A TECHNICAL ASSISTANCE MANUAL
ON THE EMPLOYMENT PROVISIONS
(TITLE I) OF THE
AMERICANS WITH DISABILITIES ACT
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
January 1992                                           EEOC-M-1A
TABLE OF CONTENTS
MANUAL
          Introduction
          How to Use this Manual
I.        Title I:  An Overview of Legal Requirements
II.       Who is Protected by the ADA?
              Individual With a Disability
              Qualified Individual With a Disability
III.      The Reasonable Accommodation Obligation
IV.       Establishing Nondiscriminatory Qualification Standards
          and Selection Criteria
V.        Nondiscrimination in the Hiring Process:  Recruitment;
          Applications; Pre-Employment Inquiries; Testing
VI.       Medical Examinations and Inquiries
VII.      Nondiscrimination in Other Employment Practices
VIII.     Drug and Alcohol Abuse
IX.       Workers' Compensation and Work-Related Injury
X.        Enforcement Provisions
     APPENDICES
     A.   Titles I and V of the ADA
     B.   EEOC Title I Regulations and Interpretive Appendix
     C.   Diseases Transmitted Through the Food Supply (issued by
          Centers for Disease Control, Public Health Service,
          pursuant to Section 103 (d) of the ADA)
     D.   Form and Instructions for ADA-Related Small Business Tax
          Credit (Section 44 of the Internal Revenue Code)
RESOURCE DIRECTORY
     Introduction
     How to Use the Directory
PART ONE:      FEDERAL AGENCY RESOURCES
       I.      Federal Agencies that Enforce ADA Requirements
      II.      Other Federal and Federally Funded ADA Technical
               Assistance
     III.      Other Federal Agency Programs Related to Disability
               and Employment
      IV.      Federal Agencies that Enforce Other Laws
               Prohibiting Discrimination on the Basis of
               Disability
PART TWO:      NATIONAL NON-GOVERNMENTAL TECHNICAL ASSISTANCE
               RESOURCES
       V.      Organizations that Provide Services Related to
               Employment of People with Disabilities
      VI.      Other Organizations with Expertise in Specific
               Disabilities
     VII.      Alternative Dispute Resolution Resources
PART THREE:    REGIONAL AND STATE LOCATIONS OF FEDERAL PROGRAMS
    VIII.      Equal Employment Opportunity Commission District
               Offices
      IX.      Regional Offices of Agencies that Enforce Other
               Laws Prohibiiting Employment Discrimination on the
               Basis of Disability
       X.      State Listings of Other Federal Programs Related to
               Disability and Employment
      XI.      State Listings of Centers for Independent Living
     XII.      State Technology-Related Assistance Programs
    XIII.      State Programs of Education and Assistance for
               Farmers and Ranchers with Disabilities
               TELECOMMUNICATIONS RELAY SERVICES
               INDEXINTRODUCTION
The Equal Employment Opportunity Commission (EEOC) is issuing this
Technical Assistance Manual as part of an active technical
assistance program to help employers, other covered entities, and
persons with disabilities learn about their obligations and rights
under the employment provisions of the Americans with Disabilities
Act (Title I of the ADA).  ADA requirements for nondiscrimination
in employment become effective for employers with 25 or more
employees and other covered entities on July 26, 1992, and for
employers with 15 to 24 employees on July 26, 1994.
The Manual provides guidance on the practical application of legal
requirements established in the statute and EEOC regulations.  It
also provides a directory of resources to aid in compliance.  The
Manual is designed to be updated periodically with supplements as
the Commission develops further policy guidance and identifies
additional resources.
Part One of the Manual explains key legal requirements in practical
terms, including:
         who is protected by, and who must comply with, the ADA;
         what the law permits and prohibits with respect to
          establishing qualification standards, assessing the
          qualifications and capabilities of people with
          disabilities to perform specific jobs, and requiring
          medical examinations and other inquiries;
         the nature of the obligation to make a reasonable
          accommodation;
         how the law's nondiscrimination requirements apply to
          aspects of the employment process such as promotion,
          transfer, termination, compensation, leave, fringe
          benefits and contractual arrangements;
         how ADA provisions regarding drug and alcohol use affect
          other legal obligations and employer policies concerning
          drugs and alcohol; and
         how ADA requirements affect workers' compensation
          policies and practices.
The manual explains many employment provisions through the use of
examples.  These examples are used only to illustrate the
particular point or principle to which they relate in the text and
should not be taken out of context as statements of EEOC policy
that would apply in different circumstances.
Part Two of the Manual is a Resource Directory listing public and
private agencies and organizations that provide information,
expertise, and technical assistance on many aspects of employing
people with disabilities, including reasonable accommodation.
EEOC has published informational booklets on the ADA for employers
and for people with disabilities, and will provide other written
and audiovisual educational materials; it will provide ADA training
for people with disabilities, for employers and other covered
entities, and will participate in meetings and training programs of
various organizations.  EEOC also has established a free "800"
number "Helpline" to respond to individual requests for information
and assistance.
The Commission's technical assistance program will be separate and
distinct from its enforcement responsibilities.  Employers who seek
information or assistance from EEOC will not be subject to any
enforcement action because of such inquiries.  The Commission
believes that the majority of employers wish to comply voluntarily
with the ADA, and will do so if guidance and technical assistance
are provided.
To obtain additional single copies of this Manual or other ADA
informational materials, call EEOC at 1-800-669-EEOC (voice) or
1-800-800-3302 (TDD) or write to EEOC Office of Communications and
Legislative Affairs, 1801 L Street, N.W.,  Washington, D.C.  20507.
Copies of these materials also are available in braille, large
print, audiotape, and electronic file on computer disk.  To obtain
copies in an accessible format, call the EEOC Office of Equal
Employment Opportunity at (202) 663-4395 or (202) 663-4398 (voice);
(202) 663-4399 (TDD) or write this office at the address above.
INTRODUCTION AND PURPOSE
The ADA is a federal antidiscrimination statute designed to remove
barriers which prevent qualified individuals with disabilities from
enjoying the same employment opportunities that are available to
persons without disabilities.
Like the Civil Rights Act of 1964 that prohibits discrimination on
the bases of race, color, religion, national origin, and sex, the
ADA seeks to ensure access to equal employment opportunities based
on merit.  It does not guarantee equal results, establish quotas,
or require preferences favoring individuals with disabilities over
those without disabilities.
However, while the Civil Rights Act of 1964 prohibits any
consideration of personal characteristics such as race or national
origin, the ADA necessarily takes a different approach.  When an
individual's disability creates a barrier to employment
opportunities, the ADA requires employers to consider whether
reasonable accommodation could remove the barrier.
The ADA thus establishes a process in which the employer must
assess a disabled individual's ability to perform the essential
functions of the specific job held or desired.  While the ADA
focuses on eradicating barriers, the ADA does not relieve a
disabled employee or applicant from the obligation to perform the
essential functions of the job.  To the contrary, the ADA is
intended to enable disabled persons to compete in the workplace
based on the same performance standards and requirements that
employers expect of persons who are not disabled.
However, where an individual's functional limitation impedes such
job performance, an employer must take steps to reasonably
accommodate, and thus help overcome the particular impediment,
unless to do so would impose an undue hardship.  Such
accommodations may be adjustments to the way a job customarily is
performed or to the work environment itself.
This process of identifying whether, and to what extent, a
reasonable accommodation is required should be flexible, and should
involve both the employer and the individual with a disability.  Of
course, the determination of whether an individual is qualified for
a particular position must necessarily be made on a case-by-case
basis.  No specific form of accommodation is guaranteed for all
individuals with a particular disability.  Rather, an accommodation
must be tailored to match the needs of the disabled individual with
the requirements of the job's essential functions.
This case-by-case approach is essential if qualified individuals of
varying abilities are to receive equal opportunities to compete for
an infinitely diverse range of jobs.  For this reason, neither the
ADA, EEOC's regulations, nor this manual can supply the "correct"
answer in advance for each employment decision concerning an
individual with a disability.  Instead, the ADA simply establishes
parameters to guide employers in how to consider, and take into
account, the disabling condition involved.HOW TO USE THIS MANUAL
The information in this Manual is presented in an order designed to
explain the ADA's basic employment nondiscrimination requirements.
The first three chapters provide an overview of Title I legal
requirements and discuss in detail the basic requirement not to
discriminate against a "qualified individual with a disability,"
including the requirement for reasonable accommodation.  The
following chapters apply these legal requirements to specific
employment practices and activities.  Readers familiar with Title
I legal requirements may wish to go directly to chapters that
address specific practices.  However, in many cases, these chapters
refer back to the earlier sections to fully explain the
requirements that apply.
The following summary of Manual chapters may be helpful in locating
specific types of information.
Chapter I.     Provides a summary of Title I legal requirements
               with cross-references to the chapters where these
               requirements are discussed.
Chapter II.    Looks at the definitions of "an individual with a
               disability" and a "qualified individual with a
               disability," drawing upon guidance set out in
               EEOC's Title I regulation and interpretive
               appendix.  These definitions are important, because
               an individual is only protected by the ADA if s/he
               meets both definitions.  In addition, the second
               definition incorporates the ADA's basic employment
               nondiscrimination requirement, by defining a
               "qualified" individual as a person who can "perform
               the essential functions of a job . . . with or
               without reasonable accommodation."  Chapter II also
               provides practical guidance on identifying
               "essential" job functions.
Chapter III.   Provides guidance on the obligation to make a
               "reasonable accommodation," including why
               reasonable accommodation is necessary for
               nondiscrimination and what is required.  This
               chapter also provides many examples of reasonable
               accommodations for people with different types of
               disabilities in different jobs.  The following
               chapters provide further guidance on making
               reasonable accommodations in the employment
               practices described in those chapters.
Chapter IV.    Explains how to establish qualification standards
               and selection criteria that do not discriminate
               under the ADA, including standards necessary to
               assure health and safety in the workplace.
Chapter V.     Provides guidance on nondiscrimination in
               recruitment and selection, including important ADA
               requirements regarding pre-employment inquiries.
               Among other issues, this chapter discusses
               nondiscrimination in advertising, recruiting,
               application forms, and the overall application
               process, including interviews and testing.
Chapter VI.    Discusses ADA requirements applicable to medical
               examinations and medical inquiries, including the
               different requirements that apply before making a
               job offer, after making a conditional job offer,
               and after an individual is employed.
Chapter VII.   Discusses and illustrates the obligation to apply
               ADA nondiscrimination requirements to all other
               employment practices and activities, and to all
               terms, conditions, and benefits of employment.  In
               particular, the chapter looks at the application of
               ADA requirements to promotion and advancement
               opportunities, training, evaluation, and employee
               benefits such as insurance.  The chapter also
               discusses the ADA's prohibition of discrimination
               on the basis of a "relationship or association with
               a person with a disability."
Chapter VIII.  Discusses ADA requirements related to employment
               policies regarding drug and alcohol abuse.
Chapter IX.    Provides further guidance on ADA requirements as
               they relate to workers' compensation practices.
Chapter X.     Describes the enforcement provisions of the ADA and
               how they will be applied by EEOC.I.   TITLE I:  AN OVERVIEW OF LEGAL REQUIREMENTS
This chapter of the manual provides a brief overview of the basic
requirements of Title I of the ADA.  Following chapters look at
these and other requirements in more detail and illustrate how they
apply to specific employment practices.
Who Must Comply with Title I of the ADA?
Private employers, state and local governments, employment
agencies, labor unions, and joint labor-management committees must
comply with Title I of the ADA.  The ADA calls these "covered
entities."  For simplicity, this manual generally refers to all
covered entities as "employers," except where there is a specific
reason to emphasize the responsibilities of a particular type of
entity.
An employer cannot discriminate against qualified applicants and
employees on the basis of disability.  The ADA's requirements
ultimately will apply to employers with 15 or more employees.  To
give smaller employers more time to prepare for compliance,
coverage is phased in two steps as follows:
     Number of employees               Coverage begins
     25 or more                        July 26, 1992
     15 or more                        July 26, 1994
Covered employers are those who have 25 or more employees (1992) or
15 or more employees (1994), including part-time employees, working
for them for 20 or more calendar weeks in the current or preceding
calendar year.  The ADA's definition of "employee" includes U.S.
citizens who work for American companies, their subsidiaries, or
firms controlled by Americans outside the USA.  However, the Act
provides an exemption from coverage for any action in compliance
with the ADA which would violate the law of the foreign country in
which a workplace is located.
(Note that state and local governments, regardless of size, are
covered by employment nondiscrimination requirements under Title II
of the ADA as of January 26, 1992.  See Coordination of Overlapping
Federal Requirements below.)
The definition of "employer" includes persons who are "agents" of
the employer, such as managers, supervisors, foremen, or others who
act for the employer, such as agencies used to conduct background
checks on candidates.  Therefore, the employer is responsible for
actions of such persons that may violate the law.  These coverage
requirements are similar to those of Title VII of the Civil Rights
Act of 1964.
Special Situations
Religious organizations are covered by the ADA, but they may give
employment preference to people of their own religion or religious
organization.
     For example:  A church organization could require that its
     employees be members of its religion.  However, it could not
     discriminate in employment on the basis of disability against
     members of its religion.
The legislative branch of the U.S. Government is covered by the
ADA, but is governed by different enforcement procedures
established by the Congress for its employees.
Certain individuals appointed by elected officials of state and
local governments also are covered by the special enforcement
procedures established for Congressional employees.
Who Is Exempt?
Executive agencies of the U.S. Government are exempt from the ADA,
but these agencies are covered by similar nondiscrimination
requirements and additional affirmative employment requirements
under Section 501 of the Rehabilitation Act of 1973.  Also exempted
from the ADA (as they are from Title VII of the Civil Rights Act)
are corporations fully owned by the U.S. Government, Indian tribes,
and bona fide private membership clubs that are not labor
organizations and that are exempt from taxation under the Internal
Revenue Code.
Who Is Protected by Title I?
The ADA prohibits employment discrimination against "qualified
individuals with disabilities."  A qualified individual with a
disability is:
     an individual with a disability who meets the skill,
     experience, education, and other job-related requirements of
     a position held or desired, and who, with or without
     reasonable accommodation, can perform the essential functions
     of a job.
To understand who is and who is not protected by the ADA, it is
first necessary to understand the Act's definition of an
"individual with a disability" and then determine if the individual
meets the Act's definition of a "qualified individual with a
disability."
The ADA definition of individual with a disability is very
specific.  A person with a "disability" is an individual who:
         has a physical or mental impairment that substantially
          limits one or more of his/her major life activities;
         has a record of such an impairment; or
         is regarded as having such an impairment.
          (See Chapter II.)
Individuals Specifically not Protected by the ADA
The ADA specifically states that certain individuals are not
protected by its provisions:
     Persons who currently use drugs illegally
     Individuals who currently use drugs illegally are not
     individuals with disabilities protected under the Act when an
     employer takes action because of their continued use of drugs.
     This includes people who use prescription drugs illegally as
     well as those who use illegal drugs.
     However, people who have been rehabilitated and do not
     currently use drugs illegally, or who are in the process of
     completing a rehabilitation program may be protected by the
     ADA.  (See Chapter VIII.)
     Other specific exclusions
     The Act states that homosexuality and bisexuality are not
     impairments and therefore are not disabilities under the ADA.
     In addition, the Act specifically excludes a number of
     behavior disorders from the definition of "individual with a
     disability."  (See Chapter II.)
Employment Practices Regulated by Title I of the ADA
Employers cannot discriminate against people with disabilities in
regard to any employment practices or terms, conditions, and
privileges of employment.  This prohibition covers all aspects of
the employment process, including:
            application              promotion
            testing                  medical examinations
            hiring                   layoff/recall
            assignments              termination
            evaluation               compensation
            disciplinary actions     leave
            training                 benefits
Actions which Constitute Discrimination
The ADA specifies types of actions that may constitute
discrimination.  These actions are discussed more fully in the
following chapters, as indicated:
1)   Limiting, segregating, or classifying a job applicant or
     employee in a way that adversely affects employment
     opportunities for the applicant or employee because of his or
     her disability.  (See Chapter VII.)
2)   Participating in a contractual or other arrangement or
     relationship that subjects an employer's qualified applicant
     or employee with a disability to discrimination.  (See Chapter
     VII.)
3)   Denying employment opportunities to a qualified individual
     because s/he has a relationship or association with a person
     with a disability.  (See Chapter VII.)
4)   Refusing to make reasonable accommodation to the known
     physical or mental limitations of a qualified applicant or
     employee with a disability, unless the accommodation would
     pose an undue hardship on the business.  (See Chapters III.
     and VII.)
5)   Using qualification standards, employment tests, or other
     selection criteria that screen out or tend to screen out an
     individual with a disability unless they are job-related and
     necessary for the business.  (See Chapter IV.)
6)   Failing to use employment tests in the most effective manner
     to measure actual abilities.  Tests must accurately reflect
     the skills, aptitude, or other factors being measured, and not
     the impaired sensory, manual, or speaking skills of an
     employee or applicant with a disability (unless those are the
     skills the test is designed to measure).  (See Chapter V.)
7)   Denying an employment opportunity to a qualified individual
     because s/he has a relationship or association with an
     individual with a disability.  (See Chapter VII.)
8)   Discriminating against an individual because s/he has opposed
     an employment practice of the employer or filed a complaint,
     testified, assisted, or participated in an investigation,
     proceeding, or hearing to enforce provisions of the Act.  (See
     Chapter X.)
Reasonable Accommodation and the Undue Hardship Limitation
     Reasonable accommodation
     Reasonable accommodation is a critical component of the ADA's
     assurance of nondiscrimination.  Reasonable accommodation is
     any change in the work environment or in the way things are
     usually done that results in equal employment opportunity for
     an individual with a disability.
     An employer must make a reasonable accommodation to the known
     physical or mental limitations of a qualified applicant or
     employee with a disability unless it can show that the
     accommodation would cause an undue hardship on the operation
     of its business.
     Some examples of reasonable accommodation include:
         making existing facilities used by employees readily
          accessible to, and usable by, an individual with a
          disability;
         job restructuring;
         modifying work schedules;
         reassignment to a vacant position;
         acquiring or modifying equipment or devices;
         adjusting or modifying examinations, training materials,
          or policies;
         providing qualified readers or interpreters.
     An employer is not required to lower quality or quantity
     standards to make an accommodation.  Nor is an employer
     obligated to provide personal use items, such as glasses or
     hearing aids, as accommodations.
     Undue hardship
     An employer is not required to provide an accommodation if it
     will impose an undue hardship on the operation of its
     business.  Undue hardship is defined by the ADA as an action
     that is:
          "excessively costly, extensive, substantial, or
          disruptive, or that would fundamentally alter the nature
          or operation of the business."
     In determining undue hardship, factors to be considered
     include the nature and cost of the accommodation in relation
     to the size, the financial resources, the nature and structure
     of the employer's operation, as well as the impact of the
     accommodation on the specific facility providing the
     accommodation.  (See Chapter III.)
Health or Safety Defense
An employer may require that an individual not pose a "direct
threat" to the health or safety of himself/herself or others.  A
health or safety risk can only be considered if it is "a
significant risk of substantial harm."  Employers cannot deny an
employment opportunity merely because of a slightly increased risk.
An assessment of "direct threat" must be strictly based on valid
medical analyses and/or other objective evidence, and not on
speculation.  Like any qualification standard, this requirement
must apply to all applicants and employees, not just to people with
disabilities.
If an individual appears to pose a direct threat because of a
disability, the employer must first try to eliminate or reduce the
risk to an acceptable level with reasonable accommodation.  If an
effective accommodation cannot be found, the employer may refuse to
hire an applicant or discharge an employee who poses a direct
threat.  (See Chapter IV.)
Pre-employment Inquiries and Medical Examinations
An employer may not ask a job applicant about the existence,
nature, or severity of a disability.  Applicants may be asked about
their ability to perform specific job functions.  An employer may
not make medical inquiries or conduct a medical examination until
after a job offer has been made.  A job offer may be conditioned on
the results of a medical examination or inquiry, but only if this
is required for all entering employees in similar jobs.  Medical
examinations of employees must be job-related and consistent with
the employer's business needs.  (See Chapters V. and VI.)
Drug and Alcohol Use
It is not a violation of the ADA for employers to use drug tests to
find out if applicants or employees are currently illegally using
drugs.  Tests for illegal use of drugs are not subject to the ADA's
restrictions on medical examinations.  Employers may hold illegal
users of drugs and alcoholics to the same performance and conduct
standards as other employees.  (See Chapter VIII.)
Enforcement and Remedies
The U.S. Equal Employment Opportunity Commission (EEOC) has
responsibility for enforcing compliance with Title I of the ADA.
An individual with a disability who believes that (s)he has been
discriminated against in employment can file a charge with EEOC.
The procedures for processing charges of discrimination under the
ADA are the same as those under Title VII of the Civil Rights Act
of 1964.  (See Chapter X.)
Remedies that may be required of an employer who is found to have
discriminated against an applicant or employee with a disability
include compensatory and punitive damages, back pay, front pay,
restored benefits, attorney's fees, reasonable accommodation,
reinstatement, and job offers.  (See Chapter X.)
Posting Notices
An employer must post notices concerning the provisions of the ADA.
The notices must be accessible, as needed, to persons with visual
or other reading disabilities.  A new equal employment opportunity
(EEO) poster, containing ADA provisions and other federal
employment nondiscrimination provisions may be obtained by writing
EEOC at 1801 L Street N.W., Washington, D.C.,  20507, or calling
1-800-669-EEOC or 1-800-800-3302 (TDD).
Coordination of Overlapping Federal Requirements
Employers covered by Title I of the ADA also may be covered by
other federal requirements that prohibit discrimination on the
basis of disability.  The ADA directs the agencies with enforcement
authority for these legal requirements to coordinate their
activities to prevent duplication and avoid conflicting standards.
Overlapping requirements exist for both public and private
employers.
Title II of the ADA, enforced by the U.S. Department of Justice,
prohibits discrimination in all state and local government programs
and activities, including employment, after January 26, 1992.
The Department of Justice regulations implementing Title II provide
that EEOC's Title I regulations will constitute the employment
nondiscrimination requirements for those state and local
governments covered by Title I (governments with 25 or more
employees after July 26, 1992; governments with 15 or more
employees after July 26, 1994).  If a government is not covered by
Title I, or until it is covered, the Title II employment
nondiscrimination requirements will be those in the Department of
Justice coordination regulations applicable to federally assisted
programs under Section 504 of the Rehabilitation Act of 1973, which
prohibits discrimination on the basis of disability by recipients
of federal financial assistance.
Section 504 employment requirements in most respects are the same
as those of Title I, because the ADA was based on the Section 504
regulatory requirements.  (Note that governments receiving federal
financial assistance, as well as federally funded private entities,
will continue to be covered by Section 504.)
In addition, some private employers are covered by Section 503 of
the Rehabilitation Act.  Section 503 requires nondiscrimination and
affirmative action by federal contractors and subcontractors to
employ and advance individuals with disabilities, and is enforced
by the Office of Federal Contract Compliance Programs (OFCCP) in
the U.S. Department of Labor.
The EEOC, the Department of Labor, the Department of Justice and
the other agencies that enforce Section 504 (i.e., Federal agencies
with programs of financial assistance) will coordinate their
enforcement efforts under the ADA and the Rehabilitation Act, to
assure consistent standards and to eliminate unnecessary
duplication.  (See Chapter X.  For further information see Resource
Directory:  "Federal Agencies that Enforce Other Laws Prohibiting
Discrimination on the Basis of Disability.")II.WHO IS PROTECTED BY THE ADA?
     INDIVIDUAL WITH A DISABILITY QUALIFIED INDIVIDUAL WITH A
     DISABILITY
2.1  Introduction
     The ADA protects qualified individuals with disabilities from
     employment discrimination.  Under other laws that prohibit
     employment discrimination, it usually is a simple matter to
     know whether an individual is covered because of his or her
     race, color, sex, national origin or age.  But to know whether
     a person is covered by the employment provisions of the ADA
     can be more complicated.  It is first necessary to understand
     the Act's very specific definitions of "disability" and
     "qualified individual with a disability."  Like other
     determinations under the ADA, deciding who is a "qualified"
     individual is a case-by case process, depending on the
     circumstances of the particular employment situation.
2.2  Individual With a Disability
     The ADA has a three-part definition of "disability."  This
     definition, based on the definition under the Rehabilitation
     Act, reflects the specific types of discrimination experienced
     by people with disabilities.  Accordingly, it is not the same
     as the definition of disability in other laws, such as state
     workers' compensation laws or other federal or state laws that
     provide benefits for people with disabilities and disabled
     veterans.
     Under the ADA, an individual with a disability is a person who
     has:
              a physical or mental impairment that substantially
               limits one or more major life activities;
              a record of such an impairment; or
              is regarded as having such an impairment.
2.1(a)    An Impairment that Substantially Limits Major Life
          Activities
          The first part of this definition has three major
          subparts that further define who is and who is not
          protected by the ADA.
          (i)    A Physical or Mental Impairment
                 A physical impairment is defined by the ADA
                 as:
                    "[a]ny 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."
               A mental impairment is defined by the ADA as:
                    "[a]ny mental or psychological disorder, such
                    as mental retardation, organic brain syndrome,
                    emotional or mental illness, and specific
                    learning disabilities."
               Neither the statute nor EEOC regulations list all
               diseases or conditions that make up "physical or
               mental impairments," because it would be impossible
               to provide a comprehensive list, given the variety
               of possible impairments.
               A person's impairment is determined without regard
               to any medication or assistive device that s/he may
               use.
                    For example:  A person who has epilepsy and
                    uses medication to control seizures, or a
                    person who walks with an artificial leg would
                    be considered to have an impairment, even if
                    the medicine or prosthesis reduces the impact
                    of that impairment.
               An impairment under the ADA is a physiological or
               mental disorder; simple physical characteristics,
               therefore, such as eye or hair color, left-
               handedness, or height or weight within a normal
               range, are not impairments.  A physical condition
               that is not the result of a physiological disorder,
               such as pregnancy, or a predisposition to a certain
               disease would not be an impairment.  Similarly,
               personality traits such as poor judgment, quick
               temper or irresponsible behavior, are not
               themselves impairments.  Environmental, cultural,
               or economic disadvantages, such as lack of
               education or a prison record also are not
               impairments.
                    For example:  A person who cannot read due to
                    dyslexia is an individual with a disability
                    because dyslexia, which is a learning
                    disability, is an impairment.  But a person
                    who  cannot read because she dropped out of
                    school is not an individual with a disability,
                    because lack of education is not an
                    impairment.
               "Stress" and "depression" are conditions that may
               or may not be considered impairments, depending on
               whether these conditions result from a documented
               physiological or mental disorder.
                    For example:  A person suffering from general
                    "stress" because of job or personal life
                    pressures would not be considered to have an
                    impairment.  However, if this person is
                    diagnosed by a psychiatrist as having an
                    identifiable stress disorder, s/he would have
                    an impairment that may be a disability.
               A person who has a contagious disease has an
               impairment.  For example, infection with the Human
               Immunodeficiency Virus (HIV) is an impairment.  The
               Supreme Court has ruled that an individual with
               tuberculosis which affected her respiratory system
               had an impairment under Section 504 of the
               Rehabilitation Act.  However, although a person who
               has a contagious disease may be covered by the ADA,
               an employer would not have to hire or retain a
               person whose contagious disease posed a direct
               threat to health or safety, if no reasonable
               accommodation could reduce or eliminate this
               threat.  (See Health and Safety Standards, Chapter
               IV.)
        (ii)   Major Life Activities
               To be a disability covered by the ADA, an
               impairment must substantially limit one or more
               major life activities.  These are activities that
               an average person can perform with little or no
               difficulty.  Examples are:
                  walking               seeing
                  speaking              hearing
                  breathing             learning
                  performing manual     caring for oneself
                   tasks                 working
               These are examples only.  Other activities such as
               sitting, standing, lifting, or reading are also
               major life activities.
        (iii)  Substantially Limits
               An impairment is only a "disability" under the ADA
               if it substantially limits one or more major life
               activities.  An individual must be unable to
               perform, or be significantly limited in the ability
               to perform, an activity compared to an average
               person in the general population.
               The regulations provide three factors to consider
               in determining whether a person's impairment
               substantially limits a major life activity.
                   its nature and severity;
                   how long it will last or is expected to last;
                   its permanent or long term impact, or expected
                    impact.
               These factors must be considered because,
               generally, it is not the name of an impairment or a
               condition that determines whether a person is
               protected by the ADA, but rather the effect of an
               impairment or condition on the life of a particular
               person.  Some impairments, such as blindness,
               deafness, HIV infection or AIDS, are by their
               nature substantially limiting, but many other
               impairments may be disabling for some individuals
               but not for others, depending on the impact on
               their activities.
                    For example:  Although cerebral palsy
                    frequently significantly restricts major life
                    activities such as speaking, walking and
                    performing manual tasks, an individual with
                    very mild cerebral palsy that only slightly
                    interferes with his ability to speak and has
                    no significant impact on other major life
                    activities is not an individual with a
                    disability under this part of the definition.
               The determination as to whether an individual is
               substantially limited must always be based on the
               effect of an impairment on that individual's life
               activities.
                    For example: An individual who had been
                    employed as a receptionist-clerk sustained a
                    back injury that resulted in considerable
                    pain.  The pain permanently restricted her
                    ability to walk, sit, stand, drive, care for
                    her home, and engage in recreational
                    activities.  Another individual who had been
                    employed as a general laborer had sustained a
                    back injury, but was able to continue an
                    active life, including recreational sports,
                    and had obtained a new position as a security
                    guard.  The first individual was found by a
                    court to be an individual with a disability;
                    the second individual was found not
                    significantly restricted in any major life
                    activity, and therefore not an individual with
                    a disability.
               Sometimes, an individual may have two or more
               impairments, neither of which by itself
               substantially limits a major life activity, but
               that together have this effect.  In such a
               situation, the individual has a disability.
                    For example:  A person has a mild form of
                    arthritis in her wrists and hands and a mild
                    form of osteoporosis.  Neither impairment by
                    itself substantially limits a major life
                    activity.  Together, however, these
                    impairments significantly restrict her ability
                    to lift and perform manual tasks.  She has a
                    disability under the ADA.
               Temporary Impairments
               Employers frequently ask whether "temporary
               disabilities" are covered by the ADA.  How long an
               impairment lasts is a factor to be considered, but
               does not by itself determine whether a person has a
               disability under the ADA.  The basic question is
               whether an impairment "substantially limits" one or
               more major life activities.  This question is
               answered by looking at the extent, duration, and
               impact of the impairment.  Temporary, non-chronic
               impairments that do not last for a long time and
               that have little or no long term impact usually are
               not disabilities.
                    For example:  Broken limbs, sprains,
                    concussions, appendicitis, common colds, or
                    influenza generally would not be disabilities.
                    A broken leg that heals normally within a few
                    months, for example, would not be a disability
                    under the ADA.  However, if a broken leg took
                    significantly longer than the normal healing
                    period to heal, and during this period the
                    individual could not walk, s/he would be
                    considered to have a disability.  Or, if the
                    leg did not heal properly, and resulted in a
                    permanent impairment that significantly
                    restricted walking or other major life
                    activities, s/he would be considered to have a
                    disability.
               Substantially Limited in Working
               It is not necessary to consider if a person is
               substantially limited in the major life activity of
               "working" if the person is substantially limited in
               any other major life activity.
                    For example:  If a person is substantially
                    limited in seeing, hearing, or walking, there
                    is no need to consider whether the person is
                    also substantially limited in working.
               In general, a person will not be considered to be
               substantially limited in working if s/he is
               substantially limited in performing only a
               particular job for one employer, or unable to
               perform a very specialized job in a particular
               field.
                    For example:  A person who cannot qualify as a
                    commercial airline pilot because of a minor
                    vision impairment, but who could qualify as a
                    co-pilot or a pilot for a courier service,
                    would not be considered substantially limited
                    in working just because he could not perform a
                    particular job.  Similarly, a baseball pitcher
                    who develops a bad elbow and can no longer
                    pitch would not be substantially limited in
                    working because he could no longer perform the
                    specialized job of pitching in baseball.
               But a person need not be totally unable to work in
               order to be considered substantially limited in
               working.  The person must be significantly
               restricted in the ability to perform either a class
               of jobs or a broad range of jobs in various
               classes, compared to an average person with similar
               training, skills, and abilities.
               The regulations provide factors to help determine
               whether a person is substantially limited in
               working.  These include:
              the type of job from which the individual has been
               disqualified because of the impairment;
              the geographical area in which the person may
               reasonably expect to find a job;
              the number and types of jobs using similar
               training, knowledge, skill, or abilities from which
               the individual is disqualified within the
               geographical area, and/or
              the number and types of other jobs in the area that
               do not involve similar training, knowledge, skill,
               or abilities from which the individual also is
               disqualified because of the impairment.
                    For example:  A person would be considered
                    significantly restricted in a "class of jobs"
                    if a back condition prevents him from working
                    in any heavy labor job.  A person would be
                    considered significantly limited in the
                    ability to perform "a broad range of jobs in
                    various classes" if she has an allergy to a
                    substance found in most high-rise office
                    buildings in the geographic area in which she
                    could reasonably seek work, and the allergy
                    caused extreme difficulty in breathing.  In
                    this case, she would be substantially limited
                    in the ability to perform the many different
                    kinds of jobs that are performed in high-rise
                    buildings.  By contrast, a person who has a
                    severe allergy to a substance in the
                    particular office in which she works, but who
                    is able to work in many other offices that do
                    not contain this substance, would not be
                    significantly restricted in working.
                    For example:  A computer programmer develops a
                    vision impairment that does not substantially
                    limit her ability to see, but because of poor
                    contrast is unable to distinguish print on
                    computer screens.  Her impairment prevents her
                    from working as a computer operator,
                    programmer, instructor, or systems analyst.
                    She is substantially limited in working,
                    because her impairment prevents her from
                    working in the class of jobs requiring use of
                    a computer.
               In assessing the "number" of jobs from which a
               person might be excluded by an impairment, the
               regulations make clear that it is only necessary to
               indicate an approximate number of jobs from which
               an individual would be excluded (such as "few,"
               "many," "most"), compared to an average person with
               similar training, skills and abilities, to show
               that the individual would be significantly limited
               in working.
               Specific Exclusions
               A person who currently illegally uses drugs is not
               protected by the ADA, as an "individual with a
               disability", when an employer acts on the basis of
               such use.  However, former drug addicts who have
               been successfully rehabilitated may be protected by
               the Act. (See Chapter VIII).  (See also discussion
               below of a person "regarded as" a drug addict.)
               Homosexuality and bisexuality are not impairments
               and therefore are not disabilities covered by the
               ADA.  The Act also states that the term
               "disability" does not include the following sexual
               and behavioral disorders:
                   transvestism, transsexualism, pedophilia,
                    exhibitionism, voyeurism, gender identity
                    disorders not resulting from physical
                    impairments, or other sexual behavior
                    disorders;
                   compulsive gambling, kleptomania, or
                    pyromania; or
                   psychoactive substance use disorders resulting
                    from current illegal use of drugs.
               The discussion so far has focused on the first part
               of the definition of an "individual with a
               disability," which protects people who currently
               have an impairment that substantially limits a
               major life activity.  The second and third parts of
               the definition protect people who may or may not
               actually have such an impairment, but who may be
               subject to discrimination because they have a
               record of or are regarded as having such an
               impairment.
2.2(b)    Record of a Substantially Limiting Condition
          This part of the definition protects people who have a
          history of a disability from discrimination, whether or
          not they currently are substantially limited in a major
          life activity.
               For example:  It protects people with a history of
               cancer, heart disease, or other debilitating
               illness, whose illnesses are either cured,
               controlled or in remission.  It also protects
               people with a history of mental illness.
          This part of the definition also protects people who may
          have been misclassified or misdiagnosed as having a
          disability.
               For example:  It protects a person who may at one
               time have been erroneously classified as having
               mental retardation or having a learning disability.
               These people have a record of disability.  (If an
               employer relies on any record [such as an
               educational, medical or employment record]
               containing such information to make an adverse
               employment decision about a person who currently is
               qualified to perform a job, the action is subject
               to challenge as a discriminatory practice.)
               Other examples of individuals who have a record of
               disability, and of potential violations of the ADA
               if an employer relies on such a record to make an
               adverse employment decision:
                   A job applicant formerly was a patient at a
                    state institution.  When very young she was
                    misdiagnosed as being psychopathic and this
                    misdiagnosis was never removed from her
                    records.  If this person is otherwise
                    qualified for a job, and an employer does not
                    hire her based on this record, the employer
                    has violated the ADA.
                   A person who has a learning disability applies
                    for a job as secretary/receptionist.  The
                    employer reviews records from a previous
                    employer indicating that he was labeled as
                    "mentally retarded."  Even though the person's
                    resume shows that he meets all requirements
                    for the job, the employer does not interview
                    him because he doesn't want to hire a person
                    who has mental retardation.  This employer has
                    violated the ADA.
                   A job applicant was hospitalized for treatment
                    for cocaine addiction several years ago.  He
                    has been successfully rehabilitated and has
                    not engaged in the illegal use of drugs since
                    receiving treatment.  This applicant has a
                    record of an impairment that substantially
                    limited his major life activities.  If he is
                    qualified to perform a job, it would be
                    discriminatory to reject him based on the
                    record of his former addiction.
               In the last example above, the individual was
               protected by the ADA because his drug addiction was
               an impairment that substantially limited his major
               life activities.  However, if an individual had a
               record of casual drug use, s/he would not be
               protected by the ADA, because casual drug use, as
               opposed to addiction, does not substantially limit
               a major life activity.
               To be protected by the ADA under this part of the
               definition, a person must have a record of a
               physical or mental impairment that substantially
               limits one or more major life activities.  A person
               would not be protected, for example, merely because
               s/he has a record of being a "disabled veteran," or
               a record of "disability" under another Federal
               statute or program unless this person also met the
               ADA definition of an individual with a record of a
               disability.
2.2(c)    Regarded as Substantially Limited
          This part of the definition protects people who are not
          substantially limited in a major life activity from
          discriminatory actions taken because they are perceived
          to have such a limitation.  Such protection is necessary,
          because, as the Supreme Court has stated and the Congress
          has reiterated, "society's myths and fears about
          disability and disease are as handicapping as are the
          physical limitations that flow from actual impairments."
