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 entity's 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 party's

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 reasonable accommodation.

(a) It is unlawful for a covered entity not to make reasonable

accommodation to the known physical or mental limitations of an

otherwise qualified applicant or employee with a disability,

unless such covered entity can demonstrate that the accommodation

would impose an undue hardship on the operation of its business.

(b) It is unlawful for a covered entity to deny employment

opportunities to an otherwise qualified job applicant or employee

with a disability based on the need of such covered entity to

make reasonable accommodation to such individual's 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 any act or practice made

unlawful by this part or because that individual made a charge,

testified, assisted, or participated in any manner in an

investigation, proceeding, or hearing to enforce any provision

contained in this part.

(b) Coercion, interference or intimidation. It is unlawful to

coerce, intimidate, threaten, harass or interfere with any

individual in the exercise or enjoyment of, or because that

individual aided or encouraged any other individual in the

exercise of, any right granted or protected by this part.

1630.13 Prohibited medical examinations and inquiries.

(a) Pre-employment examination or inquiry. Except as permitted

by section 1630.14, it is unlawful for a covered entity to

conduct a medical examination of an applicant or to make

inquiries as to whether an applicant is an individual with a

disability or as to the nature or severity of such disability.

(b) Examination or inquiry of employees. Except as permitted by

section 1630.14, it is unlawful for a covered entity to require a

medical examination of an employee or to make inquiries as to

whether an employee is an individual with a disability or as to

the nature or severity of such disability.

1630.14 Medical examinations and inquiries specifically

permitted.

(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 the applicant 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, if the disability might require emergency treatment;

and

(iii) Government officials investigating compliance with this

part shall be provided relevant information on request.

(2) Information obtained under paragraph (c) of this section

regarding the medical condition or history of any employee shall

not be used for any purpose inconsistent with this part.

(d) Other acceptable examinations and inquiries. A covered

entity may conduct voluntary medical examinations and activities,

including voluntary medical histories, which are part of an

employee health program available to employees at the work site.

(1) Information obtained under paragraph (d) of this section

regarding the medical condition or history of any employee shall

be collected and maintained on separate forms and in separate

medical files and be treated as a confidential medical record,

except that:

(i) Supervisors and managers may be informed regarding necessary

restrictions on the work or duties of the employee and necessary

accommodations;

(ii) First aid and safety personnel may be informed, when

appropriate, if the disability might require emergency treatment;

and

(iii) Government officials investigating compliance with this

part shall be provided relevant information on request.

(2) Information obtained under paragraph (d) of this section

regarding the medical condition or history of any employee shall

not be used for any purpose 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 entity's

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 employee's drug use or alcoholism;

(5) May require that its employees employed in an industry

subject to such regulations comply with the standards established

in the regulations (if any) of the Departments of Defense and

Transportation, and of the Nuclear Regulatory Commission,

regarding alcohol and the illegal use of drugs; and

(6) May require that employees employed in sensitive positions

comply with the regulations (if any) of the Departments of

Defense and Transportation and of the Nuclear Regulatory

Commission that apply to employment in sensitive positions

subject to such regulations.

(c) Drug testing. -- (1) General policy. For purposes of this

part, a test to determine the illegal use of drugs is not

considered a medical examination. Thus, the administration of

such drug tests by a covered entity to its job applicants or

employees is not a violation of section 1630.13 of this part.

However, this part does not encourage, prohibit, or authorize a

covered entity to conduct drug tests of job applicants or

employees to determine the illegal use of drugs or to make

employment decisions based on such test results.

(2) Transportation Employees. This part does not encourage,

prohibit, or authorize the otherwise lawful exercise by entities

subject to the jurisdiction of the Department of Transportation

of authority to:

(i) Test employees of entities in, and applicants for, positions

involving safety sensitive duties for the illegal use of drugs or

for on-duty impairment by alcohol; and

(ii) Remove from safety-sensitive positions persons who test

positive for illegal use of drugs or on-duty impairment by

alcohol pursuant to paragraph (c)(2)(i) of this section.

(3) Confidentiality. Any information regarding the medical

condition or history of any employee or applicant obtained from a

test to determine the illegal use of drugs, except information

regarding the illegal use of drugs, is subject to the

requirements of section 1630.14(b)(2) and (3) of this part.

(d) Regulation of smoking. A covered entity may prohibit or

impose restrictions on smoking in places of employment. Such

restrictions do not violate any provision of this part.

(e) Infectious and communicable diseases; food handling jobs. --

(1) In general. Under title I of the ADA, section 103(d)(1), the

Secretary of Health and Human Services is to prepare a list, to

be updated annually, of infectious and communicable diseases

which are transmitted through the handling of food. If an

individual with a disability is disabled by one of the infectious

or communicable diseases included on this list, and if the risk

of transmitting the 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.