Equal Employment Opportunity Commission

29 CFR Part 1630

Equal Employment Opportunity for Individuals with Disabilities

AGENCY: Equal Employment Opportunity Commission

ACTION: Final Rule

SUMMARY: On July 26, 1990, the Americans with Disabilities Act

(ADA) was signed into law. Section 106 of the ADA requires that

the Equal Employment Opportunity Commission (EEOC) issue

substantive regulations implementing title I (Employment) within

one year of the date of enactment of the Act. Pursuant to this

mandate, the Commission is publishing a new part 1630 to its

regulations to implement title I and sections 3(2), 3(3), 501,

503, 506(e), 508, 510, and 511 of the ADA as those sections

pertain to employment. New part 1630 prohibits discrimination

against qualified individuals with disabilities in all aspects of

employment.

EFFECTIVE DATE: July 26, 1992.

FOR FURTHER INFORMATION CONTACT: Elizabeth M. Thornton, Deputy

Legal Counsel, (202) 663-4638 (voice), (202) 663-7026 (TDD) or

Christopher G. Bell, Acting Associate Legal Counsel for Americans

with Disabilities Act Services, (202) 663-4679 (voice), (202)

663- 7026. Copies of this final rule and interpretive appendix

may be obtained by calling the Office of Communications and

Legislative Affairs at (202) 663-4900. Copies in alternate

formats may be obtained from the Office of Equal Employment

Opportunity by calling (202) 663- 4398 or (202) 663-4395 (voice)

or (202) 663-4399 (TDD). The alternate formats available are:

large print, braille, electronic file on computer disk, and

audio-tape.

SUPPLEMENTARY INFORMATION:

Rulemaking History

The Commission actively solicited and considered public comment

in the development of part 1630. On August 1, 1990, the

Commission published an advance notice of proposed rulemaking

(ANPRM), 55 FR 31192, informing the public that the Commission

had begun the process of developing substantive regulations

pursuant to title I of the ADA and inviting comment from

interested groups and individuals. The comment period ended on

August 31, 1990. In response to the ANPRM, the Commission

received 138 comments from various disability rights

organizations, employer groups, and individuals. Comments were

also solicited at 62 ADA input meetings conducted by Commission

field offices throughout the country. More than 2400

representatives from disability rights organizations and employer

groups participated in these meetings.

On February 28, 1991, the Commission published a notice of

proposed rulemaking (NPRM), 56 FR 8578, setting forth proposed

part 1630 for public comment. The comment period ended April 29,

1991. In response to the NPRM, the Commission received 697

timely comments from interested groups and individuals. In many

instances, a comment was submitted on behalf of several parties

and represented the views of numerous groups, employers, or

individuals with disabilities. The comments have been analyzed

and considered in the development of this final rule.

Overview of Regulations

The format of part 1630 reflects congressional intent, as

expressed in the legislative history, that the regulations

implementing the employment provisions of the ADA be modeled on

the regulations implementing Section 504 of the Rehabilitation

Act of 1973, as amended, 34 CFR part 104. Accordingly, in

developing part 1630, the Commission has been guided by the

Section 504 regulations and the case law interpreting those

regulations.

It is the intent of Congress that the regulations implementing

the ADA be comprehensive and easily understood. Part 1630,

therefore, defines terms not previously defined in the

regulations implementing Section 504 of the Rehabilitation Act,

such as "substantially limits," "essential functions," and

"reasonable accommodation." Of necessity, many of the

determinations that may be required by this part must be made on

a case-by-case basis. Where possible, part 1630 establishes

parameters to serve as guidelines in such inquiries.

The Commission is also issuing interpretive guidance concurrently

with the issuance of part 1630 in order to ensure that qualified

individuals with disabilities understand their rights under this

part and to facilitate and encourage compliance by covered

entities. Therefore, part 1630 is accompanied by an Appendix.

