Complete Home & Office Legal Guide/Complete Home and Office Legal Guide (Chestnut) (1993).ISO/stat/eeoc/adaeeoc8.asc

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Section 1630.9(d).

The purpose of this provision is to clarify that an employer or
other covered entity may not compel a qualified individual with a
disability to accept an accommodation, where that accommodation
is neither requested nor needed by the individual. However, if a
necessary reasonable accommodation is refused, the individual may
not be considered qualified. For example, an individual with a
visual impairment that restricts his or her field of vision but
who is able to read unaided would not be required to accept a
reader as an accommodation. However, if the individual were not
able to read unaided and reading was an essential function of the
job, the individual would not be qualified for the job if he or
she refused a reasonable accommodation that would enable him or
her to read. See Senate Report at 34; House Labor Report at 65;
House Judiciary Report at 71-72.

Section 1630.10 Qualification  Standards, Tests, and Other
Selection  Criteria

The purpose of this provision is to ensure that individuals with
disabilities are not excluded from job opportunities unless they
are actually unable to do the job. It is to ensure that there is
a fit between job criteria and an applicant's (or employee's)
actual ability to do the job. Accordingly, job criteria that even
unintentionally screen out, or tend to screen out, an individual
with a disability or a class of individuals with disabilities
because of their disability may not be used unless the employer
demonstrates that that criteria, as used by the employer, are
job- related to the position to which they are being applied and
are consistent with business necessity. The concept of "business
necessity" has the same meaning as the concept of "business
necessity" under Section 504 of the Rehabilitation Act of 1973.

Selection criteria that exclude, or tend to exclude, an
individual with a disability or a class of individuals with
disabilities because of their disability but do not concern an
essential function of the job would not be consistent with
business necessity.

The use of selection criteria that are related to an essential
function of the job may be consistent with business necessity.
However, selection criteria that are related to an essential
function of the job may not be used to exclude an individual with
a disability if that individual could satisfy the criteria with
the provision of a reasonable accommodation. Experience under a
similar provision of the regulations implementing Section 504 of
the Rehabilitation Act indicates that challenges to selection
criteria are, in fact, most often resolved by reasonable
accommodation. It is therefore anticipated that challenges to
selection criteria brought under this part will generally be
resolved in a like manner.

This provision is applicable to all types of selection criteria,
including safety requirements, vision or hearing requirements,
walking requirements, lifting requirements, and employment tests.
See Senate Report at 37-39; House Labor Report at 70-72; House
Judiciary Report at 42. As previously noted, however, it is not
the intent of this part to second guess an employer's business
judgment with regard to production standards. (See section
1630.2(n) Essential Functions). Consequently, production
standards will generally not be subject to a challenge under this
provision.

The Uniform Guidelines on Employee Selection Procedures (UGESP)
29 CFR part 1607 do not apply to the Rehabilitation Act and are
similarly inapplicable to this part.

Section 1630.11 Administration of Tests

The intent of this provision is to further emphasize that
individuals with disabilities are not to be excluded from jobs
that they can actually perform merely because a disability
prevents them from taking a test, or negatively influences the
results of a test, that is a prerequisite to the job. Read
together with the reasonable accommodation requirement of section
1630.9, this provision requires that employment tests be
administered to eligible applicants or employees with
disabilities that impair sensory, manual, or speaking skills in
formats that do not require the use of the impaired skill.

The employer or other covered entity is, generally, only required
to provide such reasonable accommodation if it knows, prior to
the administration of the test, that the individual is disabled
and that the disability impairs sensory, manual or speaking
skills. Thus, for example, it would be unlawful to administer a
written employment test to an individual who has informed the
employer, prior to the administration of the test, that he is
disabled with dyslexia and unable to read.  In such a case, as a
reasonable accommodation and in accordance with this provision,
an alternative oral test should be administered to that
individual.  By the same token, a written test may need to be
substituted for an oral test if the applicant taking the test is
an individual with a disability that impairs speaking skills or
impairs the processing of auditory information.

