The Commission has revised section 1630.16(e)(1) to refer to

communicable diseases that "are" (rather than "may be") transmitted

through the handling of food. Several commenters asked the

Commission to make this technical change, which adopts the

statutory language.

Several commenters also asked the Commission to conform the

language of proposed sections 1630.16(f)(1) and (2) to the language

of sections 501(c)(1) and (2) of the Act. The Commission has made

this change. Thus, sections 1630.16(f)(1) and (2) now refer to

risks that are "not inconsistent with State law."

Executive Order 12291 and Regulatory Flexibility Act

The Commission published a Preliminary Regulatory Impact Analysis

on February 28, 1991 (56 FR 8578). Based on the Preliminary

Regulatory Impact Analysis, the Commission certifies that this

final rule will not have a significant economic impact on a

substantial number of small business entities. The Commission is

issuing this final rule at this time in the absence of a Final

Regulatory Impact Analysis in order to meet the statutory deadline.

The Commission's Preliminary Regulatory Impact Analysis was based

upon existing data on the costs of reasonable accommodation. The

Commission received few comments on this aspect of its rulemaking.

Because of the complexity inherent in assessing the economic costs

and benefits of this rule and the relative paucity of data on this

issue, the Commission will further study the economic impact of the

regulation and intends to issue a Final Regulatory Impact Analysis

prior to January 1, 1992. As indicated above, the Preliminary

Regulatory Impact Analysis was published on February 28, 1991 (56

F.R. 8578) for comment. The Commission will also provide a copy to

the public upon request by calling the Commission's Office of

Communications and Legislative Affairs at (202) 663-4900.

Commenters are urged to provide additional information as to the

costs and benefits associated with this rule. This will further

facilitate the development of a Final Regulatory Impact Analysis.

Comments must be received by September 26, 1991. Written comments

should be submitted to Frances M. Hart, Executive Officer,

Executive Secretariat, Equal Employment Opportunity Commission,

1801 "L" Street, NW, Washington, D.C. 20507.

As a convenience to commenters, the Executive Secretariat will

accept public comments transmitted by facsimile ("FAX") machine.

The telephone number of the FAX receiver is (202) 663-4114. (This

is not a toll-free number). Only public comments of six or fewer

pages will be accepted via FAX transmittal. This limitation is

necessary in order to assure access to the equipment. Comments

sent by FAX in excess of six pages will not be accepted. Receipt

of FAX transmittals will not be acknowledged, except that the

sender may request confirmation of receipt by calling the Executive

Secretariat Staff at (202) 663-4078. (This is not a toll-free

number).

Comments received will be available for public inspection in the 7É3

èEEOC Library, room 6502, by appointment only, from 9 a.m. to 5

p.m., Monday through Friday except legal holidays from October 15,

1991, until the Final Regulatory Impact Analysis is published.

Persons who need assistance to review the comments will be provided

with appropriate aids such as readers or print magnifiers. To

schedule an appointment call (202) 663-4630 (voice), (202) 663-4630

(TDD).

List of Subjects in 29 CFR Part 1630

Equal employment opportunity, Handicapped, Individuals with

disabilities.

For the Commission,

Evan J. Kemp, Jr.

Chairman.

Accordingly, 29 CFR Chapter XIV is amended by adding part 1630 to

read as follows:

PART 1630 -- REGULATIONS TO IMPLEMENT THE EQUAL EMPLOYMENT

PROVISIONS OF THE AMERICANS WITH DISABILITIES ACT

Sec.

1630.1 Purpose, applicability, and construction.

1630.2 Definitions.

1630.3 Exceptions to the definitions of "Disability" and

"Qualified Individual with a Disability."

1630.4 Discrimination prohibited.

1630.5 Limiting, segregating, and classifying.

1630.6 Contractual or other arrangements.

1630.7 Standards, criteria, or methods of administration.

1630.8 Relationship or association with an individual with a

disability.

1630.9 Not making reasonable accommodation.

7É3

è1630.10 Qualification standards, tests, and other selection

criteria.

1630.11 Administration of tests.

1630.12 Retaliation and coercion.

1630.13 Prohibited medical examinations and inquiries.

1630.14 Medical examinations and inquiries specifically

permitted.

1630.15 Defenses.

1630.16 Specific activities permitted.

Appendix to part 1630 - Interpretive Guidance on Title I of the

Americans with Disabilities Act.

Authority: 42 U.S.C. 12116.

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 7É3

è 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. 7É3

è (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" --

7É3

è (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 7É3

è 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 employer's judgment as to which

functions are essential;

(ii) Written job descriptions prepared before

advertising or interviewing applicants for the 7É3

è 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 accommodation" means:

(i) Modifications or adjustments to a job

application process that enable a qualified

applicant with a disability to be considered

for the position such qualified applicant

desires; or

(ii) Modifications or adjustments to the work

environment, or to the manner or circumstances

under which the position held or desired is

customarily performed, that enable a qualified

individual with a disability to perform the

essential functions of that position; or

(iii) Modifications or adjustments that enable

a covered entity's 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 7É3

è 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

facility's ability to conduct business. 7É3

è

(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 individual's 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 7É3

è Controlled Substances Act or other provisions

of Federal law.

(b) However, the terms "disability" and "qualified"

individual with a disability may not exclude an

individual who:

(1) Has successfully completed a supervised

drug rehabilitation program and is no longer

engaging in the illegal use of drugs, or has

otherwise been rehabilitated successfully and

is no longer engaging in the illegal use of

drugs; or

(2) Is participating in a supervised

rehabilitation program and is no longer

engaging in such use; or

(3) Is erroneously regarded as engaging in

such use, but is not engaging in such use.

(c) It shall not be a violation of this part for a

covered entity to adopt or administer reasonable

policies or procedures, including but not limited

to drug testing, designed to ensure that an

individual described in paragraph (b)(1) or (2) of

this section is no longer engaging in the illegal

use of drugs. (See section 1630.16(c) Drug

testing).

(d) Disability does not include:

(1) Transvestism, transsexualism, pedophilia,

exhibitionism, voyeurism, gender identity disorders

not resulting from physical impairments, or other

sexual behavior disorders;

(2) Compulsive gambling, kleptomania, or pyromania;

or

(3) Psychoactive substance use disorders resulting

from current illegal use of drugs.

(e) Homosexuality and bisexuality are not impairments

and so are not disabilities as defined in this

part.