          The legislative history of the ADA indicates that
          Congress intended this part of the definition to protect
          people from a range of discriminatory actions based on
          "myths, fears and stereotypes" about disability, which
          occur even when a person does not have a substantially
          limiting impairment.
          An individual may be protected under this part of the
          definition in three circumstances:
          1.   The individual may have an impairment which is not
               substantially limiting, but is treated by the
               employer as having such an impairment.
                    For example:  An employee has controlled high
                    blood pressure which does not substantially
                    limit his work activities.  If an employer
                    reassigns the individual to a less strenuous
                    job because of unsubstantiated fear that the
                    person would suffer a heart attack if he
                    continues in the present job, the employer has
                    "regarded" this person as disabled.
          2.   The individual has an impairment that is
               substantially limiting because of attitude of
               others toward the condition.
                    For example:  An experienced assistant manager
                    of a convenience store who had a prominent
                    facial scar was passed over for promotion to
                    store manager.  The owner promoted a less
                    experienced part-time clerk, because he
                    believed that customers and vendors would not
                    want to look at this person.  The employer
                    discriminated against her on the basis of
                    disability, because he perceived and treated
                    her as a person with a substantial limitation.
          3.   The individual may have no impairment at all, but
               is regarded by an employer as having a
               substantially limiting impairment.
                    For example:  An employer discharged an
                    employee based on a rumor that the individual
                    had HIV disease.  This person did not have any
                    impairment, but was treated as though she had
                    a substantially limiting impairment.
               This part of the definition protects people who are
               "perceived" as having disabilities from employment
               decisions based on stereotypes, fears, or
               misconceptions about disability.  It applies to
               decisions based on unsubstantiated concerns about
               productivity, safety, insurance, liability,
               attendance, costs of accommodation, accessibility,
               workers' compensation costs or acceptance by
               co-workers and customers.
               Accordingly, if an employer makes an adverse
               employment decision based on unsubstantiated
               beliefs or fears that a person's perceived
               disability will cause problems in areas such as
               those listed above, and cannot show a legitimate
               nondiscriminatory reason for the action, that
               action would be discriminatory under this part of
               the definition.
2.3  Qualified Individual with a Disability
     To be protected by the ADA, a person must not only be an
     individual with a disability, but must be qualified.  An
     employer is not required to hire or retain an individual who
     is not qualified to perform a job.  The regulations define a
     qualified individual with a disability as a person 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."
     There are two basic steps in determining whether an individual
     is  "qualified" under the ADA:
     (1)  Determine if the individual meets necessary prerequisites
          for the job, such as:
              education;
              work experience;
              training;
              skills;
              licenses;
              certificates;
              other job-related requirements, such as good
               judgment or ability to work with other people.
               For example:  The first step in determining whether
               an accountant who has cerebral palsy is qualified
               for a certified public accountant job is to
               determine if the person is a licensed CPA.  If not,
               s/he is not qualified.  Or, if it is a company's
               policy that all its managers have at least three
               years' experience working with the company, an
               individual with a disability who has worked for two
               years for the company would not be qualified for a
               managerial position.
          This first step is sometimes referred to as determining
          if an individual with a disability is "otherwise
          qualified."  Note, however, that if an individual meets
          all job prerequisites except those that s/he cannot meet
          because of a disability, and alleges discrimination
          because s/he is "otherwise qualified" for a job, the
          employer would have to show that the requirement that
          screened out this person is "job related and consistent
          with business necessity."  (See Chapter IV)
          If the individual with a disability meets the necessary
          job prerequisites:
     (2)  Determine if the individual can perform the essential
          functions of the job, with or without reasonable
          accomodation.
          This second step, a key aspect of nondiscrimination under
          the ADA, has two parts:
              Identifying  "essential functions of the job"; and
              Considering whether the person with a disability
               can perform these functions, unaided or with a
               "reasonable accommodation."
          The ADA requires an employer to focus on the essential
          functions of a job to determine whether a person with a
          disability is qualified.  This is an important non-
          discrimination requirement.  Many people with
          disabilities who can perform essential job functions are
          denied employment because they cannot do things that are
          only marginal to the job.
               For example:  A file clerk position description may
               state that the person holding the job answers the
               telephone, but if in fact the basic functions of
               the job are to file and retrieve written materials,
               and telephones actually or usually are handled by
               other employees, a person whose hearing impairment
               prevents use of a telephone and who is qualified to
               do the basic file clerk functions should not be
               considered unqualified for this position.
2.3(a)    Identifying the Essential Functions of a Job
          Sometimes it is necessary to identify the essential
          functions of a job in order to know whether an individual
          with a disability is "qualified" to do the job.  The
          regulations provide guidance on identifying the essential
          functions of the job.  The first consideration is whether
          employees in the position actually are required to
          perform the function.
               For example:  A job announcement or job description
               for a secretary or receptionist may state that
               typing is a function of the job.  If, in fact, the
               employer has never or seldom required an employee
               in that position to type, this could not be
               considered an essential function.
          If a person holding a job does perform a function, the
          next consideration is whether removing that function
          would fundamentally change the job.
          The regulations list several reasons why a function could
          be considered essential:
          1.   The position exists to perform the function.
               For example:
                   A person is hired to proofread documents.  The
                    ability to proofread accurately is an
                    essential function, because this is the reason
                    that this position exists.
                   A company advertises a position for a
                    "floating" supervisor to substitute when
                    regular supervisors on the day, night, and
                    graveyard shifts are absent.  The only reason
                    this position exists is to have someone who
                    can work on any of the three shifts in place
                    of an absent supervisor.  Therefore, the
                    ability to work at any time of day is an
                    essential function of the job.
          2.   There are a limited number of other employees
               available to perform the function, or among whom
               the function can be distributed.
               This may be a factor because there are only a few
               other employees, or because of fluctuating demands
               of a business operation.
                    For example:  It may be an essential function
                    for a file clerk to answer the telephone if
                    there are only three employees in a very busy
                    office and each employee has to perform many
                    different tasks.  Or, a company with a large
                    workforce may have periods of very heavy
                    labor-intensive activity alternating with less
                    active periods.  The heavy work flow during
                    peak periods may make performance of each
                    function essential, and limit an employer's
                    flexibility to reassign a particular function.
          3.   A function is highly specialized, and the person in
               the position is hired for special expertise or
               ability to perform it.
                    For example, A company wishes to expand its
                    business with Japan.  For a new sales
                    position, in addition to sales experience, it
                    requires a person who can communicate fluently
                    in the Japanese language.  Fluent
                    communication in the Japanese language is an
                    essential function of the job.
          The regulation also lists several types of evidence to be
          considered in determining whether a function is
          essential.  This list is not all-inclusive, and factors
          not on the list may be equally important as evidence.
          Evidence to be considered includes:
          a.   The employer's judgment
               An employer's judgment as to which functions are
               essential is important evidence.  However, the
               legislative history of the ADA indicates that
               Congress did not intend that this should be the
               only evidence, or that it should be the prevailing
               evidence.  Rather, the employer's judgment is a
               factor to be considered along with other relevant
               evidence.
               However, the consideration of various kinds of
               evidence to determine which functions are essential
               does not mean that an employer will be
               second-guessed on production standards, setting the
               quality or quantity of work that must be performed
               by a person holding a job, or be required to set
               lower standards for the job.
                    For example:  If an employer requires its
                    typists to be able to accurately type 75 words
                    per minute, the employer is not required to
                    show that such speed and accuracy are
                    "essential" to a job or that less accuracy or
                    speed would not be adequate.  Similarly, if a
                    hotel requires its housekeepers to thoroughly
                    clean 16 rooms per day, it does not have to
                    justify this standard as "essential."
                    However, in each case, if a person with a
                    disability is disqualified by such a standard,
                    the employer should be prepared to show that
                    it does in fact require employees to perform
                    at this level, that these are not merely paper
                    requirements and that the standard was not
                    established for a discriminatory reason.
          b.   A written job description prepared before
               advertising or interviewing applicants for a job
               The ADA does not require an employer to develop or
               maintain job descriptions.  A written job
               description that is prepared before advertising or
               interviewing applicants for a job will be
               considered as evidence along with other relevant
               factors.  However, the job description will not be
               given greater weight than other relevant evidence.
               A written job description may state that an
               employee performs a certain essential function.
               The job description will be evidence that the
               function is essential, but if individuals currently
               performing the job do not in fact perform this
               function, or perform it very infrequently, a review
               of the actual work performed will be more relevant
               evidence than the job description.
               If an employer uses written job descriptions, the
               ADA does not require that they be limited to a
               description of essential functions or that
               "essential functions" be identified.  However, if
               an employer wishes to use a job description as
               evidence of essential functions, it should in some
               way identify those functions that the employer
               believes to be important in accomplishing the
               purpose of the job.
               If an employer uses written job descriptions, they
               should be reviewed to be sure that they accurately
               reflect the actual functions of the current job.
               Job descriptions written years ago frequently are
               inaccurate.
                    For example:  A written job description may
                    state that an employee reads temperature and
                    pressure gauges and adjusts machine controls
                    to reflect these readings.  The job
                    description will be evidence that these
                    functions are essential.  However, if this job
                    description is not up-to-date, and in fact
                    temperature and pressure are now determined
                    automatically, the machine is controlled by a
                    computer and the current employee does not
                    perform the stated functions or does so very
                    infrequently, a review of actual work
                    performed will be more relevant evidence of
                    what the job requires.
               In identifying an essential function to determine
               if an individual with a disability is qualified,
               the employer should focus on the purpose of the
               function and the result to be accomplished, rather
               than the manner in which the function presently is
               performed.   An individual with a disability may be
               qualified to perform the function if an
               accommodation would enable this person to perform
               the job in a different way, and the accommodation
               does not impose an undue hardship.  Although it may
               be essential that a function be performed,
               frequently it is not essential that it be performed
               in a particular way.
                    For example:  In a job requiring use of a
                    computer, the essential function is the
                    ability to access, input, and retrieve
                    information from the computer.  It is not
                    "essential" that a person in this job enter
                    information manually, or visually read the
                    information on the computer screen.  Adaptive
                    devices or computer software can enable a
                    person without arms or a person with impaired
                    vision to perform the essential functions of
                    the job.
               Similarly, an essential function of a job on a
               loading dock may be to move heavy packages from the
               dock to a storage room, rather than to lift and
               carry packages from the dock to the storage room.
               (See also discussion of Job Analysis and Essential
               Functions of a Job, below).
               If the employer intends to use a job description as
               evidence of essential functions, the job
               description must be prepared before advertising or
               interviewing for a job; a job description prepared
               after an alleged discriminatory action will not be
               considered as evidence.
          c.   The amount of time spent performing the function
                    For example:  If an employee spends most of
                    the time or a majority of the time operating
                    one machine, this would be evidence that
                    operating this machine was an essential
                    function.
          d.   The consequences of not requiring a person in this
               job to perform a function
               Sometimes a function that is performed infrequently
               may be essential because there will be serious
               consequences if it is not performed.
                    For example:
                        An airline pilot spends only a few
                         minutes of a flight landing a plane, but
                         landing the plane is an essential
                         function because of the very serious
                         consequences if the pilot could not
                         perform this function.
                        A firefighter may only occasionally have
                         to carry a heavy person from a burning
                         building, but being able to perform this
                         function would be essential to the
                         firefighter's job.
                        A clerical worker may spend only a few
                         minutes a day answering the telephones,
                         but this could be an essential function
                         if no one else is available to answer the
                         phones at that time, and business calls
                         would go unanswered.
          e.   The terms of a collective bargaining agreement
               Where a collective bargaining agreement lists
               duties to be performed in particular jobs, the
               terms of the agreement may provide evidence of
               essential functions.  However, like a position
               description, the agreement would be considered
               along with other evidence, such as the actual
               duties performed by people in these jobs.
          f.   Work experience of people who have performed a job
               in the past and work experience of people who
               currently perform similar jobs
               The work experience of previous employees in a job
               and the experience of current employees in similar
               jobs provide pragmatic evidence of actual duties
               performed.  The employer should consult such
               employees and observe their work operations to
               identify essential job functions, since the tasks
               actually performed provide significant evidence of
               these functions.
          g.   Other relevant factors
               The nature of the work operation and the employer's
               organizational structure may be factors in
               determining whether a function is essential.
                    For example:
                        A particular manufacturing facility
                         receives large orders for its product
                         intermittently.  These orders must be
                         filled under very tight deadlines.  To
                         meet these deadlines, it is necessary
                         that each production worker be able to
                         perform a variety of different tasks with
                         different requirements.  All of these
                         tasks are essential functions for a
                         production worker at that facility.
                         However, another facility that receives
                         orders on a continuous basis finds it
                         most efficient to organize an assembly
                         line process, in which each production
                         worker repeatedly performs one major
                         task.  At this facility, this single task
                         may be the only essential function of the
                         production worker's job.
                        An employer may structure production
                         operations to be carried out by a "team"
                         of workers.  Each worker performs a
                         different function, but every worker is
                         required, on a rotating basis, to perform
                         each different function.  In this
                         situation, all the functions may be
                         considered to be essential for the job,
                         rather than the function that any one
                         worker performs at a particular time.
     Changing Essential Job Functions
     The ADA does not limit an employer's ability to establish or
     change the content, nature, or functions of a job.  It is the
     employer's province to establish what a job is and what
     functions are required to perform it.  The ADA simply requires
     that an individual with a disability's qualifications for a
     job are evaluated in relation to its essential functions.
          For example:  A grocery store may have two different jobs
          at the checkout stand, one titled, "checkout clerk" and
          the other "bagger."  The essential functions of the
          checkout clerk are entering the price for each item into
          a cash register, receiving money, making change, and
          passing items to the bagger.  The essential functions of
          the bagging job are putting items into bags, giving the
          bags to the customer directly or placing them in grocery
          carts.
          For legitimate business reasons, the store management
          decides to combine the two jobs in a new job called
          "checker-bagger."  In the new job, each employee will
          have to perform the essential functions of both former
          jobs.  Each employee now must enter prices in a new,
          faster computer-scanner, put the items in bags, give the
          bags to the customer or place them in carts.  The
          employee holding this job would have to perform all of
          these functions.  There may be some aspects of each
          function, however, that are not "essential" to the job,
          or some possible modification in the way these functions
          are performed, that would enable a person employed as a
          "checker" whose disability prevented performance of all
          the bagging operations to do the new job.
          For example:  If the checker's disability made it
          impossible to lift any item over one pound, s/he might
          not be qualified to perform the essential bagging
          functions of the new job.  But if the disability only
          precluded lifting items of more than 20 pounds, it might
          be possible for this person to perform the bagging
          functions, except for the relatively few instances when
          items or loaded bags weigh more than 20 pounds.  If other
          employees are available who could help this individual
          with the few heavy items, perhaps in exchange for some
          incidental functions that they perform, or if this
          employee could keep filled bags loads under 20 pounds,
          then bagging loads over 20 pounds would not be an
          essential function of the new job.
2.3(b)    Job Analysis and the "Essential Functions" of a Job
          The ADA does not require that an employer conduct a job
          analysis or any particular form of job analysis to
          identify the essential functions of a job.  The
          information provided by a job analysis may or may not be
          helpful in properly identifying essential job functions,
          depending on how it is conducted.
          The term "job analysis" generally is used to describe a
          formal process in which information about a specific job
          or occupation is collected and analyzed.  Formal job
          analysis may be conducted by a number of different
          methods.  These methods obtain different kinds of
          information that is used for different purposes.  Some of
          these methods will not provide information sufficient to
          determine if an individual with a disability is qualified
          to perform "essential" job functions.
               For example:  One kind of formal job analysis looks
               at specific job tasks and classifies jobs according
               to how these tasks deal with data, people, and
               objects.  This type of job analysis is used to set
               wage rates for various jobs; however, it may not be
               adequate to identify the essential functions of a
               particular job, as required by the ADA.  Another
               kind of job analysis looks at the kinds of
               knowledge, skills, and abilities that are necessary
               to perform a job.  This type of job analysis is
               used to develop selection criteria for various
               jobs.  The information from this type of analysis
               sometimes helps to measure the importance of
               certain skills, knowledge and abilities, but it
               does not take into account the fact that people
               with disabilities often can perform essential
               functions using other skills and abilities.
          Some job analysis methods ask current employees and their
          supervisors to rate the importance of general
          characteristics necessary to perform a job, such as
          "strength," "endurance," or "intelligence," without
          linking these characteristics to specific job functions
          or specific tasks that are part of a function.  Such
          general information may not identify, for example,
          whether upper body or lower body "strength" is required,
          or whether muscular endurance or cardiovascular
          "endurance" is needed to perform a particular job
          function.  Such information, by itself, would not be
          sufficient to determine whether an individual who has
          particular limitations can perform an essential function
          with or without an accommodation.
          As already stated, the ADA does not require a formal job
          analysis or  any particular method of analysis to
          identify the essential functions of a job.  A small
          employer may wish to conduct an informal analysis by
          observing and consulting with people who perform the job
          or have previously performed it and their supervisors.
          If possible, it is advisable to observe and consult with
          several workers under a range of conditions, to get a
          better idea of all job functions and the different ways
          they may be performed.  Production records and workloads
          also may be relevant factors to consider.
          To identify essential job functions under the ADA, a job
          analysis should focus on the purpose of the job and the
          importance of actual job functions in achieving this
          purpose.  Evaluating "importance" may include
          consideration of the frequency with which a function is
          performed, the amount of time spent on the function, and
          the consequences if the function is not performed.  The
          analysis may include information on the work environment
          (such as unusual heat, cold, humidity, dust, toxic
          substances or stress factors).  The job analysis may
          contain information on the manner in which a job
          currently is performed, but should not conclude that
          ability to perform the job in that manner is an essential
          function, unless there is no other way to perform the
          function without causing undue hardship.  A job analysis
          will be most helpful for purposes of the ADA if it
          focuses on the results or outcome of a function, not
          solely on the way it customarily is performed.
               For example:
                   An essential function of a computer programmer
                    job might be described as "ability to develop
                    programs that accomplish necessary
                    objectives," rather than "ability to manually
                    write programs."  Although a person currently
                    performing the job may write these programs by
                    hand, that is not the essential function,
                    because programs can be developed directly on
                    the computer.
                   If a job requires mastery of information
                    contained in technical manuals, this essential
                    function would be "ability to learn technical
                    material," rather than "ability to read
                    technical manuals."  People with visual and
                    other reading impairments could perform this
                    function using other means, such as
                    audiotapes.
                   A job that requires objects to be moved from
                    one place to another should state this
                    essential function.  The analysis may note
                    that the person in the job "lifts 50 pound
                    cartons to a height of 3 or 4 feet and loads
                    them into truck-trailers 5 hours daily," but
                    should not identify the "ability to manually
                    lift and load 50 pound cartons" as an
                    essential function unless this is the only
                    method by which the function can be performed
                    without causing an undue hardship.
          A job analysis that is focused on outcomes or results
          also will be helpful in establishing appropriate
          qualification standards, developing job descriptions,
          conducting interviews, and selecting people in accordance
          with ADA requirements.  It will be particularly useful in
          helping to identify accommodations that will enable an
          individual with specific functional abilities and
          limitations to perform the job.  (See Chapter III.)
2.3(c)    Perform Essential Functions "With or Without Reasonable
          Accommodation"
          Many individuals with disabilities are qualified to
          perform the essential functions of jobs without need of
          any accommodation.  However, if an individual with a
          disability who is otherwise qualified cannot perform one
          or more essential job functions because of his or her
          disability, the employer, in assessing whether the person
          is qualified to do the job, must consider whether there
          are modifications or adjustments that would enable the
          person to perform these functions.  Such modifications or
          adjustments are called "reasonable accommodations."
          Reasonable accommodation is a key nondiscrimination
          requirement under the ADA.  An employer must first
          consider reasonable accommodation in determining whether
          an individual with a disability is qualified; reasonable
          accommodation also must be considered when making many
          other employment decisions regarding people with
          disabilities.  The following chapter discusses the
          employer's obligation to provide reasonable accommodation
          and the limits to that obligation.  The chapter also
          provides examples of reasonable accommodations.III.     THE REASONABLE ACCOMMODATION OBLIGATION
3.1  Overview of Legal Obligations
         An employer must provide a reasonable accommodation to
          the known physical or mental limitations of a qualified
          applicant or employee with a disability unless it can
          show that the accommodation would impose an undue
          hardship on the business.
         Reasonable accommodation is any modification or
          adjustment to a job, an employment practice, or the work
          environment that makes it possible for an individual with
          a disability to enjoy an equal employment opportunity.
         The obligation to provide a reasonable accommodation
          applies to all aspects of employment.  This duty is
          ongoing and may arise any time that a person's disability
          or job changes.
         An employer cannot deny an employment opportunity to a
          qualified applicant or employee because of the need to
          provide reasonable accommodation, unless it would cause
          an undue hardship.
         An employer does not have to make an accommodation for an
          individual who is not otherwise qualified for a position.
         Generally, it is the obligation of an individual with a
          disability to request a reasonable accommodation.
         A qualified individual with a disability has the right to
          refuse an accommodation.  However, if the individual
          cannot perform the essential functions of the job without
          the accommodation, s/he may not be qualified for the job.
         If the cost of an accommodation would impose an undue
          hardship on the employer, the individual with a
          disability should be given the option of providing the
          accommodation or paying that portion of the cost which
          would constitute an undue hardship.
3.2  Why Is a Reasonable Accommodation Necessary?
     Reasonable accommodation is a key nondiscrimination
     requirement of the ADA because of the special nature of
     discrimination faced by people with disabilities.  Many people
     with disabilities can perform jobs without any need for
     accommodations.  But many others are excluded from jobs that
     they are qualified to perform because of unnecessary barriers
     in the workplace and the work environment.  The ADA recognizes
     that such barriers may discriminate against qualified people
     with disabilities just as much as overt exclusionary
     practices.  For this reason, the ADA requires reasonable
     accommodation as a means of overcoming unnecessary barriers
     that prevent or restrict employment opportunities for
     otherwise qualified individuals with disabilities.
     People with disabilities are restricted in employment
     opportunities by many different kinds of barriers.  Some face
     physical barriers that make it difficult to get into and
     around a work site or to use necessary work equipment.  Some
     are excluded or limited by the way people communicate with
     each other.  Others are excluded because of rigid work
     schedules that allow no flexibility for people with special
     needs caused by disability.  Many are excluded only by
     barriers in other people's minds; these include unfounded
     fears, stereotypes, presumptions, and misconceptions about job
     performance, safety, absenteeism, costs, or acceptance by
     co-workers and customers.
     Under the ADA, when an individual with a disability is
     qualified to perform the essential functions of a job except
     for functions that cannot be performed because of related
     limitations and existing job barriers, an employer must try to
     find a reasonable accommodation that would enable this person
     to perform these functions.  The reasonable accommodation
     should reduce or eliminate unnecessary barriers between the
     individual's abilities and the requirements for performing the
     essential job functions.
3.3  What Is a Reasonable Accommodation?
     Reasonable accommodation is a modification or adjustment to a
     job, the work environment, or the way things usually are done
     that enables a qualified individual with a disability to enjoy
     an equal employment opportunity.  An equal employment
     opportunity means an opportunity to attain the same level of
     performance or to enjoy equal benefits and privileges of
     employment as are available to an average similarly-situated
     employee without a disability.  The ADA requires reasonable
     accommodation in three aspects of employment:
         to ensure equal opportunity in the application process;
         to enable a qualified individual with a disability to
          perform the essential functions of a job; and
         to enable an employee with a disability to enjoy equal
          benefits and privileges of employment.
     Reasonable Accommodation in the Application Process
     Reasonable accommodation must be provided in the job
     application process to enable a qualified applicant to have an
     equal opportunity to be considered for a job.
          For example:  A person who uses a wheelchair may need an
          accommodation if an employment office or interview site
          is not accessible.  A person with a visual disability or
          a person who lacks manual dexterity may need assistance
          in filling out an application form.  Without such
          accommodations, these individuals may have no opportunity
          to be considered for a job.
          (See Chapter V. for further discussion of accommodations
          in the application process).
     Accommodations to Perform the Essential Functions of a Job
     Reasonable accommodation must be provided to enable a
     qualified applicant to perform the essential functions of the
     job s/he is seeking, and to enable a qualified employee with
     a disability to perform the essential functions of a job
     currently held.  Modifications or adjustments may be required
     in the work environment, in the manner or circumstances in
     which the job customarily is performed, or in employment
     policies.  Many accommodations of this nature are discussed
     later in this chapter.
     Accommodations to Ensure Equal Benefits of Employment
     Reasonable accommodations must be provided to enable an
     employee with a disability to enjoy benefits and privileges of
     employment equal to those enjoyed by similarly situated
     nondisabled employees.
          For example:  Employees with disabilities must have equal
          access to lunchrooms, employee lounges, rest rooms,
          meeting rooms, and other employer-provided or sponsored
          services such as health programs, transportation, and
          social events.
          (See Chapter VII for further discussion of this
          requirement).
3.4  Some Basic Principles of Reasonable Accommodation
     A reasonable accommodation must be an effective accommodation.
     It must provide an opportunity for a person with a disability
     to achieve the same level of performance or to enjoy benefits
     or privileges equal to those of an average similarly-situated
     nondisabled person.  However, the accommodation does not have
     to ensure equal results or provide exactly the same benefits
     or privileges.
          For example:  An employer provides an employee lunchroom
          with food and beverages on the second floor of a building
          that has no elevator.  If it would be an undue hardship
          to install an elevator for an employee who uses a
          wheelchair, the employer must provide a comparable
          facility on the first floor.  The facility does not have
          to be exactly the same as that on the second floor, but
          must provide food, beverages and space for the disabled
          employee to eat with co-workers.  It would not be a
          reasonable accommodation merely to provide a place for
          this employee to eat by himself.  Nor would it be a
          reasonable accommodation to provide a separate facility
          for the employee if access to the common facility could
          be provided without undue hardship.  For example, if the
          lunchroom was only several steps up, a portable ramp
          could provide access.
     The reasonable accommodation obligation applies only to
     accommodations that reduce barriers to employment related to
     a person's disability; it does not apply to accommodations
     that a disabled person may request for some other reason.
          For example:  Reassignment is one type of accommodation
          that may be required under the ADA.  If an employee whose
          job requires driving loses her sight, reassignment to a
          vacant position that does not require driving would be a
          reasonable accommodation, if the employee is qualified
          for that position with or without an accommodation.
          However, if a blind computer operator working at an
          employer's Michigan facility requested reassignment to a
          facility in Florida because he prefers to work in a
          warmer climate, this would not be a reasonable
          accommodation required by the ADA.  In the second case,
          the accommodation is not needed because of the employee's
          disability.
     A reasonable accommodation need not be the best accommodation
     available, as long as it is effective for the purpose; that
     is, it gives the person with a disability an equal opportunity
     to be considered for a job, to perform the essential functions
     of the job, or to enjoy equal benefits and privileges of the
     job.
          For example:  An employer would not have to hire a
          full-time reader for a blind employee if a co-worker is
          available as a part-time reader when needed, and this
          will enable the blind employee to perform his job duties
          effectively.
     An employer is not required to provide an accommodation that
     is primarily for personal use.  Reasonable accommodation
     applies to modifications that specifically assist an
     individual in performing the duties of a particular job.
     Equipment or devices that assist a person in daily activities
     on and off the job are considered personal items that an
     employer is not required to provide.  However, in some cases,
     equipment that otherwise would be considered "personal" may be
     required as an accommodation if it is specifically designed or
     required to meet job-related rather than personal needs.
          For example:  An employer generally would not be required
          to provide personal items such as eyeglasses, a
          wheelchair, or an artificial limb.  However, the employer
          might be required to provide a person who has a visual
          impairment with glasses that are specifically needed to
          use a computer monitor.  Or, if deep pile carpeting in a
          work area makes it impossible for an individual to use a
          manual wheelchair, the employer may need to replace the
          carpet, place a usable surface over the carpet in areas
          used by the employee, or provide a motorized wheelchair.
     The ADA's requirements for certain types of adjustments and
     modifications to meet the reasonable accommodation obligation
     do not prevent an employer from providing accommodations
     beyond those required by the ADA.
          For example:  "Supported employment" programs may provide
          free job coaches and other assistance to enable certain
          individuals with severe disabilities to learn and/or to
          progress in jobs.  These programs typically require a
          range of modifications and adjustments to customary
          employment practices.  Some of these modifications may
          also be required by the ADA as reasonable accommodations.
          However, supported employment programs may require
          modifications beyond those required under the ADA, such
          as restructuring of essential job functions.  Many
          employers have found that supported employment programs
          are an excellent source of reliable productive new
          employees.  Participation in these programs advances the
          underlying goal of the ADA - - to increase employment
          opportunities for people with disabilities.  Making
          modifications for supported employment beyond those
          required by the ADA in no way violates the ADA.
3.5  Some Examples of Reasonable Accommodation
     The statute and EEOC's regulations provide examples of common
     types of reasonable accommodation that an employer may be
     required to provide, but many other accommodations may be
     appropriate for particular situations.  Accommodations may
     include:
         making facilities readily accessible to and usable by an
          individual with a disability;
         restructuring a job by reallocating or redistributing
          marginal job functions
         altering when or how an essential job function is
          performed;
         part-time or modified work schedules;
         obtaining or modifying equipment or devices;
         modifying examinations, training materials or policies;
         providing qualified readers and interpreters;
         reassignment to a vacant position;
         permitting use of accrued paid leave or unpaid leave for
          necessary treatment;
         providing reserved parking for a person with a mobility
          impairment;
         allowing an employee to provide equipment or devices that
          an employer is not required to provide.
     These and other types of reasonable accommodation are
     discussed in the pages that follow.  However, the examples in
     this Manual cannot cover the range of potential
     accommodations, because every reasonable accommodation must be
     determined on an individual basis.  A reasonable accommodation
     always must take into consideration two unique factors:
         the specific abilities and functional limitations of a
          particular applicant or employee with a disability; and
         the specific functional requirements of a particular job.
     In considering an accommodation, the focus should be on the
     abilities and limitations of the individual, not on the name
     of a disability or a particular physical or mental condition.
     This is necessary because people who have any particular
     disability may have very different abilities and limitations.
     Conversely, people with different kinds of disabilities may
     have similar functional limitations.
          For example:  If it is an essential function of a job to
          press a foot pedal a certain number of times a minute and
          an individual with a disability applying for the job has
          some limitation that makes this difficult or impossible,
          the accommodation process should focus on ways that this
          person might be able to do the job function, not on the
          nature of her disability or on how persons with this kind
          of disability generally might be able to perform the job.
3.6  Who Is Entitled to a Reasonable Accommodation?
     As detailed in Chapter II, an individual is entitled to a
     reasonable accommodation if s/he:
          meets the ADA definition of "a qualified individual with
          a disability" (meets all prerequisites for performing the
          essential functions of a job [being considered for a job
          or enjoying equal benefits and privileges of a job]
          except any that cannot be met because of a disability).
     If there is a reasonable accommodation that will enable this
     person to perform the essential functions of a job (be
     considered, or receive equal benefits, etc.), the employer is
     obligated to provide it, unless it would impose an undue
     hardship on the operation of the business.
     When is an Employer Obligated to Make a Reasonable
     Accommodation?
     An employer is obligated to make an accommodation only to the
     known limitations of an otherwise qualified individual with a
     disability.  In general, it is the responsibility of the
     applicant or employee with a disability to inform  the
     employer that an accommodation is needed to participate in the
     application process, to perform essential job functions or to
     receive equal benefits and privileges of employment.  An
     employer is not required to provide an accommodation if
     unaware of the need.
     However, the employer is responsible for notifying job
     applicants and employees of its obligation to provide
     accommodations for otherwise qualified individuals with
     disabilities.
     The ADA requires an employer to post notices containing the
     provisions of the ADA, including the reasonable accommodation
     obligation, in conspicuous places on its premises.  Such
     notices should be posted in employment offices and other
     places where applicants and employees can readily see them.
     EEOC provides posters for this purpose.  (See Chapter I for
     additional information on the required notice.)
     Information about the reasonable accommodation obligation also
     can be included in job application forms, job vacancy notices,
     and in personnel manuals, and may be communicated orally.
     An applicant or employee does not have to specifically request
     a "reasonable accommodation," but must only let the employer
     know that some adjustment or change is needed to do a job
     because of the limitations caused by a disability.
     If a job applicant or employee has a "hidden" disability - -
     one that is not obvious -- it is up to that individual to make
     the need for an accommodation known.  If an applicant has a
     known disability, such as a visible disability, that appears
     to limit, interfere with, or prevent the individual from
     performing job-related functions, the employer may ask the
     applicant to describe or demonstrate how s/he would perform
     the function with or without a reasonable accommodation.
     Chapter V provides guidance on how to make such an inquiry
     without violating the ADA prohibition against pre-employment
     inquiries in the application and interview process.
     If an employee with a known disability is not performing well
     or is having difficulty in performing a job, the employer
     should assess whether this is due to a disability.  The
     employer may inquire at any time whether the employee needs an
     accommodation.
     Documentation of Need for Accommodation
     If an applicant or employee requests an accommodation and the
     need for the accommodation is not obvious, or if the employer
     does not believe that the accommodation is needed, the
     employer may request documentation of the individual's
     functional limitations to support the request.
          For example:  An employer may ask for written
          documentation from a doctor, psychologist, rehabilitation
          counselor, occupational or physical therapist,
          independent living specialist, or other professional with
          knowledge of the person's functional limitations.  Such
          documentation might indicate, for example, that this
          person cannot lift more than 15 pounds without
          assistance.
3.7  How Does an Employer Determine What Is a Reasonable
     Accommodation?
     When a qualified individual with a disability requests an
     accommodation, the employer must make a reasonable effort to
     provide an accommodation that is effective for the individual
     (gives the individual an equally effective opportunity to
     apply for a job, perform essential job functions, or enjoy
     equal benefits and privileges).
     In many cases, an appropriate accommodation will be obvious
     and can be made without difficulty and at little or no cost.
     Frequently, the individual with a disability can suggest a
     simple change or adjustment, based on his or her life or work
     experience.
     An employer should always consult the person with the
     disability as the first step in considering an accommodation.
     Often this person can suggest much simpler and less costly
     accommodations than the employer might have believed
     necessary.
          For example:  A small employer believed it necessary to
          install a special lower drinking fountain for an employee
          using a wheelchair, but the employee indicated that he
          could use the existing fountain if paper cups were
          provided in a holder next to the fountain.
     However, in some cases, the appropriate accommodation may not
     be so easy to identify.  The individual requesting the
     accommodation may not know enough about the equipment being
     used or the exact nature of the worksite to suggest an
     accommodation, or the employer may not know enough about the
     individual's functional limitations in relation to specific
     job tasks.
     In such cases, the employer and the individual with a
     disability should work together to identify the appropriate
     accommodation.  EEOC regulations require, when necessary, an
     informal, interactive process to find an effective
     accommodation.  The process is described below in relation to
     an accommodation that will enable an individual with a
     disability to perform the essential functions of a job.
     However, the same approach can be used to identify
     accommodations for job applicants and accommodations to
     provide equal benefits and privileges of employment.
3.8  A process for identifying a reasonable accommodation
     1.   Look at the particular job involved.  Determine its
          purpose and its essential functions.
          Chapter II recommended that the essential functions of
          the job be identified before advertising or interviewing
          for a job.  However, it is useful to reexamine the
          specific job at this point to determine or confirm its
          essential functions and requirements.
     2.   Consult with the individual with a disability to find out
          his or her specific physical or mental abilities and
          limitations as they relate to the essential job
          functions.  Identify the barriers to job performance and
          assess how these barriers could be overcome with an
          accommodation.
     3.   In consultation with the individual, identify potential
          accommodations and assess how effective each would be in
          enabling the individual to perform essential job
          functions.  If this consultation does not identify an
          appropriate accommodation, technical assistance is
          available from a number of sources, many without cost.
          There are also financial resources to help with
          accommodation costs.  (See Financial and Technical
          Assistance for  Accommodations, 4.1 below).
     4.   If there are several effective accommodations that would
          provide an equal employment opportunity, consider the
          preference of the individual with a disability and select
          the accommodation that best serves the needs of the
          individual and the employer.
          If more than one accommodation would be effective for the
          individual with a disability, or if the individual would
          prefer to provide his or her own accommodation, the
          individual's preference should be given first
          consideration.  However, the employer is free to choose
          among effective accommodations, and may choose one that
          is less expensive or easier to provide.
          The fact that an individual is willing to provide his or
          her own accommodation does not relieve the employer of
          the duty to provide this or another reasonable
          accommodation should this individual for any reason be
          unable or unwilling to continue to provide the
          accommodation.
     Examples of the Reasonable Accommodation Process:
         A "sack-handler" position requires that the employee in
          this job pick up 50 pound sacks from a loading dock and
          carry them to the storage room.  An employee who is
          disabled by a back impairment requests an accommodation.
          The employer analyzes the job and finds that its real
          purpose and essential function is to move the sacks from
          the loading dock to the store room.  The person in the
          job does not necessarily have to lift and carry the
          sacks.  The employer consults with the employee to
          determine his exact physical abilities and limitations.
          With medical documentation, it is determined that this
          person can lift 50 pound sacks to waist level, but cannot
          carry them to the storage room.  A number of potential
          accommodations are identified:  use of a dolly, a hand-
          truck or a cart.  The employee prefers the dolly.  After
          considering the relative cost, efficiency, and
          availability of the alternative accommodations, and after
          considering the preference of the employee, the employer
          provides the dolly as an accommodation.  In this case,
          the employer found the dolly to be the most cost-
          effective accommodation, as well as the one preferred by
          the employee.  If the employer had found a hand-truck to
          be as efficient, it could have provided the hand-truck as
          a reasonable accommodation.
         A company has an opening for a warehouse foreman.  Among
          other functions, the job requires checking stock for
          inventory, completing bills of lading and other reports,
          and using numbers.  To perform these functions, the
          foreman must have good math skills.  An individual with
          diabetes who has good experience performing similar
          warehouse supervisory functions applies for the job.
          Part of the application process is a computerized test
          for math skills, but the job itself does not require use
          of a computer.  The applicant tells the employer that
          although he has no problem reading print, his disability
          causes some visual impairment which makes it difficult to
          read a computer screen.  He says he can take the test if
          it is printed out by the computer.  However, this
          accommodation won't work, because the computer test is
          interactive, and the questions change based on the
          applicant's replies to each previous question.  Instead,
          the employer offers a reader as an accommodation; this
          provides an effective equivalent method to test the
          applicant's math skills.
