Complete Home & Office Legal Guide/Complete Home and Office Legal Guide (Chestnut) (1993).ISO/stat/eeoc/adaeeoc2.ws

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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