishingmedical 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.  

1630.15 Defenses.  
  Defenses to an allegation of discrimination under this 
part may include, but are not limited to, the following:   
 
  (a)Disparate treatment charges. It may be a defense to a charge of disparate
treatment brought under sections 1630.4 through 1630.8 and 1630.11 through
1630.12 that the challenged action is justified by a legitimate,
nondiscriminatory reason. 
 
 1630.15(b) Defenses to charges of discriminatory application of selection
criteria). 
 
  (c)  Examination of employees.  A covered entity may require a medical
examination (and/or inquiry) of an employee that is job-related and consistent
with business necessity. A covered entity may make inquiries into the ability
of an employee to perform job-related functions.    

  (1)  Information obtained under paragraph (c) of this section regarding the
medical condition or history of any employee shall be collected and maintained
on separate forms and in separate medical files and be treated as a confidential
medical record, except that:  
 
  (i)   Supervisors and managers may be informed regarding necessary
restrictions on the work or duties of the employee and necessary accommodations;

 
  (ii)  First aid and safety personnel may be informed, when appropriate, if the
disability might require emergency treatment; and  
 
  (iii) Government officials investigating compliance with this part shall be
provided relevant information on request. 
 
  (2)  Information obtained under paragraph (c) of this section regarding the
medical condition or history of any employee shall not be used for any purpose
inconsistent with this part.  
 
  (d)  Other acceptable examinations and inquiries.  A covered entity may
conduct voluntary medical examinations and activities, including voluntary
medical histories, which are part of an employee health program available to
employees at the work site.  
 
  (1)       Information obtained under paragraph (d) of this section regarding
the medical condition or history of any employee shall be collected and
maintained on separate forms and in separate medical files and be treated as a
confidential medical record, except that:  
 
  (i)  Supervisors and managers may be informed regarding necessary restrictions
on the work or duties of the employee and necessary accommodations; 
 
  (ii)      First aid and safety personnel may be informed, when appropriate,
if the disability might require emergency treatment; and  
 
  (iii) Government officials investigating compliance with this part shall be
provided relevant information on request. 
 
  (2) Information obtained under paragraph (d) of this section regarding the
medical condition or history of any employee shall not be used for any purpose
inconsstent with this part.  
 
  (b)  Charges of discriminatory application of selection criteria.  (1) In
general. It may be a defense to a charge of discrimination, as described in
section 1630.10, that an alleged application of qualification standards, tests,
or selection criteria that screens out or tends to screen out or otherwise
denies a job or benefit to an individual with a disability has been shown to be
job-related and consistent with business necessity, and such performance cannot
be accomplished with reasonable accommodation, as required in this part.  
 
  (2)  Direct threat as a qualification standard. The term 
qualification standard  may include a requirement that an individual shall not
pose a direct threat to the health or safety of the individual or others in the
workplace. (See section 1630.2(r) defining direct threat).  
 
  (c)  Other disparate impact charges. It may be a defense to a charge of
discrimination brought under this part that a uniformly applied standard,
criterion, or policy has a disparate impact on an individual with a disability
or a class of individuals with disabilities that the challenged standard,
criterion or policy has been shown to be job-related and consistent with
business necessity, and such performance cannot be accomplished with reasonable
accommodation, as required in this part. 
 
  (d)  Charges of not making reasonable accommodation. It may be a defense to
a charge of discrimination, as described in section 1630.9, that a requested or
necessary accommodation would impose an undue hardship on the operation of the
covered entitys business.  
 
 
  (e)  Conflict with other federal laws. It may be a defense to a charge of
discrimination under this part that a challenged action is required or
necessitated by another Federal law or regulation, or that another Federal law
or regulation prohibits an action (including the provision of a particular
reasonable accommodation) that would otherwise be required by this part. 
 
  (f)  Additional defenses.  It may be a defense to a charge of discrimination
under this part that the alleged discriminatory action is specifically permitted
by sections 1630.14 or 1630.16. 
 