     An individual with a disability is not required to accept an
     accommodation if the individual has not requested an
     accommodation and does not believe that one is needed.
     However, if the individual refuses an accommodation necessary
     to perform essential job functions, and as a result cannot
     perform those functions, the individual may not be considered
     qualified.
          For example:  An individual with a visual impairment that
          restricts her field of vision but who is able to read
          would not be required to accept a reader as an
          accommodation.  However, if this person could not read
          accurately unaided, and reading is an essential function
          of the job, she would not be qualified for the job if she
          refused an accommodation that would enable her to read
          accurately.
3.9  The Undue Hardship Limitation
     An employer is not required to make a reasonable accommodation
     if it would impose an undue hardship on the operation of the
     business.  However, if a particular accommodation would impose
     an undue hardship, the employer must consider whether there
     are alternative accommodations that would not impose such
     hardship.
     An undue hardship is an action that requires "significant
     difficulty or expense" in relation to the size of the
     employer, the resources available, and the nature of the
     operation.
     Accordingly, whether a particular accommodation will impose an
     undue hardship must always be determined on a case-by-case
     basis.  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.  In general, a larger employer would be expected to make
     accommodations requiring greater effort or expense than would
     be required of a smaller employer.  The concept of undue
     hardship includes any action that is:
         unduly costly;
         extensive;
         substantial;
         disruptive; or
         that would fundamentally alter the nature or operation of
          the business.
     The statute and regulations provide factors to be considered
     in determining whether an accommodation would impose an undue
     hardship on a particular business:
     1.   The nature and net cost of the accommodation needed.  The
          cost of an accommodation that is considered in
          determining undue hardship will be the actual cost to the
          employer.  Specific Federal tax credits and tax
          deductions are available to employers for making
          accommodations required by the ADA, and there are also
          sources of funding to help pay for some accommodations.
          If an employer can receive tax credits or tax deductions
          or partial funding for an accommodation, only the net
          cost to the employer will be considered in a
          determination of undue hardship.  (See Financial and
          Technical Assistance for Accommodations, 4.1 below);
     2.   The financial resources of the facility making the
          accommodation, the number of employees at this facility,
          and the effect on expenses and resources of the facility.
          If an employer has only one facility, the cost and impact
          of the accommodation will be considered in relation to
          the effect on expenses and resources of that facility.
          However, if the facility is part of a larger entity that
          is covered by the ADA, factors 3 and 4 below also will be
          considered in determinations of undue hardship.
     3.   The overall financial resources, size, number of
          employees, and type and location of facilities of the
          entity covered by the ADA (if the facility involved in
          the accommodation is part of a larger entity).
     4.   The type of operation of the covered entity, including
          the structure and functions of the workforce, the
          geographic separateness, and the administrative or fiscal
          relationship of the facility involved in making the
          accommodation to the larger entity.
          Factor 4 may include consideration of special types of
          employment operations, on a case-by-case basis, where
          providing a particular accommodation might be an undue
          hardship.
               For example:  It might "fundamentally alter" the
               nature of a temporary construction site or be
               unduly costly to make it physically accessible to
               an employee using a wheelchair, if the terrain and
               structures are constantly changing as construction
               progresses.
          Factor 4 will be considered, along with factors 2 and 3,
          where a covered entity operates more than one facility,
          in order to assess the financial resources actually
          available to the facility making the accommodation, in
          light of the interrelationship between the facility and
          the covered entity.  In some cases, consideration of the
          resources of the larger covered entity may not be
          justified, because the particular facility making the
          accommodation may not have access to those resources.
               For example:  A local, independently owned fast
               food franchise of a national company that receives
               no funding from that company may assert that it
               would be an undue hardship to provide an
               interpreter to enable a deaf applicant for store
               manager to participate in weekly staff meetings,
               because its own resources are inadequate and it has
               no access to resources of the national company.  If
               the financial relationship between the national
               company and the local company is limited to payment
               of an annual franchise fee, only the resources of
               the local franchise would be considered in
               determining whether this accommodation would be an
               undue hardship.  However, if the facility was part
               of a national company with financial and
               administrative control over all of its facilities,
               the resources of the company as a whole would be
               considered in making this determination.
     5.   The impact of the accommodation on the operation of the
          facility that is making the accommodation.  This may
          include the impact on the ability of other employees to
          perform their duties and the impact on the facility's
          ability to conduct business.
          An employer may be able to show that providing a
          particular accommodation would be unduly disruptive to
          its other employees or to its ability to conduct
          business.
               For example:  If an employee with a disability
               requested that the thermostat in the workplace be
               raised to a certain level to accommodate her
               disability, and this level would make it
               uncomfortably hot for other employees or customers,
               the employer would not have to provide this
               accommodation.  However, if there was an
               alternative accommodation that would not be an
               undue hardship, such as providing a space heater or
               placing the employee in a room with a separate
               thermostat, the employer would have to provide that
               accommodation.
               For example:  A person with a visual impairment who
               requires bright light to see well applies for a
               waitress position at an expensive nightclub.  The
               club maintains dim lighting to create an intimate
               setting, and lowers its lights further during the
               floor show.  If the job applicant requested bright
               lighting as an accommodation so that she could see
               to take orders, the employer could assert that this
               would be an undue hardship, because it would
               seriously affect the nature of its operation.
          In determining whether an accommodation would cause an
          undue hardship, an employer may consider the impact of an
          accommodation on the ability of other employees to do
          their jobs.  However, an employer may not claim undue
          hardship solely because providing an accommodation has a
          negative impact on the morale of other employees.  Nor
          can an employer claim undue hardship because of
          "disruption" due to employees' fears about, or prejudices
          toward, a person's disability.
               For example:  If restructuring a job to accommodate
               an individual with a disability creates a heavier
               workload for other employees, this may constitute
               an undue hardship.  But if other employees complain
               because an individual with a disability is allowed
               to take additional unpaid leave or to have a
               special flexible work schedule as a reasonable
               accommodation, such complaints or other negative
               reactions would not constitute an undue hardship.
               For example:  If an employee objects to working
               with an individual who has a disability because the
               employee feels uncomfortable or dislikes being near
               this person, this would not constitute an undue
               hardship.  In this case, the problem is caused by
               the employee's fear or prejudice toward the
               individual's disability, not by an accommodation.
          Problems of employee morale and employee negative
          attitudes should be addressed by the employer through
          appropriate consultations with supervisors and, where
          relevant, with union representatives.  Employers also may
          wish to provide supervisors, managers and employees with
          "awareness" training, to help overcome fears and
          misconceptions about disabilities, and to inform them of
          the employer's obligations under the ADA.
     Other Cost Issues
     An employer may not claim undue hardship simply because the
     cost of an accommodation is high in relation to an employee's
     wage or salary.  When enacting the ADA "factors" for
     determining undue hardship, Congress rejected a proposed
     amendment that would have established an undue hardship if an
     accommodation exceeded 10% of an individual's salary.  This
     approach was rejected because it would unjustifiably harm
     lower-paid workers who need accommodations.  Instead, Congress
     clearly established that the focus for determining undue
     hardship should be the resources available to the employer.
     If an employer finds that the cost of an accommodation would
     impose an undue hardship and no funding is available from
     another source, an applicant or employee with a disability
     should be offered the option of paying for the portion of the
     cost that constitutes an undue hardship, or of providing the
     accommodation.
          For example:  If the cost of an assistive device is
          $2000, and an employer believes that it can demonstrate
          that spending more than $1500 would be an undue hardship,
          the individual with a disability should be offered the
          option of paying the additional $500.  Or, if it would be
          an undue hardship for an employer to purchase brailling
          equipment for a blind applicant, the applicant should be
          offered the option of providing his own equipment (if
          there is no other effective accommodation that would not
          impose an undue hardship).
     The terms of a collective bargaining agreement may be relevant
     in determining whether an accommodation would impose an undue
     hardship.
          For example:  A worker who has a deteriorated disc
          condition and cannot perform the heavy labor functions of
          a machinist job, requests reassignment to a vacant
          clerk's job as a reasonable accommodation.  If the
          collective bargaining agreement has specific seniority
          lists and requirements governing each craft, it might be
          an undue hardship to reassign this person if others had
          seniority for the clerk's job.
          However, since both the employer and the union are
          covered by the ADA's requirements, including the duty to
          provide a reasonable accommodation, the employer should
          consult with the union and try to work out an acceptable
          accommodation.
     To avoid continuing conflicts between a collective bargaining
     agreement and the duty to provide reasonable accommodation,
     employers may find it helpful to seek a provision in
     agreements negotiated after the effective date of the ADA
     permitting the employer to take all actions necessary to
     comply with this law.  (See Chapter VII)
3.10 Examples of Reasonable Accommodations
     1.   Making Facilities Accessible and Usable
          The ADA establishes different requirements for
          accessibility under different sections of the Act.  A
          private employer's obligation to make its facilities
          accessible to its job applicants and employees under
          Title I of the ADA differs from the obligation of a place
          of public accommodation to provide access in existing
          facilities to its customers and clients, and from the
          obligations of public accommodations and  commercial
          facilities to provide accessibility in renovated or newly
          constructed buildings under Title III of the Act.  The
          obligation of a state and local government to provide
          access for applicants and employees under Title I also
          differs from its obligation to provide accessibility
          under Title II of the ADA.
          The employer's obligation under Title I is to provide
          access for an individual applicant to participate in the
          job application process, and for an individual employee
          with a disability to perform the essential functions of
          his/her job, including access to a building, to the work
          site, to needed equipment, and to all facilities used by
          employees.  The employer must provide such access unless
          it would cause an undue hardship.
          Under Title I, an employer is not required to make its
          existing facilities accessible until a particular
          applicant or employee with a particular disability needs
          an accommodation, and then the modifications should meet
          that individual's work needs.  The employer does not have
          to make changes to provide access in places or facilities
          that will not be used by that individual for employment
          related activities or benefits.
          In contrast, Title III of the ADA requires that places of
          public accommodation (such as banks, retail stores,
          theaters, hotels and restaurants) make their goods and
          services accessible generally, to all people with
          disabilities.  Under Title III, existing buildings and
          facilities of a public accommodation must be made
          accessible by removing architectural barriers or
          communications barriers that are structural in nature, if
          this is "readily achievable."  If this is not "readily
          achievable," services must be provided to people with
          disabilities in some alternative manner if this is
          "readily achievable."
          The obligation for state and local governments to provide
          "program accessibility" in existing facilities under
          Title II also differs from their obligation to provide
          access as employers under Title I.  Title II requires
          that these governments operate each service, program or
          activity in existing facilities so that, when viewed in
          its entirety, it is readily accessible to and useable by
          persons with disabilities, unless this would cause a
          "fundamental alteration" in the nature of the program or
          service, or would result in "undue financial and
          administrative burdens."  In addition, private employers
          that occupy commercial facilities or operate places of
          public accommodation and state and local governments must
          conform to more extensive accessibility requirements
          under Title III and Title II when making alterations to
          existing facilities or undertaking new construction.
          (see Requirements for Renovation and New Construction
          below.)
          The accessibility requirements under Title II and III are
          established in Department of Justice regulations.
          Employers may contact the Justice Department's Office on
          the Americans with Disabilities Act for information on
          these requirements and for copies of the regulations with
          applicable accessibility guidelines (see Resource
          Directory).
          When making changes to meet an individual's needs under
          Title I, an employer will find it helpful to consult the
          applicable Department of Justice accessibility guidelines
          as a starting point.  It is advisable to make changes
          that conform to these guidelines, if they meet the
          individual's needs and do not impose an undue hardship,
          since such changes will be useful in the future for
          accommodating others.  However, even if a modification
          meets the standards required under Title II or III,
          further adaptations may be needed to meet the needs of a
          particular individual.
               For example:  A restroom may be modified to meet
               standard accessibility requirements (including
               wider door and stalls, and grab bars in specified
               locations) but it may be necessary to install a
               lower grab bar for a very short person in a
               wheelchair so that this person can transfer from
               the chair to the toilet.
          Although the requirement for accessibility in employment
          is triggered by the needs of a particular individual,
          employers should consider initiating changes that will
          provide general accessibility, particularly for job
          applicants, since it is likely that people with
          disabilities will apply for jobs in the future.
               For example:  Employment offices and interview
               facilities should be accessible to people using
               wheelchairs and others with mobility impairments.
               Plans also should be in place for making job
               information accessible and for communicating with
               people who have visual or hearing impairments.
               (See Chapter V. for additional guidance on
               accommodation in the application process.)
          Accessibility to Perform Essential Functions of the Job
          The obligation to provide accessibility for a qualified
          individual with a disability includes accessibility of
          the job site itself and all work-related facilities.
          Examples of accommodations that may be needed to make
          facilities accessible and usable include:
              installing a ramp at the entrance to a building;
              removing raised thresholds;
              reserving parking spaces close to the work site
               that are wide enough to allow people using
               wheelchairs to get in and out of vehicles;
              making restrooms accessible, including toilet
               stalls, sinks, soap, and towels;
              rearranging office furniture and equipment;
              making a drinking fountain accessible (for example,
               by installing a paper cup dispenser);
              making accessible, and providing an accessible
               "path of travel" to, equipment and facilities used
               by an employee, such as copying machines, meeting
               and training rooms, lunchrooms and lounges;
              removing obstacles that might be potential hazards
               in the path of people without vision;
              adding flashing lights when alarm bells are
               normally used, to alert an employee with a hearing
               impairment to emergencies.
          Requirements for Renovation or New Construction
          While an employer's requirements for accessibility under
          Title I relate to accommodation of an individual, as
          described above, employers will have more extensive
          accessibility requirements under Title II or III of the
          ADA if they make renovations to their facilities or
          undertake new construction.
          Title III of the ADA requires that any alterations to, or
          new construction of "commercial facilities," as well as
          places of public accommodation, made after January 26,
          1992, must conform to the "ADA Accessibility Guidelines"
          (incorporated in Department of Justice Title III
          regulations).  "Commercial facilities" are defined as any
          nonresidential facility whose operations affect commerce,
          including office buildings, factories and warehouses;
          therefore, the facilities of most employers will be
          subject to this requirement.  An alteration is any change
          that affects the "usability" of a facility; it does not
          include normal maintenance, such as painting, roofing or
          changes to mechanical or electrical systems, unless the
          changes affect the "usability" of the facility.
               For example:  If, during remodeling or renovation,
               a doorway is relocated, the new doorway must be
               wide enough to meet the requirements of the ADA
               Accessibility Guidelines.
          Under Title III, all newly constructed public
          accommodations and commercial facilities for which the
          last building permit is certified after January 26, 1992,
          and which are occupied after January 26, 1993, must be
          accessible in accordance with the standards of the ADA
          Accessibility Guidelines.  However, Title III does not
          require elevators in facilities under 3 stories or with
          less than 3000 square feet per floor, unless the building
          is a shopping center, mall, professional office of a
          health provider, or public transportation station.
          Under Title II, any alterations to, or new construction
          of, State or local government facilities made after
          January 26, 1992, must conform either with the ADA
          Accessibility Guidelines (however, the exception
          regarding elevators does not apply to State or local
          governments) or with the Uniform Federal Accessibility
          Standards.  Facilities under design on January 26, 1992
          must comply with this requirement if bids were invited
          after that date.
          Providing accessibility in remodeled and new buildings
          usually can be accomplished at minimal additional cost.
          Over time, fully accessible new and remodeled buildings
          will reduce the need for many types of individualized
          reasonable accommodations.  Employers planning
          alterations to their facilities or new construction
          should contact the Office on the Americans with
          Disabilities Act in the U.S. Department of Justice for
          information on accessibility requirements, including the
          ADA Accessibility Guidelines and the Uniform Federal
          Accessibility Guidelines.  Employers may get specific
          technical information and guidance on accessibility by
          calling, toll-free, the Architectural and Transportation
          Barriers Compliance Board, at 1-800-USA-ABLE.  (See
          Resource Directory.)
     2.   Job Restructuring
          Job restructuring or job modification is a form of
          reasonable accommodation which enables many qualified
          individuals with disabilities to perform jobs
          effectively.  Job restructuring as a reasonable
          accommodation may involve reallocating or redistributing
          the marginal functions of a job.  However, an employer is
          not required to reallocate essential functions of a job
          as a reasonable accommodation.  Essential functions, by
          definition, are those that a qualified individual must
          perform, with or without an accommodation.
               For example:  Inspection of identification cards is
               generally an essential function of the job of a
               security job.  If a person with a visual impairment
               could not verify the identification of an
               individual using the photo and other information on
               the card, the employer would not be required to
               transfer this function to another employee.
          Job restructuring frequently is accomplished by
          exchanging marginal functions of a job that cannot be
          performed by a person with a disability for marginal job
          functions performed by one or more other employees.
               For example:  An employer may have two jobs, each
               containing essential functions and a number of
               marginal functions.  The employer may hire an
               individual with a disability who can perform the
               essential functions of one job and some, but not
               all, of the marginal functions of both jobs.  As an
               accommodation, the employer may redistribute the
               marginal functions so that all of the functions
               that can be performed by the person with a
               disability are in this person's job and the
               remaining marginal functions are transferred to the
               other job.
          Although an employer is not required to reallocate
          essential job functions, it may be a reasonable
          accommodation to modify the essential functions of a job
          by changing when or how they are done.
               For example:
                   An essential function that is usually
                    performed in the early morning might be
                    rescheduled to be performed later in the day,
                    if an individual has a disability that makes
                    it impossible to perform this function in the
                    morning, and this would not cause an undue
                    hardship.
                   A person who has a disability that makes it
                    difficult to write might be allowed to
                    computerize records that have been maintained
                    manually.
                   A person with mental retardation who can
                    perform job tasks but has difficulty
                    remembering the order in which to do the tasks
                    might be provided with a list to check off
                    each task; the checklist could be reviewed by
                    a supervisor at the end of the day.
          Technical assistance in restructuring or modifying jobs
          for individuals with specific limitations can be obtained
          from state vocational rehabilitation agencies and other
          organizations with expertise in job analysis and job
          restructuring for people with various disabilities.  (See
          Job Restructuring and Job Modification in Resource
          Directory Index.)
     3.   Modified Work Schedules
          An employer should consider modification of a regular
          work schedule as a reasonable accommodation unless this
          would cause an undue hardship.  Modified work schedules
          may include flexibility in work hours or the work week,
          or part-time work, where this will not be an undue
          hardship.
          Many people with disabilities are fully qualified to
          perform jobs with the accommodation of a modified work
          schedule.  Some people are unable to work a standard 9-5
          work day, or a standard Monday to Friday work week;
          others need some adjustment to regular schedules.
          Some examples of modified work schedules as a reasonable
          accommodation:
              An accountant with a mental disability required two
               hours off, twice weekly, for sessions with a
               psychiatrist.  He was permitted to take longer
               lunch breaks and to make up the time by working
               later on those days.
              A machinist has diabetes and must follow a strict
               schedule to keep blood sugar levels stable.  She
               must eat on a regular schedule and take insulin at
               set times each day.  This means that she cannot
               work the normal shift rotations for machinists.  As
               an accommodation, she is assigned to one shift on a
               permanent basis.
              An employee who needs kidney dialysis treatment is
               unable to work on two days because his treatment is
               only available during work hours on weekdays.
               Depending on the nature of his work and the nature
               of the employer's operation, it may be possible,
               without causing an undue hardship, for him to work
               Saturday and Sunday in place of the two weekdays,
               to perform work assignments at home on the weekend,
               or to work three days a week as part-time employee.
          People whose disabilities may need modified work
          schedules include those who require special medical
          treatment for their disability (such as cancer patients,
          people who have AIDS, or people with mental illness);
          people who need rest periods (including some people who
          have multiple sclerosis, cancer, diabetes, respiratory
          conditions, or mental illness); people whose disabilities
          (such as diabetes) are affected by eating or sleeping
          schedules; and people with mobility and other impairments
          who find it difficult to use public transportation during
          peak hours, or who must depend upon special para-transit
          schedules.
     4.   Flexible Leave Policies
          Flexible leave policies should be considered as a
          reasonable accommodation when people with disabilities
          require time off from work because of their disability.
          An employer is not required to provide additional paid
          leave as an accommodation, but should consider allowing
          use of accrued leave, advanced leave, or leave without
          pay, where this will not cause an undue hardship.
          People with disabilities may require special leave for a
          number of reasons related to their disability, such as:
              medical treatment related to the disability;
              repair of a prosthesis or equipment;
              temporary adverse conditions in the work
               environment (for example, an air-conditioning
               breakdown causing temperature above 85 degrees
               could seriously harm the condition of a person with
               multiple sclerosis);
              training in the use of an assistive device or a dog
               guide.  (However, if an assistive device is used at
               work and provided as a reasonable accommodation,
               and if other employees receive training during work
               hours, the disabled employee should receive
               training on this device during work hours, without
               need to take leave.)
     5.   Reassignment to a Vacant Position
          In general, the accommodation of reassignment should be
          considered only when an accommodation is not possible in
          an employee's present job, or when an accommodation in
          the employee's present job would cause an undue hardship.
          Reassignment also may be a reasonable accommodation if
          both employer and employee agree that this is more
          appropriate than accommodation in the present job.
          Consideration of reassignment is only required for
          employees.  An employer is not required to consider a
          different position for a job applicant if s/he is not
          able to perform the essential functions of the position
          s/he is applying for, with or without reasonable
          accommodation.
          Reassignment may be an appropriate accommodation when an
          employee becomes disabled, when a disability becomes more
          severe, or when changes or technological developments in
          equipment affect the job performance of an employee with
          a disability.  If there is no accommodation that will
          enable the person to perform the present job, or if it
          would be an undue hardship for the employer to provide
          such accommodation, reassignment should be considered.
          Reassignment may not be used to limit, segregate, or
          otherwise discriminate against an employee with a
          disability.  An employer may not reassign people with
          disabilities only to certain undesirable positions, or
          only to certain offices or facilities.
          Reassignment should be made to a position equivalent to
          the one presently held in terms of pay and other job
          status, if the individual is qualified for the position
          and if such a position is vacant or will be vacant within
          a reasonable amount of time.  A "reasonable amount of
          time" should be determined on a case-by-case basis,
          considering relevant factors such as the types of jobs
          for which the employee with a disability would be
          qualified; the frequency with which such jobs become
          available; the employer's general policies regarding
          reassignments of employees; and any specific policies
          regarding sick or injured employees.
               For example:  If there is no vacant position
               available at the time that an individual with a
               disability requires a reassignment, but the
               employer knows that an equivalent position for
               which this person is qualified will become vacant
               within one or two weeks, 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 positions vacant or soon to be vacant for which
          the employee is qualified (with or without an
          accommodation).  In such a situation, the employer does
          not have to maintain the individual's salary at the level
          of the higher graded position, unless it does so for
          other employees who are reassigned to lower graded
          positions.
          An employer is not required to create a new job or to
          bump another employee from a job in order to provide
          reassignment as a reasonable accommodation.  Nor is an
          employer required to promote an individual with a
          disability to make such an accommodation.
     6.   Acquisition or Modification of Equipment and Devices
          Purchase of equipment or modifications to existing
          equipment may be effective accommodations for people with
          many types of disabilities.
          There are many devices that make it possible for people
          to overcome existing barriers to performing functions of
          a job.  These devices range from very simple solutions,
          such as an elastic band that can enable a person with
          cerebral palsy to hold a pencil and write, to "high-tech"
          electronic equipment that can be operated with eye or
          head movements by people who cannot use their hands.
          There are also many ways to modify standard equipment so
          as to enable people with different functional limitations
          to perform jobs effectively and safely.  Many of these
          assistive devices and modifications are inexpensive.
          Frequently, applicants and employees with disabilities
          can suggest effective low cost devices or equipment.
          They have had a great deal of experience in accommodating
          their disabilities, and many are informed about new and
          available equipment.  Where the job requires special
          adaptations of equipment, the employer and the applicant
          or employee should use the process described  earlier
          (see 3.8)  to identify the exact functional abilities and
          limitations of the individual in relation to functional
          job needs, and to determine what type of assistance may
          be needed.
          There are many sources of technical assistance to help
          identify and locate devices and equipment for specific
          job applications.  An employer may be able to get
          information needed simply by telephoning the Job
          Accommodation Network, a free consulting service on
          accommodations, or other sources listed under
          "Accommodations" in the Resource Directory.  Employers
          who need further assistance may use resources such as
          vocational rehabilitation specialists, occupational
          therapists and Independent Living Centers who will come
          on site to conduct a job analysis and recommend
          appropriate equipment or job modifications.
          As indicated above (see 3.4), an employer is only
          obligated to provide equipment that is needed to perform
          a job; there is no obligation to provide equipment that
          the individual uses regularly in daily life, such as
          glasses, a hearing aid or a wheelchair.  However, as
          previously stated, the employer may be obligated to
          provide items of this nature if special adaptations are
          required to perform a job.
               For example:  It may be a reasonable accommodation
               to provide an employee with a motorized wheelchair
               if her job requires movement between buildings that
               are widely separated, and her disability prevents
               her operation of a wheelchair manually for that
               distance, or if heavy, deep-pile carpeting prevents
               operation of a manual wheelchair.
          In some cases, it may be a reasonable accommodation to
          allow an applicant or employee to provide and use
          equipment that an employer would not be obligated to
          provide.
               For example:   It would be a reasonable
               accommodation to allow an individual with a visual
               disability to provide his own guide dog.
          Some examples of equipment and devices that may be
          reasonable accommodations:
              TDDs (Telecommunication Devices for the Deaf) make
               it possible for people with hearing and/or speech
               impairments to communicate over the telephone;
              telephone amplifiers are useful for people with
               hearing impairments;
              special software for standard computers and other
               equipment can enlarge print or convert print
               documents to spoken words for people with vision
               and/or reading disabilities;
              tactile markings on equipment in brailled or raised
               print are helpful to people with visual
               impairments;
              telephone headsets and adaptive light switches can
               be used by people with cerebral palsy or other
               manual disabilities;
              talking calculators can be used by people with
               visual or reading disabilities;
              speaker phones may be effective for people who are
               amputees or have other mobility impairments.
          Some examples of effective low cost assistive devices as
          reported by the Job Accommodation Network and other
          sources:
              a timer with an indicator light allowed a medical
               technician who was deaf to perform laboratory
               tests.  Cost $27.00;
              a clerk with limited use of her hands was provided
               a "lazy susan" file holder that enabled her to
               reach all materials needed for her job.  Cost
               $85.00;
              A groundskeeper who had limited use of one arm was
               provided a detachable extension arm for a rake.
               This enabled him to grasp the handle on the
               extension with the  impaired hand and control the
               rake with the functional arm.  Cost $20.00;
              A desk layout was changed from the right to left
               side to enable a data entry operator who is
               visually impaired to perform her job.  Cost $0;
              A telephone amplifier designed to work with a
               hearing aid allowed a plant worker to retain his
               job and avoid transfer to a lower paid job.  Cost
               $24.00;
              A blind receptionist was provided a light probe
               which allowed her to determine which lines on the
               switchboard were ringing, on hold, or in use.  (A
               light-probe gives an audible signal when held over
               an illuminated source.)  Cost $50.00 to $100.00;
              A person who had use of only one hand, working in a
               food service position could perform all tasks
               except opening cans.  She was provided with a
               one-handed can opener. Cost $35.00;
              Purchase of a light weight mop and a smaller broom
               enabled an employee with Downs syndrome and
               congenital heart problems to do his job with
               minimal strain.  Cost under $40;
              A truck driver had carpal tunnel syndrome which
               limited his wrist movement and caused extreme
               discomfort in cold weather.  A special wrist splint
               used with a glove designed for skin divers made it
               possible for him to drive even in extreme weather
               conditions.  Cost $55.00;
              A phone headset allowed an insurance salesman with
               cerebral palsy to write while talking to clients.
               Rental cost $6.00 per month;
              A  simple cardboard form, called a "jig" made it
               possible for a person with mental retardation to
               properly fold jeans as a stock clerk in a retail
               store. Cost $0.
          Many recent technological innovations make it possible
          for people with severe disabilities to be very productive
          employees.  Although some of this equipment is expensive,
          Federal tax credits, tax deductions, and other sources of
          financing are available to help pay for higher cost
          equipment.
               For example:  A company hired a person who was
               legally blind as a computer operator.  The State
               Commission for the Blind paid half of the cost of a
               braille terminal.  Since all programmers were
               provided with computers, the cost of the
               accommodation to this employer was only one-half of
               the difference in cost between the braille terminal
               and a regular computer.  A smaller company also
               would be eligible for a tax credit for such cost.
               (See Tax Credit for Small Business, 4.1a below)
          For sources of information and technical assistance to
          help employers develop or locate "assistive devices and
          equipment," see this listing in the Index to the Resource
          Directory.
     7.   Adjusting and Modifying Examinations, Training Materials,
          and Policies
          An employer may be required to modify, adjust, or make
          other reasonable accommodations in the ways that tests
          and training are administered in order to provide equal
          employment opportunities for qualified individuals with
          disabilities.  Revisions to other employment policies and
          practices also may be required as reasonable
          accommodations.
          a.   Tests and Examinations
               Accommodations may be needed to assure that tests
               or examinations measure the actual ability of an
               individual to perform job functions, rather than
               reflecting limitations caused by the disability.
               The ADA requires that tests be given to people who
               have sensory, speaking, or manual impairments in a
               format that does not require the use of the
               impaired skill, unless that is the job-related
               skill the test is designed to measure.
                    For example:  An applicant who has dyslexia,
                    which causes  difficulty in reading, should be
                    given an oral rather than a written test,
                    unless reading is an essential function of the
                    job.  Or, an individual with a visual
                    disability or a learning disability might be
                    allowed more time to take a test, unless the
                    test is designed to measure speed required on
                    a job.
               The employer is only required to provide a
               reasonable accommodation for a test if the
               individual with a disability requests such an
               accommodation.  But the employer has an obligation
               to inform job applicants in advance that a test
               will be given, so that an individual who needs an
               accommodation can make such a request.  (See
               Chapter V for further guidance on accommodations in
               testing.)
          b.   Training
               Reasonable accommodation should be provided, when
               needed, to give employees with disabilities equal
               opportunity for training to perform their jobs
               effectively and to progress in employment.  Needed
               accommodations may include:
                   providing accessible training sites;
                   providing training materials in alternate
                    formats to accommodate a disability.
                    For example:  An individual with a visual
                    disability may need training materials on
                    tape, in large print, or on a computer
                    diskette.  A person with mental retardation
                    may need materials in simplified language or
                    may need help in understanding test
                    instructions;
                   modifying the manner in which training is
                    provided.
                    For example:  It may be a reasonable
                    accommodation to allow more time for training
                    or to provide extra assistance to people with
                    learning disabilities or people with mental
                    impairments.
               Additional guidance on accommodations in training
               is provided in Chapter VII.
          c.   Other Policies
               Adjustments to various existing policies may be
               necessary to provide reasonable accommodation.  As
               discussed above (see 3.10.3 and 3.10.4),
               modifications to existing leave policies and
               regular work hours may be required as
               accommodations.  Or, for example, a company may
               need to modify a policy prohibiting animals in the
               work place, so that a visually impaired person can
               use a guide dog.  Policies on providing information
               to employees may need adjustment to assure that all
               information is available in accessible formats for
               employees with disabilities.  Policies on emergency
               evacuations should be adjusted to provide effective
               accommodations for people with different
               disabilities.  (See Chapter VII).
     8.   Providing Qualified Readers
          It may be a reasonable accommodation to provide a reader
          for a qualified individual with a disability, if this
          would not impose an undue hardship.
               For example:  A court has held under the
               Rehabilitation Act that it was not an undue
               hardship for a large state agency to provide
               full-time readers for three blind employees, in
               view of its very substantial budget.  However, it
               may be an undue hardship for a smaller agency or
               business to provide such an accommodation.
          In some job situations a reader may be the most effective
          and efficient accommodation, but in other situations
          alternative accommodations may enable an individual with
          a visual disability to perform job tasks just as
          effectively.
          When an applicant or employee has a visual disability,
          the employer and the individual should use the "process"
          outlined in 3.8 above to identify specific limitations of
          the individual in relation to specific needs of the job
          and to assess possible accommodations.
               For example:  People with visual impairments
               perform many jobs that do not require reading.
               Where reading is an essential job function,
               depending on the nature of a visual impairment and
               the nature of job tasks, print magnification
               equipment or a talking computer may be more
               effective for the individual and less costly for an
               employer than providing another employee as a
               reader.  Where an individual has to read lengthy
               documents, a reader who transcribes documents onto
               tapes may be a more effective  accommodation.
          Providing a reader does not mean that it is necessary to
          hire a full-time employee for this service.  Few jobs
          require an individual to spend all day reading.  A reader
          may be a part-time or full-time employee who performs
          other duties.  However, the person who reads to a
          visually impaired employee must read well enough to
          enable the individual to perform his or her job
          effectively.  It would not be a reasonable accommodation
          to provide a reader whose poor skills hinder the job
          performance of the individual with a disability.
     9.   Providing Qualified Interpreters
          Providing an interpreter on an "as-needed" basis may be
          a reasonable accommodation for a person who is deaf in
          some employment situations, if this does not impose an
          undue hardship.
          If an individual with a disability is otherwise qualified
          to perform essential job functions, the employer's basic
          obligation is to provide an accommodation that will
          enable this person to perform the job effectively.  A
          person who is deaf or hearing-impaired should be able to
          communicate effectively with others as required by the
          duties of the job.  Identifying the needs of the
          individual in relation to specific job tasks will
          determine whether or when an interpreter may be needed.
          The resources available to the employer would be
          considered in determining whether it would be an undue
          hardship to provide such an accommodation.
               For example:  It may be necessary to obtain a
               qualified interpreter for a job interview, because
               for many jobs the applicant and interviewer must
               communicate fully and effectively to evaluate
               whether the applicant is qualified to do the job.
               Once hired, however, if the individual is doing
               clerical work, research, computer applications, or
               other job tasks that do not require much verbal
               communication, an interpreter may only be needed
               occasionally.  Interpretation may be necessary for
               training situations, staff meetings or an employee
               party, so that this person can fully participate in
               these functions.  Communication on the job may be
               handled through different means, depending on the
               situation, such as written notes, "signing" by
               other employees who have received basic sign
               language training, or by typing on a computer or
               typewriter.
          People with hearing impairments have different
          communication needs and use different modes of
          communication.  Some use signing in American Sign
          Language, but others use sign language that has different
          manual codes.  Some people rely on an oral interpreter
          who silently mouths words spoken by others to make them
          easier to lip read.  Many hearing-impaired people use
          their voices to communicate, and some combine talking and
          signing.  The individual should be consulted to determine
          the most effective means of communication.
          Communication between a person who is deaf and others
          through a supervisor and/or co-worker with basic sign
          language training may be sufficient in many job
          situations.  However, where extensive discussions or
          complex subject matter is involved, a trained interpreter
          may be needed to provide effective communication.
          Experienced interpreters usually have received special
          training and may be certified by a professional
          interpreting organization or state or local Commission
          serving people who are deaf.  (See Resource Directory
          Index listing of "Interpreters" for information about
          interpreters and how to obtain them).
     10.  Other Accommodations
          There are many other accommodations that may be effective
          for people with different disabilities in different jobs.
          The examples of accommodations in EEOC regulations and
          the examples in this Manual are not the only types of
          accommodations that may be required.  Some other
          accommodations that may be appropriate include:
              making transportation provided by the employer
               accessible;
              providing a personal assistant for certain job-
               related functions, such as a page turner for a
               person who has no hands, or a travel attendant to
               act as a sighted guide to assist a blind employee
               on occasional business trips.
              use of a job coach for people with mental
               retardation and other disabilities who benefit from
               individualized on-the job training and services
               provided at no cost by vocational rehabilitation
               agencies in "supported employment" programs.  (See
               Resource Directory Index for "Supported
               Employment.")
3.11 Financial and Technical Assistance for Accommodations
     a.   Financial Assistance
          There are several sources of financial assistance to help
          employers make accommodations and comply with ADA
          requirements.
          1.   Tax Credit for Small Business (Section 44 of the
               Internal Revenue Code)
               In 1990, Congress established a special tax credit
               to help smaller employers make accommodations
               required by the ADA.  An eligible small business
               may take a tax credit of up to $5000 per year for
               accommodations made to comply with the ADA.  The
               credit is available for one-half the cost of
               "eligible access expenditures" that are more than
               $250 but less than $10,250.
                    For example:  If an accommodation cost
                    $10,250, an employer could get a tax credit of
                    $5000 ($10,250 minus $250, divided by 2).  If
                    the accommodation cost $7000, a tax credit of
                    $3375 would be available.
               An eligible small business is one with gross
               receipts of $l million or less for the taxable
               year, or 30 or fewer full time employees.
               "Eligible access expenditures" for which the tax
               credit may be taken include the types of
               accommodations required under Title I of the ADA as
               well as accessibility requirements for commercial
               facilities and places of public accommodation under
               Title III.  "Eligible access expenditures" include:
                   removal of architectural, communication,
                    physical, or transportation barriers to make
                    the business accessible to, or usable by,
                    people with disabilities.
                   providing qualified interpreters or other
                    methods to make communication accessible to
                    people with hearing disabilities;
                   providing qualified readers, taped texts, or
                    other methods to make information accessible
                    to people with visual disabilities; and/or
                   acquiring or modifying equipment or devices
                    for people with disabilities.
               To be eligible for the tax credit, changes made to
               remove barriers or to provide services, materials
               or equipment must meet technical standards of the
               ADA Accessibility Guidelines, where applicable.
          2.   Tax Deduction for Architectural and Transportation
               Barrier Removal (Section 190 of the Internal
               Revenue Code)
               Any business may take a full tax deduction, up to
               $15,000 per year, for expenses of removing
               specified architectural or transportation barriers.
               Expenses covered include costs of removing barriers
               created by steps, narrow doors, inaccessible
               parking spaces, toilet facilities, and
               transportation vehicles.  Both the tax credit and
               the tax deduction are available to eligible small
               businesses.
                    For example: If a small business makes a
                    qualified expenditure of $24,000, it may take
                    the $5000 tax credit for the initial $10,250
                    and, if the remaining $13,750 qualifies under
                    Section 190, may deduct that amount from its
                    taxable income.  However, a business may not
                    receive a double benefit for the same expense:
                    for example, it may not take both the tax
                    credit and the tax deduction for $10,000 spent
                    to renovate bathrooms.
