Section 1630.2(p) Undue hardship

The Commission has substituted "facility" or "facilities" for

"site" or "sites" in section 1630.2(p)(2) and has deleted the

definition of the term "site." Many employers and employer

groups expressed concern about the use and meaning of the term

"site." The final regulation's use of the terms "facility" and

"facilities" is consistent with the language of the statute.

The Commission has amended the last paragraph of the interpretive

guidance accompanying section 1630.2(p) to note that, when the

cost of a requested accommodation would result in an undue

hardship and outside funding is not available, an individual with

a disability should be given the option of paying the portion of

the cost that constitutes an undue hardship. This amendment is

consistent with the legislative history of the Act. See Senate

Report at 36; House Labor Report at 69.

Several employers and employer groups asked the Commission to

expand the list of factors to be considered when determining if

an accommodation would impose an undue hardship on a covered

entity by adding another factor: the relationship of an

accommodation's cost to the value of the position at issue, as

measured by the compensation paid to the holder of the position.

Congress, however, specifically rejected this type of factor.

See House Judiciary Report at 41 (noting that the House Judiciary

Committee rejected an amendment proposing that an accommodation

costing more than ten percent of the employee's salary be treated

as an undue hardship). The Commission, therefore, has not added

this to the list.

Section 1630.2(q) Qualification standards

The Commission has deleted the reference to direct threat from

the definition of qualification standards. This revision is

consistent with the revisions the Commission has made to sections

1630.10 and 1630.15(b). (See discussion below).

Section 1630.2(r) Direct threat

Many disability rights groups and individuals with disabilities

asserted that the definition of direct threat should not include

a reference to the health or safety of the individual with a

disability. They expressed concern that the reference to "risk

to self" would result in direct threat determinations that are

based on negative stereotypes and paternalistic views about what

is best for individuals with disabilities. Alternatively, the

commenters asked the Commission to clarify that any assessment of

risk must be based on the individual's present condition and not

on speculation about the individual's future condition. They

also asked the Commission to specify evidence other than medical

knowledge that may be relevant to the determination of direct

threat.

The final regulation retains the reference to the health or

safety of the individual with a disability. As the Appendix

notes, this is consistent with the legislative history of the ADA

and the case law interpreting section 504 of the Rehabilitation

Act.

To clarify the direct threat standard, the Commission has made

four revisions to section 1630.2(r). First, the Commission has

amended the first sentence of the definition of direct threat to

refer to a significant risk of substantial harm that cannot be

eliminated "or reduced" by reasonable accommodation. This

amendment clarifies that the risk need not be eliminated entirely

to fall below the direct threat definition; instead, the risk

need only be reduced to the level at which there no longer exists

a significant risk of substantial harm. In addition, the

Commission has rephrased the second sentence of section 1630.2(r)

to clarify that an employer's direct threat standard must apply

to all individuals, not just to individuals with disabilities.

Further, the Commission has made clear that a direct threat

determination must be based on "an individualized assessment of

the individual's present ability to safely perform the essential

functions of the job." This clarifies that a determination that

employment of an individual would pose a direct threat must

involve an individualized inquiry and must be based on the

individual's current condition. In addition, the Commission has

added "the imminence of the potential harm" to the list of

factors to be considered when determining whether employment of

an individual would pose a direct threat. This change clarifies

that both the probability of harm and the imminence of harm are

relevant to direct threat determinations. This definition of

direct threat is consistent with the legislative history of the

Act. See Senate Report at 27, House Labor Report at 56-57,

73-75, House Judiciary Report at 45-46.

Further, the Commission has amended the interpretive guidance on

section 1630.2(r) to highlight the individualized nature of the

direct threat assessment. In addition, the Commission has cited

examples of evidence other than medical knowledge that may be

relevant to determining whether employment of an individual would

pose a direct threat.

Section 1630.3 Exceptions to the definitions of "Disability" and

"Qualified Individual with a Disability"

Many commenters asked the Commission to clarify that the term

"rehabilitation program" includes self-help groups. In response

to these comments, the Commission has amended the interpretive

guidance in this area to include a reference to professionally

recognized self-help programs.

