Section 1630.2(m) Qualified Individual with a Disability The ADA

prohibits discrimination on the basis of disability against

qualified individuals with disabilities. The determination of

whether an individual with a disability is "qualified" should be

made in two steps. The first step is to determine if the

individual satisfies the prerequisites for the position, such as

possessing the appropriate educational background, employment

experience, skills, licenses, etc. For example, the first step in

determining whether an accountant who is paraplegic is qualified

for a certified public accountant (CPA) position is to examine

the individual's credentials to determine whether the individual

is a licensed CPA. This is sometimes referred to in the

Rehabilitation Act caselaw as determining whether the individual

is "otherwise qualified" for the position. See Senate Report at

33; House Labor Report at 64-65. (See section 1630.9 Not Making

Reasonable Accommodation).

The second step is to determine whether or not the individual can

perform the essential functions of the position held or desired,

with or without reasonable accommodation. The purpose of this

second step is to ensure that individuals with disabilities who

can perform the essential functions of the position held or

desired are not denied employment opportunities because they are

not able to perform marginal functions of the position. House

Labor Report at 55.

The determination of whether an individual with a disability is

qualified is to be made at the time of the employment decision.

This determination should be based on the capabilities of the

individual with a disability at the time of the employment

decision, and should not be based on speculation that the

employee may become unable in the future or may cause increased

health insurance premiums or workers' compensation costs.

Section 1630.2(n) Essential Functions

The determination of which functions are essential may be

critical to the determination of whether or not the individual

with a disability is qualified. The essential functions are those

functions that the individual who holds the position must be able

to perform unaided or with the assistance of a reasonable

accommodation.

The inquiry into whether a particular function is essential

initially focuses on whether the employer actually requires

employees in the position to perform the functions that the

employer asserts are essential. For example, an employer may

state that typing is an essential function of a position. If, in

fact, the employer has never required any employee in that

particular position to type, this will be evidence that typing is

not actually an essential function of the position.

If the individual who holds the position is actually required to

perform the function the employer asserts is an essential

function, the inquiry will then center around whether removing

the function would fundamentally alter that position. This

determination of whether or not a particular function is

essential will generally include one or more of the following

factors listed in part 1630.

The first factor is whether the position exists to perform a

particular function. For example, an individual may be hired to

proofread documents. The ability to proofread the documents would

then be an essential function, since this is the only reason the

position exists.

The second factor in determining whether a function is essential

is the number of other employees available to perform that job

function or among whom the performance of that job function can

be distributed. This may be a factor either because the total

number of available employees is low, or because of the

fluctuating demands of the business operation. For example, if an

employer has a relatively small number of available employees for

the volume of work to be performed, it may be necessary that each

employee perform a multitude of different functions. Therefore,

the performance of those functions by each employee becomes more

critical and the options for reorganizing the work become more

limited. In such a situation, functions that might not be

essential if there were a larger staff may become essential

because the staff size is small compared to the volume of work

that has to be done. See Treadwell v. Alexander, 707 F.2d 473

(11th Cir. 1983).

A similar situation might occur in a larger work force if the

workflow follows a cycle of heavy demand for labor intensive work

followed by low demand periods. This type of workflow might also

make the performance of each function during the peak periods

more critical and might limit the employer's flexibility in

reorganizing operating procedures. See Dexler v. Tisch, 660 F.

Supp. 1418 (D. Conn. 1987).

The third factor is the degree of expertise or skill required to

perform the function. In certain professions and highly skilled

positions the employee is hired for his or her expertise or

ability to perform the particular function. In such a situation,

the performance of that specialized task would be an essential

function. Whether a particular function is essential is a factual

determination that must be made on a case by case basis. In

determining whether or not a particular function is essential,

all relevant evidence should be considered. Part 1630 lists

various types of evidence, such as an established job

description, that should be considered in determining whether a

particular function is essential. Since the list is not

exhaustive, other relevant evidence may also be presented.

Greater weight will not be granted to the types of evidence

included on the list than to the types of evidence not listed.

Although part 1630 does not require employers to develop or

maintain job descriptions, written job descriptions prepared

before advertising or interviewing applicants for the job, as

well as the employer's judgment as to what functions are

essential are among the relevant evidence to be considered in

determining whether a particular function is essential. The terms

of a collective bargaining agreement are also relevant to the

determination of whether a particular function is essential. The

work experience of past employees in the job or of current

employees in similar jobs is likewise relevant to the

determination of whether a particular function is essential. See

H.R. Conf. Rep. No. 101-596, 101st Cong., 2d Sess. 58 (1990)

[hereinafter Conference Report]; House Judiciary Report at 33-34.