               Information on the Section 44 tax credit and the
               Section 190 tax deduction can be obtained from a
               local IRS office, or by contacting the Office of
               Chief Counsel, Internal Revenue Service.  (See
               Resource Directory.)
          3.   Targeted Jobs Tax Credit
               Tax credits also are available under the Targeted
               Jobs Tax Credit Program (TJTCP) for employers who
               hire individuals with disabilities referred by
               state or local vocational rehabilitation agencies,
               State Commissions on the Blind and the U.S.
               Department of Veterans Affairs and certified by a
               State Employment Service.  This program promotes
               hiring of several "disadvantaged" groups, including
               people with disabilities.
               Under the TJTCP, a tax credit may be taken for 40%
               of the first $6000 of an employee's first-year
               salary.  This program must be reauthorized each
               year by Congress, and currently has been extended
               through June 30, 1992.  Information about this
               program can be obtained from the State Employment
               Services or from State Governor's Committees on the
               Employment of People with Disabilities. (See State
               listings in Resource Directory.)
          4.   Other Funding Sources
               State or local vocational rehabilitation agencies
               and State Commissions for the Blind can provide
               financial assistance for equipment and
               accommodations for their clients.  The U.S.
               Department of Veterans Affairs also provides
               financial assistance to disabled veterans for
               equipment needed to help perform jobs.  Some
               organizations that serve people with particular
               types of disabilities also provide financial
               assistance for needed accommodations.  Other types
               of assistance may be available in the community.
               For example, some Independent Living Centers
               provide transportation service to the workplace for
               people with disabilities.  For further information,
               see "Financial Assistance for Accommodations" in
               Resource Directory Index.
     b.   Technical Assistance
          There are many sources of technical assistance to help
          employers make effective accommodations for people with
          different disabilities in various job situations.  Many
          of these resources are available without cost.  Major
          resources for information, assistance, and referral to
          local specialized resources are 10 new ADA Regional
          Business and Disability Technical Assistance Centers that
          have been funded by Congress specifically to help
          implement the ADA.  These Centers have been established
          to provide information, training and technical assistance
          to employers and all other entities covered by the ADA
          and to people with disabilities.  The Centers also can
          refer employers to local technical assistance sources.
          (See ADA Regional Business and Disability Technical
          Assistance Centers in Resource Directory.)   Other
          resources include:
              State and local vocational rehabilitation agencies
              Independent Living Centers in some 400 communities
               around the country provide technical assistance to
               employers and people with disabilities on
               accessibility and other accommodations and make
               referrals to specialized sources of assistance.
              The Job Accommodation Network (JAN) a free national
               consultant service, available through a toll-free
               number,  helps employers make individualized
               accommodations.
              ABLEDATA, a computerized database of disability-
               related products and services, conducts customized
               information searches on worksite modifications,
               assistive devices and other accommodations.
              The President's Committee on Employment of People
               with Disabilities provides technical information,
               including publications with practical guidance on
               job analysis and accommodations.
              Governors' Committees on Employment of People with
               Disabilities in each State, allied with the
               President's Committee, are local resources of
               information and technical assistance.
          These and many other sources of specialized technical
          assistance are listed in the Resource Directory.  The
          Index to the Directory will be helpful in locating
          specific types of assistance.IV.ESTABLISHING NONDISCRIMINATORY QUALIFICATION STANDARDS AND
     SELECTION CRITERIA
4.1  Introduction
     The ADA does not prohibit an employer from establishing
     job-related qualification standards, including education,
     skills, work experience, and physical and mental standards
     necessary for job performance, health and safety.
     The Act does not interfere with an employer's authority to
     establish appropriate job qualifications to hire people who
     can perform jobs effectively and safely, and to hire the best
     qualified person for a job.  ADA requirements are designed to
     assure that people with disabilities are not excluded from
     jobs that they can perform.
     ADA requirements apply to all selection standards and
     procedures, including, but not limited to:
         education and work experience requirements;
         physical and mental requirements;
         safety requirements;
         paper and pencil tests;
         physical or psychological tests;
         interview questions; and
         rating systems;
4.2  Overview of Legal Obligations
         Qualification standards or selection criteria that screen
          out or tend to screen out an individual with a disability
          on the basis of disability must be job-related and
          consistent with business necessity.
         Even if a standard is job-related and consistent with
          business necessity, if it screens out an individual with
          a disability on the basis of disability, the employer
          must consider if the individual could meet the standard
          with a reasonable accommodation.
         An employer is not required to lower existing production
          standards applicable to the quality or quantity of work
          for a given job in considering qualifications of an
          individual with a disability, if these standards are
          uniformly applied to all applicants and employees in that
          job.
         If an individual with a disability cannot perform a
          marginal function of a job because of a disability, an
          employer may base a hiring decision only on the
          individual's ability to perform the essential functions
          of the job, with or without a reasonable accommodation.
4.3  What is Meant by "Job-Related" and "Consistent with Business
     Necessity"?
     1.   Job-Related
          If a qualification standard, test or other selection
          criterion operates to screen out an individual with a
          disability, or a class of such individuals on the basis
          of disability, it must be a legitimate measure or
          qualification for the specific job it is being used for.
          It is not enough that it measures qualifications for a
          general class of jobs.
               For example:  A qualification standard for a
               secretarial job of "ability to take shorthand
               dictation" is not job-related if the person in the
               particular secretarial job actually transcribes
               taped dictation.
          The ADA does not require that a qualification standard or
          selection criterion apply only to the "essential
          functions" of a job.  A "job-related"  standard or
          selection criterion may evaluate or measure all functions
          of a job and employers may continue to select and hire
          people who can perform all of these functions.  It is
          only when an individual's disability prevents or impedes
          performance of marginal job functions that the ADA
          requires the employer to evaluate this individual's
          qualifications solely on his/her ability to perform the
          essential functions of the job, with or without an
          accommodation.
               For example:  An employer has a job opening for an
               administrative assistant.  The essential functions
               of the job are administrative and organizational.
               Some occasional typing has been part of the job,
               but other clerical staff are available who can
               perform this marginal job function.  There are two
               job applicants.  One has a disability that makes
               typing very difficult, the other has no disability
               and can type.  The employer may not refuse to hire
               the first applicant because of her inability to
               type, but must base a job decision on the relative
               ability of each applicant to perform the essential
               administrative and organizational job functions,
               with or without accommodation.  The employer may
               not screen out the applicant with a disability
               because of the need to make an accommodation to
               perform the essential job functions.  However, if
               the first applicant could not type for a reason not
               related to her disability (for example, if she had
               never learned to type) the employer would be free
               to select the applicant who could best perform all
               of the job functions.
     2.   Business Necessity
          "Business necessity" will be interpreted under the ADA as
          it has been interpreted by the courts under Section 504
          of the Rehabilitation Act.
          Under the ADA, as under the Rehabilitation Act:
               If a test or other selection criterion excludes an
               individual with a disability because of the
               disability and does not relate to the essential
               functions of a job, it is not consistent with
               business necessity.
          This standard is similar to the legal standard under
          Title VII of the Civil Rights Act which provides that a
          selection procedure which screens out a disproportionate
          number of persons of a particular race, sex or national
          origin "class" must be justified as a "business
          necessity."  However, under the ADA the standard may be
          applied to an individual who is screened out by a
          selection procedure because of disability, as well as to
          a class of persons.  It is not necessary to make
          statistical comparisons between a group of people with
          disabilities and people who are not disabled to show that
          a person with a disability is screened out by a selection
          standard.
          Disabilities vary so much that it is difficult, if not
          impossible, to make general determinations about the
          effect of various standards, criteria and procedures on
          "people with disabilities."  Often, there may be little
          or no statistical data to measure the impact of a
          procedure on any "class" of people with a particular
          disability compared to people without disabilities.  As
          with other determinations under the ADA, the exclusionary
          effect of a selection procedure usually must be looked at
          in relation to a particular individual who has particular
          limitations caused by a disability.
          Because of these differences, the federal Uniform
          Guidelines on Employee Selection Procedures that apply to
          selection procedures on the basis of race, sex, and
          national origin under Title VII of the Civil Rights Act
          and other Federal authorities do not apply under the ADA
          to selection procedures affecting people with
          disabilities.
          A standard may be job-related but not justified by
          business necessity, because it does not concern an
          essential function of a job.
               For example:  An employer may ask candidates for a
               clerical job if they have a driver's license,
               because it would be desirable to have a person in
               the job who could occasionally run errands or take
               packages to the post office in an emergency.  This
               requirement is "job-related," but it relates to an
               incidental, not an essential, job function.  If it
               disqualifies a person who could not obtain a
               driver's license because of a disability, it would
               not be justified as a "business necessity" for
               purposes of the ADA.
          Further, the ADA requires that even if a qualification
          standard or  selection criterion is job-related and
          consistent with business necessity, it may not be used to
          exclude an individual with a disability if this
          individual could satisfy the legitimate standard or
          selection criterion with a reasonable accommodation.
               For example:  It may be job-related and necessary
               for a business to require that a secretary produce
               letters and other documents on a word processor.
               But it would be discriminatory to reject a person
               whose disability prevented manual keyboard
               operation, but who could meet the qualification
               standard using a computer assistive device, if
               providing this device would not impose an undue
               hardship.
4.4  Establishing Job-Related Qualification Standards
     The ADA does not restrict an employer's authority to establish
     needed job qualifications, including requirements related to:
         education;
         skills;
         work experience;
         licenses or certification;
         physical and mental abilities;
         health and safety; or
         other job-related requirements, such as judgment, ability
          to work under pressure or interpersonal skills.
     Physical and Mental Qualification Standards
     An employer may establish physical or mental qualifications
     that are necessary to perform specific jobs (for example, jobs
     in the transportation and construction industries; police and
     fire fighter jobs; security guard jobs) or to protect health
     and safety.
     However, as with other job qualification standards, if a
     physical or mental qualification standard screens out an
     individual with a disability or a class of individuals with
     disabilities, the employer must be prepared to show that the
     standard is:
         job-related and
         consistent with business necessity.
     Even if a physical or mental qualification standard is
     job-related and necessary for a business, if it is applied to
     exclude an otherwise qualified individual with a disability,
     the employer must consider whether there is a reasonable
     accommodation that would enable this person to meet the
     standard.  The employer does not have to consider such
     accommodations in establishing a standard, but only when an
     otherwise qualified person with a disability requests an
     accommodation.
          For example:  An employer has a forklift operator job.
          The essential function of the job is mechanical operation
          of the forklift machinery.  The job has a physical
          requirement of ability to lift a 70 pound weight, because
          the operator must be able to remove and replace the 70
          pound battery which powers the forklift.  This standard
          is job-related.  However, it would be a reasonable
          accommodation to eliminate this standard for an otherwise
          qualified forklift operator who could not lift a 70 pound
          weight because of a disability, if other operators or
          employees are available to help this person remove and
          replace the battery.
     Evaluating Physical and Mental Qualification Standards Under
     the ADA
     Employers generally have two kinds of physical or mental
     standards:
     1.   Standards that may exclude an entire class of individuals
          with disabilities.
               For example:  No person who has epilepsy, diabetes,
               or a heart or back condition is eligible for a job.
     2.   Standards that measure a physical or mental ability
          needed to perform a job.
               For example:  The person in the job must be able to
               lift x pounds for x hours daily, or run x miles in
               x minutes.
     Standards that exclude an entire class of individuals with
     disabilities
     "Blanket" exclusions of this kind usually have been
     established because employers believed them to be necessary
     for health or safety reasons.  Such standards also may be used
     to screen out people who an employer fears, or assumes, may
     cause higher medical insurance or workers' compensation costs,
     or may have a higher rate of absenteeism.
     Employers who have such standards should review them
     carefully.  In most cases, they will not meet ADA
     requirements.
     The ADA recognizes legitimate employer concerns and the
     requirements of other laws for health and safety in the
     workplace.  An employer is not required to hire or retain
     anindividual who would pose a "direct threat" to health or
     safety (see below).  But the ADA requires an objective
     assessment of a particular individual's current ability to
     perform a job safely and effectively.  Generalized "blanket"
     exclusions of an entire group of people with a certain
     disability prevent such an individual consideration.  Such
     class-wide exclusions that do not reflect up-to-date medical
     knowledge and technology, or that are based on fears about
     future medical or workers' compensation costs, are unlikely to
     survive a legal challenge under the ADA.  (However, the ADA
     recognizes employers' obligations to comply with Federal laws
     that mandate such exclusions in certain occupations.  [See
     Health and Safety Requirements of Other Federal or State Laws
     below.])
     The ADA requires that:
         any determination of a direct threat to health or safety
          must be based on an individualized assessment of
          objective and specific evidence about a particular
          individual's present ability to perform essential job
          functions, not on general assumptions or speculations
          about a disability.  (See Standards Necessary for Health
          and Safety:  A "Direct Threat" below).
               For example:  An employer who excludes all persons
               who have epilepsy from jobs that require use of
               dangerous machinery will be required to look at the
               life experience and work history of an individual
               who has epilepsy.  The individual evaluation should
               take into account the type of job, the degree of
               seizure control, the type(s) of seizures (if any),
               whether the person has an "aura" (warning of
               seizure), the person's reliability in taking
               prescribed anti-convulsant medication, and any side
               effects of such medication.  Individuals who have
               no seizures because they regularly take prescribed
               medication, or who have sufficient advance warning
               of a seizure so that they can stop hazardous
               activity, would not pose a "direct threat" to
               safety.
     Standards that measure needed physical or mental ability to
     perform a job
     Specific physical or mental abilities may be needed to perform
     certain types of jobs.
          For example:  Candidates for jobs such as airline pilots,
          policemen and firefighters may be required to meet
          certain physical and psychological qualifications.
     In establishing physical or mental standards for such jobs, an
     employer does not have to show that these standards are "job
     related," justified by "business necessity" or that they
     relate only to "essential" functions of the job.  However, if
     such a standard screens out an otherwise qualified individual
     with a disability, the employer must be prepared to show that
     the standard, as applied, is job-related and consistent with
     business necessity under the ADA.  And, even if this can be
     shown, the employer must consider whether this individual
     could meet the standard with a reasonable accommodation.
          For example:  A police department that requires all its
          officers to be able to make forcible arrests and to
          perform all job functions in the department might be able
          to justify stringent physical requirements for all
          officers, if in fact they are all required to be
          available for any duty in an emergency.
          However, if a position in a mailroom required as a
          qualification standard that the person in the job be able
          to reach high enough to place and retrieve packages from
          6-foot high shelves, an employer would have to consider
          whether there was an accommodation that would enable a
          person with a disability that prevented reaching that
          high to perform these essential functions.  Possible
          accommodations might include lowering the shelf-height,
          providing a step stool or other assistive device.
     Physical agility tests
     An employer may give a physical agility test to determine
     physical qualifications necessary for certain jobs prior to
     making a job offer if it is simply an agility test and not a
     medical examination.  Such a test would not be subject to the
     prohibition against pre-employment medical examinations if
     given to all similarly situated applicants or employees,
     regardless of disability.  However, if an agility test screens
     out or tends to screen out an individual with a disability or
     a class of such individuals because of disability, the
     employer must be prepared to show that the test is job-related
     and consistent with business necessity and that the test or
     the job cannot be performed with a reasonable accommodation.
     It is important to understand the distinction between physical
     agility tests and prohibited pre-employment medical inquiries
     and examinations.  One difference is that agility tests do not
     involve medical examinations or diagnoses by a physician,
     while medical examinations may involve a doctor.
          For example:  At the pre-offer stage, a police department
          may conduct an agility test to measure a candidate's
          ability to walk, run, jump, or lift in relation to
          specific job duties, but it cannot require the applicant
          to have a medical screening before taking the agility
          test.  Nor can it administer a medical examination before
          making a conditional job offer to this person.
     Some employers currently may require a medical screening
     before administering a physical agility test to assure that
     the test will not harm the applicant.  There are two ways that
     an employer can handle this problem under the ADA:
         the employer can request the applicant's physician to
          respond to a very restricted inquiry which describes the
          specific agility test and asks:  "Can this person safely
          perform this test?"
         the employer may administer the physical agility test
          after making a conditional job offer, and in this way may
          obtain any necessary medical information, as permitted
          under the ADA.  (See Chapter VI.)  The employer may find
          it more cost-efficient to administer such tests only to
          those candidates who have met other job qualifications.
4.5  Standards Necessary for Health and Safety:  A "Direct Threat"
     An employer may require as a qualification standard that an
     individual not pose a "direct threat" to the health or safety
     of the individual or others, if this standard is applied to
     all applicants for a particular job.  However, an employer
     must meet very specific and stringent requirements under the
     ADA to establish that such a "direct threat" exists.
     The employer must be prepared to show that there is:
         significant risk of substantial harm;
         the specific risk must be identified;
         it must be a current risk, not one that is speculative or
          remote;
         the assessment of risk must be based on objective medical
          or other factual evidence regarding a particular
          individual; and
         even if a genuine significant risk of substantial harm
          exists, the employer must consider whether the risk can
          be eliminated or reduced below the level of a "direct
          threat" by reasonable accommodation.
     Looking at each of these requirements more closely:
     1.   Significant risk of substantial harm
          An employer cannot deny an employment opportunity to an
          individual with a disability merely because of a slightly
          increased risk.  The employer must be prepared to show
          that there is a significant risk, that is, a high
          probability of substantial harm, if the person were
          employed.
          The assessment of risk cannot be based on mere
          speculation unrelated to the individual in question.
               For example:  An employer cannot assume that a
               person with cerebral palsy who has restricted
               manual dexterity cannot work in a laboratory
               because s/he will pose a risk of breaking vessels
               with dangerous contents.  The abilities or
               limitations of a particular individual with
               cerebral palsy must be evaluated.
     2.   The specific risk must be identified
          If an individual has a disability, the employer must
          identify the aspect of the disability that would pose a
          direct threat, considering the following factors:
              the duration of the risk.
               For example:  An elementary school teacher who has
               tuberculosis may pose a risk to the health of
               children in her classroom.  However, with proper
               medication, this person's disease would be
               contagious for only a two-week period. With an
               accommodation of two-weeks absence from the
               classroom, this teacher would not pose a "direct
               threat."
              the nature and severity of the potential harm.
               For example:  A person with epilepsy, who has lost
               consciousness during seizures within the past year,
               might seriously endanger her own life and the lives
               of others if employed as a bus driver.  But this
               person would not pose a severe threat of harm if
               employed in a clerical job.
              the likelihood that the potential harm will occur.
               For example:  An employer may believe that there is
               a risk of employing an individual with HIV disease
               as a teacher.  However, it is medically established
               that this disease can only be transmitted through
               sexual contact, use of infected needles, or other
               entry into a person's blood stream.  There is
               little or no likelihood that employing this person
               as a teacher would pose a risk of transmitting this
               disease.
              the imminence of the potential harm.
               For example:  A physician's evaluation of an
               applicant for a heavy labor job that indicated the
               individual had a disc condition that might worsen
               in 8 or 10 years would not be sufficient indication
               of imminent potential harm.
          If the perceived risk to health or safety arises from the
          behavior of an individual with a mental or emotional
          disability, the employer must identify the specific
          behavior that would pose the "direct threat".
     3.   The risk must be current, not one that is speculative or
          remote
          The employer must show that there is a current risk -- "a
          high probability of substantial harm" -- to health or
          safety based on the individual's present ability to
          perform the essential functions of the job.  A
          determination that an individual would pose a "direct
          threat" cannot be based on speculation about future risk.
          This includes speculation that an individual's disability
          may become more severe.  An assessment of risk cannot be
          based on speculation that the individual will become
          unable to perform a job in the future, or that this
          individual may cause increased health insurance or
          workers compensation costs, or will have excessive
          absenteeism.  (See Insurance, Chapter VII., and Workers'
          Compensation, Chapter IX.)
     4.   The assessment of risk must be based on objective medical
          or other evidence related to a particular individual
          The determination that an individual applicant or
          employee with a disability poses a "direct threat" to
          health or safety  must be based on objective, factual
          evidence related to that individual's present ability to
          safely perform the essential functions of a job.  It
          cannot be based on unfounded assumptions, fears, or
          stereotypes about the nature or effect of a disability or
          of disability generally.  Nor can such a determination be
          based on patronizing assumptions that an individual with
          a disability may endanger himself or herself by
          performing a particular job.
               For example:  An employer may not exclude a person
               with a vision impairment from a job that requires a
               great deal of reading because of concern that the
               strain of heavy reading may further impair her
               sight.
          The determination of a "direct threat" to health or
          safety must be based on a reasonable medical judgement
          that relies on the most current medical knowledge and/or
          the best available objective evidence.  This may include:
              input from the individual with a disability;
              the experience of this individual in previous jobs;
              documentation from medical doctors, psychologists,
               rehabilitation counselors, physical or occupational
               therapists, or others who have expertise in the
               disability involved and/or direct knowledge of the
               individual with a disability.
          Where the psychological behavior of an employee suggests
          a threat to safety, factual evidence of this behavior
          also may constitute evidence of a "direct threat."  An
          employee's violent, aggressive, destructive or
          threatening behavior may provide such evidence.
          Employers should be careful to assure that assessments of
          "direct threat" to health or safety are based on current
          medical knowledge and other kinds of evidence listed
          above, rather than relying on generalized and frequently
          out-of- date assumptions about risk associated with
          certain disabilities.  They should be aware that Federal
          contractors who have had similar disability
          nondiscrimination requirements under the Rehabilitation
          Act have had to make substantial backpay and other
          financial payments because they excluded individuals with
          disabilities who were qualified to perform their jobs,
          based on generalized assumptions that were not supported
          by evidence about the individual concerned.
          Examples of Contractor Cases:
              A highly qualified experienced worker was rejected
               for a sheet metal job because of a company's
               general medical policy excluding anyone with
               epilepsy from this job.  The company asserted that
               this person posed a danger to himself and to others
               because of the possibility that he might have a
               seizure on the job.  However, this individual had
               been seizure-free for 6 years and co-workers on a
               previous job testified that he carefully followed
               his prescribed medication schedule.  The company
               was found to have discriminated against this
               individual and was required to hire him, incurring
               large back pay and other costs.
              An applicant who was deaf in one ear was rejected
               for an aircraft mechanic job because the company
               feared that his impairment might cause a future
               workers' compensation claim.  His previous work
               record gave ample evidence of his ability to
               perform the aircraft mechanic job.  The company was
               found to have discriminated because it provided no
               evidence that this person would have been a danger
               to himself or to others on the job.
              An experienced carpenter was not hired because a
               blood pressure reading by the company doctor at the
               end of a physical exam was above the company's
               general medical standard.  However, his own doctor
               provided evidence of much lower readings, based on
               measurements of his blood pressure at several times
               during a physical exam.  This doctor testified that
               the individual could safely perform the carpenter's
               job because he had only mild hypertension.  Other
               expert medical evidence confirmed that a single
               blood pressure reading was not sufficient to
               determine if a person has hypertension, that such a
               reading clearly was not sufficient to determine if
               a person could perform a particular job, and that
               hypertension has very different effects on
               different people.  In this case, it was found that
               there was merely a slightly elevated risk, and that
               a remote possibility of future injury was not
               sufficient to disqualify an otherwise qualified
               person.  (Note that while it is possible that a
               person with mild hypertension does not have an
               impairment that "substantially limits a major life
               activity," in this case the person was excluded
               because he was "regarded as" having such an
               impairment.  The employer was still required to
               show that this person posed a "direct threat" to
               safety.)
          "Direct Threat" to Self
          An employer may require that an individual not pose a
          direct threat of harm to his or her own safety or health,
          as well as to the health or safety of others.  However,
          as emphasized above, such determinations must be strictly
          based on valid medical analyses or other objective
          evidence related to this individual, using the factors
          set out above.  A determination that a person might cause
          harm to himself or herself cannot be based on
          stereotypes, patronizing assumptions about a person with
          a disability, or generalized fears about risks that might
          occur if an individual with a disability is placed in a
          certain job.  Any such determination must be based on
          evidence of specific risk to a particular individual.
               For example:  An employer would not be required to
               hire an individual disabled by narcolepsy who
               frequently and unexpectedly loses consciousness to
               operate a power saw or other dangerous equipment,
               if there is no accommodation that would reduce or
               eliminate the risk of harm.  But an advertising
               agency could not reject an applicant for a
               copywriter job who has a history of mental illness,
               based on a generalized fear that working  in this
               high stress job might trigger a relapse of the
               individual's mental illness.  Nor could an employer
               reject an applicant with a visual or mobility
               disability because of a generalized fear of risks
               to this person in the event of a fire or other
               emergency.
     5.   If there is a significant risk, reasonable accommodation
          must be considered
          Where there is a significant risk of substantial harm to
          health or safety, an employer still must consider whether
          there is a reasonable accommodation that would eliminate
          this risk or reduce the risk so that it is below the
          level of a "direct threat."
               For example:  A deaf bus mechanic was denied
               employment because the transit authority feared
               that he had a high probability of being injured by
               buses moving in and out of the garage.  It was not
               clear that there was, in fact, a "high probability"
               of harm in this case, but the mechanic suggested an
               effective accommodation that enabled him to perform
               his job with little or no risk.  He worked in a
               corner of the garage, facing outward, so that he
               could see moving buses.  A co-worker was designated
               to alert him with a tap on the shoulder if any
               dangerous situation should arise.
     "Direct Threat" and Accommodation in Food Handling Jobs
     The ADA includes a specific application of the "direct threat"
     standard and the obligation for reasonable accommodation in
     regard to individuals who have infectious or communicable
     diseases that may be transmitted through the handling of food.
     The law provides that the U.S. Department of Health and Human
     Services (HHS) must prepare and update annually a list of
     contagious diseases that are transmitted through the handling
     of food and the methods by which these diseases are
     transmitted.
     When an individual who has one of the listed diseases applies
     for work or works in a job involving food handling, the
     employer must consider whether there is a reasonable
     accommodation that will eliminate the risk of transmitting the
     disease through handling of food.  If there is such an
     accommodation, and it would not impose an undue hardship, the
     employer must provide the accommodation.
     An employer would not be required to hire a job applicant in
     such a situation if no reasonable accommodation is possible.
     However, an employer would be required to consider
     accommodating an employee by reassignment to a position that
     does not require handling of food, if such a position is
     available, the employee is qualified for it, and it would not
     pose an undue hardship.
     In  August 1991, the Centers for Disease Control (CDC) of the
     Public Health Service in HHS issued a list of infectious and
     communicable diseases that are transmitted through handling of
     food, together with information about how these diseases are
     transmitted.  The list of diseases is brief.  In conformance
     with established medical opinion, it does not include AIDS or
     the HIV virus.  In issuing the list, the CDC emphasized that
     the greatest danger of food-transmitted illness comes from
     contamination of infected food-producing animals and
     contamination in food processing, rather than from handling of
     food by persons with infectious or communicable diseases.  The
     CDC also emphasized that proper personal hygiene and
     sanitation in food-handling jobs were the most important
     measures to prevent transmission of disease.
     The CDC list of diseases that are transmitted through food
     handling and recommendations for preventing such transmission
     appears in Appendix C.
4.6  Health and Safety Requirements of Other Federal or State Laws
     The ADA recognizes employers' obligations to comply with
     requirements of other laws that establish health and safety
     standards.  However, the Act gives greater weight to Federal
     than to state or local law.
     1.   Federal Laws and Regulations
          The ADA does not override health and safety requirements
          established under other Federal laws.  If a standard is
          required by another Federal law, an employer must comply
          with it and does not have to show that the standard is
          job related and consistent with business necessity.
               For example:  An employee who is being hired to
               drive a vehicle in interstate commerce must meet
               safety requirements established by the U.S.
               Department of Transportation.  Employers also must
               conform to health and safety requirements of the
               U.S. Occupational Safety and Health Administration
               (OSHA).
          However, an employer still has the obligation under the
          ADA to consider whether there is a reasonable
          accommodation, consistent with the standards of other
          Federal laws, that will prevent exclusion of qualified
          individuals with disabilities who can perform jobs
          without violating the standards of those laws.
               For example:  In hiring a person to drive a vehicle
               in interstate commerce, an employer must conform to
               existing Department of Transportation regulations
               that exclude any person with epilepsy, diabetes,
               and certain other conditions from such a job.
               But, for example, if DOT regulations require that a
               truck have 3 grab bars in specified places, and an
               otherwise qualified individual with a disability
               could perform essential job functions with the
               assistance of 2 additional grab bars, it would be a
               reasonable accommodation to add these bars, unless
               this would be an undue hardship.
          The Department of Transportation, as directed by
          Congress, currently is reviewing several motor vehicle
          standards that require "blanket" exclusions of
          individuals with diabetes, epilepsy and certain other
          disabilities.
     2.   State and Local Laws
          The ADA does not override state or local laws designed to
          protect public health and safety, except where such laws
          conflict with ADA requirements.  This means that if there
          is a state or local law that would exclude an individual
          with a disability for a particular job or profession
          because of a health or safety risk, the employer still
          must assess whether a particular individual would pose a
          "direct threat" to health or safety under the ADA
          standard.  If there is such a "direct threat," the
          employer also must consider whether it could be
          eliminated or reduced below the level of a "direct
          threat" by reasonable accommodation.  An employer may not
          rely on the existence of a state or local law that
          conflicts with ADA requirements as a defense to a charge
          of discrimination.
               For example:  A state law that required a schoolbus
               driver to have a high level of hearing in both ears
               without use of a hearing aid was found by a court
               to violate Section 504 of the Rehabilitation Act,
               and would violate the ADA.  The court found that
               the driver could perform his job with a hearing aid
               without a risk to safety.
          (See further guidance on Medical Examinations and
          Inquiries in Chapter VI.)V.NONDISCRIMINATION IN THE HIRING PROCESS:
     RECRUITMENT; APPLICATIONS; PRE-EMPLOYMENT INQUIRIES; TESTING
This chapter discusses nondiscrimination requirements that apply to
recruitment and the job application process, including pre-
employment inquiries.  Chapter VI. discusses these requirements
more specifically in relation to medical inquiries and
examinations.
5.1  Overview of Legal Obligations
         An employer must provide an equal opportunity for an
          individual with a disability to participate in the job
          application process and to be considered for a job.
         An employer may not make any pre-employment inquiries
          regarding disability, but may ask questions about the
          ability to perform specific job functions and may, with
          certain limitations, ask an individual with a disability
          to describe or demonstrate how s/he would perform these
          functions.
         An employer may not require pre-employment medical
          examinations or medical histories, but may condition a
          job offer on the results of a post-offer medical
          examination, if all entering employees in the same job
          category are required to take this examination.
         Tests for illegal drugs are not medical examinations
          under the ADA and may be given at any time.
         A test that screens out or tends to screen out a person
          with a disability on the basis of disability must be job-
          related and consistent with business necessity.
         Tests must reflect the skills and aptitudes of an
          individual rather than impaired sensory, manual, or
          speaking skills, unless those are job-related skills the
          test is designed to measure.
     A careful review of all procedures used in recruiting and
     selecting employees is advisable to assure nondiscrimination
     in the hiring process.  Reasonable accommodation must be
     provided as needed, to assure that individuals with
     disabilities have equal opportunities to participate in this
     process.
5.2  Job Advertisements and Notices
     It is advisable that job announcements, advertisements, and
     other recruitment notices include information on the essential
     functions of the job.  Specific information about essential
     functions will attract applicants, including individuals with
     disabilities, who have appropriate qualifications.
     Employers may wish to indicate in job advertisements and
     notices that they do not discriminate on the basis of
     disability or other legally prohibited bases.  An employer may
     wish to include a statement such as:  "We are an Equal
     Opportunity Employer.  We do not discriminate on the basis of
     race, religion, color, sex, age, national origin or
     disability."
     Accessibility of Job Information
     Information about job openings should be accessible to people
     with different disabilities.  An employer is not obligated to
     provide written information in various formats in advance, but
     should make it available in an accessible format on request.
          For example:  Job information should be available in a
          location that is accessible to people with mobility
          impairments.  If a job advertisement provides only a
          telephone number to call for information, a TDD
          (telecommunication device for the deaf) number should be
          included, unless a telephone relay service has been
          established.  Printed job information in an employment
          office or on employee bulletin boards should be made
          available, as needed, to persons with visual or other
          reading impairments.  Preparing information in large
          print will help make it available to some people with
          visual impairments.  Information can be recorded on a
          cassette or read to applicants with more severe vision
          impairments and those who have other disabilities which
          limit reading ability.
5.3  Employment Agencies
     Employment agencies are "covered entities" under the ADA, and
     must comply with all ADA requirements that are applicable to
     their activities.
     The definition of an "employment agency" under the ADA is the
     same as that under Title VII of the Civil Rights Act.  It
     includes private and public employment agencies and other
     organizations, such as college placement services, that
     regularly procure employees for an employer.
     When an employer uses an employment agency to recruit, screen,
     and refer potential employees, both the employer and the
     employment agency may be liable if there is any violation of
     ADA requirements.
          For example:  An employer uses an employment agency to
          recruit and the agency places a newspaper advertisement
          with a telephone number that all interested persons must
          call, because no address is given.  However, there is no
          TDD number.  If there is no telephone relay service, and
          a deaf person is unable to obtain information about a job
          for which she is qualified and files a discrimination
          charge, both the employer and the agency may be liable.
     An employer should inform an employment agency used to recruit
     or screen applicants of the mutual obligation to comply with
     ADA requirements.  In particular, these agencies should be
     informed about requirements regarding qualification standards,
     pre-employment inquiries, and reasonable accommodation.
     If an employer has a contract with an employment agency, the
     employer may wish to include a provision stating that the
     agency will conduct its activities in compliance with ADA and
     other legal nondiscrimination requirements.
5.4  Recruitment
     The ADA is a nondiscrimination law.  It does not require
     employers to undertake special activities to recruit people
     with disabilities.  However, it is consistent with the purpose
     of the ADA for employers to expand their "outreach" to sources
     of qualified candidates with disabilities.  (See Locating
     Qualified Individuals with Disabilities below).
     Recruitment activities that have the effect of screening out
     potential applicants with disabilities may violate the ADA.
          For example:  If an employer conducts recruitment
          activity at a college campus, job fair, or other location
          that is physically inaccessible, or does not make its
          recruitment activity accessible at such locations to
          people with visual, hearing or other disabilities, it may
          be liable if a charge of discrimination is filed.
     Locating Qualified Individuals with Disabilities
     There are many resources for locating individuals with
     disabilities who are qualified for different types of jobs.
     People with disabilities represent a large, underutilized
     human resource pool.  Employers who have actively recruited
     and hired people with disabilities have found valuable sources
     of employees for jobs of every kind.
     Many of the organizations listed in the Resource Directory are
     excellent sources for recruiting qualified individuals with
     disabilities as well as sources of technical assistance for
     any accommodations needed.  For example, many colleges and
     universities have coordinators of services for students with
     disabilities who can be helpful in recruitment and in making
     accommodations.  The Association on Handicapped Student
     Service Programs in Postsecondary Education can provide
     information on these resources.  Local Independent Living
     Centers, state and local vocational rehabilitation agencies,
     organizations such as Goodwill Industries, and many
     organizations representing people who have specific
     disabilities are among other recruitment sources.  (See
     "Recruitment Sources" in Resource Directory Index).
5.5  Pre-Employment Inquiries
     The ADA Prohibits Any Pre-Employment Inquiries About a
     Disability.
     This prohibition is necessary to assure that qualified
     candidates are not screened out because of their disability
     before their actual ability to do a job is evaluated.  Such
     protection is particularly important for people with hidden
     disabilities who frequently are excluded, with no real
     opportunity to present their qualifications, because of
     information requested in application forms, medical history
     forms, job interviews, and pre-employment medical
     examinations.
     The prohibition on pre-employment inquiries about disability
     does not prevent an employer from obtaining necessary
     information regarding an applicant's qualifications, including
     medical information necessary to assess qualifications and
     assure health and safety on the job.
     The ADA requires only that such inquiries be made in two
     separate stages of the hiring process.
          1.   Before making a job offer.
               At this stage, an employer:
                   may ask questions about an applicant's ability
                    to perform specific job functions;
                   may not make an inquiry about a disability;
                   may make a job offer that is conditioned on
                    satisfactory results of a post-offer medical
                    examination or inquiry.
          2.   After making a conditional job offer and before an
               individual starts work
               At this stage, an employer may conduct a medical
               examination or ask health-related questions,
               providing that all candidates who receive a
               conditional job offer in the same job category are
               required to take the same examination and/or
               respond to the same inquiries.
     Inquiries that may and may not be made at the pre-offer stage
     are discussed in the section that follows.  Guidance on
     obtaining and using  information from post-offer medical and
     inquiries and examinations is  provided in Chapter VI.
     5.5a Basic Requirements Regarding Pre-Offer Inquiries
              An employer may not make any pre-employment inquiry
               about a disability, or about the nature or severity
               of a disability:
                -       on application forms
                -       in job interviews
                -       in background or reference checks.
              An employer may not make any medical inquiry or
               conduct any medical examination prior to making a
               conditional offer of employment.
              An employer may ask a job applicant questions about
               ability to perform specific job functions, tasks,
               or duties, as long as these questions are not
               phrased in terms of a disability.  Questions need
               not be limited to the "essential" functions of the
               job.
              An employer may ask all applicants to describe or
               demonstrate how they will perform a job, with or
               without an accommodation.
              If an individual has a known disability that might
               interfere with or prevent performance of job
               functions, s/he may be asked to describe or
               demonstrate how these functions will be performed,
               with or without an accommodation, even if other
               applicants are not asked to do so; however,
              If a known disability would not interfere with
               performance of job functions, an individual may
               only be required to describe or demonstrate how
               s/he will perform a job if this is required of all
               applicants for the position.
              An employer may condition a job offer on the
               results of a medical examination or on the
               responses to medical inquiries if such an
               examination or inquiry is required of all entering
               employees in the same job category, regardless of
               disability; information obtained from such
               inquiries or examinations must be handled according
               to the strict confidentiality requirements of the
               ADA.  (See Chapter VI.)
     5.5b The Job Application Form
          A review of job application forms should be a priority
          before the ADA's effective date, to eliminate any
          questions related to disability.
          Some Examples of Questions that May Not be Asked on
          Application Forms or in Job Interviews:
              Have you ever had or been treated for any of the
               following conditions or diseases? (Followed by a
               checklist of various conditions and diseases.)
              Please list any conditions or diseases for which
               you have been treated in the past 3 years.
              Have you ever been hospitalized?  If so, for what
               condition?
              Have you ever been treated by a psychiatrist or
               psychologist?  If so, for what condition?