Occasionally, an individual with a disability may not realize,
prior to the administration of a test, that he or she will need
an accommodation to take that particular test. In such a
situation, the individual with a disability, upon becoming aware
of the need for an accommodation, must so inform the employer or
other covered entity.  For example, suppose an individual with a
disabling visual impairment does not request an accommodation for
a written examination because he or she is usually able to take
written tests with the aid of his or her own specially designed
lens. If, when the test is distributed, the individual with a
disability discovers that the lens is insufficient to distinguish
the words of the test because of the unusually low color contrast
between the paper and the ink, the individual would be entitled,
at that point, to request an accommodation. The employer or other
covered entity would, thereupon, have to provide a test with
higher contrast, schedule a retest, or provide any other
effective accommodation unless to do so would impose an undue
hardship.

Other alternative or accessible test modes or formats include the
administration of tests in large print or braille, or via a
reader or sign interpreter. Where it is not possible to test in
an alternative format, the employer may be required, as a
reasonable accommodation, to evaluate the skill to be tested in
another manner (e.g., through an interview, or through education
license, or work experience requirements). An employer may also
be required, as a reasonable accommodation, to allow more time to
complete the test. In addition, the employer's obligation to make
reasonable accommodation extends to ensuring that the test site
is accessible. (See section 1630.9 Not Making Reasonable
Accommodation) See Senate Report at 37-38; House Labor Report at
70-72; House Judiciary Report at 42; see also Stutts v. Freeman,
694 F.2d 666 (11th Cir. 1983); Crane v. Dole, 617 F. Supp. 156
(D.D.C. 1985).

This provision does not require that an employer offer every
applicant his or her choice of test format.  Rather, this
provision only requires that an employer provide, upon advance
request, alternative, accessible tests to individuals with
disabilities that impair sensory, manual, or speaking skills
needed to take the test.

This provision does not apply to employment tests that require
the use of sensory, manual, or speaking skills where the tests
are intended to measure those skills. Thus, an employer could
require that an applicant with dyslexia take a written test for a
particular position if the ability to read is the skill the test
is designed to measure. Similarly, an employer could require that
an applicant complete a test within established time frames if
speed were one of the skills for which the applicant was being
tested. However, the results of such a test could not be used to
exclude an individual with a disability unless the skill was
necessary to perform an essential function of the position and no
reasonable accommodation was available to enable the individual
to perform that function, or the necessary accommodation would
impose an undue hardship.

Section 1630.13 Prohibited Medical Examinations and Inquiries
Section 1630.13(a)  Pre-employment Examination or Inquiry This
provision makes clear that an employer cannot inquire as to
whether an individual has a disability at the pre-offer stage of
the selection process.  Nor can an employer inquire at the pre-
offer stage about an applicant's workers' compensation history.

Employers may ask questions that relate to the applicant's
ability to perform job-related functions. However, these
questions should not be phrased in terms of disability. An
employer, for example, may ask whether the applicant has a
driver's license, if driving is a job function, but may not ask
whether the applicant has a visual disability. Employers may ask
about an applicant's ability to perform both essential and
marginal job functions. Employers, though, may not refuse to hire
an applicant with a disability because the applicant's disability
prevents him or her from performing marginal functions. See
Senate Report at 39; House Labor Report at 72-73; House Judiciary
Report at 42-43.

Section 1630.13(b)  Examination or Inquiry of Employees
The purpose of this provision is to prevent the administration to
employees of medical tests or inquiries that do not serve a
legitimate business purpose. For example, if an employee suddenly
starts to use increased amounts of sick leave or starts to appear
sickly, an employer could not require that employee to be tested
for AIDS, HIV infection, or cancer unless the employer can
demonstrate that such testing is job-related and consistent with
business necessity. See Senate Report at 39; House Labor Report
at 75; House Judiciary Report at 44.