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 employers 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 individuals
disability. The fact that the individuals disability is not covered by the
employers current insurance plan or would cause the employers insurance premiums
or workers compensation costs to increase, would not be a legitimate
nondiscriminatory reason justifying disparate treatment of a 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 shownto 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
drivers 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
drivers license. This is an example of a uniformly applied criterion, having a
drivers permit, that screens out an individual who has a disability that makes
it impossible to obtain a drivers permit. The employer would, thus, have to show
that this criterion is job-related and consistent with business necessity. See
House Labor Report at 55.  
 
However, even if the criterion is job-related and consistent with business
necessity, an employer could not exclude an individual with a disability if the
criterion could be met or job performance accomplished with a reasonable
accommodation. For example, suppose an employer requires, as part of its
application process, an interview that is job-related and consistent with
business necessity. The employer would not be able to refuse to hire a hearing
impaired applicant because he or she could not be interviewed. This is so
because an interpreter could be provided as a reasonable accommodation that
would allow the individual to be interviewed, and thus satisfy the selection
criterion.  
 
With regard to safety requirements that screen out or tend to screen out an
individual with a disability or a class of individuals with disabilities, an
employer must demonstrate that the requirement, as applied to the individual,
satisfies the 
direct threat  standard in section 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 section 1630.5 Limiting, Segregating and Classifying, and section
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 section 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 hardshp. 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 employers 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 individuals disability and not the result of the
provision of the accommodation. Nor would the employer be able to demonstrate
undue hardship by showing that the provision of the accommodation has a negative
impact on the morale of its other employees but not on the ability of these
employees to perform their jobs. 

Section 1630.15(e) Defense - Conflicting Federal Laws and Regulations 
There are several Federal laws and regulations that address medical standards
and safety requirements. If the alleged discriminatory action was taken in
compliance with another Federal law or regulation, the employer may offer its
obligation to comply with the conflicting standard as a defense.  The employers
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 non-exclusionary means to comply
with the standard that would not conflict with this part. See House Labor Report
at 74.  

1630.1 Specific activities permitted.  
  (a)  Religious entities. A religious corporation, association, educational
institution, or society is permitted to give preference in employment to
individuals of a particular religion to perform work connected with the carrying
on by that corporation, association, educational institution, or society of its
activities. A religious entity may require that all applicants and employees
conform to the religious tenets of such organization. However, a religious
entity may not discriminate against a qualified individual, who satisfies the
permitted religious criteria, because of his or her disability. 
 
  (b)  Regulation of alcohol and drugs.  A covered entity: 
 
  (1)  May prohibit the illegal use of drugs and the use of alcohol at the
workplace by all employees; 
 
  (2)  May require that employees not be under the influence of alcohol or be
engaging in the illegal use of drugs at the workplace; 
 
  (3)   May require that all employees behave in conformance with the
requirements established under the Drug-Free Workplace Act of 1988 (41 U.S.C.
701 et seq.); 
 
  (4)  May hold an employee who engages in the illegal use of drugs or who is
an alcoholic to the same qualification standards for employment or job
performance and behavior to which the entity holds its other employees, even if
any unsatisfactory performance or behavior is related to the employees drug use
or alcoholism;  
 
  (5)  May require that its employees employed in an industry subject to such
regulations comply with the standards established in the regulations (if any)
of the Departments of Defense and Transportation, and of the Nuclear Regulatory
Commission, regarding alcohol and the illegal use of drugs; and  
 
  (6)  May require that employees employed in sensitive positions comply with
the regulations (if any) of the Departments of Defense and Transportation and
of the Nuclear Regulatory Commission that apply to employment in sensitive
positions subject to such regulations.   
 
  (c)  Drug testing.  (1) General policy. For purposes of this part, a test
to determine the illegal use of drugs is not considered a medical examination.
Thus, the administration of such drug tests by a covered entity to its job
applicants or employees is not a violation of section 1630.13 of this part.
However, this part does not encourage, prohibit, or authorize a covered entity
to conduct drug tests of job applicants or employees to determine the illegal
use of drugs or to make employment decisions based on such test results. 
 