              Have you ever been treated for any mental
               condition?
              Is there any health-related reason you may not be
               able to perform the job for which you are applying?
              Have you had a major illness in the last 5 years?
              How many days were you absent from work because of
               illness last year?
               (Pre-employment questions about illness may not be
               asked, because they may reveal the existence of a
               disability.  However, an employer may provide
               information on its attendance requirements and ask
               if an applicant will be able to meet these
               requirements.  [See also The Job Interview below.])
              Do you have any physical defects which preclude you
               from performing certain kinds of work?  If yes,
               describe such defects and specific work
               limitations.
              Do you have any disabilities or impairments which
               may affect your performance in the position for
               which you are applying?
               (This question should not be asked even if the
               applicant is requested in a follow-up question to
               identify accommodations that would enable job
               performance.  Inquiries should not focus on an
               applicant's disabilities.  The applicant may be
               asked about ability to perform specific job
               functions, with or without a reasonable
               accommodation.  [See Information That May be Asked,
               below.])
              Are you taking any prescribed drugs?
               (Questions about use of prescription drugs are not
               permitted before a conditional job offer, because
               the answers to such questions might reveal the
               existence of certain disabilities which require
               prescribed medication.)
              Have you ever been treated for drug addiction or
               alcoholism?
               (Information may not be requested regarding
               treatment for drug or alcohol addiction, because
               the ADA protects people addicted to drugs who have
               been successfully rehabilitated, or who are
               undergoing rehabilitation, from discrimination
               based on drug addiction.  [See Chapter VI. for
               discussion of post-offer inquiries and Chapter
               VIII. for drug and alcohol issues.])
              Have you ever filed for workers' compensation
               insurance?
               (An employer may not ask about an applicant's
               workers' compensation history at the pre-offer
               stage, but may obtain such information after making
               a conditional job offer.  Such questions are
               prohibited because they are likely to reveal the
               existence of a disability.  In addition, it is
               discriminatory under the ADA not to hire an
               individual with a disability because of speculation
               that the individual will cause increased workers'
               compensation costs.  (See Chapter IV, 4.5(3), and
               Chapter IX.)
          Information about an applicant's ability to perform job
          tasks, with or without accommodation, can be obtained
          through the application form and job interview, as
          explained below.  Other needed information may be
          obtained through medical inquiries or examinations
          conducted after a conditional offer of employment, as
          described in Chapter VI.
     5.5c Exception for Federal Contractors Covered by Section 503
          of the Rehabilitation Act and Other Federal Programs
          Requiring Identification of Disability.
          Federal contractors and subcontractors who are covered by
          the affirmative action requirements of Section 503 of the
          Rehabilitation Act may invite individuals with
          disabilities to identify themselves on a job application
          form or by other pre-employment inquiry, to satisfy the
          affirmative action requirements of Section 503 of the
          Rehabilitation Act.  Employers who request such
          information must observe Section 503 requirements
          regarding the manner in which such information is
          requested and used, and the procedures for maintaining
          such information as a separate, confidential record,
          apart from regular personnel records.  (For further
          information, see Office of Federal Contract Compliance
          Programs listing in Resource Directory.)
          A pre-employment inquiry about a disability also is
          permissible if it is required or necessitated by another
          Federal law or regulation.  For example, a number of
          programs administered or funded by the U.S. Department of
          Labor target benefits to individuals with disabilities,
          such as, disabled veterans, veterans of the Vietnam era,
          individuals eligible for Targeted Job Tax Credits, and
          individuals eligible for Job Training Partnership Act
          assistance.  Pre-employment inquiries about disabilities
          may be necessary under these laws to identify disabled
          applicants or clients in order to provide the required
          special services for such persons.  These inquiries would
          not violate the ADA.
     5.5d Information that May Be Requested on Application Forms or
          in Interviews.
          An employer may ask questions to determine whether an
          applicant can perform specific job functions.  The
          questions should focus on the applicant's ability to
          perform the job, not on a disability.
               For example:  An employer could attach a job
               description to the application form with
               information about specific job functions.  Or the
               employer may describe the functions.  This will
               make it possible to ask whether the applicant can
               perform these functions.  It also will give an
               applicant with a disability needed information to
               request any accommodation  required to perform a
               task.  The applicant could be asked:
                   Are you able to perform these tasks with or
                    without an accommodation?
                    If the applicant indicates that s/he can
                    perform the tasks with an accommodation, s/he
                    may be asked:
                   How would you perform the tasks, and with what
                    accommodation(s)?
          However, the employer must keep in mind that it cannot
          refuse to hire a qualified individual with a disability
          because of this person's need for an accommodation that
          would be required by the ADA.
          An employer may inform applicants on an application form
          that they may request any needed accommodation to
          participate in the application process.  For example:
          accommodation for a test, a job interview, or a job
          demonstration.
          The employer may wish to provide information on the
          application form and in the employment office about
          specific aspects of the job application process, so that
          applicants may request any needed accommodation.  The
          employer is not required to provide such information, but
          without it the applicant may have no advance notice of
          the need to request an accommodation.  Since the
          individual with a disability has the responsibility to
          request an accommodation and the employer has the
          responsibility to provide the accommodation (unless it
          would cause an undue hardship), providing advance
          information on various application procedures may help
          avoid last minute problems in making necessary
          accommodations.  This information can be communicated
          orally or on tape for people who are visually impaired.
          (See also Testing, 5.6 below)
     5.5e Making Job Applications Accessible
          Employers have an obligation to make reasonable
          accommodations  to enable an applicant with a disability
          to apply for a job.  Some of the kinds of accommodations
          that may be needed have been suggested in the section on
          Accessibility of Job Information, 5.2 above.  Individuals
          with visual or learning disabilities or other mental
          disabilities also may require assistance in filling out
          application forms.
     5.5f The Job Interview
          The basic requirements regarding pre-employment inquiries
          and the types of questions that are prohibited on job
          application forms apply to the job interview as well.
          (See 5.5(a) and (b) above.)  An interviewer may not ask
          questions about a disability, but may obtain more
          specific information about the ability to perform job
          tasks and about any needed accommodation, as set out
          below.
          To assure that an interview is conducted in a
          nondiscriminatory manner, interviewers should be
          well-informed about the ADA's requirements.  The employer
          may wish to provide written guidelines to people who
          conduct job interviews.
          Most employment discrimination against people with
          disabilities is not intentional.  Discrimination most
          frequently occurs because interviewers and others
          involved in hiring lack knowledge about the differing
          capabilities of individuals with disabilities and make
          decisions based on stereotypes, misconceptions, or
          unfounded fears.  To avoid discrimination in the hiring
          process, employers may wish to provide "awareness"
          training for interviewers and others involved in the
          hiring process.  Such training provides factual
          information about disability and the qualifications of
          people with disabilities, emphasizes the importance of
          individualized assessments, and helps interviewers feel
          more at ease in talking with people who have different
          disabilities.
          Sources that provide "awareness training," some at little
          or no cost, may be found under this heading in the
          Resource Directory Index.
          The job interview should focus on the ability of an
          applicant to perform the job, not on disability.
               For example:  If a person has only one arm and an
               essential function of a job is to drive a car, the
               interviewer should not ask if or how the disability
               would affect this person's driving.  The person may
               be asked if s/he has a valid driver's license, and
               whether s/he can perform any special aspect of
               driving that is required, such as frequent
               long-distance trips, with or without an
               accommodation.
               The interviewer also could obtain needed
               information about an applicant's ability and
               experience in relation to specific job requirements
               through statements and questions such as:
               "Eighty-percent of the time of this sales job must
               be spent on the road covering a three-state
               territory.  What is your outside selling
               experience?  Do you have a valid driver's license?
               What is your accident record?"
          Where an applicant has a visible disability (for example,
          uses a wheelchair or a guide dog, or has a missing limb)
          or has volunteered information about a disability, the
          interviewer may not ask questions about:
          -    the nature of the disability;
          -    the severity of the disability;
          -    the condition causing the disability;
          -    any prognosis or expectation regarding the
               condition or disability; or
          -    whether the individual will need treatment or
               special leave because of the disability.
          The interviewer may describe or demonstrate the specific
          functions and tasks of the job and ask whether an
          applicant can perform these functions with or without a
          reasonable accommodation.
               For example:  An interviewer could say:  "The
               person in this mailroom clerk position is
               responsible for receiving incoming mail and
               packages, sorting the mail, and taking it in a cart
               to many offices in two buildings, one block apart.
               The mailclerk also must receive incoming boxes of
               supplies up to 50 pounds in weight, and place them
               on storage shelves up to 6 feet in height.  Can you
               perform these tasks?  Can you perform them with or
               without a reasonable accommodation?"
          As suggested above, (see 5.5(d)), the interviewer also
          may give the applicant a copy of a detailed position
          description and ask whether s/he can perform the
          functions described in the position, with or without a
          reasonable accommodation.
          Questions may be asked regarding ability to perform all
          job functions, not merely those that are essential to the
          job.
               For example:  A secretarial job may involve the
               following functions:
               1.   transcribing dictation and written drafts from
                    the supervisor and other staff into final
                    written documents;
               2.   proof-reading documents for accuracy;
               3.   developing and maintaining files;
               4.   scheduling and making arrangements for
                    meetings and conferences;
               5.   logging documents and correspondence in and
                    out;
               6.   placing, answering, and referring telephone
                    calls;
               7.   distributing documents to appropriate staff
                    members;
               8.   reproducing documents on copying machines; and
               9.   occasional travel to perform clerical tasks at
                    out of town conferences.
               Taking into account the specific activities of the
               particular office in which this secretary will
               work, and availability of other staff, the employer
               has identified functions 1-6 as essential, and
               functions 7-9 as marginal to this secretary's job.
               The interviewer may ask questions related to all 9
               functions; however, an applicant with  limited
               mobility should not be screened out because of
               inability to perform the last 3 functions due to
               her disability.  S/he should be evaluated on
               ability to perform the first 6 functions, with or
               without accommodation.
          Inquiries Related to Ability to Perform Job Functions and
          Accommodations
          An interviewer may obtain information about an
          applicant's ability to perform essential job functions
          and about any need for accommodation in several ways,
          depending on the particular job applicant and the
          requirements of a particular job:
              The applicant may be asked to describe or
               demonstrate how s/he will perform specific job
               functions, if this is required of everyone applying
               for a job in this job category, regardless of
               disability.
                    For example:  An employer might require all
                    applicants for a telemarketing job to
                    demonstrate selling ability by taking a
                    simulated telephone sales test, but could not
                    require that a person using a wheelchair take
                    this test if other applicants are not required
                    to take it.
              If an applicant has a known disability that would
               appear to interfere with or prevent performance of
               a job-related function, s/he may be asked to
               describe or demonstrate how this function would be
               performed, even if other applicants do not have to
               do so.
                    For example:  If an applicant has one arm and
                    the job requires placing bulky items on
                    shelves up to six feet high, the interviewer
                    could ask the applicant to demonstrate how
                    s/he would perform this function, with or
                    without an accommodation.  If the applicant
                    states that s/he can perform this function
                    with a reasonable accommodation, for example,
                    with a step stool fitted with a device to
                    assist lifting, the employer either must
                    provide this accommodation so that the
                    applicant can show that s/he can shelve the
                    items, or let the applicant describe how s/he
                    would do this task.
              However, if an applicant has a known disability
               that would not interfere with or prevent
               performance of a job related function, the employer
               can only ask the applicant to demonstrate how s/he
               would perform the function if all applicants in the
               job category are required to do so, regardless of
               disability.
                    For example:  If an applicant with one leg
                    applies for a job that involves sorting small
                    parts while seated, s/he may not be required
                    to demonstrate the ability to do this job
                    unless all applicants are required to do so.
          If an applicant indicates that s/he cannot perform an
          essential job function even with an accommodation, the
          applicant would not be qualified for the job in question.
          Inquiries About Attendance
          An interviewer may not ask whether an applicant will need
          or request leave for medical treatment or for other
          reasons related to a disability.
          The interviewer may provide information on the employer's
          regular work hours, leave policies, and any special
          attendance needs of the job, and ask if the applicant can
          meet these requirements (provided that the requirements
          actually are applied to employees in a particular job).
               For example:  "Our regular work hours are 9 to 5,
               five days weekly, but we expect employees in this
               job to work overtime, evenings, and weekends for 6
               weeks during the Christmas season and on certain
               other holidays.  New employees get 1 week of
               vacation, 7 sick leave days and may take no more
               than 5 days of unpaid leave per year.  Can you meet
               these requirements?"
          Information about previous work attendance records may be
          obtained on the application form, in the interview or in
          reference checks, but the questions should not refer to
          illness or disability.
          If an applicant has had a poor attendance record on a
          previous job, s/he may wish to provide an explanation
          that includes information related to a disability, but
          the employer should not ask whether a poor attendance
          record was due to illness, accident or disability.  For
          example, an applicant might wish to disclose voluntarily
          that the previous absence record was due to surgery for
          a medical condition that is now corrected, treatment for
          cancer that is now in  remission or to adjust medication
          for epilepsy, but that s/he is now fully able to meet all
          job requirements.
          Accommodations for Interviews
          The employer must provide an accommodation, if needed, to
          enable an applicant to have equal opportunity in the
          interview process.  As suggested earlier, the employer
          may find it helpful to state in an initial job notice,
          and/or on the job application form, that applicants who
          need accommodation for an interview should request this
          in advance.
          Needed accommodations for interviews may include:
              an accessible location for people with mobility
               impairments;
              a sign interpreter for a deaf person;
              a reader for a blind person.
          Conducting an Interview
          The purpose of a job interview is to obtain appropriate
          information about the background qualifications and other
          personal qualities of an applicant in relation to the
          requirements of a specific job.
          This chapter has discussed ways to obtain this
          information by focusing on the abilities rather than the
          disability of a disabled applicant.  However, there are
          other aspects of an interview that may create barriers to
          an accurate and objective assessment of an applicant's
          job qualifications.  The interviewer may not know how to
          communicate effectively with people who have particular
          disabilities, or may make negative, incorrect assumptions
          about the abilities of a person with a disability because
          s/he misinterprets some external manifestation of the
          disability.
               For example.  An interviewer may assume that a
               person who displays certain characteristics of
               cerebral palsy, such as indistinct speech, lisping,
               and involuntary or halting movements, is limited in
               intelligence.  In fact, cerebral palsy does not
               affect intelligence at all.
          If an applicant who is known to have a disability was
          referred by a rehabilitation agency or other source
          familiar with the person, it may be helpful to contact
          the agency to learn more about this individual's ability
          to perform specific job functions; however, questions
          should not be asked about the nature or extent of the
          person's disability.  General information on different
          disabilities may be obtained from many organizations
          listed in the Resource Directory.  See Index under the
          specific disability.
     5.5g Background and Reference Checks
          Before making a conditional job offer, an employer may
          not request any information about a job applicant from a
          previous employer, family member, or other source that it
          may not itself request of the job applicant.
          If an employer uses an outside firm to conduct background
          checks, the employer should assure that this firm
          complies with the ADA's prohibitions on pre-employment
          inquiries.  Such a firm is an agent of the employer.  The
          employer is responsible for actions of its agents and may
          not do anything through a contractual relationship that
          it may not itself do directly.
          Before making a conditional offer of employment, an
          employer may not ask previous employers or other sources
          about an applicant's:
              disability;
              illness;
              workers' compensation history;
              or any other questions that the employer itself may
               not ask of the applicant.
          A previous employer may be asked about:
              job functions and tasks performed by the applicant;
              the quality and quantity of work performed;
              how job functions were performed;
              attendance record;
              other job-related issues that do not relate to
               disability.
          If an applicant has a known disability and has indicated
          that s/he could perform a job with a reasonable
          accommodation, a previous employer may be asked about
          accommodations made by that employer.
5.6  Testing
     Employers may use any kind of test to determine job
     qualifications.  The ADA has two major requirements in
     relation to tests:
     1.   If a test screens out or tends to screen out an
          individual with a disability or a class of such
          individuals on the basis of disability, it must be
          job-related and consistent with business necessity.
              This requirement applies to all kinds of tests,
               including, but not limited to:  aptitude tests,
               tests of knowledge and skill, intelligence tests,
               agility tests, and job demonstrations.
          A test will most likely be an accurate predictor of the
          job performance of a person with a disability when it
          most directly or closely measures actual skills and
          ability needed to do a job.  For example:  a typing test,
          a sales demonstration test, or other job performance test
          would indicate what the individual actually could do in
          performing a job, whereas a test that measured general
          qualities believed to be desirable in a job may screen
          out people on the basis of disability who could do the
          job.  For example, a standardized test used for a job as
          a heavy equipment operator might screen out a person with
          dyslexia or other learning disability who was able to
          perform all functions of the job itself.
          An employer is only required to show that a test is
          job-related and consistent with business necessity if it
          screens out a person with a disability because of the
          disability.  If a person was screened out for a reason
          unrelated to disability, ADA requirements do not apply.
               For example:  If a person with paraplegia who uses
               a wheelchair is screened out because s/he does not
               have sufficient speed or accuracy on a typing test,
               this person probably was not screened out because
               of his or her disability.  The employer has no
               obligation to consider this person for a job which
               requires fast, accurate typing.
     Even if a test is job-related and justified by business
     necessity, the employer has an obligation to provide a
     specific reasonable accommodation, if needed.  For example,
     upon request, test sites must be accessible to people who have
     mobility disabilities.  The ADA also has a very specific
     requirement for accommodation in testing, described below.
     2.   Accommodation in testing
          The ADA requires that tests be given to people who have
          impaired sensory, speaking or manual skills in a format
          and manner that does not require use of the impaired
          skill, unless the test is designed to measure that skill.
          (Sensory skills include the abilities to hear, see and to
          process information.)
          The purpose of this requirement is to assure that tests
          accurately reflect a person's job skills, aptitudes, or
          whatever else the test is supposed to measure, rather
          than the person's impaired skills.  This requirement
          applies the reasonable accommodation obligation to
          testing.  It protects people with disabilities from being
          excluded from jobs that they actually can do because a
          disability prevents them from taking a test or negatively
          influences a test result.  However, an employer does not
          have to provide an alternative test format for a person
          with an impaired skill if the purpose of the test is to
          measure that skill.
               For example:
                   A person with dyslexia should be given an
                    opportunity to take a written test orally, if
                    the dyslexia seriously impairs the
                    individual's ability to read.  But if ability
                    to read is a job-related function that the
                    test is designed to measure, the employer
                    could require that a person with dyslexia take
                    the written test.  However, even in this
                    situation, reasonable accommodation should be
                    considered.  The person with dyslexia might be
                    accommodated with a reader, unless the ability
                    to read unaided is an essential job function,
                    unless such an accommodation would not be
                    possible on the job for which s/he is being
                    tested, or would be an undue hardship.  For
                    example, the ability to read without help
                    would be essential for a proofreader's job.
                    Or, a dyslexic firefighter applicant might be
                    disqualified if he could not quickly read
                    necessary instructions for dealing with
                    specific toxic substances at the site of a
                    fire when no reader would be available.
                   Providing extra time to take a test may be a
                    reasonable accommodation for people with
                    certain disabilities, such as visual
                    impairments, learning disabilities, or mental
                    retardation.  On the other hand, an employer
                    could require that an applicant complete a
                    test within an established time frame if speed
                    is one of the skills that the test is designed
                    to measure.  However, the results of a timed
                    test should not be used to exclude a person
                    with a disability, unless the test measures a
                    particular speed necessary to perform an
                    essential function of the job, and there is no
                    reasonable accommodation that would enable
                    this person to perform that function within
                    prescribed time frames, or the accommodation
                    would cause an undue hardship.
          Generally, an employer is only required to provide such
          an accommodation if it knows, before administering a
          test, that an accommodation will be needed.  Usually, it
          is the responsibility of the individual with a disability
          to request any required accommodation for a test.  It has
          been suggested that the employer inform applicants, in
          advance, of any tests that will be administered as part
          of the application process so that they may request an
          accommodation, if needed.  (See 5.5(d) above.)  The
          employer may require that an individual with a disability
          request an accommodation within a specific time period
          before administration of the test.  The employer also may
          require that documentation of the need for accommodation
          accompany such a request.
          Occasionally, however, an individual with a disability
          may not realize in advance that s/he will need an
          accommodation to take a particular test.
               For example:  A person with a visual impairment who
               knows that there will be a written test may not
               request an accommodation because she has her own
               specially designed lens that usually is effective
               for reading printed material.  However, when the
               test is distributed, she finds that her lens is not
               sufficient, because of unusually low color contrast
               between the paper and the ink.  Under these
               circumstances, she might request an accommodation
               and the employer would be obligated to provide one.
               The employer might provide the test in a higher
               contrast format at that time, reschedule the test,
               or make any other effective accommodation that
               would not impose an undue hardship.
          An employer is not required to offer an applicant the
          specific accommodation requested.  This request should be
          given primary consideration, but the employer is only
          obligated to provide an effective accommodation.  (See
          Chapter III.)  The employer is only required to provide,
          upon request, an "accessible" test format for individuals
          whose disabilities impair sensory, manual, or speaking
          skills needed to take the test, unless the test is
          designed to measure these skills.
     Some Examples of Alternative Test Formats and Accommodations:
         Substituting a written test for an oral test (or written
          instructions for oral instructions) for people with
          impaired speaking or hearing skills;
         Administering a test in large print, in Braille, by a
          reader, or on a computer for people with visual or other
          reading disabilities;
         Allowing people with visual or learning disabilities or
          who have limited use of their hands to record test
          answers by tape recorder, dictation or computer;
         Providing extra time to complete a test for people with
          certain learning disabilities or impaired writing skills;
         Simplifying test language for people who have limited
          language skills because of a disability;
         Scheduling rest breaks for people with mental and other
          disabilities that require such relief;
         Assuring that a test site is accessible to a person with
          a mobility disability;
         Allowing a person with a mental disability who cannot
          perform well if there are distractions to take a test in
          a separate room, if a group test setting is not relevant
          to the job itself;
         Where it is not possible to test an individual with a
          disability in an alternative format, an employer may be
          required, as a reasonable accommodation, to evaluate the
          skill or ability being tested through some other means,
          such as  an interview, education, work experience,
          licenses or certification, or a job demonstration for a
          trial period.
     There are a number of technical assistance resources for
     effective alternative methods of testing people with different
     disabilities.  (See "Alternative Testing Formats" in Resource
     Directory Index).VI.  MEDICAL EXAMINATIONS AND INQUIRIES
6.1  Overview of Legal Obligations
     Pre-Employment, Pre-Offer
         An employer may not require a job applicant to take a
          medical examination, to respond to medical inquiries or
          to provide information about workers' compensation claims
          before the employer makes a job offer.
     Pre-Employment, Post-Offer
         An employer may condition a job offer on the satisfactory
          result of a post-offer medical examination or medical
          inquiry if this is required of all entering employees in
          the same job category.  A post-offer examination or
          inquiry does not have to be "job-related" and "consistent
          with business necessity."  Questions also may be asked
          about previous injuries and workers' compensation claims.
         If an individual is not hired because a post-offer
          medical examination or inquiry reveals a disability, the
          reason(s) for not hiring must be job-related and
          necessary for the business.  The employer also must show
          that no reasonable accommodation was available that would
          enable this individual to perform the essential job
          functions, or that accommodation would impose an undue
          hardship.
         A post-offer medical examination may disqualify an
          individual who would pose a "direct threat" to health or
          safety.  Such a disqualification is job-related and
          consistent with business necessity.
         A post-offer medical examination may not disqualify an
          individual with a disability who is currently able to
          perform essential job functions because of speculation
          that the disability may cause a risk of future injury.
     Employee Medical Examinations and Inquiries
         After a person starts work, a medical examination or
          inquiry of an employee must be job related and necessary
          for the business.
         Employers may conduct employee medical examinations where
          there is evidence of a job performance or safety problem,
          examinations required by other Federal laws, examinations
          to determine current "fitness" to perform a particular
          job and voluntary examinations that are part of employee
          health programs.
     Confidentiality
         Information from all medical examinations and inquiries
          must be kept apart from general personnel files as a
          separate, confidential medical record, available only
          under limited conditions specified in the ADA.  (See 6.5
          below.)
     Drug Testing
         Tests for illegal use of drugs are not medical
          examinations under the ADA and are not subject to the
          restrictions on such examinations.  (See Chapter VIII.)
6.2  Basic Requirements
     The ADA does not prevent employers from obtaining medical and
     related information necessary to evaluate the ability of
     applicants and employees to perform essential job functions,
     or to promote health and safety on the job.  However, to
     protect individuals with disabilities from actions based on
     such information that are not job-related and consistent with
     business necessity, including protection of health and safety,
     the ADA imposes specific and differing obligations on the
     employer at three stages of the employment process:
     1.   Before making a job offer, an employer may not make any
          medical inquiry or conduct any medical examination.
     2.   After making a conditional job offer, before a person
          starts work, an employer may make unrestricted medical
          inquiries, but may not refuse to hire an individual with
          a disability based on results of such inquiries, unless
          the reason for rejection is job-related and justified by
          business necessity.
     3.   After employment, any medical examination or inquiry
          required of an employee must be job-related and justified
          by business necessity.  Exceptions are voluntary
          examinations conducted as part of employee health
          programs and  examinations required by other federal
          laws.
     Under the ADA, "medical" documentation concerning the
     qualifications of an individual with a disability, or whether
     this individual constitutes a "direct threat" to health and
     safety, does not mean only information from medical doctors.
     It may be necessary to obtain information from other sources,
     such as rehabilitation experts, occupational or physical
     therapists, psychologists, and others knowledgeable about the
     individual and the disability concerned.  It also may be more
     relevant to look at the individual's previous work history in
     making such determinations than to rely on an examination or
     tests by a physician.
     The basic requirements regarding actions based on medical
     information and inquiries have been set out in Chapter IV.  As
     emphasized there, such actions taken because of a disability
     must be job-related and consistent with business necessity.
     When an individual is rejected as a "direct threat" to health
     and safety:
         the employer must be prepared to show a  significant
          current risk of substantial  harm (not a speculative or
          remote risk);
         the specific risk must be identified;
         the risk must be documented by objective medical or other
          factual evidence regarding the particular individual;
         even if a genuine significant risk of substantial harm
          exists, the employer must consider whether it can be
          eliminated or reduced below the level of a "direct
          threat" by reasonable accommodation.
     This chapter discusses in more detail the content and manner
     of medical examinations and inquiries that may be made, and
     the documentation that may be required (1) before employment
     and (2) after employment.
6.3  Examinations and Inquiries Before Employment
     No Pre-Offer Medical Examination or Inquiry
     The ADA prohibits medical inquiries or medical examinations
     before making a conditional job offer to an applicant.  This
     prohibition is necessary because the results of such inquiries
     and examinations frequently are used to exclude people with
     disabilities from jobs they are able to perform.
     Some employers have medical policies or rely on doctors'
     medical assessments that overestimate the impact of a
     particular condition on a particular individual, and/or
     underestimate the ability of an individual to cope with his or
     her condition.  Medical policies that focus on disability,
     rather than the ability of a particular person, frequently
     will be discriminatory under the ADA.
          For example:  A policy that prohibits employment of any
          individual who has epilepsy, diabetes or a heart
          condition from a certain type of job, and which does not
          consider the ability of a particular individual, in most
          cases would violate the ADA.  (See Chapter IV.)
     Many employers currently use a pre-employment medical
     questionnaire, a medical history, or a pre-employment medical
     examination as one step in a several-step selection process.
     Where this is so, an individual who has a "hidden" disability
     such as diabetes, epilepsy, heart disease, cancer, or mental
     illness, and who is rejected for a job, frequently does not
     know whether the reason for rejection was information revealed
     by the medical exam or inquiry (which may not have any
     relation to this person's ability to do the job), or whether
     the rejection was based on some other aspect of the selection
     process.
     A history of such rejections has discouraged many people with
     disabilities from applying for jobs, because of fear that they
     will automatically be rejected when their disability is
     revealed by a medical examination.  The ADA is designed to
     remove this barrier to employment.
6.4  Post-Offer Examinations and Inquiries Permitted
     The ADA recognizes that employers may need to conduct medical
     examinations to determine if an applicant can perform certain
     jobs effectively and safely.  The ADA requires only that such
     examinations be conducted as a separate, second step of the
     selection process, after an individual has met all other job
     pre-requisites.  The employer may make a job offer to such an
     individual, conditioned on the satisfactory outcome of a
     medical examination or inquiry, providing that the employer
     requires such examination or inquiry for all entering
     employees in a particular job category, not merely individuals
     with known disabilities, or those whom the employer believes
     may have a disability.
     A post-offer medical examination does not have to be given to
     all entering employees in all jobs, only to those in the same
     job category.
          For example:  An examination might be given to all
          entering employees in physical labor jobs, but not to
          employees entering clerical jobs.
     The ADA does not require an employer to justify its
     requirement of a post-offer medical examination.  An employer
     may wish to conduct a post-offer medical exam or make post-
     offer medical inquiries for purposes such as:
          To determine if an individual currently has the physical
          or mental qualifications necessary to perform certain
          jobs:
               For example:  If a job requires continuous heavy
               physical exertion, a medical examination may be
               useful to determine whether an applicant's physical
               condition will permit him/her to perform the job.
          To determine that a person can perform a job without
          posing a "direct threat" to the health or safety of self
          or others.
               For example:
                   A medical examination and evaluation might be
                    required to ensure that prospective
                    construction crane operators do not have
                    disabilities such as uncontrolled seizures
                    that would pose a significant risk to other
                    workers.
                   Workers in certain health care jobs may need
                    to be examined to assure that they do not have
                    a current contagious disease or infection that
                    would pose a significant risk of transmission
                    to others, and that could not be accommodated
                    (for example, by giving the individual a
                    delayed starting date until the period of
                    contagion is over).
          Compliance with medical requirements of other Federal
          laws
          Employers may comply with medical and safety requirements
          established under other Federal laws without violating
          the ADA.
               For example:  Federal Highway Administration
               regulations require medical examinations and
               evaluations of interstate truck drivers, and the
               Federal Aviation Administration requires
               examinations for pilots and air controllers.
          However, an employer still has an obligation to consider
          whether there is a reasonable accommodation, consistent
          with the requirements of other Federal laws, that would
          not exclude individuals who can perform jobs safely.
          Employers also may conduct post-offer medical
          examinations that are required by state laws, but, as
          explained in Chapter IV, may not take actions based on
          such examinations if the state law is inconsistent with
          ADA requirements.  (See Health and Safety Requirements of
          Other Federal or State Laws, 4.6.)
     Information That May Be Requested in Post-Offer Examinations
     or Inquiries
     After making a conditional job offer, an employer may make
     inquiries or conduct examinations to get any information that
     it believes to be relevant to a person's ability to perform a
     job.  For example, the employer may require a full physical
     examination.  An employer may ask questions that are
     prohibited as pre-employment inquiries about previous
     illnesses, diseases or medications.  (See Chapter V.)
     If a post-offer medical examination is given, it must be
     administered to all persons entering a job category.  If a
     response to an initial medical inquiry (such as a medical
     history questionnaire) reveals that an applicant has had a
     previous injury, illness, or medical condition, the employer
     cannot require the applicant to undergo a medical examination
     unless all applicants in the job category are required to have
     such examination.  However, the ADA does not require that the
     scope of medical examinations must be identical.  An employer
     may give follow-up tests or examinations where an examination
     indicates that further information is needed.
          For example:  All potential employees in a job category
          must be given a blood test, but if a person's initial
          test indicates a problem that may affect job performance,
          further tests may be given to that person only, in order
          to get necessary information.
     A post-offer medical examination or inquiry, made before an
     individual starts work, need not focus on ability to perform
     job functions.  Such inquiries and examinations themselves,
     unlike examinations/inquiries of employees, do not have to be
     "job related" and "consistent with business necessity."
     However, if a conditional job offer is withdrawn because of
     the results of such examination or inquiry, an employer must
     be able to show that:
              the reasons for the exclusion are job-related and
               consistent with business necessity, or the person
               is being excluded to avoid a "direct threat" to
               health or safety; and that
              no reasonable accommodation was available that
               would enable this person to perform the essential
               job functions without a significant risk to health
               or safety, or that such an accommodation would
               cause undue hardship.
                    Some examples of post-offer decisions that
                    might be job-related and justified by business
                    necessity, and/or where no reasonable
                    accommodation was possible:
                        a medical history reveals that the
                         individual has suffered serious multiple
                         re-injuries to his back doing similar
                         work, which have progressively worsened
                         the back condition. Employing this person
                         in this job would incur significant risk
                         that he would further re-injure himself.
                        a workers' compensation history indicates
                         multiple claims in recent years which
                         have been denied.  An employer might have
                         a legitimate business reason to believe
                         that the person has submitted fraudulent
                         claims.  Withdrawing a job offer for this
                         reason would not violate the ADA, because
                         the decision is not based on disability.
                        a medical examination reveals an
                         impairment that wwould require the
                         individual's frequent lengthy absence
                         from work for medical treatment, and the
                         job requires daily availability for the
                         next 3 months.  In this situation, the
                         individual is not available to perform
                         the essential functions of the job, and
                         no accommodation is possible.
                    Examples of discriminatory use of examination
                    results that are not job related and justified
                    by business necessity:
                        A landscape firm sent an applicant for a
                         laborer's job (who had been doing this
                         kind of work for 20 years) for a physical
                         exam.  An x-ray showed that he had a
                         curvature of the spine.  The doctor
                         advised the firm not to hire him because
                         there was a risk that he might injure his
                         back at some time in the future.  The
                         doctor provided no specific medical
                         documentation that this would happen or
                         was likely to happen.  The company
                         provided no description of the job to the
                         doctor.  The job actually involved riding
                         a mechanical mower.  This unlawful
                         exclusion was based on speculation about
                         future risk of injury, and was not
                         job-related.
                        An individual is rejected from a job
                         because he cannot lift more than 50
                         pounds.  The job requires lifting such a
                         weight only occasionally.  The employer
                         has not considered possible
                         accommodations, such as sharing the
                         occasional heavy weight lifting with
                         another employee or providing a device to
                         assist lifting.
     Risk Cannot be Speculative or Remote
     The results of a medical examination may not disqualify
     persons currently able to perform essential job functions
     because of unsubstantiated speculation about future risk.
     The results of a medical inquiry or examination may not be
     used to disqualify persons who are currently able to perform
     the essential functions of a job, either with or without an
     accommodation, because of fear or speculation that a
     disability may indicate a greater risk of future injury, or
     absenteeism, or may cause future workers' compensation or
     insurance costs.  An employer may use such information to
     exclude an individual with a disability where there is
     specific medical documentation, reflecting current medical
     knowledge, that this individual would pose a significant,
     current risk of substantial harm to health or safety.  (See
     Standards for Health and Safety: "Direct Threat" Chapter IV.)
          For example:
              An individual who has an abnormal back X-ray may
               not be disqualified from a job that requires heavy
               lifting because of fear that she will be more
               likely to injure her back or cause higher workers'
               compensation or health insurance costs.  However,
               where there is documentation that this individual
               has injured and re-injured her back in similar
               jobs, and the back condition has been aggravated
               further by injury, and if there is no reasonable
               accommodation that would eliminate the risk of
               reinjury or reduce it to an acceptable level, an
               employer would be justified in rejecting her for
               this position.
              If a medical examination reveals that an individual
               has epilepsy and is seizure-free or has adequate
               warning of a seizure, it would be unlawful to
               disqualify this person from a job operating a
               machine because of fear or speculation that he
               might pose a risk to himself or others.  But if the
               examination and other medical inquiries reveal that
               an individual with epilepsy has seizures resulting
               in loss of consciousness, there could be evidence
               of significant risk in employing this person as a
               machine operator.  However, even where the person
               might endanger himself by operating a machine, an
               accommodation, such as placing a shield over the
               machine to protect him, should be considered.
     The Doctor's Role
     A doctor who conducts medical examinations for an employer
     should not be responsible for making employment decisions or
     deciding whether or not it is possible to make a reasonable
     accommodation for a person with a disability.  That
     responsibility lies with the employer.
     The doctor's role should be limited to advising the employer
     about an individual's functional abilities and limitations in
     relation to job functions, and about whether the individual
     meets the employer's health and safety requirements.
     Accordingly, employers should provide doctors who conduct such
     examinations with specific information about the job,
     including the type of information indicated in the discussions
     of "job descriptions" and "job analysis" in Chapter II.  (See
     2.3.)
     Often, particularly when an employer uses an outside doctor
     who is not familiar with actual demands of the job, a doctor
     may make incorrect assumptions about the nature of the job
     functions and specific tasks, or about the ability of an
     individual with a disability to perform these tasks with a
     reasonable accommodation.  It may be useful for the doctor to
     visit the job site to see how the job is done.
     The employer should inform the doctor that any recommendations
     or conclusions related to hiring or placement of an individual
     should focus on only two concerns:
     1.   Whether this person currently is able to perform this
          specific job, with or without an accommodation.
          This evaluation should look at the individual's specific
          abilities and limitations in regard to specific job
          demands.
               For example:  The evaluation may indicate that a
               person can lift up to 30 pounds and can reach only
               2 feet above the shoulder; the job as usually
               performed (without accommodation) requires lifting
               50 pound crates to shelves that are 6 feet high.
     2.   Whether this person can perform this job without posing
          a "direct threat" to the health or safety of the person
          or others.
          The doctor should be informed that the employer must be
          able to show that an exclusion of an individual with a
          disability because of a risk to health or safety meets
          the "direct threat" standard of the ADA, based on "the
          most current medical knowledge and/or the best available
          objective evidence about this individual."  (See Chapter
          IV., Standards Necessary for Health and Safety, and 6.2
          above.)
               For example:  If a post-offer medical questionnaire
               indicates that a person has a history of repetitive
               motion injuries but has had successful surgery with
               no further problems indicated, and a doctor
               recommends that the employer reject this candidate
               because this medical history indicates that she
               would pose a higher risk of future injury, the
               employer would violate the ADA if it acted on the
               doctor's recommendation based only on the history
               of injuries.  In this case, the doctor would not
               have considered this person's actual current
               condition as a result of surgery.
          A doctor's evaluation of any future risk must be
          supported by valid medical analyses indicating a high
          probability of substantial harm if this individual
          performed the particular functions of the particular job
          in question.  Conclusions of general medical studies
          about work restrictions for people with certain
          disabilities will not be sufficient evidence, because
          they do not relate to a particular individual and do not
          consider reasonable accommodation.