This Appendix represents the Commission's interpretation of the

issues discussed, and the Commission will be guided by it when

resolving charges of employment discrimination. The Appendix

addresses the major provisions of part 1630 and explains the

major concepts of disability rights. Further, the Appendix cites

to the authority, such as the legislative history of the ADA and

case law interpreting Section 504 of the Rehabilitation Act, that

provides the basis and purpose of the rule and interpretative

guidance.

More detailed guidance on specific issues will be forthcoming in

the Commission's Compliance Manual. Several Compliance Manual

sections and policy guidances on ADA issues are currently under

development and are expected to be issued prior to the effective

date of the Act. Among the issues to be addressed in depth are

the theories of discrimination; definitions of disability and of

qualified individual with a disability; reasonable accommodation

and undue hardship, including the scope of reassignment; and

pre-employment inquiries.

To assist us in the development of this guidance, the Commission

requested comment in the NPRM from disability rights

organizations, employers, unions, state agencies concerned with

employment or workers compensation practices, and interested

individuals on specific questions about insurance, workers'

compensation, and collective bargaining agreements. Many

commenters responded to these questions, and several commenters

addressed other matters pertinent to these areas. The Commission

has considered these comments in the development of the final

rule and will continue to consider them as it develops further

ADA guidance.

In the NPRM, the Commission raised questions about a number of

insurance-related matters. Specifically, the Commission asked

commenters to discuss risk assessment and classification, the

relationship between "risk" and "cost," and whether employers

should consider the effects that changes in insurance coverage

will have on individuals with disabilities before making those

changes. Many commenters provided information about insurance

practices and explained some of the considerations that affect

insurance decisions. In addition, some commenters discussed

their experiences with insurance plans and coverage. The

commenters presented a wide range of opinions on

insurance-related matters, and the Commission will consider the

comments as it continues to analyze these complex matters.

The Commission received a large number of comments concerning

inquiries about an individual's workers' compensation history.

Many employers asserted that such inquiries are job related and

consistent with business necessity. Several individuals with

disabilities and disability rights organizations, however, argued

that such inquiries are prohibited pre-employment inquiries and

are not job related and consistent with business necessity. The

Commission has addressed this issue in the interpretive guidance

accompanying section 1630.14(a) and will discuss the matter

further in future guidance.

There was little controversy about the submission of medical

information to workers' compensation offices. A number of

employers and employer groups pointed out that the workers'

compensation offices of many states request medical information

in connection with the administration of second-injury funds.

Further, they noted that the disclosure of medical information

may be necessary to the defense of a workers' compensation claim.

The Commission has responded to these comments by amending the

interpretive guidance accompanying section 1630.14(b). This

amendment, discussed below, notes that the submission of medical

information to workers' compensation offices in accordance with

state workers' compensation laws is not inconsistent with section

1630.14(b). The Commission will address this area in greater

detail and will discuss other issues concerning workers'

compensation matters in future guidances, including the policy

guidance on pre-employment inquiries. 7É3 èWith respect to

collective bargaining agreements, the Commission asked commenters

to discuss the relationship between collective bargaining

agreements and such matters as undue hardship, reassignment to a

vacant position, the determination of what constitutes a "vacant"

position, and the confidentiality requirements of the ADA. The

comments that we received reflected a wide variety of views.

For example, some commenters argued that it would always be an

undue hardship for an employer to provide a reasonable

accommodation that conflicted with the provisions of a collective

bargaining agreement. Other commenters, however, argued that an

accommodation's effect on an agreement should not be considered

when assessing undue hardship. Similarly, some commenters stated

that the appropriateness of reassignment to a vacant position

should depend upon the provisions of a collective bargaining

agreement while others asserted that an agreement cannot limit

the right to reassignment. Many commenters discussed the

relationship between an agreement's seniority provisions and an

employer's reasonable accommodation obligations.