Section 1630.14 Medical Examinations and Inquiries Specifically
Permitted
Section 1630.14(a) Pre-employment Inquiry

Employers are permitted to make pre-employment inquiries into the
ability of an applicant to perform job-related functions. This
inquiry must be narrowly tailored. The employer may describe or
demonstrate the job function and inquire whether or not the
applicant can perform that function with or without reasonable
accommodation. For example, an employer may explain that the job
requires assembling small parts and ask if the individual will be
able to perform that function, with or without reasonable
accommodation. See Senate Report at 39; House Labor Report at 73;
House Judiciary Report at 43.

An employer may also ask an applicant to describe or to
demonstrate how, with or without reasonable accommodation, the
applicant will be able to perform job-related functions. Such a
request may be made of all applicants in the same job category
regardless of disability. Such a request may also be made of an
applicant whose known disability may interfere with or prevent
the performance of a job-related function, whether or not the
employer routinely makes such a request of all applicants in the
job category. For example, an employer may ask an individual with
one leg who applies for a position as a home washing machine
repairman to demonstrate or to explain how, with or without
reasonable accommodation, he would be able to transport himself
and his tools down basement stairs. However, the employer may not
inquire as to the nature or severity of the disability.
Therefore, for example, the employer cannot ask how the
individual lost the leg or whether the loss of the leg is
indicative of an underlying impairment.

On the other hand, if the known disability of an applicant will
not interfere with or prevent the performance of a job-related
function, the employer may only request a description or
demonstration by the applicant if it routinely makes such a
request of all applicants in the same job category. So, for
example, it would not be permitted for an employer to request
that an applicant with one leg demonstrate his ability to
assemble small parts while seated at a table, if the employer
does not routinely request that all applicants provide such a
demonstration.

An employer that requires an applicant with a disability to
demonstrate how he or she will perform a job-related function
must either provide the reasonable accommodation the applicant
needs to perform the function or permit the applicant to explain
how, with the accommodation, he or she will perform the function.
If the job- related function is not an essential function, the
employer may not exclude the applicant with a disability because
of the applicant's inability to perform that function. Rather,
the  employer must, as a reasonable accommodation, either provide
an accommodation that will enable the individual to perform the
function, transfer the function to another position, or exchange
the function for one the applicant is able to perform.

An employer may not use an application form that lists a number
of potentially disabling impairments and ask the applicant to
check any of the impairments he or she may have. In addition, as
noted above, an employer may not ask how a particular individual
became disabled or the prognosis of the individual's disability.
The employer is also prohibited from asking how often the
individual will require leave for treatment or use leave as a
result of incapacitation because of the disability. However, the
employer may state the attendance requirements of the job and
inquire whether the applicant can meet them.

An employer is permitted to ask, on a test announcement or
application form, that individuals with disabilities who will
require a reasonable accommodation in order to take the test so
inform the employer within a reasonable established time period
prior to the administration of the test. The employer may also
request that documentation of the need for the accommodation
accompany the request. Requested accommodations may include
accessible testing sites, modified testing conditions and
accessible test formats. (See section 1630.11 Administration of
Tests).

Physical agility tests are not medical examinations and so may be
given at any point in the application or employment process. Such
tests must be given to all similarly situated applicants or
employees regardless of disability. If such tests screen out or
tend to screen out an individual with a disability or a class of
individuals with disabilities, the employer would have to
demonstrate that the test is job-related and consistent with
business necessity and that performance cannot be achieved with
reasonable accommodation. (See section 1630.9 Not Making
Reasonable Accommodation: Process of Determining the Appropriate
Reasonable Accommodation).

As previously noted, 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 is not
restricted by this part. (See section 1630.1(b) and (c)
Applicability and Construction).

Section 1630.14(b) Employment Entrance Examination

An employer is permitted to require post-offer medical
examinations before the employee actually starts working. The
employer may condition the offer of employment on the results of
the examination, provided that all entering employees in the same
job category are subjected to such an examination, regardless of
disability, and that the confidentiality requirements specified
in this part are met.