          The employer should not rely only on a doctor's opinion,
          but on the best available objective evidence.  This may
          include the experience of the individual with a
          disability in previous similar jobs, occupations, or
          non-work activities, the opinions of other doctors with
          expertise on the particular disability, and the advice of
          rehabilitation counselors, occupational or physical
          therapists, and others with direct knowledge of the
          disability and/or the individual concerned.
          Organizations such as Independent Living Centers, public
          and private rehabilitation agencies, and organizations
          serving people with specific disabilities such as the
          Epilepsy Foundation, United Cerebral Palsy Associations,
          National Head Injury Foundation, and many others can
          provide such assistance.  (See Resource Directory.)
     Where the doctor's report indicates that an individual has a
     disability that may prevent performance of essential job
     functions, or that may pose a "direct threat" to health or
     safety, the employer also may seek his/her advice on possible
     accommodations that would overcome these disqualifications.
6.5  Confidentiality and Limitations on Use of Medical Information
     Although the ADA does not limit the nature or extent of
     post-offer medical examinations and inquiries, it imposes very
     strict limitations on the use of information obtained from
     such examinations and inquiries.  These limitations also apply
     to information obtained from examinations or inquiries of
     employees.
         All information obtained from post-offer medical
          examinations and inquiries must be collected and
          maintained on separate forms, in separate medical files
          and must be treated as a confidential medical record.
          Therefore, an employer should not place any medical-
          related material in an employee's personnel file.  The
          employer should take steps to guarantee the security of
          the employee's medical information, including:
          -    keeping the information in a medical file in a
               separate, locked cabinet, apart from the location
               of personnel files; and
          -    designating a specific person or persons to have
               access to the medical file.
         All medical-related information must be kept
          confidential, with the following exceptions:
          -    Supervisors and managers may be informed about
               necessary restrictions on the work or duties of an
               employee and necessary accommodations;
          -    First aid and safety personnel may be informed,
               when appropriate, if the disability might require
               emergency treatment or if any specific procedures
               are needed in the case of fire or other
               evacuations.
          -    Government officials investigating compliance with
               the ADA and other Federal and state laws
               prohibiting discrimination on the basis of
               disability or handicap should be provided relevant
               information on request.  (Other Federal laws and
               regulations also may require disclosure of relevant
               medical information.)
          -    Relevant information may be provided to state
               workers' compensation offices or "second injury"
               funds, in accordance with state workers'
               compensation laws.  (See Chapter IX, Workers'
               Compensation and Work-Related Injury.)
          -    Relevant information may be provided to insurance
               companies where the company requires a medical
               examination to provide health or life insurance for
               employees.  (See Health Insurance and Other Benefit
               Plans, Chapter VII.)
6.6  Employee Medical Examinations and Inquiries
     The ADA's requirements concerning medical examinations and
     inquiries of employees are more stringent than those affecting
     applicants who are being evaluated for employment after a
     conditional job offer.  In order for a medical examination or
     inquiry to be made of an employee, it must be job related and
     consistent with business necessity.  The need for the
     examination may be triggered by some evidence of problems
     related to job performance or safety, or an examination may be
     necessary to determine whether individuals in physically
     demanding jobs continue to be fit for duty.  In either case,
     the scope of the examination also must be job-related.
          For example:
              An attorney could not be required to submit to a
               medical examination or inquiry just because her leg
               had been amputated.  The essential functions of an
               attorney's job do not require use of both legs;
               therefore such an inquiry would not be job related.
              An employer may require a warehouse laborer, whose
               back impairment affects the ability to lift, to be
               examined by an orthopedist, but may not require
               this employee to submit to an HIV test where the
               test is not related to either the essential
               functions of his job or to his impairment.
     Medical examinations or inquiries may be job related and
     necessary under several circumstances:
         When an employee is having difficulty performing his or
          her job effectively.  In such cases, a medical
          examination may be necessary to determine if s/he can
          perform essential job functions with or without an
          accommodation.
               For example:  If an employee falls asleep on the
               job, has excessive absenteeism, or exhibits other
               performance problems, an examination may be needed
               to determine if the problem is caused by an
               underlying medical condition, and whether medical
               treatment is needed.  If the examination reveals an
               impairment that is a disability under the ADA, the
               employer must consider possible reasonable
               accommodations.  If the impairment is not a
               disability, the employer is not required to make an
               accommodation.
               For example:  An employee may complain of headaches
               caused by noise at the worksite.  A medical
               examination may indicate that there is no medically
               discernible mental or physiological disorder
               causing the headaches.  This employee would not be
               "an individual with a disability" under the ADA,
               and the employer would have no obligation to
               provide an accommodation.  The employer may
               voluntarily take steps to improve the noise
               situation, particularly if other employees also
               suffer from noise, but would have no obligation to
               do so under the ADA.
         When An Employee Becomes Disabled
          An employee who is injured on or off the job, who becomes
          ill, or suffers any other condition that meets the ADA
          definition of "disability," is protected by the Act if
          s/he can perform the essential functions of the job with
          or without reasonable accommodation.
          Employers are accustomed to dealing with injured workers
          through the workers' compensation process and disability
          management programs, but they have different, although
          not necessarily conflicting obligations under the ADA.
          The relationship between ADA, workers' compensation
          requirements and medical examinations and inquiries is
          discussed in Chapter IX.
          Under the ADA, medical information or medical
          examinations may be required when an employee suffers an
          injury on the job.  Such an examination or inquiry also
          may be required when an employee wishes to return to work
          after an injury or illness, if it is job-related and
          consistent with business necessity:
          -    to determine if the individual meets the ADA
               definition of "individual with a disability," if an
               accommodation has been requested.
          -    to determine if the person can perform essential
               functions of the job currently held, (or held
               before the injury or illness), with or without
               reasonable accommodation, and without posing a
               "direct threat" to health or safety that cannot be
               reduced or eliminated by reasonable accommodation.
          -    to identify an effective accommodation that would
               enable the person to perform essential job
               functions in the current (previous) job, or in a
               vacant job for which the person is qualified (with
               or without accommodation).  (See Chapter IX.)
         Examination Necessary for Reasonable Accommodation
          A medical examination may be required if an employee
          requests an accommodation on the basis of disability.  An
          accommodation may be needed in an employee's existing
          job, or if the employee is being transferred or promoted
          to a different job.  Medical information may be needed to
          determine if the employee has a disability covered by the
          ADA and is entitled to an accommodation, and if so, to
          help identify an effective accommodation.
          Medical inquiries related to an employee's disability and
          functional limitations may include consultations with
          knowledgeable professional sources, such as occupational
          and physical therapists, rehabilitation specialists, and
          organizations with expertise in adaptations for specific
          disabilities.
         Medical examinations, screening and monitoring required
          by other laws.
          Employers may conduct periodic examinations and other
          medical screening and monitoring required by federal,
          state or local laws.  As indicated in Chapter IV, the ADA
          recognizes that an action taken to comply with another
          Federal law is job-related and consistent with business
          necessity; however, requirements of state and local laws
          do not necessarily meet this standard unless they are
          consistent with the ADA.
               For example:  Employers may conduct medical
               examinations and medical monitoring required by:
                   The U.S. Department of Transportation for
                    interstate bus and truck drivers, railroad
                    engineers, airline pilots and air controllers;
                   The Occupational Safety and Health Act:
                   The Federal Mine Health and Safety Act;
                   Other statutes that require employees exposed
                    to toxic or hazardous substances to be
                    medically monitored at specific intervals.
          However, if a state or local law required that employees
          in a particular job be periodically tested for AIDS or
          the HIV virus, the ADA would prohibit such an examination
          unless an employer can show that it is job-related and
          consistent with business necessity, or required to avoid
          a direct threat to health or safety.  (See Chapter IV.)
         Voluntary "Wellness" and Health Screening Programs
          An employer may conduct voluntary medical examinations
          and inquiries as part of an employee health program (such
          as medical screening for high blood pressure, weight
          control, and cancer detection), providing that:
              participation in the program is voluntary;
              information obtained is maintained according to the
               confidentiality requirements of the ADA (See 6.5);
               and
              this information is not used to discriminate
               against an employee.
     Information from Medical Inquiries May Not be Used to
     Discriminate
     An employer may not use information obtained from an employee
     medical examination or inquiry to discriminate against the
     employee in any employment practice.  (See Chapter VII.)
     Confidentiality
     All information obtained from employee medical examinations
     and inquiries must be maintained and used in accordance with
     ADA confidentiality requirements.  (See 6.5 above.)VII. NONDISCRIMINATION IN OTHER EMPLOYMENT PRACTICES
7.1  Introduction
     The nondiscrimination requirements of the ADA apply to all
     employment practices and activities.  The preceding chapters
     have explained these requirements as they apply to job
     qualification and selection standards, the hiring process, and
     medical examinations and inquiries.  This chapter discusses
     the application of nondiscrimination requirements to other
     employment practices and activities.
     In most cases, an employer need only apply the basic
     nondiscrimination principles already emphasized; however,
     there are also some special requirements applicable to certain
     employment activities.  This chapter discusses:
         the ADA's prohibition of discrimination on the basis of
          a relationship or association with an individual with a
          disability;
         nondiscrimination requirements affecting:
          -    promotion, assignment, training, evaluation,
               discipline,  advancement opportunity and discharge;
          -    compensation, insurance, leave, and other benefits
               and privileges of employment; and
          -    contractual relationships.
7.2  Overview of Legal Obligations
         An employer may not discriminate against a qualified
          individual with a disability because of the disability,
          in any employment practice, or any term, condition or
          benefit of employment.
         An employer may not deny an employment opportunity
          because an individual, with or without a disability, has
          a relationship or association with an individual who has
          a disability.
         An employer may not participate in a contractual or other
          arrangement that subjects the employer's qualified
          applicant or employee with a disability to
          discrimination.
         An employer may not discriminate or retaliate against any
          individual, whether or not the individual is disabled,
          because the individual has opposed a discriminatory
          practice, filed a discrimination charge, or participated
          in any way in enforcing the ADA.
7.3  Nondiscrimination in all Employment Practices
     The ADA prohibits discrimination against a qualified
     individual with a disability on the basis of disability in the
     following employment practices:
         Recruitment, advertising, and job application procedures;
         Hiring, upgrading, promotion, award of tenure, demotion,
          transfer, layoff, termination, right of return from
          layoff, and rehiring;
         Rates of pay or any other form of compensation, and
          changes in compensation;
         Job assignments, job classifications, organizational
          structures, position descriptions, lines of progression,
          and seniority lists;
         Leaves of absence, sick leave, or any other leave;
         Fringe benefits available by virtue of employment,
          whether or not administered by the covered entity;
         Selection and financial support for training, including:
          apprenticeships, professional meetings, conferences, and
          other related activities, and selection for leaves of
          absence to pursue training;
         Activities sponsored by a covered entity including social
          and recreational programs; and
         Any other term, condition, or privilege of employment.
     Nondiscrimination, as applied to all employment practices,
     means that:
         an individual with a disability should have equal access
          to any employment opportunity available to a similarly
          situated individual who is not disabled;
         employment decisions concerning an employee or applicant
          should be based on objective factual evidence about the
          particular individual, not on assumptions or stereotypes
          about the individual's disability;
         the qualifications of an individual with a disability may
          be evaluated on ability to perform all job-related
          functions, with or without reasonable accommodation.
          However, an individual may not be excluded from a job
          because a disability prevents performance of marginal job
          functions;
         an employer must provide a reasonable accommodation that
          will enable an individual with a disability to have an
          equal opportunity in every aspect of employment, unless
          a particular accommodation would impose an undue
          hardship;
         an employer may not use an employment practice or policy
          that screens out or tends to screen out an individual
          with a disability or a class of individuals with
          disabilities, unless the practice or policy is job
          related and consistent with business necessity and the
          individual cannot be accommodated without undue hardship;
         an employer may not limit, segregate, or classify an
          individual with a disability in any way that negatively
          affects the individual in terms of job opportunity and
          advancement;
         an individual with a disability should not because of a
          disability be treated differently than a similarly
          situated individual in any aspect of employment, except
          when a reasonable accommodation is needed to provide an
          equal employment opportunity, or when another Federal law
          or regulation requires different treatment.
     These requirements are discussed in this chapter as they apply
     to various employment practices.  The prohibition against
     retaliation is discussed in Chapter X.
7.4  Nondiscrimination and Relationship or Association with an
     Individual with a Disability
     The ADA specifically provides that an employer or other
     covered entity may not deny an employment opportunity or
     benefit to an individual, whether or not that individual is
     disabled, because that individual has a known relationship or
     association with an individual who has a disability.  Nor may
     an employer discriminate in any other way against an
     individual, whether or not disabled, because that individual
     has such a relationship or association.
     The term "relationship or association" refers to family
     relationships and any other social or business relationship or
     association.  Therefore, this provision of the law prohibits
     employers from making employment decisions based on concerns
     about the disability of a family member of an applicant or
     employee, or anyone else with whom this person has a
     relationship or association.
          For example:  An employer may not:
              refuse to hire or fire an individual because the
               individual has a spouse, child, or other dependent
               who has a disability.  The employer may not assume
               that the individual will be unreliable, have to use
               leave time, or be away from work in order to care
               for the family member with a disability;
              refuse to hire or fire an individual because s/he
               has a spouse, child or other dependent who has a
               disability that is either not covered by the
               employer's current health insurance plan or that
               may cause future increased health care costs;
              refuse to insure, or subject an individual to
               different terms or conditions of insurance, solely
               because the individual has a spouse, child, or
               other dependent who has a disability;
              refuse to hire or fire an individual because the
               individual has a relationship or association with a
               person or persons who have disabilities.
          For example:  an employer cannot fire an employee because
          s/he does volunteer work with people who have AIDS.
     This provision of the law prohibits discrimination in
     employment decisions concerning an individual, whether the
     individual is or is not disabled, because of a known
     relationship or association with an individual with a
     disability.  However, an employer is not obligated to provide
     a reasonable accommodation to a nondisabled individual,
     because this person has a relationship or association with a
     disabled individual.  The obligation to make a reasonable
     accommodation applies only to qualified individuals with
     disabilities.
          For example:  The ADA does not require that an employer
          provide an employee who is not disabled with a modified
          work schedule as an accommodation, to enable the employee
          to care for a spouse or child with a disability.
7.5  Nondiscrimination and Opportunity for Advancement
     The nondiscrimination requirements that apply to initial
     selection apply to all aspects of employment, including
     opportunities for advancement.  For example, an employer may
     not discriminate in promotion, job classification, evaluation,
     disciplinary action, opportunities for training, or
     participation in meetings and conferences.  In particular, an
     employer:
         should not assume that an individual is not interested
          in, or not qualified for, advancement because of
          disability;
         should not deny a promotion because of the need to make
          an accommodation, unless the accommodation would cause an
          undue hardship;
         should not place individuals with disabilities in
          separate lines of progression or in segregated units or
          locations that limit opportunity for advancement;
         should assure that supervisors and managers who make
          decisions regarding promotion and advancement are aware
          of ADA nondiscrimination requirements.
7.6  Training
     Employees with disabilities must be provided equal
     opportunities to participate in training to improve job
     performance and provide opportunity for advancement.  Training
     opportunities cannot be denied because of the need to make a
     reasonable accommodation, unless the accommodation would be an
     undue hardship.  Accommodations that may be necessary,
     depending on the needs of particular individuals, may include:
         accessible locations and facilities for people with
          mobility disabilities;
         interpreters and note-takers for employees who are deaf;
         materials in accessible formats and/or readers for people
          who are visually impaired, for people with learning
          disabilities, and for people with mental retardation;
         if audiovisual materials are used, captions for people
          who are deaf, and voice-overs for people who are visually
          impaired;
         good lighting on an interpreter, and good general
          illumination for people with visual impairments and other
          disabilities;
         clarification of concepts presented in training for
          people who have reading or other disabilities;
         individualized instruction for people with mental
          retardation and certain other disabilities.
     If an employer contracts for training with a training company,
     or contracts for training facilities such as hotels or
     conference centers, the employer is responsible for assuring
     accessibility and other needed accommodations.
     It is advisable that any contract with a company or facility
     used for training include a provision requiring the other
     party to provide needed accommodations.  However, if the
     contractor does not do so, the employer remains responsible
     for providing the accommodation, unless it would cause an
     undue hardship.
          For example:  Suppose a company with which an employer
          has contracted proposes to conduct training at an
          inaccessible location.  The employer is responsible for
          providing an accommodation that would enable an employee
          who uses a wheelchair to obtain this training.  The
          employer might do this by:  requiring the training
          company to relocate the program to an accessible site;
          requiring the company to make the site (including all
          facilities used by trainees) accessible; making the site
          accessible or providing resources that enable the
          training company to do so; contracting with another
          training company that uses accessible sites; or providing
          any other accommodation (such as temporary ramps) that
          would not impose an undue hardship.  If it is impossible
          to make an accommodation because the need is only
          discovered when an employee arrives at the training site,
          the employer may have to provide accessible training at
          a later date.
          Or, for example:  An employer contracts with a hotel to
          hold a conference for its employees.  The employer must
          assure physical and communications accessibility for
          employees with disabilities, including accessibility of
          guest rooms and all meeting and other rooms used by
          attendees.  The employer may assure accessibility by
          inspecting the site, or may ask a local disability group
          with accessibility expertise (such as an Independent
          Living Center) to do so.  The employer remains
          responsible for assuring accessibility.  However, if the
          hotel breaches a contract provision requiring
          accessibility, the hotel may be liable to the employer
          under regular (non-ADA) breach of contract law.  The
          hotel also may be liable under Title III of the ADA,
          which requires accessibility in public accommodations.
7.7  Evaluations, Discipline and Discharge
         An employer can hold employees with disabilities to the
          same standards of production/performance as other
          similarly situated employees without disabilities for
          performing essential job functions (with or without
          reasonable accommodation).
         An employer also can hold employees with disabilities to
          the same standards of production/performance as other
          employees regarding marginal job functions, unless the
          disability affects the ability to perform these marginal
          functions.  If the ability to perform marginal functions
          is affected by the disability, the employer must provide
          some type of reasonable accommodation such as job
          restructuring (unless to do so would be an undue
          hardship).
         A disabled employee who needs an accommodation (that is
          not an undue hardship for an employer) in order to
          perform a job function should not be evaluated on his/her
          ability to perform the function without the
          accommodation, and should not be downgraded because such
          an accommodation is needed to perform the function.
         An employer should not give employees with disabilities
          "special treatment."  They should not be evaluated on a
          lower standard or disciplined less severely than any
          other employee.  This is not equal employment
          opportunity.
         An employer must provide an employee with a disability
          with reasonable accommodation necessary to enable the
          employee to participate in the evaluation process (for
          example, counseling or an interpreter).
         If an employee with a disability is not performing well,
          an employer may require medical and other professional
          inquiries that are job-related and consistent with
          business necessity to discover whether the disability is
          causing the poor performance, and whether any reasonable
          accommodation or additional accommodation is needed.
          (See Chapter VI.)
         An employer may take the same disciplinary action against
          employees with disabilities as it takes against other
          similarly situated employees, if the illegal use of drugs
          or alcohol use affects job performance and/or attendance.
          (See Chapter VIII.)
         An employer may not discipline or terminate an employee
          with a disability if the employer has refused to provide
          a requested reasonable accommodation that did not
          constitute an undue hardship, and the reason for
          unsatisfactory performance was the lack of accommodation.
7.8  Compensation
         An employer cannot reduce pay to an employee with a
          disability because of the elimination of a marginal job
          function or because it has provided a reasonable
          accommodation, such as specialized or modified equipment.
          The employer can give the employee with a disability
          other marginal functions that s/he can perform.
         An employee who is reassigned to a lower paying job or
          provided a part-time job as an accommodation may be paid
          the lower amount that would apply to such positions,
          consistent with the employer's regular compensation
          practices.
7.9  Health Insurance and Other Employee Benefit Plans
     As discussed above, an employer or other covered entity may
     not limit, segregate or classify an individual with a
     disability, on the basis of disability, in a manner that
     adversely affects the individual's employment.  This
     prohibition applies to the provision and administration of
     health insurance and other benefit plans, such as life
     insurance and pension plans.
     This means that:
         If an employer provides insurance or other benefit plans
          to its employees, it must provide the same coverage to
          its employees with disabilities.  Employees with
          disabilities must be given equal access to whatever
          insurance or benefit plans the employer provides.
         An employer cannot deny insurance to an individual with
          a disability or subject an individual with a disability
          to different terms or conditions of insurance, based on
          disability alone, if the disability does not pose
          increased insurance risks.  Nor may the employer enter
          into any contract or agreement with an insurance company
          or other entity that has such effect.
         An employer cannot fire or refuse to hire an individual
          with a disability because the employer's current health
          insurance plan does not cover the individual's
          disability, or because the individual may increase the
          employer's future health care costs.
         An employer cannot fire or refuse to hire an individual
          (whether or not that individual has a disability) because
          the individual has a family member or dependent with a
          disability that is not covered by the employer's current
          health insurance plan, or that may increase the
          employer's future health care costs.
     While establishing these protections for employees with
     disabilities, the ADA permits employers to provide insurance
     plans that comply with existing Federal and state insurance
     requirements, even if provisions of these plans have an
     adverse affect on people with disabilities, provided that the
     provisions are not used as a subterfuge to evade the purpose
     of the ADA.
     Specifically, the ADA provides that:
         Where an employer provides health insurance through an
          insurance carrier that is regulated by state law, it may
          provide coverage in accordance with accepted principles
          of risk assessment and/or risk classification, as
          required or permitted by such law, even if this causes
          limitations in coverage for individuals with
          disabilities.
         Similarly, self-insured plans which are not subject to
          state law may provide coverage in a manner that is
          consistent with basic accepted principles of insurance
          risk classification, even if this results in limitations
          in coverage to individuals with disabilities.
     In each case, such activity is permitted only if it is not
     being used as a subterfuge to evade the intent of the ADA.
     Whether or not an activity is being used as a subterfuge will
     be determined regardless of the date that the insurance plan
     or employee benefit plan was adopted.
     This means that:
         An employer may continue to offer health insurance plans
          that contain pre-existing condition exclusions, even if
          this adversely affects individuals with disabilities,
          unless these exclusions are being used as a subterfuge to
          evade the purpose of the ADA.
         An employer may continue to offer health insurance plans
          that limit coverage for certain procedures, and/or limit
          particular treatments to a specified number per year,
          even if these restrictions adversely affect individuals
          with disabilities, as long as the restrictions are
          uniformly applied to all insured individuals, regardless
          of the disability.
               For example, an employer can offer a health
               insurance plan that limits coverage of blood
               transfusions to five transfusions per year for all
               employees, even though an employee with hemophilia
               may require more than five transfusions per year.
               However, the employer could not deny this employee
               coverage for another, otherwise covered procedure,
               because the plan will not pay for the additional
               blood transfusions that the procedure would
               require.
         An employer may continue to offer health insurance plans
          that limit reimbursements for certain types of drugs or
          procedures, even if these restrictions adversely affect
          individuals with disabilities, as long as the
          restrictions are uniformly applied without regard to
          disability.
               For example, an employer can offer a health
               insurance plan that does not cover experimental
               drugs or procedures, as long as this restriction is
               applied to all insured individuals.
7.10 Leave
         An employer may establish attendance and leave policies
          that are uniformly applied to all employees, regardless
          of disability, but may not refuse leave needed by an
          employee with a disability if other employees get such
          leave.
         An employer may be required to make adjustments in leave
          policy as a reasonable accommodation.  The employer is
          not obligated to provide additional paid leave, but
          accommodations may include leave flexibility and unpaid
          leave.  (See Chapter III.)
         A uniformly applied leave policy does not violate the ADA
          because it has a more severe effect on an individual
          because of his/her disability.  However, if an individual
          with a disability requests a modification of such a
          policy as a reasonable accommodation, an employer may be
          required to provide it, unless it would impose an undue
          hardship.
               For example:  If an employer has a policy providing
               2 weeks paid leave for all employees, with no other
               provision for sick leave and a "no leave" policy
               for the first 6 months of employment, an employee
               with a disability who cannot get leave for needed
               medical treatment could not successfully charge
               that the employer's policy is discriminatory on its
               face.  However, this individual could request leave
               without pay or advance leave as a reasonable
               accommodation.  Such leave should be provided,
               unless the employer can show undue hardship:   For
               example, an employer might be able to show that it
               is necessary for the operation of the business that
               this employee be available for the time period when
               leave is requested.
         An employer is not required to give leave as a reasonable
          accommodation to an employee who has a relationship with
          an individual with a disability to enable the employee to
          care for that individual.  (See p. 8 above.)
7.11 Contractual or Other Relationships
     An employer may not do anything through a contractual
     relationship that it cannot do directly.  This applies to any
     contracts, including contracts with:
         training organizations (see above);
         insurers (see above);
         employment agencies and agencies used for background
          checks (see Chapter V);
         labor unions (see below).
     7.11a Collective Bargaining Agreements
          Labor unions are covered by the ADA and have the same
          obligation as the employer to comply with its
          requirements.  An employer also is prohibited by the ADA
          from taking any action through a labor union contract
          that it may not take itself.
               For example:  If a union contract contained
               physical requirements for a particular job that
               screened out people with disabilities who were
               qualified to perform the job, and these
               requirements are not job-related  and consistent
               with business necessity, they could be challenged
               as discriminatory by a qualified individual with a
               disability.
          The terms of a collective bargaining agreement may be
          relevant in determining whether a particular
          accommodation would cause an employer undue hardship.
               For example:  If the collective bargaining
               agreement reserves certain jobs for employees with
               a given amount of seniority, this may be considered
               as a factor in determining whether it would be an
               undue hardship to reassign an individual with a
               disability who does not have seniority to a vacant
               job.
          Where a collective bargaining agreement identifies
          functions that must be performed in a particular job, the
          agreement, like a job description, may be considered as
          evidence of what the employer and union consider to be a
          job's essential functions.  However, just because a
          function is listed in a union agreement does not mean
          that it is an essential function.  The agreement, like
          the job description, will be considered along with other
          types of evidence.  (See Chapter II.)
          The Congressional Committee Reports accompanying the ADA
          advised employers and unions that they could carry out
          their responsibilities under the Act, and avoid conflicts
          between the bargaining agreement and the employer's duty
          to provide reasonable accommodation, by adding a
          provision to agreements negotiated after the effective
          date of the ADA, permitting the employer to take all
          actions necessary to comply with the Act.
7.12 Nondiscrimination in Other Benefits and Privileges of
     Employment
     Nondiscrimination requirements, including the obligation to
     make reasonable accommodation, apply to all social or
     recreational activities provided or conducted by an employer,
     to any transportation provided by an employer for its
     employees or applicants, and to all other benefits and
     privileges of employment.
     This means that:
         Employees with disabilities must have an equal
          opportunity to attend and participate in any social
          functions conducted or sponsored by an employer.
          Functions such as parties, picnics, shows, and award
          ceremonies should be held in accessible locations, and
          interpreters or other accommodation should be provided
          when necessary.
         Employees with disabilities must have equal access to
          break rooms, lounges, cafeterias, and any other non-work
          facilities that are provided by an employer for use by
          its employees.
         Employees with disabilities must have equal access to an
          exercise room, gymnasium, or health club provided by an
          employer for use by its employees.  However, an employer
          would not have to eliminate facilities provided for
          employees because a disabled employee cannot use certain
          equipment or amenities because of his/her disability.
          For example, an employer would not have to remove certain
          exercise machines simply because an employee who is a
          paraplegic could not use them.
         Employees with disabilities must be given an equal
          opportunity to participate in employer-sponsored sports
          teams, leagues, or recreational activities such as hiking
          or biking clubs.  However, the employer does not have to
          discontinue such activities because a disabled employee
          cannot fully participate due to his/her disability.  For
          example, an employer would not have to discontinue the
          company biking club simply because a blind employee is
          unable to ride a bicycle.
         Any transportation provided by an employer for use by its
          employees must be accessible to employees with a
          disability.  This includes transportation between
          employer facilities, transportation to or from mass
          transit and transportation provided on a occasional basis
          to employer-sponsored events. VIII.  DRUG AND ALCOHOL ABUSE
8.1  Introduction
     The ADA specifically permits employers to ensure that the
     workplace is free from the illegal use of drugs and the use of
     alcohol, and to comply with other Federal laws and regulations
     regarding alcohol and drug use.  At the same time, the ADA
     provides limited protection from discrimination for recovering
     drug addicts and for alcoholics.
8.2  Overview of Legal Obligations
         An individual who is currently engaging in the illegal
          use of drugs is not an "individual with a disability"
          when the employer acts on the basis of such use.
         An employer may prohibit the illegal use of drugs and the
          use of alcohol at the workplace.
         It is not a violation of the ADA for an employer to give
          tests for the illegal use of drugs.
         An employer may discharge or deny employment to persons
          who currently engage in the illegal use of drugs.
         An employer may not discriminate against a drug addict
          who is not currently using drugs and who has been
          rehabilitated, because of a history of drug addiction.
         A person who is an alcoholic is an "individual with a
          disability" under the ADA.
         An employer may discipline, discharge or deny employment
          to an alcoholic whose use of alcohol impairs job
          performance or conduct to the extent that s/he is not a
          "qualified individual with a disability."
         Employees who use drugs or alcohol may be required to
          meet the same standards of performance and conduct that
          are set for other employees.
         Employees may be required to follow the Drug-Free
          Workplace Act of 1988 and rules set by Federal agencies
          pertaining to drug and alcohol use in the workplace.
8.3  Illegal Use of Drugs
     An employer may discharge or deny employment to current
     illegal users of drugs, on the basis of such drug use, without
     fear of being held liable for disability discrimination.
     Current illegal users of drugs are not "individuals with
     disabilities" under the ADA.
     The illegal use of drugs includes the use, possession, or
     distribution of drugs which are unlawful under the Controlled
     Substances Act.  It includes the use of illegal drugs and the
     illegal use of prescription drugs that are "controlled
     substances".
          For example:  Amphetamines can be legally prescribed
          drugs.  However, amphetamines, by law, are "controlled
          substances" because of their abuse and potential for
          abuse.  If a person takes amphetamines without a
          prescription, that person is using drugs illegally, even
          though they could be prescribed by a physician.
     The illegal use of drugs does not include drugs taken under
     supervision of a licensed health care professional, including
     experimental drugs for people with AIDS, epilepsy, or mental
     illness.
          For example:  A person who takes morphine for the control
          of pain caused by cancer is not using a drug illegally if
          it is taken under the supervision of a licensed
          physician.  Similarly, a participant in a methadone
          maintenance treatment program cannot be discriminated
          against by an employer based upon the individual's lawful
          use of methadone.
     An individual who illegally uses drugs but also has a
     disability, such as epilepsy, is only protected by the ADA
     from discrimination on the basis of the disability (epilepsy).
     An employer can discharge or deny employment to such an
     individual on the basis of his/her illegal use of drugs.
     What does "current" drug use mean?
     If an individual tests positive on a test for the illegal use
     of drugs, the individual will be considered a current drug
     user under the ADA where the test correctly indicates that the
     individual is engaging in the illegal use of a controlled
     substance.
     "Current" drug use means that the illegal use of drugs
     occurred recently enough to justify an employer's reasonable
     belief that involvement with drugs is an on-going problem.  It
     is not limited to the day of use, or recent weeks or days, in
     terms of an employment action.  It is determined on a
     case-by-case basis.
          For example:  An applicant or employee who tests positive
          for an illegal drug cannot immediately enter a drug
          rehabilitation program and seek to avoid the possibility
          of discipline or termination by claiming that s/he now is
          in rehabilitation and is no longer using drugs illegally.
          A person who tests positive for illegal use of drugs is
          not entitled to the protection that may be available to
          former users who have been or are in rehabilitation (see
          below).
8.4  Alcoholism
     While a current illegal user of drugs has no protection under
     the ADA if the employer acts on the basis of such use, a
     person who currently uses alcohol is not automatically denied
     protection simply because of the alcohol use.  An alcoholic is
     a person with a disability under the ADA and may be entitled
     to consideration of accommodation, if s/he is qualified to
     perform the essential functions of a job.  However, an
     employer may discipline, discharge or deny employment to an
     alcoholic whose use of alcohol adversely affects job
     performance or conduct to the extent that s/he is not
     "qualified."
          For example:  If an individual who has alcoholism often
          is late to work or is unable to perform the
          responsibilities of his/her job, an employer can take
          disciplinary action on the basis of the poor job
          performance and conduct.  However, an employer may not
          discipline an alcoholic employee more severely than it
          does other employees for the same performance or conduct.
8.5  Recovering Drug Addicts
     Persons addicted to drugs, but who are no longer using drugs
     illegally and are receiving treatment for drug addiction or
     who have been rehabilitated successfully, are protected by the
     ADA from discrimination on the basis of past drug addiction.
          For example:  An addict who is currently in a drug
          rehabilitation program and has not used drugs illegally
          for some time is not excluded from the protection of the
          ADA.  This person will be protected by the ADA because
          s/he has a history of addiction, or if s/he is "regarded
          as" being addicted.  Similarly, an addict who is
          rehabilitated or who has successfully completed a
          supervised rehabilitation program and is no longer
          illegally using drugs is not excluded from the ADA.
          However, a person who casually used drugs illegally in
          the past, but did not become addicted is not an
          individual with a disability based on the past drug use.
          In order for a person to be "substantially limited"
          because of drug use, s/he must be addicted to the drug.
     To ensure that drug use is not recurring, an employer may
     request evidence that an individual is participating in a drug
     rehabilitation program or may request the results of a drug
     test (see below).
     A "rehabilitation program" may include in-patient,
     out-patient, or employee assistance programs, or recognized
     self-help programs such as Narcotics Anonymous.
8.6  Persons "Regarded As" Addicts and Illegal Drug Users
     Individuals who are not illegally using drugs, but who are
     erroneously perceived as being addicts and as currently using
     drugs illegally, are protected by the ADA.
          For example:  If an employer perceived someone to be
          addicted to illegal drugs based upon rumor and the groggy
          appearance of the individual, but the rumor was false and
          the appearance was a side-effect of a lawfully prescribed
          medication, this individual would be "regarded as" an
          individual with a disability (a drug addict) and would be
          protected from discrimination based upon that false
          assumption.  If an employer did not regard the individual
          as an addict, but simply as a social user of illegal
          drugs, the individual would not be "regarded as" an
          individual with a disability and would not be protected
          by the ADA.
     As with other disabilities, an individual who claims that s/he
     was discriminated against because of past or perceived illegal
     drug addiction, may be asked to prove that s/he has a record
     of, or is regarded as having, an addiction to drugs.
8.7  Efforts to Prohibit Drug and Alcohol Use in the Workplace
     The ADA does not prevent efforts to combat the use of drugs
     and alcohol in the workplace
     The ADA does not interfere with employers' programs to combat
     the use of drugs and alcohol in the workplace.  The Act
     specifically provides that an employer may:
         prohibit the use of drugs and alcohol in the workplace.
         require that employees not be under the influence of
          alcohol or drugs in the workplace.
               For example:  An employer can require that
               employees not come to work or return from lunch
               under the influence of alcohol, or drugs used
               illegally.
         Require that employees who illegally use drugs or alcohol
          meet the same qualification and performance standards
          applied to other employees.  Unsatisfactory behavior such
          as absenteeism, tardiness, poor job performance, or
          accidents caused by alcohol or illegal drug use need not
          be accepted nor accommodated.
               For example:  If an employee is often late or does
               not show up for work because of alcoholism, an
               employer can take direct action based on the
               conduct.  However, an employer would violate the
               ADA if it imposed greater sanctions on such an
               alcoholic employee than it did on other employees
               for the same misconduct.
     While the ADA permits an employer to discipline or discharge
     an employee for illegal use of drugs or where alcoholism
     results in poor performance or misconduct, the Act does not
     require this.  Many employers have established employee
     assistance programs for employees who abuse drugs or alcohol
     that are helpful to both employee and employer.  However, the
     ADA does not require an employer to provide an opportunity for
     rehabilitation in place of discipline or discharge to such
     employees.  The ADA may, however, require consideration of
     reasonable accommodation for a drug addict who is
     rehabilitated and not using drugs or an alcoholic who remains
     a "qualified individual with a disability."  For example, a
     modified work schedule, to permit the individual to attend an
     ongoing self-help program, might be a reasonable accommodation
     for such an employee.
     An employer can fire or refuse to hire a person with a past
     history of illegal drug use, even if the person no longer uses
     drugs, in specific occupations, such as law enforcement, when
     an employer can show that this policy is job-related and
     consistent with business necessity.
          For example:  A law enforcement agency might be able to
          show that excluding an individual with a history of
          illegal drug use from a police officer position was
          necessary, because such illegal conduct would undermine
          the credibility of the officer as a witness for the
          prosecution in a criminal case.   However, even in this
          case, exclusion of a person with a history of illegal
          drug use might not be justified automatically as a
          business necessity, if an applicant with such a history
          could demonstrate an extensive period of successful
          performance as a police officer since the time of drug
          use.
     An employer also may fire or refuse to hire an individual with
     a history of alcoholism or illegal drug use if it can
     demonstrate that the individual poses a "direct threat" to
     health or safety because of the high probability that s/he
     would return to the illegal drug use or alcohol abuse.  The
     employer must be able to demonstrate that such use would
     result in a high probability of substantial harm to the
     individual or others which could not be reduced or eliminated
     with a reasonable accommodation.  Examples of accommodations
     in such cases might be to require periodic drug or alcohol
     tests, to modify job duties or to provide increased
     supervision.
     An employer cannot prove a "high probability" of substantial
     harm simply by referring to statistics indicating the
     likelihood that addicts or alcoholics in general have a
     specific probability of suffering a relapse.  A showing of
     "significant risk of substantial harm" must be based upon an
     assessment of the particular individual and his/her history of
     substance abuse and the specific nature of the job to be
     performed.
          For example:  An employer could justify excluding an
          individual who is an alcoholic with a history of
          returning to alcohol abuse from a job as a ship captain.
8.8  Pre-Employment Inquiries About Drug and Alcohol Use
     An employer may make certain pre-employment, pre-offer
     inquiries regarding use of alcohol or the illegal use of
     drugs.  An employer may ask whether an applicant drinks
     alcohol or whether he or she is currently using drugs
     illegally.  However, an employer may not ask whether an
     applicant is a drug addict or alcoholic, nor inquire whether
     s/he has ever been in a drug or alcohol rehabilitation
     program. (See also Pre-Employment Inquiries, Chapter V.)