In response to comments, the Commission has amended section

1630.2(n)(3) to include "the terms of a collective bargaining

agreement" in the types of evidence relevant to determining the

essential functions of a position. The Commission has made a

corresponding change to the interpretive guidance on section

1630.2(n)(3). In addition, the Commission has amended the

interpretive guidance on section 1630.15(d) to note that the

terms of a collective bargaining agreement may be relevant to

determining whether an accommodation would pose an undue hardship

on the operation of a covered entity's business.

The divergent views expressed in the public comments demonstrate

the complexity of employment-related issues concerning insurance,

workers' compensation, and collective bargaining agreement

matters. These highly complex issues require extensive research

and analysis and warrant further consideration. Accordingly, the

Commission has decided to address the issues in depth in future

Compliance Manual sections and policy guidances. The Commission

will consider the public comments that it received in response to

the NPRM as it develops further guidance on the application of

title I of the ADA to these matters.

The Commission has also decided to address burdens-of-proof

issues in future guidance documents, including the Compliance

Manual section on the theories of discrimination. Many

commenters discussed the allocation of the various burdens of

proof under title I of the ADA and asked the Commission to

clarify those burdens. The comments in this area addressed such

matters as determining whether a person is a qualified individual

with a disability, job relatedness and business necessity, and

undue hardship. The Commission will consider these comments as

it prepares further guidance in this area.

A discussion of other significant comments and an explanation of

the changes made in part 1630 since publication of the NPRM

follows.

Section-by-Section Analysis of Comments and Revisions

Section 1630.1 Purpose, applicability, and construction

The Commission has made a technical correction to section

1630.1(a) by adding section 506(e) to the list of statutory

provisions implemented by this part. Section 506(e) of the ADA

provides that the failure to receive technical assistance from

the federal agencies that administer the ADA is not a defense to

failing to meet the obligations of title I.

Some commenters asked the Commission to note that the ADA does

not preempt state claims, such as state tort claims, that confer

greater remedies than are available under the ADA. The

Commission has added a paragraph to that effect in the Appendix

discussion of sections 1630.1(b) and (c). This interpretation is

consistent with the legislative history of the Act. See H.R.

Rep. No. 485 Part 3, 101st Cong., 2d Sess. 69-70 (1990)

[hereinafter referred to as House Judiciary Report].

In addition, the Commission has made a technical amendment to the

Appendix discussion to note that the ADA does not automatically

preempt medical standards or safety requirements established by

Federal law or regulations. The Commission has also amended the

discussion to refer to a direct threat that cannot be eliminated

"or reduced" through reasonable accommodation. This language is

consistent with the regulatory definition of direct threat. (See

section 1630.2(r), below.)

Section 1630.2 Definitions

Section 1630.2(h) Physical or mental impairment

The Commission has amended the interpretive guidance accompanying

section 1630.2(h) to note that the definition of the term

"impairment" does not include characteristic predisposition to

illness or disease.

In addition, the Commission has specifically noted in the

interpretive guidance that pregnancy is not an impairment. This

change responds to the numerous questions that the Commission has

received concerning whether pregnancy is a disability covered by

the ADA. Pregnancy, by itself, is not an impairment and is

therefore not a disability.

Section 1630.2(j) Substantially limits

The Commission has revised the interpretive guidance accompanying

section 1630.2(j) to make clear that the determination of whether

an impairment substantially limits one or more major life

activities is to be made without regard to the availability of

medicines, assistive devices, or other mitigating measures. This

interpretation is consistent with the legislative history of the

ADA. See S. Rep. No. 116, 101st Cong., 1st Sess. 23 (1989)

[hereinafter referred to as Senate Report]; H.R. Rep.

No. 485 Part 2, 101st Cong., 2d Sess. 52 (1990) [hereinafter

referred to as House Labor Report]; House Judiciary Report at 28.

The Commission has also revised the examples in the third

paragraph of this section's guidance. The examples now focus on

the individual's capacity to perform major life activities rather

than on the presence or absence of mitigating measures. These

revisions respond to comments from disability rights groups,

which were concerned that the discussion could be misconstrued to

exclude from ADA coverage individuals with disabilities who

function well because of assistive devices or other mitigating

measures.