This provision recognizes that in many industries, such as air
transportation or construction, applicants for certain positions
are chosen on the basis of many factors including physical and
psychological criteria, some of which may be identified as a
result of post-offer medical examinations given prior to entry on
duty. Only those employees who meet the employer's physical and
psychological criteria for the job, with or without reasonable
accommodation, will be qualified to receive confirmed offers of
employment and begin working.

Medical examinations permitted by this section are not required
to be job-related and consistent with business necessity.
However, if an employer withdraws an offer of employment because
the medical examination reveals that the employee does not
satisfy certain employment criteria, either the exclusionary
criteria must not screen out or tend to screen out an individual
with a disability or a class of individuals with disabilities, or
they must be job- related and consistent with business necessity.
As part of the showing that an exclusionary criteria is
job-related and consistent with business necessity, the employer
must also demonstrate that there is no reasonable accommodation
that will enable the individual with a disability to perform the
essential functions of the job. See Conference Report at 59-60;
Senate Report at 39; House Labor Report at 73-74; House Judiciary
Report at 43.

As an example, suppose an employer makes a conditional offer of
employment to an applicant, and it is an essential function of
the job that the incumbent be available to work every day for the
next three months.  An employment entrance examination then
reveals that the applicant has a disabling impairment that,
according to reasonable medical judgment that relies on the most
current medical knowledge, will require treatment that will
render the applicant unable to work for a portion of the three
month period.  Under these circumstances, the employer would be
able to withdraw the employment offer without violating this
part.


The information obtained in the course of a permitted entrance
examination or inquiry is to be treated as a confidential medical
record and may only be used in a manner not inconsistent with
this part. State workers' compensation laws are not preempted by
the ADA or this part. These laws require the collection of
information from individuals for state administrative purposes
that do not conflict with the ADA or this part. Consequently,
employers or other covered entities may submit information to
state workers' compensation offices or second injury funds in
accordance with state workers' compensation laws without
violating this part.

Consistent with this section and with section 1630.16(f) of this
part, information obtained in the course of a permitted entrance
examination or inquiry may be used for insurance purposes
described in section 1630.16(f).

Section 1630.14(c) Examination of employees

This provision permits employers to make inquiries or require
medical examinations (fitness for duty exams) when there is a
need to determine whether an employee is still able to perform
the essential functions of his or her job. The provision permits
employers or other covered entities to make inquiries or require
medical examinations necessary to the reasonable accommodation
process described in this part. This provision also permits
periodic physicals to determine fitness for duty or other medical
monitoring if such physicals or monitoring are required by
medical standards or requirements established by Federal, state,
or local law that are consistent with the ADA and this part (or
in the case of a federal standard, with Section 504 of the
Rehabilitation Act) in that they are job-related and consistent
with business necessity.

Such standards may include federal safety regulations that
regulate bus and truck driver qualifications, as well as laws
establishing medical requirements for pilots or other air
transportation personnel. These standards also include health
standards promulgated pursuant to the Occupational Safety and
Health Act of 1970, the Federal Coal Mine Health and Safety Act
of 1969, or other similar statutes that require that employees
exposed to certain toxic and hazardous substances be medically
monitored at specific intervals. See House Labor Report at 74-75.

The information obtained in the course of such examination or
inquiries is to be treated as a confidential medical record and
may only be used in a manner not inconsistent with this part.

Section 1630.14(d) Other Acceptable Examinations and Inquiries
Part 1630 permits voluntary medical examinations, including
voluntary medical histories, as part of employee health programs.
These programs often include, for example, medical screening for
high blood pressure, weight control counseling, and cancer
detection. Voluntary activities, such as blood pressure
monitoring and the administering of prescription drugs, such as
insulin, are also permitted. It should be noted, however, that
the medical records developed in the course of such activities
must be maintained in the confidential manner required by this
part and must not be used for any purpose in violation of this
part, such as limiting health insurance eligibility. House Labor
Report at 75; House Judiciary Report at 43-44.