See also Hall v. U.S. Postal Service, 857 F.2d 1073 (6th Cir.

1988).

The time spent performing the particular function may also be an

indicator of whether that function is essential. For example, if

an employee spends the vast majority of his or her time working

at a cash register, this would be evidence that operating the

cash register is an essential function. The consequences of

failing to require the employee to perform the function may be

another indicator of whether a particular function is essential.

For example, although a firefighter may not regularly have to

carry an unconscious adult out of a burning building, the

consequence of failing to require the firefighter to be able to

perform this function would be serious.

It is important to note that the inquiry into essential functions

is not intended to second guess an employer's business judgment

with regard to production standards, whether qualitative or

quantitative, nor to require employers to lower such standards.

(See section 1630.10 Qualification Standards, Tests and Other

Selection Criteria). If an employer requires its typists to be

able to accurately type 75 words per minute, it will not be

called upon to explain why an inaccurate work product, or a

typing speed of 65 words per minute, would not be adequate.

Similarly, if a hotel requires its service workers to thoroughly

clean 16 rooms per day, it will not have to explain why it

requires thorough cleaning, or why it chose a 16 room rather than

a 10 room requirement. However, if an employer does require

accurate 75 word per minute typing or the thorough cleaning of 16

rooms, it will have to show that it actually imposes such

requirements on its employees in fact, and not simply on paper.

It should also be noted that, if it is alleged that the employer

intentionally selected the particular level of production to

exclude individuals with disabilities, the employer may have to

offer a legitimate, nondiscriminatory reason for its selection.

Section 1630.2(o) Reasonable Accommodation

An individual is considered a "qualified individual with a

disability" if the individual can perform the essential functions

of the position held or desired with or without reasonable

accommodation. In general, an accommodation is any change in the

work environment or in the way things are customarily done that

enables an individual with a disability to enjoy equal employment

opportunities. There are three categories of reasonable

accommodation. These are (1) accommodations that are required to

ensure equal opportunity in the application process; (2)

accommodations that enable the employer's employees with

disabilities to perform the essential functions of the position

held or desired; and (3) accommodations that enable the

employer's employees with disabilities to enjoy equal benefits

and privileges of employment as are enjoyed by employees without

disabilities. It should be noted that nothing in this part

prohibits employers or other covered entities from providing

accommodations beyond those required by this part.

Part 1630 lists the examples, specified in title I of the ADA, of

the most common types of accommodation that an employer or other

covered entity may be required to provide. There are any number

of other specific accommodations that may be appropriate for

particular situations but are not specifically mentioned in this

listing. This listing is not intended to be exhaustive of

accommodation possibilities. For example, other accommodations

could include permitting the use of accrued paid leave or

providing additional unpaid leave for necessary treatment, making

employer provided transportation accessible, and providing

reserved parking spaces. Providing personal assistants, such as a

page turner for an employee with no hands or a travel attendant

to act as a sighted guide to assist a blind employee on

occasional business trips, may also be a reasonable

accommodation. Senate Report at 31; House Labor Report at 62;

House Judiciary Report at 39.

It may also be a reasonable accommodation to permit an individual

with a disability the opportunity to provide and utilize

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

provide as a reasonable accommodation. For example, it would be a

reasonable accommodation for an employer to permit an individual

who is blind to use a guide dog at work, even though the employer

would not be required to provide a guide dog for the employee.

The accommodations included on the list of reasonable

accommodations are generally self explanatory. However, there are

a few that require further explanation. One of these is the

accommodation of making existing facilities used by employees

readily accessible to, and usable by, individuals with

disabilities. This accommodation includes both those areas that

must be accessible for the employee to perform essential job

functions, as well as non-work areas used by the employer's

employees for other purposes. For example, accessible break

rooms, lunch rooms, training rooms, restrooms etc., may be

required as reasonable accommodations.

Another of the potential accommodations listed is "job

restructuring." An employer or other covered entity may

restructure a job by reallocating or redistributing nonessential,

marginal job functions. For example, an employer may have two

jobs, each of which entails the performance of a number of

marginal functions. The employer hires a qualified individual

with a disability who is able to perform some of the marginal

functions of each job but not all of the marginal functions of

either job. As an accommodation, the employer may redistribute

the marginal functions so that all of the marginal functions that

the qualified individual with a disability can perform are made a

part of the position to be filled by the qualified individual

with a disability. The remaining marginal functions that the

individual with a disability cannot perform would then be

transferred to the other position. See Senate Report at 31; House

Labor Report at 62.