In an amendment to the paragraph concerning the factors to

consider when determining whether an impairment is substantially

limiting, the Commission has provided a second example of an

impairment's "impact." This example notes that a traumatic head

injury's affect on cognitive functions is the "impact" of that

impairment.

Many commenters addressed the provisions concerning the

definition of "substantially limits" with respect to the major

life activity of working (section 1630.2(j)(3)). Some employers

generally supported the definition but argued that it should be

applied narrowly. Other employers argued that the definition is

too broad. Disability rights groups and individuals with

disabilities, on the other hand, argued that the definition is

too narrow, unduly limits coverage, and places an onerous burden

on individuals seeking to establish that they are covered by the

ADA. The Commission has responded to these comments by making a

number of clarifications in this area.

The Commission has revised section 1630.2(j)(3)(ii) and the

accompanying interpretive guidance to note that the listed

factors "may" be considered when determining whether an

individual is substantially limited in working. This revision

clarifies that the factors are relevant to, but are not required

elements of, a showing of a substantial limitation in working.

Disability rights groups asked the Commission to clarify that

"substantially limited in working" applies only when an

individual is not substantially limited in any other major life

activity. In addition, several other commenters indicated

confusion about whether and when the ability to work should be

considered when assessing if an individual has a disability. In

response to these comments, the Commission has amended the

interpretive guidance by adding a new paragraph clarifying the

circumstances under which one should determine whether an

individual is substantially limited in the major life activity of

working. This paragraph makes clear that a determination of

whether an individual is substantially limited in the ability to

work should be made only when the individual is not disabled in

any other major life activity. Thus, individuals need not

establish that they are substantially limited in working if they

already have established that they are, have a record of, or are

regarded as being substantially limited in another major life

activity. The proposed interpretive guidance in this area

provided an example concerning a surgeon with a slight hand

impairment. Several commenters expressed concern about this

example. Many of these comments indicated that the example

confused, rather than clarified, the matter. The Commission,

therefore, has deleted this example. To explain further the

application of the "substantially limited in working" concept,

the Commission has provided another example (concerning a

commercial airline pilot) in the interpretive guidance.

In addition, the Commission has clarified that the terms "numbers

and types of jobs" (see section 1630.2(j)(3)(ii)(B)) and "numbers

and types of other jobs" (see section 1630.2(j)(3)(ii)(C)) do not

require an onerous evidentiary showing.

In the proposed Appendix, after the interpretive guidance

accompanying section 1630.2(l), the Commission included a

discussion entitled "Frequently Disabling Impairments." Many

commenters expressed concern about this discussion. In response

to these comments, and to avoid confusion, the Commission has

revised the discussion and has deleted the list of frequently

disabling impairments. The revised discussion now appears in the

interpretive guidance accompanying section 1630.2(j).

Section 1630.2(l) Is regarded as having such an impairment

Section 1630.2(l)(3) has been changed to refer to "a

substantially limiting impairment" rather than "such an

impairment." This change clarifies that an individual meets the

definition of the term "disability" when a covered entity treats

the individual as having a substantially limiting impairment.

That is, section 1630.2(l)(3) refers to any substantially

limiting impairment, rather than just to one of the impairments

described in sections 1630.2(l)(1) or (2).

The proposed interpretive guidance on section 1630.2(l) stated

that, when determining whether an individual is regarded as

substantially limited in working, "it should be assumed that all

similar employers would apply the same exclusionary qualification

standard that the employer charged with discrimination has used."

The Commission specifically requested comment on this proposal,

and many commenters addressed this issue. The Commission has

decided to eliminate this assumption and to revise the

interpretive guidance. The guidance now explains that an

individual meets the "regarded as" part of the definition of

disability if he or she can show that a covered entity made an

employment decision because of a perception of a disability based

on "myth, fear, or stereotype." This is consistent with the

legislative history of the ADA. See House Judiciary Report at 30.