Section 1630.15 Defenses

The section on defenses in part 1630 is not intended to be
exhaustive. However, it is intended to inform employers of some
of the potential defenses available to a charge of discrimination
under the ADA and this part.

Section 1630.15(a) Disparate Treatment Defenses

The "traditional" defense to a charge of disparate treatment
under title VII, as expressed in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973),  Texas Department of Community
Affairs v. Burdine, 450 U.S. 248 (1981), and their progeny, may
be applicable to charges of disparate treatment brought under the
ADA. See Prewitt v. U.S. Postal Service, 662 F.2d 292 (5th Cir.
1981). Disparate treatment means, with respect to title I of the
ADA, that an individual was treated differently on the basis of
his or her disability. For example, disparate treatment has
occurred where an employer excludes an employee with a severe
facial disfigurement from staff meetings because the employer
does not like to look at the employee. The individual is being
treated differently because of the employer's attitude towards
his or her perceived disability. Disparate treatment has also
occurred where an employer has a policy of not hiring individuals
with AIDS regardless of the individuals' qualifications.

The crux of the defense to this type of charge is that the
individual was treated differently not because of his or her
disability but for a legitimate nondiscriminatory reason such as
poor performance unrelated to the individual's disability. The
fact that the individual's disability is not covered by the
employer's current insurance plan or would cause the employer's
insurance premiums or workers' compensation costs to increase,
would not be a legitimate nondiscriminatory reason justifying
disparate treatment of a individual with a disability. Senate
Report at 85; House Labor Report at 136 and House Judiciary
Report at 70. The defense of a legitimate nondiscriminatory
reason is rebutted if the alleged nondiscriminatory reason is
shown to be pretextual.

Section 1630.15(b) and (c) Disparate Impact Defenses

Disparate impact means, with respect to title I of the ADA and
this part, that uniformly applied criteria have an adverse impact
on an individual with a disability or a disproportionately
negative impact on a class of individuals with disabilities.
Section 1630.15(b) clarifies that an employer may use selection
criteria that have such a disparate impact, i.e., that screen out
or tend to screen out an individual with a disability or a class
of individuals with disabilities only when they are job-related
and consistent with business necessity.

For example, an employer interviews two candidates for a
position, one of whom is blind. Both are equally qualified. The
employer decides that while it is not essential to the job it
would be convenient to have an employee who has a driver's
license and so could occasionally be asked to run errands by car.
The employer hires the individual who is sighted because this
individual has a driver's license. This is an example of a
uniformly applied criterion, having a driver's permit, that
screens out an individual who has a disability that makes it
impossible to obtain a driver's permit. The employer would, thus,
have to show that this criterion is job-related and consistent
with business necessity. See House Labor Report at 55.

However, even if the criterion is job-related and consistent with
business necessity, an employer could not exclude an individual
with a disability if the criterion could be met or job
performance accomplished with a reasonable accommodation. For
example, suppose ≡7É3
  èan employer requires, as part of its
application process, an interview that is job-related and
consistent with business necessity. The employer would not be
able to refuse to hire a hearing impaired applicant because he or
she could not be interviewed. This is so because an interpreter
could be provided as a reasonable accommodation that would allow
the individual to be interviewed, and thus satisfy the selection
criterion.

With regard to safety requirements that screen out or tend to
screen out an individual with a disability or a class of
individuals with disabilities, an employer must demonstrate that
the requirement, as applied to the individual, satisfies the
"direct threat" standard in section 1630.2(r) in order to show
that the requirement is job related and consistent with business
necessity.

Section 1630.15(c) clarifies that there may be uniformly applied
standards, criteria and policies not relating to selection that
may also screen out or tend to screen out an individual with a
disability or a class of individuals with disabilities. Like
selection criteria that have a disparate impact, non-selection
criteria having such an impact may also have to be job-related
and consistent with business necessity, subject to consideration
of reasonable accommodation.