The Commission has added a paragraph to the guidance on section

1630.3 to note that individuals who are not excluded under this

provision from the definitions of the terms "disability" and

"qualified individual with a disability" must still establish

that they meet those definitions to be protected by part 1630.

Several employers and employer groups asked the Commission to

clarify that individuals are not automatically covered by the ADA

simply because they do not fall into one of the exclusions listed

in this section.

The proposed interpretive guidance on section 1630.3 noted that

employers are entitled to seek reasonable assurances that an

individual is not currently engaging in the illegal use of drugs.

In that regard, the guidance stated, "It is essential that the

individual offer evidence, such as a drug test, to prove that he

or she is not currently engaging" in such use. Many commenters

interpreted this guidance to require individuals to come forward

with evidence even in the absence of a request by the employer.

The Commission has revised the interpretive guidance to clarify

that such evidence is required only upon request.

1630.6 Contractual or other arrangements

The Commission has added a sentence to the first paragraph of the

interpretive guidance on section 1630.6 to clarify that this

section has no impact on whether one is a covered entity or

employer as defined by section 1630.2.

The proposed interpretive guidance on contractual or other

relationships noted that section 1630.6 applied to parties on

either side of the relationship. To illustrate this point, the

guidance stated that "a copier company would be required to

ensure the provision of any reasonable accommodation necessary to

enable its copier service representative with a disability to

service a client's machine." Several employers objected to this

example. In that respect, the commenters argued that the

language of the example was too broad and could be interpreted as

requiring employers to make all customers' premises accessible.

The Commission has revised this example to provide a clearer,

more concrete indication of the scope of the reasonable

accommodation obligations in this area.

In addition, the Commission has clarified the interpretive

guidance by noting that the existence of a contractual

relationship adds no new obligations "under this part."

1630.8 Relationship or association with an individual with a

disability

The Commission has added the phrase "or otherwise discriminate

against" to section 1630.8. This change clarifies that

harassment or any other form of discrimination against a

qualified individual because of the known disability of a person

with whom the individual has a relationship or an association is

also a prohibited form of discrimination.

The Commission has revised the first sentence of the interpretive

guidance to refer to a person's relationship or association with

an individual who has a "known" disability. This revision makes

the language of the interpretive guidance consistent with the

language of the regulation. In addition, to reflect current,

preferred terminology, the Commission has substituted the term

"people who have AIDS" for the term "AIDS patients." Finally,

the Commission has added a paragraph to clarify that this

provision applies to discrimination in other employment

privileges and benefits, such as health insurance benefits.

1630.9 Not making reasonable accommodation

Section 1630.9(c) provides that "[a] covered entity shall not be

excused from the requirements of this part because of any failure

to receive technical assistance...." Some employers asked the

Commission to revise this section and to state that the failure

to receive technical assistance is a defense to not providing

reasonable accommodation. The Commission has not made the

requested revision. Section 1630.9(c) is consistent with section

506(e) of the ADA, which states that the failure to receive

technical assistance from the federal agencies that administer

the ADA does not excuse a covered entity from compliance with the

requirements of the Act.

The first paragraph of the interpretive guidance accompanying

section 1630.9 notes that the reasonable accommodation obligation

does not require employers to provide adjustments or

modifications that are primarily for the personal use of the

individual with a disability. The Commission has amended this

guidance to clarify that employers may be required to provide

items that are customarily personal-use items where the items are

specifically designed or required to meet job-related needs.

In addition, the Commission has amended the interpretive guidance

to clarify that there must be a nexus between an individual's

disability and the need for accommodation. Thus, the guidance

notes that an individual with a disability is "otherwise

qualified" if he or she is qualified for the job except that,

"because of the disability," the individual needs reasonable

accommodation to perform the essential functions of the job.

Similarly, the guidance notes that employers are required to

accommodate only the physical or mental limitations "resulting

from the disability" that are known to the employer.

In response to commenters' requests for clarification, the

Commission has noted that employers may require individuals with

disabilities to provide documentation of the need for reasonable

accommodation when the need for a requested accommodation is not

obvious.

In addition, the Commission has amended the last paragraph of the

interpretive guidance on the "Process of Determining the

Appropriate Reasonable Accommodation." This amendment clarifies

that an employer must consider allowing an individual with a

disability to provide his or her own accommodation if the

individual wishes to do so. The employer, however, may not

require the individual to provide the accommodation.