Section 1630.2(m) Qualified individual with a disability

Under the proposed part 1630, the first step in determining

whether an individual with a disability is a qualified individual

with a disability was to determine whether the individual

"satisfies the requisite skill, experience and education

requirements of the employment position" the individual holds or

desires. Many employers and employer groups asserted that the

proposed regulation unduly limited job prerequisites to skill,

experience, and education requirements and did not permit

employers to consider other job-related qualifications. To

clarify that the reference to skill, experience, and education

requirements was not intended to be an exhaustive list of

permissible qualification requirements, the Commission has

revised the phrase to include "skill, experience, education, and

other job-related requirements." This revision recognizes that

other types of job-related requirements may be relevant to

determining whether an individual is qualified for a position.

Many individuals with disabilities and disability rights groups

asked the Commission to emphasize that the determination of

whether a person is a qualified individual with a disability must

be made at the time of the employment action in question and

cannot be based on speculation that the individual will become

unable to perform the job in the future or may cause increased

health insurance or workers' compensation costs. The Commission

has amended the interpretive guidance on section 1630.2(m) to

reflect this point. This guidance is consistent with the

legislative history of the Act. See Senate Report at 26, House

Labor Report at 55, 136; House Judiciary Report at 34, 71.

Section 1630.2(n) Essential functions

Many employers and employer groups objected to the use of the

terms "primary" and "intrinsic" in the definition of essential

functions. To avoid confusion about the meanings of "primary" and

"intrinsic," the Commission has deleted these terms from the

definition. The final regulation defines essential functions as

"fundamental job duties" and notes that essential functions do

not include the marginal functions of a position.

The proposed interpretive guidance accompanying section

1630.2(n)(2)(ii) noted that one of the factors in determining

whether a function is essential is the number of employees

available to perform a job function or among whom the performance

of that function can be distributed. The proposed guidance

explained that "[t]his may be a factor either because the total

number of employees is low, or because of the fluctuating demands

of the business operations." Some employers and employer groups

expressed concern that this language could be interpreted as

requiring an assessment of whether a job function could be

distributed among all employees in any job at any level. The

Commission has amended the interpretive guidance on this factor

to clarify that the factor refers only to distribution among

"available" employees.

Section 1630.2(n)(3) lists several kinds of evidence that are

relevant to determining whether a particular job function is

essential. Some employers and unions asked the Commission to

recognize that collective bargaining agreements may help to

identify a position's essential functions. In response to these

comments, the Commission has added "[t]he terms of a collective

bargaining agreement" to the list. In addition, the Commission

has amended the interpretive guidance to note specifically that

this type of evidence is relevant to the determination of

essential functions. This addition is consistent with the

legislative history of the Act. See Senate Report at 32; House

Labor Report at 63.

Proposed section 1630.2(n)(3) referred to the evidence on the

list as evidence "that may be considered in determining whether a

particular function is essential." The Commission has revised

this section to refer to evidence "of" whether a particular

function is essential. The Commission made this revision in

response to concerns about the meaning of the phrase "may be

considered." In that regard, some commenters questioned whether

the phrase meant that some of the listed evidence might not be

considered when determining whether a function is essential to a

position. This revision clarifies that all of the types of

evidence on the list, when available, are relevant to the

determination of a position's essential functions. As the final

rule and interpretive guidance make clear, the list is not an

exhaustive list of all types of relevant evidence. Other types

of available evidence may also be relevant to the determination.

The Commission has amended the interpretive guidance concerning

section 1630.2(n)(3)(ii) to make clear that covered entities are

not required to develop and maintain written job descriptions.

Such job descriptions are relevant to a determination of a

position's essential functions, but they are not required by part

1630.

Several commenters suggested that the Commission establish a

rebuttable presumption in favor of the employer's judgment

concerning what functions are essential. The Commission has not

done so. On that point, the Commission notes that the House

Committee on the Judiciary specifically rejected an amendment

that would have created such a presumption. See House Judiciary

Report at 33-34.