     After a conditional offer of employment, an employer may ask
     any questions concerning past or present drug or alcohol use.
     However, the employer may not use such information to exclude
     an individual with a disability, on the basis of a disability,
     unless it can show that the reason for exclusion is
     job-related and consistent with business necessity, and that
     legitimate job criteria cannot be met with a reasonable
     accommodation.  (For more information on pre-employment
     medical inquiries, see Chapter VI.)
8.9  Drug Testing
     An employer may conduct tests to detect illegal use of drugs.
     The ADA does not prohibit, require, or encourage drug tests.
     Drug tests are not considered medical examinations, and an
     applicant can be required to take a drug test before a
     conditional offer of employment has been made.  An employee
     also can be required to take a drug test, whether or not such
     a test is job-related and necessary for the business.  (On the
     other hand, a test to determine an individual's blood alcohol
     level would be a "medical examination" and only could be
     required by an employer in conformity with the ADA.)
     An employer may refuse to hire an applicant or discharge or
     discipline an employee based upon a test result that indicates
     the illegal use of drugs.  The employer may take these actions
     even if an applicant or employee claims that s/he recently
     stopped illegally using drugs.
     Employers may comply with applicable Federal, State, or local
     laws regulating when and how drug tests may be used, what drug
     tests may be used, and confidentiality.  Drug tests must be
     conducted to detect illegal use of drugs.   However, tests for
     illegal use of drugs also may reveal the presence of lawfully-
     used drugs.  If a person is excluded from a job because the
     employer erroneously "regarded" him/her to be an addict
     currently using drugs illegally when a drug test revealed the
     presence of a lawfully prescribed drug, the employer would be
     liable under the ADA.  To avoid such potential liability, the
     employer would have to determine whether the individual was
     using a legally prescribed drug.  Because the employer may not
     ask what prescription drugs an individual is taking before
     making a conditional job offer, one way to avoid liability is
     to conduct drug tests after making an offer, even though such
     tests may be given at anytime under the ADA.  Since applicants
     who test positive for illegal drugs are not covered by the
     ADA, an employer can withdraw an offer of employment on the
     basis of illegal drug use.
     If the results of a drug test indicate the presence of a
     lawfully prescribed drug, such information must be kept
     confidential, in the same way as any medical record.  If the
     results reveal information about a disability in addition to
     information about drug use, the disability-related information
     is to be treated as a confidential medical record.  (See
     confidentiality requirements regarding medical inquiries and
     examinations in Chapter VI.)
          For example:  If drug test results indicate that an
          individual is HIV positive, or that a person has epilepsy
          or diabetes because use of a related prescribed medicine
          is revealed, this information must remain confidential.
8.10 Laws and Regulations Concerning Drugs and Alcohol
     An employer may comply with other Federal laws and regulations
     concerning the use of drugs and alcohol, including the Drug-
     Free Workplace Act of 1988; regulations applicable to
     particular types of employment, such as law enforcement
     positions; regulations of the Department of Transportation for
     airline employees, interstate motor carrier drivers and
     railroad engineers; and regulations for safety sensitive
     positions established by the Department of Defense and the
     Nuclear Regulatory Commission.  Employers may continue to
     require that their applicants and employees comply with such
     Federal laws and regulations.
          For example:  A trucking company can take appropriate
          action if an applicant or employee tests positive on a
          drug test required by Department of Transportation
          regulations or refuses to take such a drug test. IX.  WORKERS' COMPENSATION AND WORK-RELATED INJURY
9.1  Overview of Legal Obligations
         An employer may not inquire into an applicant's workers'
          compensation history before making a conditional offer of
          employment.
         After making a conditional job offer, an employer may ask
          about a person's workers' compensation history in a
          medical inquiry or examination that is required of all
          applicants in the same job category.
         An employer may not base an employment decision on the
          speculation that an applicant may cause increased
          workers' compensation costs in the future.  However, an
          employer may refuse to hire, or may discharge an
          individual who is not currently able to perform a job
          without posing a significant risk of substantial harm to
          the health or safety of the individual or others, if the
          risk cannot be eliminated or reduced by reasonable
          accommodation.  (See Standards Necessary for Health and
          Safety:  A "Direct Threat", Chapter IV.)
         An employer may submit medical information and records
          concerning employees and applicants (obtained after a
          conditional job offer) to state workers' compensation
          offices and "second injury" funds without violating ADA
          confidentiality requirements.
         Only injured workers who meet the ADA's definition of an
          "individual with a disability" will be considered
          disabled under the ADA, regardless of whether they
          satisfy criteria for receiving benefits under workers'
          compensation or other disability laws.  A worker also
          must be "qualified" (with or without reasonable
          accommodation) to be protected by the ADA.
9.2  Is a Worker Injured on the Job Protected by the ADA?
     Whether an injured worker is protected by the ADA will depend
     on whether or not the person meets the ADA definitions of an
     "individual with a disability" and "qualified individual with
     a disability."  (See Chapter II.)  The person must have an
     impairment that "substantially limits a major life activity,"
     have a "record of" or be "regarded as" having such an
     impairment.  S/he also must be able to perform the essential
     functions of a job currently held or desired, with or without
     an accommodation.
     Clearly, not every employee injured on the job will meet the
     ADA definition.  Work-related injuries do not always cause
     physical or mental impairments severe enough to "substantially
     limit" a major life activity.  Also, many on-the-job injuries
     cause non-chronic impairments which heal within a short period
     of time with little or no long-term or permanent impact.  Such
     injuries, in most circumstances, are not considered
     disabilities under the ADA.
     The fact that an employee is awarded workers' compensation
     benefits, or is assigned a high workers' compensation
     disability rating, does not automatically establish that this
     person is protected by the ADA.  In most cases, the definition
     of disability under state workers' compensation laws differs
     from that under the ADA, because the state laws serve a
     different purpose.  Workers' compensation laws are designed to
     provide needed assistance to workers who suffer many kinds of
     injuries, whereas the ADA's purpose is to protect people from
     discrimination on the basis of disability.
     Thus, many injured workers who qualify for benefits under
     workers' compensation or other disability benefits laws may
     not be protected by the ADA.  An employer must consider work-
     related injuries on a case-by-case basis to know if a worker
     is protected by the ADA.  Many job injuries are not
     "disabling" under the ADA, but it also is possible that an
     impairment which is not "substantially limiting" in one
     circumstance could result in, or lead to, disability in other
     circumstances.
          For example:  Suppose a construction worker falls from a
          ladder and breaks a leg and the leg heals normally within
          a few months.  Although this worker may be awarded
          workers' compensation benefits for the injury, he would
          not be considered a person with a disability under the
          ADA.  The impairment suffered from the injury did not
          "substantially  limit" a major life activity, since the
          injury healed within a short period and had little or no
          long-term impact.  However, if the worker's leg took
          significantly longer to heal than the usual healing
          period for this type of injury, and during this period
          the worker could not walk, s/he would be considered to
          have a disability.  Or, if the injury caused a permanent
          limp, the worker might be considered disabled under the
          ADA if the limp substantially limited his walking, as
          compared to the average person in the general population.
     An employee who was seriously injured while working for a
     former employer, and was unable to work for a year because of
     the injury, would have a "record of" a substantially limiting
     impairment.  If an employer refused to hire or promote this
     person on the basis of that record, even if s/he had recovered
     in whole or in part from the injury, this would be a violation
     of the ADA.
     If an impairment or condition caused by an on-the-job injury
     does not substantially limit an employee's ability to work,
     but the employer regards the individual as having an
     impairment that makes him/her unable to perform a class of
     jobs, such as "heavy labor," this individual would be
     "regarded" by the employer as having a disability.  An
     employer who refused to hire or discharged an individual
     because of this perception would violate the ADA.
     Of course, in each of the examples above, the employer would
     only be liable for discrimination if the individual was
     qualified for the position held or  desired, with or without
     an accommodation.
9.3  What Can an Employer Do to Avoid Increased Workers'
     Compensation Costs and Comply With the ADA?
     The ADA allows an employer to take reasonable steps to avoid
     increased workers' compensation liability while protecting
     persons with disabilities against exclusion from jobs they can
     safely perform.
     Steps the Employer May Take
     After making a conditional job offer, an employer may inquire
     about a person's workers' compensation history in a medical
     inquiry or examination that is required of all applicants in
     the same job category.  However, an employer may not require
     an applicant to have a medical examination because a response
     to a medical inquiry (as opposed to results from a medical
     examination) discloses a previous on-the-job injury, unless
     all applicants in the same job category are required to have
     the examination.  (See Chapter V.)
     The employer may use information from medical inquiries and
     examinations for various purposes, such as:
         to verify employment history;
         to screen out applicants with a history of fraudulent
          workers' compensation claims;
         to provide information to state officials as required by
          state laws regulating workers' compensation and "second
          injury" funds;
         to screen out individuals who would pose a "direct
          threat" to health or safety of themselves or others,
          which could not be reduced to an acceptable level or
          eliminated by a reasonable accommodation.  (See Chapter
          IV.)
9.4  What Can an Employer Do When a Worker is Injured on the Job?
     Medical Examinations
     An employer may only make medical examinations or inquiries of
     an employee regarding disability if such examinations are job-
     related and consistent with business necessity.  If a worker
     has an on-the-job injury which appears to affect his/her
     ability to do essential job functions, a medical examination
     or inquiry is job-related and consistent with business
     necessity.  A medical examination or inquiry also may be
     necessary to provide reasonable accommodation.  (See Chapter
     VI.)
     When a worker wishes to return to work after absence due to
     accident or illness, s/he can only be required to have a "job-
     related" medical examination, not a full physical exam, as a
     condition of returning to work.
     The ADA prohibits an employer from discriminating against a
     person with a disability who is "qualified" for a desired job.
     The employer cannot refuse to let an individual with a
     disability return to work because the worker is not fully
     recovered from injury, unless s/he:  (1) cannot perform the
     essential functions of the job s/he holds or desires with or
     without an accommodation; or (2) would pose a significant risk
     of substantial harm that could not be reduced to an acceptable
     level with reasonable accommodation.  (See Chapter IV.)  Since
     reasonable accommodation may include reassignment to a vacant
     position, an employer may be required to consider an
     employee's qualifications to perform other vacant jobs for
     which s/he is qualified, as well as the job held when injured.
     "Light Duty" Jobs
     Many employers have established "light duty" positions to
     respond to medical restrictions on workers recovering from
     job-related injuries, in order to reduce workers' compensation
     liability.  Such positions usually place few physical demands
     on an employee and may include tasks such as answering the
     telephone and simple administrative work.  An employee's
     placement in such a position is often limited by the employer
     to a specific period of time.
     The ADA does not require an employer to create a "light duty"
     position unless the "heavy duty" tasks an injured worker can
     no longer perform are marginal job functions which may be
     reallocated to co-workers as part of the reasonable
     accommodation of job-restructuring.  In most cases however,
     "light duty" positions involve a totally different job from
     the job that a worker performed before the injury.  Creating
     such positions by job restructuring is not required by the
     ADA.  However, if an employer already has a vacant light duty
     position for which an injured worker is qualified, it might be
     a reasonable accommodation to reassign the worker to that
     position.  If the position was created as a temporary job, a
     reassignment to that position need only be for a temporary
     period.
     When an employer places an injured worker in a temporary
     "light duty" position, that worker is "otherwise qualified"
     for that position for the term of that position; a worker's
     qualifications must be gauged in relation to the position
     occupied, not in relation to the job held prior to the injury.
     It may be necessary to provide additional reasonable
     accommodation to enable an injured worker in a light duty
     position to perform the essential functions of that position.
          For example:  Suppose a telephone line repair worker
          broke both legs and fractured her knee joints in a fall.
          The treating physician states that the worker will not be
          able to walk, even with crutches, for at least nine
          months.  She therefore has a "disability."  Currently
          using a wheelchair, and unable to do her previous job,
          she is placed in a "light duty" position to process
          paperwork associated with line repairs.  However, the
          office to which she is assigned is not wheelchair
          accessible.  It would be a reasonable accommodation to
          place the employee in an office that is accessible.  Or,
          the office could be made accessible by widening the
          office door, if this would not be an undue hardship.  The
          employer also might have to modify the employee's work
          schedule so that she could attend weekly physical therapy
          sessions.
     Medical information may be very useful to an employer who must
     decide whether an injured worker can come back to work, in
     what job, and, if necessary, with what accommodations.  A
     physician may provide an employer with relevant information
     about an employee's functional abilities, limitations, and
     work restrictions.  This information will be useful in
     determining how to return the employee to productive work, but
     the employer bears the ultimate responsibility for deciding
     whether the individual is qualified, with or without a
     reasonable accommodation.  Therefore, an employer cannot avoid
     liability if it relies on a physician's advice which is not
     consistent with ADA requirements.
9.5  Do the ADA's Pre-Employment Inquiry and Confidentiality
     Restrictions Prevent an Employer from Filing Second Injury
     Fund Claims?
     Most states have established "second injury" funds designed to
     remove financial disincentives in hiring employees with a
     disability.  Without a second injury fund, if a worker
     suffered increased disability from a work-related injury
     because of a pre-existing condition, the employer would have
     to pay the full cost.  The second injury fund provisions limit
     the amount the employer must pay in these circumstances, and
     provide for the balance to be paid out of a common fund.
     Many second injury funds require an employer to certify that
     it knew at the time of hire that the employee had a pre-
     existing injury.  The ADA does not prohibit employers from
     obtaining information about pre-existing injuries and
     providing needed information to second injury funds.  As
     discussed in Chapter VI., an employer may make such medical
     inquiries and require a medical examination after a
     conditional offer of employment, and before a person starts
     work, so long as the examination or inquiry is made of all
     applicants in the same job category.  Although the ADA
     generally requires that medical information obtained from such
     examinations or inquiries be kept confidential, information
     may be submitted to second injury funds or state workers'
     compensation authorities as required by state workers'
     compensation laws.
9.6  Compliance with State and Federal Workers' Compensation Laws
     a.   Federal Laws
          It may be a defense to a charge of discrimination under
          the ADA that a challenged action is required by another
          Federal law or regulation, or that another Federal law
          prohibits an action that otherwise would be required by
          the ADA.  This defense is not valid, however, if the
          Federal standard does not require the discriminatory
          action, or if there is a way that an employer can comply
          with both legal requirements.
     b.   State Laws
          ADA requirements supersede any conflicting state workers'
          compensation laws.
               For example:  Some state workers' compensation
               statutes make an employer liable for paying
               additional benefits if an injury occurs because the
               employer assigned a person to a position likely to
               jeopardize the person's health or safety, or
               exacerbate an earlier workers' compensation injury.
               Some of these laws may permit or require an
               employer to exclude a disabled individual from
               employment in cases where the ADA would not permit
               such exclusion.  In these cases, the ADA takes
               precedence over the state law.  An employer could
               not assert, as a valid defense to a charge of
               discrimination, that it failed to hire or return to
               work an individual with a disability because doing
               so would violate a state workers' compensation law
               that required exclusion of this individual.
9.7  Does Filing a Workers' Compensation Claim Prevent an Injured
     Worker from Filing a Charge Under the ADA?
     Filing a workers' compensation claim does not prevent an
     injured worker from filing a charge under the ADA.
     "Exclusivity" clauses in state workers' compensation laws bar
     all other civil remedies related to an injury that has been
     compensated by a workers' compensation system.  However, these
     clauses do not prohibit a qualified individual with a
     disability from filing a discrimination charge with EEOC, or
     filing a suit under the ADA, if issued a "right to sue" letter
     by EEOC.  (See Chapter X.)
9.8  What if an Employee Provides False Information About his/her
     Health or Physical Condition?
     An employer may refuse to hire or may fire a person who
     knowingly provides a false answer to a lawful post-offer
     inquiry about his/her condition or workers' compensation
     history.
     Some state workers' compensation laws release an employer from
     its obligation to pay benefits if a worker falsely represents
     his/her health or physical condition at the time of hire and
     is later injured as a result.  The ADA does not prevent use of
     this defense to a workers' compensation claim.  The ADA
     requires only that information requests about health or
     workers compensation history are made as part of a post-offer
     medical examination or inquiry.  (See Chapter VI.)X.  ENFORCEMENT PROVISIONS
10.1 Introduction
     Title I of the ADA is enforced by the Equal Employment
     Opportunity Commission (EEOC) under the same procedures used
     to enforce Title VII of the Civil Rights Acts of 1964.  The
     Commission receives and investigates charges of discrimination
     and seeks through conciliation to resolve any discrimination
     found and obtain full relief for the affected individual.  If
     conciliation is not successful, the EEOC may file a suit or
     issue a "right to sue" letter to the person who filed the
     charge.  Throughout the enforcement process, EEOC makes every
     effort to resolve issues through conciliation and to avoid
     litigation.
     The Commission also recognizes that differences and disputes
     about the ADA requirements may arise between employers and
     people with disabilities as a result of misunderstandings.
     Such disputes frequently can be resolved more effectively
     through informal negotiation or mediation procedures, rather
     than through the formal enforcement process of the ADA.
     Accordingly, EEOC will encourage efforts to settle such
     differences through alternative dispute resolution, provided
     that such efforts do not deprive any individual of legal
     rights granted by the statute.  (See "Alternative Dispute
     Resolution" in Resource Directory Index.)
10.2 Overview of Enforcement Provisions
         A job applicant or employee who believes s/he has been
          discriminated against on the basis of disability in
          employment by a private, state, or local government
          employer, labor union, employment agency, or joint labor
          management committee can file a charge with EEOC.
         An individual, whether disabled or not, also may file a
          charge if s/he believes that s/he has been discriminated
          against because of an association with a person with a
          known disability, or believes that s/he has suffered
          retaliation because of filing a charge or assisting in
          opposing a discriminatory practice.  (See Retaliation
          below.)  Another person or organization also may file a
          charge on behalf of such applicant or employee.
         The entity charged with violating the ADA should receive
          written notification of the charge within 10 days after
          it is filed.
         EEOC will investigate charges of discrimination.  If EEOC
          believes that discrimination occurred, it will attempt to
          resolve the charge through conciliation and obtain full
          relief for the aggrieved individual consistent with
          EEOC's standards for remedies.
         If conciliation fails, EEOC will file suit or issue a
          "right to sue" letter to the person who filed the charge.
          (If the charge involves a state or local government
          agency, EEOC will refer the case to the Department of
          Justice for consideration of litigation or issuance of a
          "right to sue" letter.)
         Remedies for violations of Title I of the ADA include
          hiring, reinstatement, promotion, back pay, front pay,
          restored benefits, reasonable accommodation, attorneys'
          fees, expert witness fees, and court costs.  Compensatory
          and punitive damages also may be available in cases of
          intentional discrimination or where an employer fails to
          make a good faith effort to provide a reasonable
          accommodation.
         Employers may not retaliate against any applicant or
          employee who files a charge, participates in an EEOC
          investigation or opposes an unlawful employment practice.
10.3 Questions and Answers on the ADA Enforcement Process
     When do the ADA's employment enforcement provisions become
     effective?
     Charges of discrimination can be filed against employers with
     25 or more employees and other covered entities beginning July
     26, 1992.  The alleged discriminatory act(s) must have
     occurred on or after July 26, 1992.
     Charges can be filed against employers with 15 or more
     employees beginning July 26, 1994.  The alleged discriminatory
     act(s) must have occurred on or after July 26, 1994, if the
     charge is against an employer with 15 to 24 employees.
     Who can file charges of discrimination?
     An applicant or employee who feels that s/he has been
     discriminated against in employment on the basis of disability
     can file a charge with EEOC.  An individual, group or
     organization also can file a charge on behalf of another
     person.  An individual, group or organization that files a
     charge is called the "charging party."
     How are charges of discrimination filed?
     A person who feels s/he has been discriminated against, or
     other potential "charging party" should contact the nearest
     EEOC office.  (See Resource Directory listing.)  If there is
     no EEOC office nearby, call, toll free 1-800-669-4000 (voice)
     or 1-800-800-3302 (TDD).
     What are the time limits for filing charges of discrimination?
     A charge of discrimination on the basis of disability must be
     filed with EEOC within 180 days of the alleged discriminatory
     act.
     If there is a state or local fair employment practices agency
     that enforces a law prohibiting the same alleged
     discriminatory practice, it is possible that charges may be
     filed with EEOC up to 300 days after the alleged
     discriminatory act.  However, to protect legal rights, it is
     recommended that EEOC be contacted promptly when
     discrimination is believed to have occurred.
     How is a charge of discrimination filed?
     A charge can be filed in person, by telephone, or by mail.  If
     an individual does not live near an EEOC office, the charge
     can be filed by telephone and verified by mail.  The type of
     information that will be requested from a charging party may
     include:
         the charging party's name, address, and telephone number
          (if a charge is filed on behalf of another individual,
          his/her identity may be kept confidential, unless
          required for a court action);
         the employer's name, address, telephone number, and
          number of employees;
         the basis or bases of the discrimination claimed by the
          individual (e.g., disability, race, color, religion, sex,
          national origin, age, retaliation);
         the issue or issues involved in the alleged
          discriminatory act(s) (e.g., hiring, promotion, wages,
          terms and conditions of employment, discharge);
         identification of the charging party's alleged disability
          (e.g., the physical or mental impairment and how it
          affects major life activities, the record of disability
          the employer relied upon, or how the employer regarded
          the individual as disabled);
         the date of the alleged discriminatory act(s);
         details of what allegedly happened; and
         identity of witnesses who have knowledge of the alleged
          discriminatory act(s).
     Charging parties also may submit additional oral or written
     evidence on their behalf.
     EEOC has work-sharing agreements with many state and local
     fair employment agencies.  Depending on the agreement, some
     charges may be sent to a state or local agency for
     investigation; others may be investigated directly by EEOC.
     (See also Coordination Procedures to Avoid Duplicate Complaint
     Processing under the ADA and the Rehabilitation Act, below.)
     Can a charging party file a charge on more than one basis?
     EEOC also enforces other laws that bar employment
     discrimination based on race, color, religion, sex, national
     origin, and age (persons 40 years of age and older).  An
     individual with a disability can file a charge of
     discrimination on more than one basis.
          For example:  A cashier who is a paraplegic may claim
          that she was discriminated against by an employer based
          on both her sex and her disability.  She can file a
          single charge claiming both disability and sex
          discrimination.
     Can an individual file a lawsuit against an employer?
     An individual can file a lawsuit against an employer, but s/he
     must first file the charge with EEOC.  The charging party can
     request a "right to sue" letter from the EEOC 180 days after
     the charge was first filed with the Commission.  A charging
     party will then have 90 days to file suit after receiving the
     notice of right to sue.  If the charging party files suit,
     EEOC will ordinarily dismiss the original charges filed with
     the Commission.  "Right to sue" letters also are issued when
     EEOC does not believe discrimination occurred or when
     conciliation attempts fail and EEOC decides not to sue on the
     charging party's behalf (see below).
     Are charging parties protected from retaliation?
     It is unlawful for an employer or other covered entity to
     retaliate against someone who files a charge of
     discrimination, participates in an investigation, or opposes
     discriminatory practices.  Individuals who believe that they
     have been retaliated against should contact EEOC immediately.
     Even if an individual has already filed a charge of
     discrimination, s/he can file a new charge based on
     retaliation.
     How does EEOC process charges of discrimination?
         A charge of employment discrimination may be filed with
          EEOC against a private employer, state or local
          government, employment agency, labor union or joint labor
          management committee.  When a charge has been filed, EEOC
          calls these covered entities"respondents."
         Within 10 days after receipt of a charge, EEOC sends
          written notification of receipt to the respondent and the
          charging party.
         EEOC begins its investigation by reviewing information
          received from the charging party and requesting
          information from the respondent.  Information requested
          from the respondent initially, and in the course of the
          investigation, may include:
          -    specific information on the issues raised in the
               charge;
          -    the identity of witnesses who can provide evidence
               about issues in the charge;
          -    information about the business operation,
               employment process, and workplace; and
          -    personnel and payroll records.
               (Note:  All or part of the data-gathering portion
               of an investigation may be conducted on-site,
               depending on the circumstances.)
         A respondent also may submit additional oral or written
          evidence on its own behalf.
         EEOC also will interview witnesses who have knowledge of
          the alleged discriminatory act(s).
         EEOC may dismiss a charge during the course of the
          investigation for various reasons.  For example, it may
          find that the respondent is not covered by the ADA, or
          that the charge is not timely filed.
         EEOC may request additional information from the
          respondent and the charging party.  They may be asked to
          participate in a fact-finding conference to review the
          allegations, obtain additional evidence, and, if
          appropriate, seek to resolve the charge through a
          negotiated settlement.
         The charging party and respondent will be informed of the
          preliminary findings of the investigation -- that is,
          whether there is cause to believe that discrimination has
          occurred and the type of relief that may be necessary.
          Both parties will be provided opportunity to submit
          further information.
         After reviewing all information, the Commission sends an
          official "Letter of Determination" to the charging party
          and the respondent, stating whether it has or has not
          found "reasonable cause" to believe that discrimination
          occurred.
     What if the EEOC concludes that no discrimination occurred?
     If the investigation finds no cause to believe discrimination
     occurred, EEOC will take no further action.  EEOC will issue
     a "right to sue" letter to the charging party, who may
     initiate a private suit.
     What if the EEOC concludes that discrimination occurred?
     If the investigation shows that there is reasonable cause to
     believe that discrimination occurred, EEOC will attempt to
     resolve the issue through conciliation and to obtain full
     relief consistent with EEOC's standards for remedies for the
     charging party.  (See Relief Available to Charging Party,
     below.)  EEOC also can request an employer to post a notice in
     the workplace stating that the discrimination has been
     corrected and that it has stopped the discriminatory practice.
     What happens if conciliation fails?
     At all stages of the enforcement process, EEOC will try to
     resolve a charge without a costly lawsuit.
     If EEOC has found cause to believe that discrimination
     occurred, but cannot resolve the issue through conciliation,
     the case will be considered for litigation.  If EEOC decides
     to litigate, a lawsuit will be filed in federal district
     court.  If the Commission decides not to litigate, it will
     send the charging party a "right-to-sue" letter.  The charging
     party may then initiate a private civil suit within 90 days,
     if desired.  If conciliation fails on a charge against a state
     or local government, EEOC will refer the case to the
     Department of Justice for consideration of litigation or
     issuance of a "right to sue" letter.
10.4 Coordination Procedures to Avoid Duplicative Complaint
     Processing Under the ADA and the Rehabilitation Act.
     The ADA requires EEOC and the federal agencies responsible for
     Section 503 and Section 504 of the Rehabilitation Act of 1973
     to establish coordination procedures to avoid duplication and
     to assure consistent standards in processing complaints that
     fall within the overlapping jurisdiction of both laws.  EEOC
     and the Office of Federal Contract Compliance in the
     Department of Labor (OFCCP) have issued a joint regulation
     establishing such procedures for complaints against employers
     covered by the ADA who are also federal contractors or
     subcontractors.  (Published in the Federal Register of January
     24, 1992.)  EEOC and the Department of Justice also will issue
     a joint regulation establishing procedures for complaints
     against employers covered by the ADA who are recipients of
     federal financial assistance.
     The joint EEOC-OFCCP rule provides that a complaint of
     discrimination on the basis of disability filed with OFCCP
     under Section 503 will be considered a charge filed
     simultaneously under the ADA if the complaint falls within the
     ADA's jurisdiction.  This will ensure that an individual's ADA
     rights are preserved.  OFCCP will process such complaints/
     charges for EEOC, with certain exceptions specified in the
     regulation, where OFCCP will refer the charge to EEOC.  OFCCP
     also will refer to EEOC for  litigation review any complaint/
     charge where a violation has been found, conciliation fails,
     and OFCCP decides not to pursue administrative enforcement.
     EEOC will refer to OFCCP ADA charges that fall under Section
     503 jurisdiction when the Commission finds cause to believe
     that discrimination has occurred but decides not to litigate,
     for any administrative action that OFCCP finds appropriate.
     Where a charge involves both allegations of discrimination and
     violation of OFCCP's affirmative action requirements, EEOC
     generally will refer the charge to OFCCP for processing and
     resolution.
     (Note:  Procedures established in an EEOC-Department of
     Justice joint rule on processing complaints that are within
     ADA and Section 504 jurisdiction will be summarized in a
     future supplement to this Manual, when a final regulation has
     been issued.)
10.5 Remedies
     The "relief" or remedies available for employment
     discrimination, whether caused by intentional acts or by
     practices that have a discriminatory effect, may include
     hiring, reinstatement, promotion, back pay, front pay,
     reasonable accommodation, or other actions that will make an
     individual "whole" (in the condition s/he would have been but
     for the discrimination).  Remedies also may include payment of
     attorneys' fees, expert witness fees and court costs.
     Compensatory and punitive damages also may be available where
     intentional discrimination is found.  Damages may be available
     to compensate for actual monetary losses, for future monetary
     losses, for mental anguish and inconvenience.  Punitive
     damages also may be available if an employer acted with malice
     or reckless indifference.  The total amount of punitive
     damages and compensatory damages for future monetary loss and
     emotional injury for each individual is limited, based upon
     the size of the employer, using the following schedule:
          Number of employees           Damages will not exceed
               15-100                           $  50,000
               101-200                            100,000
               201-500                            200,000
               500 and more                       300,000
     Punitive damages are not available against state or local
     governments.
     In cases concerning reasonable accommodation, compensatory or
     punitive damages may not be awarded to the charging party if
     an employer can demonstrate that "good faith" efforts were
     made to provide reasonable accommodation.
     What are EEOC's obligations to make the charge process
     accessible to and usable by individuals with disabilities?
     EEOC is required by Section 504 of the Rehabilitation Act of
     1973, as amended, to make all of its programs and activities
     accessible to and usable by individuals with disabilities.
     EEOC has an obligation to provide services or devices
     necessary to enable an individual with a disability to
     participate in the charge filing process.  For example, upon
     request, EEOC will provide an interpreter when necessary for
     a charging party who is hearing impaired.  People with visual
     or manual disabilities can request on-site assistance in
     filling out a "charge of discrimination" form and affidavits.
     EEOC will provide access to the charge process as needed by
     each individual with a disability, on a  case-by-case basis.
APPENDIX A
Title I and Title V
of
The Americans with Disabilities Act
of 1990
(Public Law 101-336)

THE AMERICANS WITH DISABILITIES ACT OF 1990,  AS AMENDED
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.       42 USC 12101 note.
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SEC. 2. FINDINGS AND PURPOSES.                   42USC 12101.
(a) Findings. -- The Congress finds that --
     (1) some 43,000,000 Americans have one or more physical or
mental disabilities, and this number is increasing as the
population as a whole is growing older;
     (2) historically, society has tended to isolate and segregate
individuals with disabilities, and, despite some improvements, such
forms of discrimination against individuals with disabilities
continue to be a serious and pervasive social problem;
     (3) discrimination against individuals with disabilities
persists in such  critical areas as employment, housing, public
accommodations, education, transportation, communication,
recreation, institutionalization, health services, voting, and
access to public services;
     (4) unlike individuals who have experienced discrimination on
the basis of race, color, sex, national origin, religion, or age,
individuals who have experienced discrimination on the basis of
disability have often had no legal recourse to redress such
discrimination;
     (5) individuals with disabilities continually encounter
various forms of discrimination, including outright intentional
exclusion, the discriminatory effects of architectural,
transportation, and communication barriers, overprotective rules
and policies, failure to make modifications to existing facilities
and practices, exclusionary qualification standards and criteria,
segregation, and relegation to lesser services, programs,
activities, benefits, jobs, or other opportunities;
     (6) census data, national polls, and other studies have
documented that people with disabilities, as a group, occupy an
inferior status in our society, and are severely disadvantaged
socially, vocationally, economically, and educationally;
     (7) individuals with disabilities are a discrete and insular
minority who have been faced with restrictions and limitations,
subjected to a history of purposeful unequal treatment, and
relegated to a position of political powerlessness in our society,
based on characteristics that are beyond the control of such
individuals and resulting from stereotypic assumptions not truly
indicative of the individual ability of such individuals to
participate in, and contribute to, society;
     (8) the Nations proper goals regarding individuals with
disabilities are to assure equality of opportunity, full
participation, independent living, and economic self-sufficiency
for such individuals; and
     (9) the continuing existence of unfair and unnecessary
discrimination and prejudice denies people with disabilities the
opportunity to compete on an equal basis and to pursue those
opportunities for which our free society is justifiably famous, and
costs the United States billions of dollars in unnecessary expenses
resulting from dependency and nonproductivity.
(b) Purpose. -- It is the purpose of this Act --
     (1) to provide a clear and comprehensive national mandate for
the elimination of discrimination against individuals with
disabilities;
     (2) to provide clear, strong, consistent, enforceable
standards addressing discrimination against individuals with
disabilities;
     (3) to ensure that the Federal Government plays a central role
in enforcing the standards established in this Act on behalf of
individuals with disabilities; and
     (4) to invoke the sweep of congressional authority, including
the power to enforce the fourteenth amendment and to regulate
commerce, in order to address the major ares of discrimination
faced day-to-day by people with disabilities.
SEC. 3. DEFINITIONS.                             42 USC 12102
As used in this Act:
     (1) Auxiliary aids and services. -- The term auxiliary aids
and services includes--
          (A) qualified interpreters or other effective methods of
making aurally delivered materials available to individuals with
hearing impairments;
          (B) qualified readers, taped texts, or other effective
methods of making visually delivered materials available to
individuals with visual impairments;
          (C) acquisition or modification of equipment or devices;
and
          (D) other similar services and actions.
     (2) Disability. --The term disability  means, with respect to
an individual--
          (A) a physical or mental impairment that substantially
limits one or more of the major life activities of such individual;
          (B) a record of such an impairment; or
          (C) being regarded as having such an impairment.
     (3) State. --The term 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.
TITLE I-- EMPLOYMENT
SEC. 101. DEFINITIONS.                           42 USC 12111
As used in this title:
     (1) Commission.-- The term Commission  means the Equal
Employment Opportunity Commission established by section 705 of the
Civil Rights Act of  1964 (42 U.S.C. 2000e-4).
     (2) Covered entity. -- The term covered entity  means an
employer, employment agency, labor organization, or joint
labor-management committee.
     (3) Direct threat. -- The term direct threat  means a
significant risk to the health or safety of others that cannot be
eliminated by reasonable accommodation.
     (4) Employee. -- The term employee  means an individual
employed by an employer.  With respect to employment in a foreign
country, such term includes an individual who is a citizen of the
United States.
     (5) Employer. --
          (A) In general. -- The term employer means a person
engaged in an industry affecting commerce who has 15 or more
employees for each working day in each of 20 or more calendar weeks
in the current or preceding calendar year, and any agent of such
person, except that, for two years following the effective date of
this title, an employer means a person engaged in an industry
affecting commerce who has 25 or more employees for each working
day in each of 20 or more calendar weeks in the current or
preceding year, and any agent of such person.
          (B) Exceptions. -- The term employer does not include --
          (i) the United States, a corporation wholly owned by the
government of the United States, or an Indian tribe; or
         (ii) a bona fide private membership club (other than a
labor organization) that is exempt from taxation under section
501(c) of the Internal Revenue Code of 1986.
     (6) Illegal use of drugs. --
          (A) In general. The term illegal use of drugs means the
use of drugs, the possession or distribution of which is unlawful
under the Controlled  Substances Act (21 U.S.C. 812). Such term
does not include the use of a drug taken under supervision by a
licensed health care professional, or other uses authorized by the
Controlled Substances Act or other provisions of Federal law.
          (B) Drugs. -- The term drug  means a controlled
substance, as defined in schedules I through V of section 202 of
the Controlled Substances Act.
     (7) Person, etc. -- The terms person,labor organization,
employment agency, commerce, and industry affecting commerce, shall
have the same meaning given such terms in section 701 of the
CivilRights Act  of 1964 (42 U.S.C. 2000e).
     (8) Qualified individual with a disability.-- The term
qualified individual with a disability means an individual with a
disability who, with or without reasonable accommodation, can
perform the essential functions of the employment position that
such individual holds or desires. For the purposes of this title,
consideration shall be given to the employers judgment as to what
functions of a job are essential, and if an employer has prepared
a written description before advertising or interviewing applicants
for the job, this description shall be considered evidence of the
essential functions of the job.
     (9) Reasonable accommodation. -- The term reasonable
accommodation may include --
          (A) making existing facilities used by employees readily
accessible to and usable by individuals with disabilities; and
          (B) job restructuring, part-time or modified work
schedules, reassignment to a vacant position, acquisition or
modification of equipment or devices, appropriate adjustment or
modifications of examinations, training materials or policies, the
provision of qualified readers or interpreters, and other similar
accommodations for individuals with disabilities.
     (10) Undue hardship. --
          (A) In general. -- The term undue hardship means an
action requiring significant difficulty or expense, when considered
in light of the factors set forth in subparagraph (B).
          (B) Factors to be considered. -- In determining whether
an accommodation  would impose an undue hardship on a covered
entity, factors to be considered include --
          (i) the nature and cost of the accommodation needed under
this Act;
         (ii) the overall financial resources of the facility or
facilities involved in the provision of the reasonable
accommodation; the number of persons employed at such facility; the
effect on expenses and resources, or the impact otherwise of such
accommodation upon the operation of the facility;
        (iii) the overall financial resources of the covered
entity; the overall size of the business of a covered entity with
respect to the number of its employees; the number, type, and
location of its facilities; and
         (iv) the type of operation or operations of the covered
entity, including the composition, structure, and functions of the
workforce of such entity; the geographic separateness,
administrative, or fiscal relationship of the facility or
facilities in question to the covered entity.
SEC. 102. DISCRIMINATION.                        42 USC 12112.
(a) General Rule. -- No covered entity shall discriminate against
a qualified individual with a disability because of the disability
of such individual in regard to job application procedures, the
hiring, advancement, or discharge of employees, employee
compensation, job training, and other terms, conditions, and
privileges of employment.