An employer or other covered entity is not required to reallocate

essential functions. The essential functions are by definition

those that the individual who holds the job would have to

perform, with or without reasonable accommodation, in order to be

considered qualified for the position. For example, suppose a

security guard position requires the individual who holds the job

to inspect identification cards. An employer would not have to

provide an individual who is legally blind with an assistant to

look at the identification cards for the legally blind employee.

In this situation the assistant would be performing the job for

the individual with a disability rather than assisting the

individual to perform the job. See Coleman v. Darden, 595 F.2d

533 (10th Cir. 1979).

An employer or other covered entity may also restructure a job by

altering when and/or how an essential function is performed. For

example, an essential function customarily performed in the early

morning hours may be rescheduled until later in the day as a

reasonable accommodation to a disability that precludes

performance of the function at the customary hour. Likewise, as a

reasonable accommodation, an employee with a disability that

inhibits the ability to write, may be permitted to computerize

records that were customarily maintained manually.

Reassignment to a vacant position is also listed as a potential

reasonable accommodation. In general, reassignment should be

considered only when accommodation within the individual's

current position would pose an undue hardship. Reassignment is

not available to applicants. An applicant for a position must be

qualified for, and be able to perform the essential functions of,

the position sought with or without reasonable accommodation.

Reassignment may not be used to limit, segregate, or otherwise

discriminate against employees with disabilities by forcing

reassignments to undesirable positions or to designated offices

or facilities. Employers should reassign the individual to an

equivalent position, in terms of pay, status, etc., if the

individual is qualified, and if the position is vacant within a

reasonable amount of time. A "reasonable amount of time" should

be determined in light of the totality of the circumstances. As

an example, suppose there is no vacant position available at the

time that an individual with a disability requests reassignment

as a reasonable accommodation. The employer, however, knows that

an equivalent position for which the individual is qualified,

will become vacant next week. Under these circumstances, the

employer should reassign the individual to the position when it

becomes available.

An employer may reassign an individual to a lower graded position

if there are no accommodations that would enable the employee to

remain in the current position and there are no vacant equivalent

positions for which the individual is qualified with or without

reasonable accommodation. An employer, however, is not required

to maintain the reassigned individual with a disability at the

salary of the higher graded position if it does not so maintain

reassigned employees who are not disabled. It should also be

noted that an employer is not required to promote an individual

with a disability as an accommodation. See Senate Report at

31-32; House Labor Report at 63.

The determination of which accommodation is appropriate in a

particular situation involves a process in which the employer and

employee identify the precise limitations imposed by the

disability and explore potential accommodations that would

overcome those limitations. This process is discussed more fully

in section 1630.9 Not Making Reasonable Accommodation.

Section 1630.2(p) Undue Hardship

An employer or other covered entity is not required to provide an

accommodation that will impose an undue hardship on the operation

of the employer's or other covered entity's business. The term

"undue hardship" means significant difficulty or expense in, or

resulting from, the provision of the accommodation. The "undue

hardship" provision takes into account the financial realities of

the particular employer or other covered entity. However, the

concept of undue hardship is not limited to financial difficulty.

"Undue hardship" refers to any accommodation that would be unduly

costly, extensive, substantial, or disruptive, or that would

fundamentally alter the nature or operation of the business. See

Senate Report at 35; House Labor Report at 67.

For example, suppose an individual with a disabling visual

impairment that makes it extremely difficult to see in dim

lighting applies for a position as a waiter in a nightclub and

requests that the club be brightly lit as a reasonable

accommodation. Although the individual may be able to perform the

job in bright lighting, the nightclub will probably be able to

demonstrate that that particular accommodation, though

inexpensive, would impose an undue hardship if the bright

lighting would destroy the ambience of the nightclub and/or make

it difficult for the customers to see the stage show. The fact

that that particular accommodation poses an undue hardship,

however, only means that the employer is not required to provide

that accommodation. If there is another accommodation that will

not create an undue hardship, the employer would be required to

provide the alternative accommodation.