1630.10 Qualification standards, tests, and other selection

criteria

The Commission has added the phrase "on the basis of disability"

to section 1630.10(a) to clarify that a selection criterion that

is not job related and consistent with business necessity

violates this section only when it screens out an individual with

a disability (or a class of individuals with disabilities) on the

basis of disability. That is, there must be a nexus between the

exclusion and the disability. A selection criterion that screens

out an individual with a disability for reasons that are not

related to the disability does not violate this section. The

Commission has made similar changes to the interpretive guidance

on this section.

Proposed section 1630.10(b) stated that a covered entity could

use as a qualification standard the requirement that an

individual not pose a direct threat to the health or safety of

the individual or others. Many individuals with disabilities

objected to the inclusion of the direct threat reference in this

section and asked the Commission to clarify that the direct

threat standard must be raised by the covered entity as a

defense. In that regard, they specifically asked the Commission

to move the direct threat provision from section 1630.10

(qualification standards) to section 1630.15 (defenses). The

Commission has deleted the direct threat provision from section

1630.10 and has moved it to section 1630.15. This is consistent

with section 103 of the ADA, which refers to defenses and states

(in section 103(b)) that the term "qualification standards" may

include a requirement that an individual not pose a direct

threat.

1630.11 Administration of tests

The Commission has revised the interpretive guidance concerning

section 1630.11 to clarify that a request for an alternative test

format or other testing accommodation generally should be made

prior to the administration of the test or as soon as the

individual with a disability becomes aware of the need for

accommodation. In addition, the Commission has amended the last

paragraph of the guidance on this section to note that an

employer can require a written test of an applicant with dyslexia

if the ability to read is "the skill the test is designed to

measure." This language is consistent with the regulatory

language, which refers to the skills a test purports to measure.

Some commenters noted that certain tests are designed to measure

the speed with which an applicant performs a function. In

response to these comments, the Commission has amended the

interpretive guidance to state that an employer may require an

applicant to complete a test within a specified time frame if

speed is one of the skills being tested.

In response to comments, the Commission has amended the

interpretive guidance accompanying section 1630.14(a) to clarify

that employers may invite applicants to request accommodations

for taking tests. (See section 1630.14(a), below)

1630.12 Retaliation and coercion

The Commission has amended section 1630.12 to clarify that this

section also prohibits harassment.

1630.13 Prohibited medical examinations and inquiries

In response to the Commission's request for comment on certain

workers' compensation matters, many commenters addressed whether

a covered entity may ask applicants about their history of

workers' compensation claims. Many employers and employer groups

argued that an inquiry about an individual's workers'

compensation history is job related and consistent with business

necessity. Disability rights groups and individuals with

disabilities, however, asserted that such an inquiry could

disclose the existence of a disability. In response to comments

and to clarify this matter, the Commission has amended the

interpretive guidance accompanying section 1630.13(a). The

amendment states that an employer may not inquire about an

individual's workers' compensation history at the pre- offer

stage.

The Commission has made a technical change to section 1630.13(b)

by deleting the phrase "unless the examination or inquiry is

shown to be job-related and consistent with business necessity"

from the section. This change does not affect the substantive

provisions of section 1630.13(b). The Commission has

incorporated the job- relatedness and business-necessity

requirement into a new section 1630.14(c), which clarifies the

scope of permissible examinations or inquiries of employees. (See

section 1630.14(c), below.)

1630.14 Medical examinations and inquiries specifically permitted

Section 1630.14(a) Acceptable pre-employment inquiry

Proposed section 1630.14(a) stated that a covered entity may make

pre-employment inquiries into an applicant's ability to perform

job-related functions. The interpretive guidance accompanying

this section noted that an employer may ask an individual whether

he or she can perform a job function with or without reasonable

accommodation.

Many employers asked the Commission to provide additional

guidance in this area. Specifically, the commenters asked

whether an employer may ask how an individual will perform a job

function when the individual's known disability appears to

interfere with or prevent performance of job-related functions.