(b) Construction. -- As used in subsection (a), the term
discriminate includes --
     (1) limiting, segregating, or classifying a job applicant or
employee in a way that adversely affects the opportunities or
status of such applicant or employee because of the disability of
such applicant or employee;
     (2) participating in a contractual or other arrangement or
relationship that has the effect of subjecting a covered entitys
qualified applicant or employee with a disability to the
discrimination prohibited by this title (such relationship includes
a relationship with an employment or referral agency, labor union,
an organization providing fringe benefits to an employee of the
covered entity, or an organization providing training and
apprenticeship programs);
     (3) utilizing standards, criteria, or methods of
administration --
          (A) that have the effect of discrimination on the basis
of disability; or
          (B) that perpetuate the discrimination of others who are
subject to common administrative control;
     (4) excluding or otherwise denying equal jobs or benefits to
a qualified individual because of the known disability of an
individual with whom the qualified individual is known to have a
relationship or association;
     (5)  (A) not making reasonable accommodations to the known
physical or mental limitations of an otherwise qualified individual
with a disability who is an applicant or employee, unless such
covered entity can demonstrate that the accommodation would impose
an undue hardship on the operation of the business of such covered
entity; or
          (B) denying employment opportunities to a job applicant
or employee who is an otherwise qualified individual with a
disability, if such denial is based on the need of such covered
entity to make reasonable accommodation to the physical or mental
impairments of the employee or applicant;
     (6) using 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 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; and
     (7) failing to select and administer tests concerning
employment in the most effective manner to ensure that, when such
test is administered to a job applicant or employee who has a
disability that impairs sensory, manual, or speaking skills, such
test results accurately reflect the skills, aptitude, or whatever
other factor of such applicant or employee that such 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).
(c) Covered Entities in Foreign Countries.
     (1) In general.-- It shall not be unlawful under this section
for a covered entity to take any action that constitutes
discrimination under this section with respect to an employee in a
workplace in a foreign country if compliance with this section
would cause such covered entity to violate the law of the foreign
country in which such workplace is located.
     (2) Control of Corporation. --
          (A) Presumption. -- If an employer controls a corporation
whose place of incorporation is a foreign country, any practice
that constitutes discrimination under this section and is engaged
in by such corporation shall be presumed to be engaged in by such
employer.
          (B) Exception. -- This section shall not apply with
respect to the foreign operations of an employer that is a foreign
person not controlled by an American employer.
          (C) Determination. -- For purposes of this paragraph, the
determination of whether an employer controls a corporation shall
be based on --
          (i) the interrelation of operations;
         (ii) the common management;
        (iii) the centralized control of labor relations; and
         (iv) the common ownership or financial control of the
employer and the corporation.
(d) Medical Examinations and Inquiries. --
     (1) In general. -- The prohibition against discrimination as
referred to in subsection (a) shall include medical examinations
and inquiries.
     (2) Preemployment. --
          (A) Prohibited examination or inquiry. -- Except as
provided in paragraph (3), a covered entity shall not conduct a
medical examination or make inquiries of a job applicant as to
whether such applicant is an individual with a disability or as to
the nature or severity of such disability.
          (B) Acceptable inquiry. --A covered entity may make
preemployment inquiries into the ability of an applicant to perform
job-related functions.
     (3) Employment entrance examination. -- A covered entity may
require a medical examination after an offer of employment has been
made to a job applicant and prior to the commencement of the
employment duties of such  applicant, and may condition an offer of
employment on the results of such  examination, if --
          (A) all entering emloyees are subjected to such an
examination regardless of disability;
          (B) information obtained regarding the medical condition
or history of the applicant is collected and maintained on separate
forms and in separate medical files and is 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 Act shall be provided relevant information on request; and
          (C) the results of such examination are used only in
accordance with this title.
     (4) Examination and inquiry. --
          (A) Prohibited examinations and inquiries. -- A covered
entity shall not require a medical examination and shall not make
inquiries of an employee as to whether such employee is an
individual with a disability or as to the nature or severity of the
disability, unless such examination or inquiry is shown to be job-
related and consistent with business necessity.
          (B) Acceptable examinations and inquiries. -- A covered
entity may conduct voluntary medical examinations, including
voluntary medical histories, which are part of an employee health
program available to employees at that work site. A covered entity
may make inquiries into the ability of an employee to perform
job-related functions.
          (C) Requirement. -- Information obtained under
subparagraph (B) regarding the medical condition or history of any
employee are subject to the  requirements of subparagraphs (B) and
(C) of paragraph (3).
SEC. 103. DEFENSES.                              42 USC 12113.
(a) In General.-- It may be a defense to a charge of discrimination
under this Act that an alleged application of qualification
standards, tests, or selection criteria that screen out or tend to
screen out or otherwise deny 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 by
reasonable accommodation, as required under this title.
(b) Qualification Standards. -- The term qualification standards
may include a requirement that an individual shall not pose a
direct threat to the health or safety of other individuals in the
workplace.
(c) Religious Entities. --
     (1) In general. -- This title shall not prohibit a religious
corporation, association, educational institution, or society from
giving preference in employment to individuals of a particular
religion to perform work connected with the carrying on by such
corporation, association, educational institution, or society of
its activities.
     (2) Religious tenets requirement -- Under this title, a
religious organization may require that all applicants and
employees conform to the religious tenets of such organization.
(d) List of Infectious and Communicable Diseases. --
     (1) In general. --The Secretary of Health and Human Services,
not later than 6 months after the date of enactment of this Act,
shall --
          (A) review all infectious and communicable diseases which
may be transmitted through handling the food supply;
          (B) publish a list of infectious and communicable
diseases which are transmitted through handling the food supply;
          (C) publish the methods by which such diseases are
transmitted; and
          (D) widely disseminate such information regarding the
list of diseases and their modes of transmissability to the general
public.
Such list shall be updated annually.
     (2) Applications. -- In any case in which an individual has an
infectious or communicable disease that is transmitted to others
through the handling of  food, that is included on the list
developed by the Secretary of Health and  Human Services under
paragraph (1), and which 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.
     (3) Construction. -- Nothing in this Act shall be construed to
preempt, modify, or amend any State, county, or local law,
ordinance, or regulation applicable to food handling which is
designed to protect the public health from individuals who pose a
significant risk to the health or safety of others, which cannot be
eliminated by reasonable accommodation, pursuant to the list of
infectious or communicable diseases and the modes of
transmissability published by the Secretary of Health and Human
Services.
SEC. 104. ILLEGAL USE OF DRUGS AND ALCOHOL.      42 USC 12114.
(a) Qualified Individual With a Disability. -- For purposes of this
title, the term qualified individual with a disability shall not
include any employee or applicant who is currently engaging in the
illegal use of drugs, when the covered entity acts on the basis of
such use.
(b) Rules of Construction. -- Nothing in subsection (a) shall be
construed to exclude as a qualified individual with a disability 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 such use;
     (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;
except that it shall not be a violation of this Act 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 (1) or (2) is no longer
engaging in the illegal use of drugs.
(c) Authority of Covered Entity. -- 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 shall not be under the
influence of alcohol or be engaging in the illegal use of drugs at
the workplace;
     (3) may require that 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 that such entity
holds other employees, even if any unsatisfactory performance or
behavior is related to the drug use or alcoholism of such employee;
and
     (5) may, with respect to Federal regulations regarding alcohol
and the illegal use of drugs, require that --
          (A) employees comply with the standards established in
such regulations of the Department of Defense, if the employees of
the covered entity are employed in an industry subject to such
regulations, including complying with regulations (if any) that
apply to employment in sensitive positions in such an industry, in
the case of employees of the covered entity who are employed in
such positions (as defined in the regulations of the Department of
Defense);
          (B) employees comply with the standards established in
such regulations of the Nuclear Regulatory Commission, if the
employees of the covered entity are employed in an industry subject
to such regulations, including complying with regulations (if any)
that apply to employment in sensitive positions in such an
industry, in the case of employees of the covered entity who are
employed in such positions (as defined in the regulations of the
Nuclear Regulatory Commission); and
          (C) employees comply with the standards established in
such regulations of the Department of Transportation, if the
employees of the covered entity are employed in a transportation
industry subject to such regulations, including complying with such
regulations (if any) that apply to employment in sensiive positions
in such an industry, in the case of employees of the covered entity
who are employed in such positions (as defined in the regulations
of the Department of Transportation).
(d) Drug Testing. --
     (1) In general. -- For purposes of this title, a test to
determine the illegal use of drugs shall not be considered a
medical examination.
     (2) Construction. -- Nothing in this title shall be construed
to encourage, prohibit, or authorize the conducting of drug testing
for the illegal use of drugs by job applicants or employees or
making employment decisions based on such test results.
(e) Transportation Employees. -- Nothing in this title shall be
construed to encourage, prohibit, restrict, or authorize the
otherwise lawful exercise by entities subject to the jurisdiction
of the Department of Transportation of authority to --
     (1) test employees of such entities in, and applicants for,
positions involving safety-sensitive duties for the illegal use of
drugs and for on-duty impairment by alcohol; and
     (2) remove such persons who test positive for illegal use of
drugs and on-duty impairment by alcohol pursuant to paragraph (1)
from safety-sensitive duties in implementing subsection (c).
SEC. 105. POSTING NOTICES.                       42 USC 12115.
Every employer, employment agency, labor organization, or joint
labor-management committee covered under this title shall post
notices in an accessible format to applicants, employees, and
members describing the applicable provisions of this Act, in the
manner prescribed by section 711 of the Civil Rights Act of 1964
(42 U.S.C. 2000e-10).
SEC. 106. REGULATIONS.                           42 USC 12116.
Not later than 1 year after the date of enactment of this Act, the
Commission shall issue regulations in an accessible format to carry
out this title in accordance with subchapter II of chapter 5 of
title 5, United States Code.
SEC. 107. ENFORCEMENT.                           42 USC 12117.
(a) Powers, Remedies, and Procedures. -- The powers, remedies, and
procedures set forth in sections 705, 706, 707, 709, and 710 of the
Civil Rights Act of 1964 (42 U.S.C. 2000e-4, 2000e-5, 2000e-6,
2000e-8, and 2000e-9) shall be the powers, remedies, and procedures
this title provides to the Commission, to the Attorney General, or
to any person alleging discrimination on the basis of disability in
violation of any provision of this Act, or regulations promulgated
under section 106, concerning employment.
(b) Coordination. -- The agencies with enforcement authority for
actions which allege employment discrimination under this title and
under the Rehabilitation Act of 1973 shall develop procedures to
ensure that administrative complaints filed under this title and
under the Rehabilitation  Act of 1973 are dealt with in a manner
that avoids duplication of effort and  prevents imposition of
inconsistent or conflicting standards for the same requirements
under this title and the Rehabilitation Act of 1973.  The
Commission, the Attorney General, and the Office of Federal
Contract Compliance Programs shall establish such coordinating
mechanisms (similar to provisions  contained in the joint
regulations promulgated by the Commission and the  Attorney General
at part 42 of title 28 and part 1691 of title 29, Code of Federal
Regulations, and the Memorandum of Understanding between the
Commission and the Office of Federal Contract Compliance Programs
dated January 16, 1981 (46 Fed. Reg. 7435, January 23, 1981)) in
regulations implementing this title and Rehabilitation Act of 1973
not later than 18 months after the date of  enactment of this Act.
SEC. 108. EFFECTIVE DATE.                        42 USC 12111 note.
This title shall become effective 24 months after the date of
enactment.
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TITLE V MISCELLANEOUS PROVISIONS
SEC. 501. CONSTRUCTION.                          42 USC 12201.
(a) In General. -- Except as otherwise provided in this Act,
nothing in this Act shall be construed to apply a lesser standard
than the standards applied under title V of the Rehabilitation Act
of 1973 (29 U.S.C. 790 et seq.) or the regulations issued by
Federal agencies pursuant to such title.
(b) Relationship to Other Laws. -- Nothing in this Act shall be
construed to 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 Act. Nothing in this Act shall be
construed to preclude the prohibition of, or the imposition of
restrictions on, smoking in places of employment covered by title
I, in transportation covered by title II or III, or in places of
public accommodation covered by title III.
(c) Insurance. -- Titles I through IV of this Act shall not be
construed to prohibit or restrict --
     (1) an insurer, hospital or medical service company, health
maintenance organization, or any agent, or entity that administers
benefit plans, or similar organizations from underwriting risks,
classifying risks, or administering such risks that are based on or
not inconsistent with State law; or
     (2) a person or organization covered by this Act from
establishing, sponsoring, observing or administering 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; or
     (3) a person or organization covered by this Act from
establishing, sponsoring, observing or administering the terms of
a bona fide benefit plan that is not subject to State laws that
regulate insurance.  Paragraphs (1), (2), and (3) shall not be used
as a subterfuge to evade the purposes of title I and III.
(d) Accommodations and Services. -- Nothing in this Act shall be
construed to require an individual with a disability to accept an
accommodation, aid, service, opportunity, or benefit which such
individual chooses not to accept.
SEC. 502. STATE IMMUNITY.                        42 USC 12202.
A State shall not be immune under the eleventh amendment to the
Constitution  of the United States from an action in Federal or
State court of  competent jurisdiction for a violation of this Act.
In any action against a  State for a violation of the requirements
of this Act, remedies (including remedies both at law and in
equity) are available for such a violation to the same extent as
such remedies are available for such a violation in an action
against any public or private entity other than a State.
SEC. 503. PROHIBITION AGAINST RETALIATION AND
COERCION.                                        42 USC 12203.
(a) Retaliation. -- No person shall discriminate against any
individual because such individual has opposed any act or practice
made unlawful by this  Act or because such individual made a
charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under this Act.
(b) Interference, Coercion, or Intimidation. -- It shall be
unlawful to coerce, intimidate, threaten, or interfere with any
individual in the exercise or enjoyment of, or on account of his or
her having exercised or enjoyed, or on account of his or her having
aided or encouraged any other individual in the exercise or
enjoyment of, any right granted or protected by this Act.
(c) Remedies and Procedures. -- The remedies and procedures
available under sections 107, 203, and 308 of this Act shall be
available to aggrieved persons for violations of subsections (a)
and (b), with respect to title I, title II and title III,
respectively.
SEC. 504. REGULATIONS BY THE ARCHITECTURAL AND
TRANSPORTATION BARRIERS COMPLIANCE BOARD.        42 USC 12204.
(a) Issuance of Guidelines. -- Not later tan 9 months after the
date of enactment of this Act, the Architectural and Transportation
Barriers Compliance Board shall issue minimum guidelines that shall
supplement the existing Minimum Guidelines and Requirements for
Accessible Design for purposes of titles II and III of this Act.
(b) Contents of Guidelines. -- The supplemental guidelines issued
under subsection (a) shall establish additional requirements,
consistent with this Act, to ensure that buildings, facilities,
rail passenger cars, and vehicles are accessible, in terms of
architecture and design, transportation, and communication, to
individuals with disabilities.
(c) Qualified Historic Properties. --
     (1) In general. -- The supplemental guidelines issued under
subsection (a) shall include procedures and requirements for
alterations that will threaten or destroy the historic significance
of qualified historic buildings and facilities as defined in
4.1.7(1)(a) of the Uniform Federal Accessibility Standards.
     (2) Sites eligible for listing in national register. -- With
respect to alterations of buildings or facilities that are eligible
for listing in the National Register of Historic Places under the
National Historic Preservation Act (16 U.S.C. 470 et seq.), the
guidelines described in paragraph (1) shall, at a minimum, maintain
the procedures and requirements established in 4.1.7 (1) and (2) of
the Uniform Federal Accessibility Standards.
     (3) Other sites.-- With respect to alterations of buildings or
facilities designated as historic under State or local law, the
guidelines described in paragraph (1) shall establish procedures
equivalent to those established by 4.1.7(1) (b) and (c) of the
Uniform Federal Accessibility Standards, and shall require, at a
minimum, compliance with the requirements established in 4.1.7(2)
of such standards.
SEC. 505. ATTORNEYS FEES.                        42 USC 12205.
In any action or administrative proceeding commenced pursuant to
this Act, the court or agency, in its discretion, may allow the
prevailing party, other than the United States, a reasonable
attorneys fee, including litigation expenses, and costs, and the
United States shall be liable for the foregoing the same as a
private individual.
SEC. 506. TECHNICAL ASSISTANCE.                  42 USC 12206.
(a) Plan for Assistance. --
     (1) In general. -- Not later than 180 days after the date of
enactment of this Act, the Attorney General, in consultation with
the Chair of the Equal Employment Opportunity Commission, the
Secretary of Transportation, the Chair of the Architectural and
Transportation Barriers Compliance Board, and the Chairman of the
Federal Communications Commission, shall develop a plan to assist
entities covered under this Act, and other Federal agencies, in
understanding the responsibility of such entities and agencies
under this Act.
     (2) Publication of plan. -- The Attorney General shall publish
the plan referred to in paragraph (1) for public comment in
accordance with subchapter II of chapter 5 of title 5, United
States Code (commonly known as the  Administrative Procedure Act).
(b) Agency and Public Assistance. --The Attorney General may obtain
the assistance of other Federal agencies in carrying out subsection
(a), including the National Council on Disability, the Presidents
Committee on Employment of People with Disabilities, the Small
Business Administration, and the Department of Commerce.
(c) Implementation. --
     (1) Rendering assistance. -- Each Federal agency that has
responsibility under paragraph (2) for implementing this Act may
render technical assistance to individuals and institutions that
have rights or duties under the respective title or titles for
which such agency has responsibility.
     (2) Implementation of titles. --
          (A) Title I. -- The Equal Employment Opportunity
Commission and the Attorney General shall implement the plan for
assistance developed under subsection (a), for title I.
          (B) Title II. --
          (i) Subtitle A. -- The Attorney General shall implemet
such plan for assistance for subtitle A of title II.
          (ii) Subtitle B. -- The Secretary of Transportation shall
implement such plan for assistance for subtitle B of title II.
          (C) Title III. -- The Attorney General, in coordination
with the Secretary of Transportation and the Chair of the
Architectural Transportation Barriers Compliance Board, shall
implement such plan for assistance for title III, except for
section 304, the plan for assistance for which shall be implemented
by the Secretary of Transportation.
          (D) Title IV. -- The Chairman of the Federal
Communications Commission, in coordination with the Attorney
General, shall implement such plan for assistance for title IV.
     (3) Technical assistance manuals.-- Each Federal agency that
has responsibility under paragraph (2) for implementing this Act
shall, as part of its implementation responsibilities, ensure the
availability and provision of appropriate technical assistance
manuals to individuals or entities with rights or duties under this
Act no later than six months after applicable final regulations are
published under titles I, II, III, and IV.
(d) Grants and Contracts. --
     (1) In general. -- Each Federal agency that has responsibility
under subsection (c)(2) for implementing this Act may make grants
or award contracts to effectuate the purposes of this section,
subject to the availability of appropriations. Such grants and
contracts may be awarded to individuals, institutions not organized
for profit and no part of the net earnings of which inures to the
benefit of any private shareholder or individual (including
educational institutions), and associations representing
individuals who have rights or duties under this Act. Contracts may
be awarded to entities organized for profit, but such entities may
not be the recipients or [sic] grants described in this paragraph.
     (2) Dissemination of information. -- Such grants and
contracts, among other uses, may be designed to ensure wide
dissemination of information about the rights and duties
established by this Act and to provide information and technical
assistance about techniques for effective compliance with this Act.
(e) Failure to Receive Assistance. -- An employer, public
accommodation, or other entity covered under this Act shall not be
excused from compliance with the requirements of this Act because
of any failure to receive technical assistance under this section,
including any failure in the development or dissemination of any
technical assistance manual authorized by this section.
SEC. 507. FEDERAL WILDERNESS AREAS.              42 USC 12207.
(a) Study. -- The National Council on Disability shall conduct a
study and report on the effect that wilderness designations and
wilderness land management practices have on the ability of
individuals with disabilities to use and enjoy the National
Wilderness Preservation System as established under the Wilderness
Act (16 U.S.C. 1131 et seq.).
(b) Submission of Report. -- Not later than 1 year after the
enactment of this Act, the National Council on Disability shall
submit the report required under subsection (a) to Congress.
(c) Specific Wilderness Access. --
     (1) In general. -- Congress reaffirms that nothing in the
Wilderness Act is to be construed as prohibiting the use of a
wheelchair in a wilderness area by an individual whose disability
requires use of a wheelchair, and consistent with the Wilderness
Act no agency is required to provide any form of special treatment
or accommodation, or to construct any facilities or modify any
conditions of lands within a wilderness area in order to facilitate
such use.
     (2) Definition. -- For purposes of paragraph (1), the term
wheelchair means a device designed solely for use by a mobility-
impaired person for locomotion, that is suitable for use in an
indoor pedestrian area.
SEC. 508. TRANSVESTITES.                         42 USC 12208.
For the purposes of this Act, the term disabled or disability shall
not apply to an individual solely because that individual is a
transvestite.
SEC. 509. COVERAGE OF CONGRESS AND THEAGENCIES
OF THE LEGISLATIVE BRANCH.                       42 USC 12209.
(a) Coverage of the Senate. --
     (1) Commitment to Rule XLII. -- The Senate reaffirms its
commitment to Rule XLII of the Standing Rules of the Senate which
provides as follows:
No member, officer, or employee of the Senate shall, with respect
to employment by the Senate or any office thereof --
          (a) fail or refuse to hire an individual;
          (b) discharge an individual; or
          (c) otherwise discriminate against an individual with
respect to promotion, compensation or terms, conditions, or
privileges or employment on the basis of such individual's race,
color, regligion,  sex, national origin, age, or state of phyisical
handicap."
     (2) Matters Other Than Employment. --
          (A) In General. -- The rights and protections under this
Act shall, subject to subparagraph (B), apply with respect to the
conduct of the Senate regarding matters other than employment.
          (B) Remedies. -- The Architect of the Capitol shall
establish remedies and procedures to be utilized with respect to
the rights and protections provided pursuant to subparagraph (A).
Such remedies and procedures shall apply exclusively, after
approval in accordance with subparagraph (C).
          (C) Proposed remedies and procedures. -- For purposes of
subparagraph (B), the Architect of the Capitol shall submit
proposed remedies and procedures to the Senate Committee on Rules
and Administration. The remedies and procedures shall be effective
upon the approval of the Committee on Rules and Administration.
     (3) Exercise of rulemaking power. -- Notwithstanding any other
provision of law, enforcement and adjudication of the rights and
protections referred to in paragraph (2)(A) shall be within the
exclusive jurisdiction of the United States Senate. The provisions
of paragraph (1), (2) [sic] are enacted by the Senate as an
exercise of the rulemaking power of the Senate, with full
recognition of the right of the Senate to change its rules, in the
same manner, and to the same extent, as in the case of any other
rule of the Senate.
(b) Coverage of the House of Representatives. --
     (1) In general. -- Notwithstanding any other provision of this
Act or of law, the purposes of this Act shall, subject to
paragraphs (2) and (3), apply in their entirety to the House of
Representatives.
     (2) Employment in the House. --
          (A) Application. -- The rights and protections under this
Act shall, subject to subparagraph (B), apply with respect to any
employee in an employment position in the House of Representatives
and any employing authority of the House of Representatives.
          (B) Administration. --
          (i) In general. In the administration of this paragraph,
the remedies and procedures made applicable pursuant to the
resolution described in clause (ii) shall apply exclusively.
          (ii) Resolution. -- The resolution referred to in clause
(i) is House Resolution 15 of the One Hundred First Congress, as
agreed to January 3, 1989, or any other povision that continues in
effect the provisions of, or is a successor to, the Fair Employment
Practices Resolution (House Resolution 558 of the One Hundredth
Congress, as agreed to October 4, 1988).
          (C) Exercise of rulemaking power. -- The provisions of
subparagraph (B) are enacted by the House of Representatives as an
exercise of the rulemaking power of the House of Representatives,
with full recognition of the right of the House to change its
rules, in the same manner, and to the same extent as in the case of
any other rule of the House.
     (3) Matters other than employment. --
          (A) In general. -- The rights and protections under this
Act shall, subject to subparagraph (B), apply with respect to the
conduct of the House of Representatives regarding matters other
than employment.
          (B) Remedies. -- The Architect of the Capitol shall
establish remedies and procedures to be utilized with respect to
the rights and protections provided pursuant to subparagraph (A).
Such remedies and procedures shall apply exclusively, after
approval in accordance with subparagraph (C).
          (C) Approval. -- For purposes of subparagraph (B), the
Architect of the Capitol shall submit proposed remedies and
procedures to the Speaker of the House of Representatives. The
remedies and procedures shall be effective upon the approval of the
Speaker, after consultation with the House Office Building
Commission.
(c) Instrumentalities of Congress. --
     (1) In general. -- The rights and protections under this Act
shall, subject to paragraph (2), apply with respect to the conduct
of each instrumentality of the Congress.
     (2) Establishment of remedies and procedures by
instrumentalities. The chief official of each instrumentality of
the Congress shall establish remedies and procedures to be utilized
with respect to the rights and protections provided pursuant to
paragraph (1). Such remedies and procedures shall apply exclusively
except for the employees who are defined as Senate employees in
section 201(c)(1) of the Civil Rights Act of 1991.
     (3) Report to Congress. The chief official of each
instrumentality of the Congress shall, after establishing remedies
and procedures for purposes of paragraph (2), submit to the
Congress a report describing the remedies and procedures.
     (4) Definition of instrumentalities. -- For purposes of this
section, instrumentalities of the Congress include the following:
the Architect of the Capitol, the Congressional Budget Office, the
General Accounting Office, the Government Printing Office, the
Library of Congress, the Office of Technology Assessment, and the
United States Botanic Garden.
     (5) Construction. -- Nothing in this section shall alter the
enforcement procedures for individuals with disabilities provided
in the General Accounting Office Personnel Act of 1980 and
regulations promulgated pursuant to that Act.
SEC. 510. ILLEGAL USE OF DRUGS.                  42 USC 12210.
(a) In General. -- For purposes of this Act, the term individual
with a disability does not include an individual who is currently
engaging in the illegal use of drugs, when the covered entity acts
on the basis of such use.
(b) Rules of Construction. -- Nothing in subsection (a) shall be
construed to exclude as an individual with a disability 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 such use;
     (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; except that it shall not be a violation
of this Act 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 (1) or
(2) is no longer engaging in the illegal use of drugs; however,
nothing in his section shall be construed to encourage, prohibit,
restrict, or authorize the conducting of testing for the illegal
use of drugs.
(c) Health and Other Services. -- Notwithstanding subsection (a)
and section 511(b)(3), an individual shall not be denied health
services, or services provided in connection with drug
rehabilitation, on the basis of the  current illegal use of drugs
if the individual is otherwise entitled to such services.
(d) Definition of Illegal use of drugs. --
     (1) In general. -- The term illegal use of drugs  means the
use of drugs, the possession or distribution of which is unlawful
under the Controlled Substances Act (21 U.S.C. 812). Such term does
not include the use of a drug taken under supervision by a licensed
health care professional, or other uses authorized by the
Controlled Substances Act or other provisions of Federal law.
     (2) Drugs. -- The term drug  means a controlled substance, as
defined in schedules I through V of section 202 of the Controlled
Substances Act.
SEC. 511. DEFINITIONS.                           42 USC 12211.
(a) Homosexuality and Bisexuality. -- For purposes of the
definition of disability  in section 3(2), homosexuality and
bisexuality are not impairments and as such are not disabilities
under this Act.
(b) Certain Conditions. -- Under this Act, the term disability
shall 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.
SEC. 512. AMENDMENTS TO THE REHABILITATION ACT.  42 USC 12115.
(a) Definition of Handicapped Individual. -- Section 7(8) of the
Rehabilitation Act of 1973 (29 U.S.C. 706(8)) is amended by
redesignating subparagraph (C) as subparagraph (D), and by
inserting after subparagraph (B) the following subparagraph:
     "(C)(i) For purposes of title V, the term 'individual with
handicaps does not include an individual who is currently engaging
in the illegal use of drugs, when a covered entity acts on the
basis of such use.
     "(ii) Nothing in clause (i) shall be construed to exclude as
an individual with handicaps an individual who --
          "(I) 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 such use;
          "(II) is participating in a supervised rehabilitation
program and is no longer engaging in such use; or
          "(III) is erroneously regarded as engaging in such use,
but is not engaging in such use; except that it shall not be a
violation of this Act 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
subclause (I) or (II) is no longer engaging in the illegal use of
drugs.
     "(iii) Notwithstanding clause (i), for purposes of programs
and activities providing health services and services provided
under titles I, II and III, an individual shall not be excluded
from the benefits of such programs or activities on the basis of
his or her current illegal use of drugs if he or she is otherwise
entitled to such services.
     "(iv) For purposes of programs and activities providing
educational services, local educational agencies may take
disciplinary action pertaining to the use or possession of illegal
drugs or alcohol against any handicapped student who currently is
engaging in the illegal use of drugs or in the use of alcohol to
the same extent that such disciplinary action is taken against
nonhandicapped students. Furthermore, the due process procedures at
34 CFR 104.36 shall not apply to such disciplinary actions.
     "(v) For purposes of sections 503 and 504 as such sections
relate to employment, the term individual with handicap does not
include any individual who is an alcoholic whose current use of
alcohol prevents such individual from performing the duties of the
job in question or whose employment, by reason of such current
alcohol abuse, would constitute a direct threat to property or the
safety of others."
(b) Definition of Illegal Drugs. -- Section 7 of the Rehabilitation
Act of 1973 (29 U.S.C. 706) is amended by adding at the end the
following new  paragraph:
     "(22)(A) The term 'drug' means a controlled substance, as
defined in schedules I through V of section 202 of the Controlled
Substances Act (21 U.S.C. 812).
     "(B) The term illegal use of drugs means the use of drugs, the
possession or distribution of which is unlawful under the
Controlled Substances Act.  Such term does not include the use of
a drug taken under supervision by a licensed health care
professional, or other uses authorized by the Controlled Substances
Act or other provisions of Federal law."
(c) Conforming Amendments. -- Section 7(8)(B) of the Rehabilitation
Act of 1973 (29 U.S.C. 706(8)(B)) is amended --
     (1) in the first sentence, by striking "Subject to the second
sentence of this subparagraph," and inserting "Subject to
subparagraphs (C) and (D)," and
     (2) by striking the second sentence.
SEC. 513. ALTERNATIVE MEANS OF DISPUTE
RESOLUTION.                                      42 USC 12212.
Where appropriate and to the extent authorized by law, the use of
alternative means of dispute resolution, including settlement
negotiations, conciliation, facilitation, mediation, factfinding,
minitrials, and arbitration, is encouraged to resolve disputes
arising under this Act.
SEC. 514. SEVERABILITY.                          42 USC 12213.
Should any provision in this Act be found to be unconstitutional by
a court of law, such provision shall be severed from the remainder
of the Act, and such action shall not affect the enforceability of
the remaining provisions of the Act.
Approved July 26, l990; Amended November 21, 1991.

APPENDIX B
EEOC Title I Regulations
and
Interpretive Appendix
1630.1 Purpose, applicability, and construction.
     (a)  Purpose. The purpose of this part is to implement title
I of the Americans with Disabilities Act (42 U.S.C.  12101, et
seq.) (ADA), requiring equal employment opportunities for qualified
individuals with disabilities, and sections 3(2), 3(3), 501, 503,
506(e), 508, 510, and 511 of the ADA as those sections pertain to
the employment of qualified individuals with disabilities.
     (b)  Applicability. This part applies to covered entities as
defined at 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.
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.
     (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).
     (h)  Physical or mental impairment means:
          (1)  Any physiological disorder, or condition, cosmetic
disfigurement or anatomical loss affecting one or more of the
following body systems: neurological, musculoskeletal, special
sense organs, respiratory (including speech organs),
cardiovascular, reproductive, digestive, genito-urinary, hemic and
lymphatic, skin, and endocrine; or
          (2)  Any mental or psychological disorder, such as mental
retardation, organic brain syndrome, emotional or mental illness,
and specific learning disabilities.
     (i)  Major Life Activities means functions such as caring for
oneself, performing manual tasks, walking, seeing, hearing,
speaking, breathing, learning, and working.
     (j)  Substantially limits. -- (1) The term substantially
limits means:
          (i)  Unable to perform a major life activity that the
average person in the general population can perform; or
          (ii)  Significantly restricted as to the condition,
manner or duration under which an individual can perform a
particular major life activity as compared to the condition,
manner, or duration under which the average person in the general
population can perform that same major life activity.
          (2)   The following factors should be considered in
determining whether an individual is substantially limited in a
major life activity:
          (i)  The nature and severity of the impairment;
          (ii) The duration or expected duration of the impairment;
and
          (iii) The permanent or long term impact, or the expected
permanent or long term impact of or resulting from the impairment.
          (3)  With respect to the major life activity of working--
          (i) The term substantially limits means significantly
restricted in the ability to perform either a class of jobs or a
broad range of jobs in various classes as compared to the average
person having comparable training, skills and abilities. The
inability to perform a single, particular job does not constitute
a substantial limitation in the major life activity of working.
          (ii)  In addition to the factors listed in paragraph
(j)(2) of this section, the following factors may be considered in
determining whether an individual is substantially limited in the
major life activity of working:
               (A)  The geographical area to which the individual
has reasonable access;
               (B)  The job from which the individual has been
disqualified because of an impairment, and the number and types of
jobs utilizing similar training, knowledge, skills or abilities,
within that geographical area, from which the individual is also
disqualified because of the impairment (class of jobs); and/or
               (C)  The job from which the individual has been
disqualified because of an impairment, and the number and types of
other jobs not utilizing similar training, knowledge, skills or
abilities, within that geographical area, from which the individual
is also disqualified because of the impairment (broad range of jobs
in various classes).
     (k)  Has a record of such impairment means has a history of,
or has been misclassified as having, a mental or physical
impairment that substantially limits one or more major life
activities.
     (l)  Is regarded as having such an impairment means:
          (1)  Has a physical or mental impairment that does not
substantially limit major life activities but is treated by a
covered entity as constituting such limitation;
          (2)  Has a physical or mental impairment that
substantially limits major life activities only as a result of the
attitudes of others toward such impairment; or
          (3)  Has none of the impairments defined in paragraphs
(h)(1) or (2) of this section but is treated by a covered entity as
having a substantially limiting impairment.
     (m)  Qualified individual with a disability means an
individual with a disability who satisfies the requisite skill,
experience, education and other job-related requirements of the
employment position such individual holds or desires, and who, with
or without reasonable accommodation, can perform the essential
functions of such position. (See section 1630.3 for exceptions to
this definition).
     (n)  Essential functions. --
          (1)  In general. The term essential functions means the
fundamental job duties of the employment position the individual
with a disability holds or desires. The term essential functions
does not include the marginal functions of the position.
          (2)  A job function may be considered essential for any
of several reasons, including but not limited to the following:
          (i)  The function may be essential because the reason the
position exists is to perform that function;
          (ii)  The function may be essential because of the
limited number of employees available among whom the performance of
that job function can be distributed; and/or
          (iii)  The function may be highly specialized so that the
incumbent in the position is hired for his or her expertise or
ability to perform the particular function.
          (3)  Evidence of whether a particular function is
essential includes, but is not limited to:
          (i)  The 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.
     (o)  Reasonable accommodation. -- (1) The term reasonable
accmmodation means:
          (i)  Modifications or adjustments to a job application
process that enable a qualified applicant with a disability to be
considered for the position such qualified applicant desires; or
          (ii)  Modifications or adjustments to the work
environment, or to the manner or circumstances under which the
position held or desired is customarily performed, that enable a
qualified individual with a disability to perform the essential
functions of that position; or
          (iii)  Modifications or adjustments that enable a covered
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.
     (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.
     (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.
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 defied in this part.
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.
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.
1630.6 Contractual or other arrangements.
     (a)  In general.  It is unlawful for a covered entity to
participate in a contractual or other arrangement or relationship
that has the effect of subjecting the covered 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.
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.
1630.9 Not making rasonable 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.
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.
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).
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 isability.
     (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.
     (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
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, ifthe 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 inconsistent with this part.
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.
     (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.
1630.16 Specific activities permitted.
     (a)  Religious entities. A religious corporation, association,
educational institution, or society is permitted to give preference
in employment to individuals of a particular religion to perform
work connected with the carrying on by that corporation,
association, educational institution, or society of its activities.
A religious entity may require that all applicants and employees
conform to the religious tenets of such organization. However, a
religious entity may not discriminate against a qualified
individual, who satisfies the permitted religious criteria, because
of his or her disability.
     (b)  Regulation of alcohol and drugs.  A covered entity:
          (1)  May prohibit the illegal use of drugs and the use of
alcohol at the workplace by all employees;
          (2)  May require that employees not be under the
influence of alcohol or be engaging in the illegal use of drugs at
the workplace;
          (3)  May require that all employees behave in conformance
with the requirements established under the Drug-Free Workplace Act
of 1988 (41 U.S.C. 701 et seq.);
          (4)  May hold an employee who engages in the illegal use
of drugs or who is an alcoholic to the same qualification standards
for employment or job performance and behavior to which the entity
holds its other employees, even if any unsatisfactory performance
or behavior is related to the 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 ervices 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 disease associated with the handling of food
cannot be eliminated by reasonable accommodation, a covered entity
may refuse to assign or continue to assign such individual to a job
involving food handling. However, if the individual with a
disability is a current employee, the employer must consider
whether he or she can be accommodated by reassignment to a vacant
position not involving food handling.
          (2) Effect on state or other laws.  This part does not
preempt, modify, or amend any State, county, or local law,
ordinance or regulation applicable to food handling which:
          (i)  Is in accordance with the list, referred to in
paragraph (e)(1) of this section, of infectious or communicable
diseases and the modes of transmissibility published by the
Secretary of Health and Human Services; and
          (ii)  Is designed to protect the public health from
individuals who pose a significant risk to the health or safety of
others, where that risk cannot be eliminated by reasonable
accommodation.
     (f)  Health insurance, life insurance, and other benefit
plans.
          (1)  An insurer, hospital, or medical service company,
health maintenance organization, or any agent or entity that
administers benefit plans, or similar organizations may underwrite
risks, classify risks, or administer such risks that are based on
or not inconsistent with State law.
          (2)  A covered entity may establish, sponsor, observe or
administer the terms of a bona fide benefit plan that are based on
underwriting risks, classifying risks, or administering such risks
that are based on or not inconsistent with State law.
          (3) A covered entity may establish, sponsor, observe, or
administer the terms of a bona fide benefit plan that is not
subject to State laws that regulate insurance.
          (4) The activities described in paragraphs (f)(1),(2),
and (3) of this section are permitted unless these activities are
being used as a subterfuge to evade the purposes of this part.

APPENDIX D
Form and Instructions for ADA-Related Small
Business Tax Credit
(Section 44 of the Internal Revenue Code)

APPENDIX C
Diseases Transmitted Through
the Food Supply
(Issued by the Centers for Disease Control,
U.S. Public Health Service,
Pursuant to Section 103(d)
of the Americans with Disabilities Act)