An employer's claim that the cost of a particular accommodation

will impose an undue hardship will be analyzed in light of the

factors outlined in part 1630. In part, this analysis requires a

determination of whose financial resources should be considered

in deciding whether the accommodation is unduly costly. In some

cases the financial resources of the employer or other covered

entity in its entirety should be considered in determining

whether the cost of an accommodation poses an undue hardship. In

other cases, consideration of the financial resources of the

employer or other covered entity as a whole may be inappropriate

because it may not give an accurate picture of the financial

resources available to the particular facility that will actually

be required to provide the accommodation. See House Labor Report

at 68-69; House Judiciary Report at 40-41; see also Conference

Report at 56-57.

If the employer or other covered entity asserts that only the

financial resources of the facility where the individual will be

employed should be considered, part 1630 requires a factual

determination of the relationship between the employer or other

covered entity and the facility that will provide the

accommodation. As an example, suppose that an independently owned

fast food franchise that receives no money from the franchisor

refuses to hire an individual with a hearing impairment because

it asserts that it would be an undue hardship to provide an

interpreter to enable the individual to participate in monthly

staff meetings. Since the financial relationship between the

franchisor and the franchise is limited to payment of an annual

franchise fee, only the financial resources of the franchise

would be considered in determining whether or not providing the

accommodation would be an undue hardship. See House Labor Report

at 68; House Judiciary Report at 40.

If the employer or other covered entity can show that the cost of

the accommodation would impose an undue hardship, it would still

be required to provide the accommodation if the funding is

available from another source, e.g., a State vocational

rehabilitation agency, or if Federal, State or local tax

deductions or tax credits are available to offset the cost of the

accommodation. If the employer or other covered entity receives,

or is eligible to receive, monies from an external source that

would pay the entire cost of the accommodation, it cannot claim

cost as an undue hardship. In the absence of such funding, the

individual with a disability requesting the accommodation should

be given the option of providing the accommodation or of paying

that portion of the cost which constitutes the undue hardship on

the operation of the business. To the extent that such monies pay

or would pay for only part of the cost of the accommodation, only

that portion of the cost of the accommodation that could not be

recovered - the final net cost to the entity - may be considered

in determining undue hardship. (See section 1630.9 Not Making

Reasonable Accommodation). See Senate Report at 36; House Labor

Report at 69.

Section 1630.2(r) Direct Threat

An employer may require, as a qualification standard, that an

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

himself/herself or others. Like any other qualification standard,

such a standard must apply to all applicants or employees and not

just to individuals with disabilities. If, however, an

individual poses a direct threat as a result of a disability, the

employer must determine whether a reasonable accommodation would

either eliminate the risk or reduce it to an acceptable level. If

no accommodation exists that would either eliminate or reduce the

risk, the employer may refuse to hire an applicant or may

discharge an employee who poses a direct threat.

An employer, however, is not permitted to deny an employment

opportunity to an individual with a disability merely because of

a slightly increased risk. The risk can only be considered when

it poses a significant risk, i.e., high probability, of

substantial harm; a speculative or remote risk is insufficient.

See Senate Report at 27; House Report Labor Report at 56-57;

House Judiciary Report at 45.

Determining whether an individual poses a significant risk of

substantial harm to others must be made on a case by case basis.

The employer should identify the specific risk posed by the

individual. For individuals with mental or emotional

disabilities, the employer must identify the specific behavior on

the part of the individual that would pose the direct threat. For

individuals with physical disabilities, the employer must

identify the aspect of the disability that would pose the direct

threat. The employer should then consider the four factors listed

in part 1630:

(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.

Such consideration must rely on objective, factual evidence - -

not on subjective perceptions, irrational fears, patronizing

attitudes, or stereotypes - - about the nature or effect of a

particular disability, or of disability generally. See Senate

Report at 27; House Labor Report at 56-57; House Judiciary Report

at 45-46. See also Strathie v. Department of Transportation, 716

F.2d 227 (3d Cir. 1983). Relevant evidence may include input from

the individual with a disability, the experience of the

individual with a disability in previous similar positions, and

opinions of medical doctors, rehabilitation counselors, or

physical therapists who have expertise in the disability involved

and/or direct knowledge of the individual with the disability.

An employer is also permitted to require that an individual not

pose a direct threat of harm to his or her own safety or health.

If performing the particular functions of a job would result in a

high probability of substantial harm to the individual, the

employer could reject or discharge the individual unless a

reasonable accommodation that would not cause an undue hardship

would avert the harm. For example, an employer would not be

required to hire an individual, disabled by narcolepsy, who

frequently and unexpectedly loses consciousness for a carpentry

job the essential functions of which require the use of power

saws and other dangerous equipment, where no accommodation exists

that will reduce or eliminate the risk.