To clarify this matter, the Commission has amended section

1630.14(a) to state that a covered entity "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." The Commission has amended the interpretive guidance

accompanying section 1630.14(a) to reflect this change.

Many commenters asked the Commission to state that employers may

inquire, before tests are taken, whether candidates will require

any reasonable accommodations to take the tests. They asked the

Commission to acknowledge that such inquiries constitute

permissible pre-employment inquiries. In response to these

comments, the Commission has added a new paragraph to the

interpretive guidance on section 1630.14(a). This paragraph

clarifies that employers may ask candidates to inform them of the

need for reasonable accommodation within a reasonable time before

the administration of the test and may request documentation

verifying the need for accommodation.

The Commission has received many comments from law enforcement

and other public safety agencies concerning the administration of

physical agility tests. In response to those comments, the

Commission has added a new paragraph clarifying that such tests

are not medical examinations.

Many employers and employer groups have asked the Commission to

discuss whether employers may invite applicants to self-identify

as individuals with disabilities. In that regard, many of the

commenters noted that Section 503 of the Rehabilitation Act

imposes certain obligations on government contractors. The

interpretive guidance accompanying sections 1630.1(b) and (c)

notes that "title I of the ADA would not be a defense to failing

to collect information required to satisfy the affirmative action

requirements of Section 503 of the Rehabilitation Act." To

reiterate this point, the Commission has amended the interpretive

guidance accompanying section 1630.14(a) to note specifically

that this section does not restrict employers from collecting

information and inviting individuals to identify themselves as

individuals with disabilities as required to satisfy the

affirmative action requirements of Section 503 of the

Rehabilitation Act.

Section 1630.14(b) Employment entrance examinations

Section 1630.14(b) has been amended to include the phrase

"(and/or inquiry)" after references to medical examinations. Some

commenters were concerned that the regulation as drafted

prohibited covered entities from making any medical inquiries or

administering questionnaires that did not constitute

examinations. This change clarifies that the term "employment

entrance examinations" includes medical inquiries as well as

medical examinations.

Section 1630.14(b)(2) has been revised to state that the results

of employment entrance examinations "shall not be used for any

purpose inconsistent with this part." This language is

consistent with the language used in section 1630.14(c)(2).

The second paragraph of the proposed interpretive guidance on

this section referred to "relevant" physical and psychological

criteria. Some commenters questioned the use of the term

"relevant" and expressed concern about its meaning. The

Commission has deleted this term from the paragraph.

Many commenters addressed the confidentiality provisions of this

section. They noted that it may be necessary to disclose medical

information in defense of workers' compensation claims or during

the course of other legal proceedings. In addition, they pointed

out that the workers' compensation offices of many states request

such information for the administration of second-injury funds or

for other administrative purposes.

The Commission has revised the last paragraph of the interpretive

guidance on section 1630.14(b) to reflect that the information

obtained during a permitted employment entrance examination or

inquiry may be used only "in a manner not inconsistent with this

part." In addition, the Commission has added language clarifying

that it is permissible to submit the information to state

workers' compensation offices.

Several commenters asked the Commission to clarify whether

information obtained from employment entrance examinations and

inquiries may be used for insurance purposes. In response to

these comments, the Commission has noted in the interpretive

guidance that such information may be used for insurance purposes

described in section 1630.16(f).

Section 1630.14(c) Examination of employees

The Commission has added a new section 1630.14(c), Examination of

employees, that clarifies the scope of permissible medical

examinations and inquiries. Several employers and employer

groups expressed concern that the proposed version of part 1630

did not make it clear that covered entities may require employee

medical examinations, such as fitness-for-duty examinations, that

are job related and consistent with business necessity. New

section 1630.14(c) clarifies this by expressly permitting covered

entities to require employee medical examinations and inquiries

that are job related and consistent with business necessity. The

information obtained from such examinations or inquiries must be

treated as a confidential medical record. This section also

incorporates the last sentence of proposed section 1630.14(c).

The remainder of proposed section 1630.14(c) has become section

1630.14(d).

To comport with this technical change in the regulation, the

Commission has made corresponding changes in the interpretive

guidance. Thus, the Commission has moved the second paragraph of

the proposed guidance on section 1630.13(b) to the guidance on

section 1630.14(c). In addition, the Commission has reworded the

paragraph to note that this provision permits (rather than does

not prohibit) certain medical examinations and inquiries.