  (2)  Transportation Employees.  This part does not encourage, prohibit, or
authorize the otherwise lawful exercise by entities subject to the jurisdiction
of the Department of Transportation of authority to: 
 
  (i)  Test employees of entities in, and applicants for, positions involving
safety sensitive duties for the illegal use of drugs or for on-duty impairment
by alcohol; and  
 
  (ii)      Remove from safety-sensitive positions persons who test positive for
illegal use of drugs or on-duty impairment by alcohol pursuant to paragraph
(c)(2)(i) of this section.  
 
  (3)   Confidentiality. Any information regarding the medical condition or
history of any employee or applicant obtained from a test to determine the
illegal use of drugs, except information regarding the illegal use of drugs, is
subject to the requirements of section 1630.14(b)(2) and (3) of this part.    
 
  (d)  Regulation of smoking.  A covered entity may prohibit or impose
restrictions on smoking in places of employment. Such restrictions do not
violate any provision of this part. 
 
  (e)  Infectious and communicable diseases; food handling jobs.  (1) In
general. Under title I of the ADA, section 103(d)(1), the Secretary of Health
and Human Services is to prepare a list, to be updated annually, of infectious
and communicable diseases which are transmitted through the handling of food.
If an individual with a disability is disabled by one of the infectious or
communicable diseases included on this list, and if the risk of transmitting the
diseas associated with the handling of food cannot be eliminated by reasonable
accommodation, a covered entity may refuse to assign or continue to assign such
individual to a job involving food handling. However, if the individual with a
disability is a current employee, the employer must consider whether he or she
can be accommodated by reassignment to a vacant position not involving food
handling. 
 
(2) Effect on state or other laws.  This part does not preempt, modify, or amend
any State, county, or local law, ordinance or regulation applicable to food
handling which: 
 
  (i)  Is in accordance with the list, referred to in paragraph (e)(1) of this
section, of infectious or communicable diseases and the modes of
transmissibility published by the Secretary of Health and Human Services; and 
 
  (ii)      Is designed to protect the public health from individuals who pose
a significant risk to the health or safety of others, where that risk cannot be
eliminated by reasonable accommodation.  
  
  (f)  Health insurance, life insurance, and other benefit plans. (1) An
insurer, hospital, or medical service company, health maintenance organization,
or any agent or entity that administers benefit plans, or similar organizations
may underwrite risks, classify risks, or administer such risks that are based
on or not inconsistent with State law.  
 
  (2)  A covered entity may establish, sponsor, observe or administer the terms
of a bona fide benefit plan that are based on underwriting risks, classifying
risks, or administering such risks that are based on or not inconsistent with
State law. 
(3) A covered entity may establish, sponsor, observe, or administer the terms
of a bona fide benefit plan that is not subject to State laws that regulate
insurance. 
 
(4) The activities described in paragraphs (f)(1),(2), and (3) of this section
are permitted unless these activities are being used as a subterfuge to evade
the purposes of this part.  

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 Is 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 individuals
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 preence 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. (Copies may be obtained from Center for Infectious Diseases,
Centers for Disease Control, 1600 Clifton Road NE., Mailstop C09, Atlanta, GA
30333.)  If an individual with a disability has one of the listed diseases and
works in or applies for a position in food handling, the employer must determine
whether there is a reasonable accommodation that will eliminate the risk of
transmitting the disease through the handling of food. If there is an
accommodation that will not pose an undue hardship, and that will prevent the
transmission of the disease through the handling of food, the employer must
provide the accommodation to the individual. The employer, under these
circumstances, would not be permitted to discriminate against the individual
because of the need to provide the reasonable accommodation and would be
required to maintain the individual in the food handling job.   
 
If no such reasonable accommodation is possible, the employer may refuse to
assign, or to continue to assign the individual to a position involving food
handling. This means that if such an individual is an applicant for a food
handling position the employer is not required to hire the individual. However,
if the individual is a current employee, the employer would be required to
consider the accommodation of reassignment to a vacant position not involving
food handling for which the individual is qualified. Conference Report at 61-63.
(See section 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
section 1630.5 Limiting, Segregating and Classifying. 
  
 

.TCEL.