The last paragraph of the interpretive guidance on section

1630.2(n) notes that the inquiry into what constitutes a

position's essential functions is not intended to second guess an

employer's business judgment regarding production standards,

whether qualitative or quantitative. In response to several

comments, the Commission has revised this paragraph to

incorporate examples of qualitative production standards.

Section 1630.2(o) Reasonable accommodation

The Commission has deleted the reference to undue hardship from

the definition of reasonable accommodation. This is a technical

change reflecting that undue hardship is a defense to, rather

than an aspect of, reasonable accommodation. As some commenters

have noted, a defense to a term should not be part of the term's

definition. Accordingly, we have separated the concept of undue

hardship from the definition of reasonable accommodation. This

change does not affect the obligations of employers or the rights

of individuals with disabilities. Accordingly, a covered entity

remains obligated to make reasonable accommodation to the known

physical or mental limitations of an otherwise qualified

individual with a disability unless to do so would impose an

undue hardship on the operation of the covered entity's business.

See section 1630.9.

With respect to section 1630.2(o)(1)(i), some commenters

expressed confusion about the use of the phrase "qualified

individual with a disability." In that regard, they noted that

the phrase has a specific definition under this part (see section

1630.2(m)) and questioned whether an individual must meet that

definition to request an accommodation with regard to the

application process. The Commission has substituted the phrase

"qualified applicant with a disability" for "qualified individual

with a disability." This change clarifies that an individual

with a disability who requests a reasonable accommodation to

participate in the application process must be eligible only with

respect to the application process.

The Commission has modified section 1630.2(o)(1)(iii) to state

that reasonable accommodation includes modifications or

adjustments that enable employees with disabilities to enjoy

benefits and privileges that are "equal" to (rather than "the

same" as) the benefits and privileges that are enjoyed by other

employees. This change clarifies that such modifications or

adjustments must ensure that individuals with disabilities

receive equal access to the benefits and privileges afforded to

other employees but may not be able to ensure that the

individuals receive the same results of those benefits and

privileges or precisely the same benefits and privileges.

Many commenters discussed whether the provision of daily

attendant care is a form of reasonable accommodation. Employers

and employer groups asserted that reasonable accommodation does

not include such assistance. Disability rights groups and

individuals with disabilities, however, asserted that such

assistance is a form of reasonable accommodation but that this

part did not make that clear. To clarify the extent of the

reasonable accommodation obligation with respect to daily

attendant care, the Commission has amended the interpretive

guidance on section 1630.2(o) to make clear that it may be a

reasonable accommodation to provide personal assistants to help

with specified duties related to the job.

The Commission also has amended the interpretive guidance to note

that allowing an individual with a disability to provide and use

equipment, aids, or services that an employer is not required to

provide may also be a form of reasonable accommodation. Some

individuals with disabilities and disability rights groups asked

the Commission to make this clear.

The interpretive guidance points out that reasonable

accommodation may include making non-work areas accessible to

individuals with disabilities. Many commenters asked the

Commission to include rest rooms in the examples of accessible

areas that may be required as reasonable accommodations. In

response to those comments, the Commission has added rest rooms

to the examples.

In response to other comments, the Commission has added a

paragraph to the guidance concerning job restructuring as a form

of reasonable accommodation. The new paragraph notes that job

restructuring may involve changing when or how an essential

function is performed.

Several commenters asked the Commission to provide additional

guidance concerning the reasonable accommodation of reassignment

to a vacant position. Specifically, commenters asked the

Commission to clarify how long an employer must wait for a

vacancy to arise when considering reassignment and to explain

whether the employer is required to maintain the salary of an

individual who is reassigned from a higher-paying position to a

lower-paying one. The Commission has amended the discussion of

reassignment to refer to reassignment to a position that is

vacant "within a reasonable amount of time ... in light of the

totality of the circumstances." In addition, the Commission has

noted that an employer is not required to maintain the salaries

of reassigned individuals with disabilities if it does not

maintain the salaries of individuals who are not disabled.