Some commenters asked the Commission to clarify whether employers

may make inquiries or require medical examinations in connection

with the reasonable accommodation process. The Commission has

noted in the interpretive guidance that such inquiries and

examinations are permissible when they are necessary to the

reasonable accommodation process described in this part.

1630.15 Defenses

The Commission has added a sentence to the interpretive guidance

on section 1630.15(a) to clarify that the assertion that an

insurance plan does not cover an individual's disability or that

the disability would cause increased insurance or workers'

compensation costs does not constitute a legitimate,

nondiscriminatory reason for disparate treatment of an individual

with a disability. This clarification, made in response to many

comments from individuals with disabilities and disability rights

groups, is consistent with the legislative history of the ADA.

See Senate Report at 85; House Labor Report at 136; House

Judiciary Report at 71.

The Commission has amended section 1630.15(b) by stating that the

term "qualification standard" may include a requirement that an

individual not pose a direct threat. As noted above, this is

consistent with section 103 of the ADA and responds to many

comments from individuals with disabilities.

The Commission has made a technical correction to section

1630.15(c) by changing the phrase "an individual or class of

individuals with disabilities" to "an individual with a

disability or a class of individuals with disabilities."

Several employers and employer groups asked the Commission to

acknowledge that undue hardship considerations about reasonable

accommodations at temporary work sites may be different from the

considerations relevant to permanent work sites. In response to

these comments, the Commission has amended the interpretive

guidance on section 1630.15(d) to note that an accommodation that

poses an undue hardship in a particular job setting, such as a

temporary construction site, may not pose an undue hardship in

another setting. This guidance is consistent with the

legislative history of the ADA. See House Labor Report at 69-70;

House

Judiciary Report at 41-42.

The Commission also has amended the interpretive guidance to note

that the terms of a collective bargaining agreement may be

relevant to the determination of whether a requested

accommodation would pose an undue hardship on the operation of a

covered entity's business. This amendment, which responds to

commenters' requests that the Commission recognize the relevancy

of collective bargaining agreements, is consistent with the

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

Labor Report at 63.

Section 1630.2(p)(2)(v) provides that the impact of an

accommodation on the ability of other employees to perform their

duties is one of the factors to be considered when determining

whether the accommodation would impose an undue hardship on a

covered entity. Many commenters addressed whether an

accommodation's impact on the morale of other employees may be

relevant to a determination of undue hardship. Some employers

and employer groups asserted that a negative impact on employee

morale should be considered an undue hardship. Disability rights

groups and individuals with disabilities, however, argued that

undue hardship determinations must not be based on the morale of

other employees. It is the Commission's view that a negative

effect on morale, by itself, is not sufficient to meet the undue

hardship standard. Accordingly, the Commission has noted in the

guidance on section 1630.15(d) that an employer cannot establish

undue hardship by showing only that an accommodation would have a

negative impact on employee morale.

1630.16 Specific activities permitted

The Commission has revised the second sentence of the

interpretive guidance on section 1630.16(b) to state that an

employer may hold individuals with alcoholism and individuals who

engage in the illegal use of drugs to the same performance and

conduct standards to which it holds "all of its" other employees.

In addition, the Commission has deleted the term "otherwise" from

the third sentence of the guidance. These revisions clarify that

employers may hold all employees, disabled (including those

disabled by alcoholism or drug addiction) and nondisabled, to the

same performance and conduct standards.

Many commenters asked the Commission to clarify that the drug

testing provisions of section 1630.16(c) pertain only to tests to

determine the illegal use of drugs. Accordingly, the Commission

has amended section 1630.16(c)(1) to refer to the administration

of "such" drug tests and section 1630.16(c)(3) to refer to

information obtained from a "test to determine the illegal use of

drugs." We have also made a change in the grammatical structure

of the last sentence of section 1630.16(c)(1). We have made

similar changes to the corresponding section of the interpretive

guidance. In addition, the Commission has amended the

interpretive guidance to state that such tests are neither

encouraged, "authorized," nor prohibited. This amendment

conforms the language of the guidance to the language of section

1630.16(c)(1).