The assessment that there exists a high probability of

substantial harm to the individual, like the assessment that

there exists a high probability of substantial harm to others,

must be strictly based on valid medical analyses and/or on other

objective evidence. This determination must be based on

individualized factual data, using the factors discussed above,

rather than on stereotypic or patronizing assumptions and must

consider potential reasonable accommodations. Generalized fears

about risks from the employment environment, such as exacerbation

of the disability caused by stress, cannot be used by an employer

to disqualify an individual with a disability. For example, a law

firm could not reject an applicant with a history of disabling

mental illness based on a generalized fear that the stress of

trying to make partner might trigger a relapse of the

individual's mental illness. Nor can generalized fears about

risks to individuals with disabilities in the event of an

evacuation or other emergency be used by an employer to

disqualify an individual with a disability. See Senate Report at

56; House Labor Report at 73-74; House Judiciary Report at 45.

See also Mantolete v. Bolger, 767 F.2d 1416 (9th Cir. 1985);

Bentivegna v. U.S. Department of Labor, 694 F.2d 619 (9th Cir.

1982).

Section 1630.3 Exceptions to the Definitions of "Disability" and

"Qualified Individual with a Disability"

Section 1630.3 (a) through (c) Illegal Use of Drugs Part 1630

provides that an individual currently engaging in the illegal use

of drugs is not an individual with a disability for purposes of

this part when the employer or other covered entity acts on the

basis of such use. Illegal use of drugs refers both to the use of

unlawful drugs, such as cocaine, and to the unlawful use of

prescription drugs.

Employers, for example, may discharge or deny employment to

persons who illegally use drugs, on the basis of such use,

without fear of being held liable for discrimination. The term

"currently engaging" is not intended to be limited to the use of

drugs on the day of, or within a matter of days or weeks before,

the employment action in question. Rather, the provision is

intended to apply to the illegal use of drugs that has occurred

recently enough to indicate that the individual is actively

engaged in such conduct. See Conference Report at 64.

Individuals who are erroneously perceived as engaging in the

illegal use of drugs, but are not in fact illegally using drugs

are not excluded from the definitions of the terms "disability"

and "qualified individual with a disability." Individuals who are

no longer illegally using drugs and who have either been

rehabilitated successfully or are in the process of completing a

rehabilitation program are, likewise, not excluded from the

definitions of those terms. The term "rehabilitation program"

refers to both in-patient and out-patient programs, as well as to

appropriate employee assistance programs, professionally

recognized self-help programs, such as Narcotics Anonymous, or

other programs that provide professional (not necessarily

medical) assistance and counseling for individuals who illegally

use drugs. See Conference Report at 64; see also House Labor

Report at 77; House Judiciary Report at 47.

It should be noted that this provision simply provides that

certain individuals are not excluded from the definitions of

"disability" and "qualified individual with a disability."

Consequently, such individuals are still required to establish

that they satisfy the requirements of these definitions in order

to be protected by the ADA and this part. An individual

erroneously regarded as illegally using drugs, for example, would

have to show that he or she was regarded as a drug addict in

order to demonstrate that he or she meets the definition of

"disability" as defined in this part.

Employers are entitled to seek reasonable assurances that no

illegal use of drugs is occurring or has occurred recently enough

so that continuing use is a real and ongoing problem. The

reasonable assurances that employers may ask applicants or

employees to provide include evidence that the individual is

participating in a drug treatment program and/or evidence, such

as drug test results, to show that the individual is not

currently engaging in the illegal use of drugs. An employer, such

as a law enforcement agency, may also be able to impose a

qualification standard that excludes individuals with a history

of illegal use of drugs if it can show that the standard is

job-related and consistent with business necessity. (See section

1630.10 Qualification Standards, Tests and Other Selection

Criteria) See Conference Report at 64.

Section 1630.4 Discrimination Prohibited

This provision prohibits discrimination against a qualified

individual with a disability in all aspects of the employment

relationship. The range of employment decisions covered by this

nondiscrimination mandate is to be construed in a manner

consistent with the regulations implementing Section 504 of the

Rehabilitation Act of 1973.

Part 1630 is not intended to limit the ability of covered

entities to choose and maintain a qualified workforce. Employers

can continue to use job-related criteria to select qualified

employees, and can continue to hire employees who can perform the

essential functions of the job.