It should be noted, however, that some uniformly applied
employment policies or practices, such as leave policies, are not
subject to challenge under the adverse impact theory. "No-leave"
policies (e.g., no leave during the first six months of
employment) are likewise not subject to challenge under the
adverse impact theory. However, an employer, in spite of its
"no-leave" policy, may, in appropriate circumstances, have to
consider the provision of leave to an employee with a disability
as a reasonable accommodation, unless the provision of leave
would impose an undue hardship. See discussion at section 1630.5
Limiting, Segregating and Classifying, and section 1630.10
Qualification Standards, Tests, and Other Selection Criteria.

Section 1630.15(d) Defense to Not Making Reasonable Accommodation
An employer or other covered entity alleged to have discriminated
because it did not make a reasonable accommodation, as required
by this part, may offer as a defense that it would have been an
undue hardship to make the accommodation.

It should be noted, however, that an employer cannot simply
assert that a needed accommodation will cause it undue hardship,
as defined in section 1630.2(p), and thereupon be relieved of the
duty to provide accommodation. Rather, an employer will have to
present evidence and demonstrate that the accommodation will, in
fact, cause it undue hardship. Whether a particular accommodation
will impose an undue hardship for a particular employer is
determined on a case by case basis. Consequently, an
accommodation that poses an undue hardship for one employer at a
particular time may not pose an undue hardship for another
employer, or even for the same employer at another time.
Likewise, an accommodation that poses an undue hardship for one
employer in a particular job setting, such as a temporary
construction worksite, may not pose an undue hardship for another
employer, or even for the same employer at a permanent worksite.
See House Judiciary Report at 42.

The concept of undue hardship that has evolved under Section 504
of the Rehabilitation Act and is embodied in this part is unlike
the "undue hardship" defense associated with the provision of
religious accommodation under title VII of the Civil Rights Act
of 1964.  To demonstrate undue hardship pursuant to the ADA and
this part, an employer must show substantially more difficulty or
expense than would be needed to satisfy the "de minimis" title
VII standard of undue hardship. For example, to demonstrate that
the cost of an accommodation poses an undue hardship, an employer
would have to show that the cost is undue as compared to the
employer's budget. Simply comparing the cost of the accommodation
to the salary of the individual with a disability in need of the
accommodation will not suffice. Moreover, even if it is
determined that the cost of an accommodation would unduly burden
an employer, the employer cannot avoid making the accommodation
if the individual with a disability can arrange to cover that
portion of the cost that rises to the undue hardship level, or
can otherwise arrange to provide the accommodation. Under such
circumstances, the necessary accommodation would no longer pose
an undue hardship. See Senate Report at 36; House Labor Report at
68-69; House Judiciary Report at 40-41.

Excessive cost is only one of several possible bases upon which
an employer might be able to demonstrate undue hardship.
Alternatively, for example, an employer could demonstrate that
the provision of a particular accommodation would be unduly
disruptive to its other employees or to the functioning of its
business. The terms of a collective bargaining agreement may be
relevant to this determination. By way of illustration, an
employer would likely be able to show undue hardship if the
employer could show that the requested accommodation of the
upward adjustment of the business' thermostat would result in it
becoming unduly hot for its other employees, or for its patrons
or customers. The employer would thus not have to provide this
accommodation. However, if there were an alternate accommodation
that would not result in undue hardship, the employer would have
to provide that accommodation.

It should be noted, moreover, that the employer would not be able
to show undue hardship if the disruption to its employees were
the result of those employees' fears or prejudices toward the
individual's disability and not the result of the provision of
the accommodation. Nor would the employer be able to demonstrate
undue hardship by showing that the provision of the accommodation
has a negative impact on the morale of its other employees but
not on the ability of these employees to perform their jobs.

Section 1630.15(e) Defense - Conflicting Federal Laws and
Regulations

There are several Federal laws and regulations that address
medical standards and safety requirements. If the alleged
discriminatory action was taken in compliance with another
Federal law or regulation, the employer may offer its obligation
to comply with the conflicting standard as a defense.  The
employer's defense of a conflicting Federal requirement or
regulation may be rebutted by a showing of pretext, or by showing
that the Federal standard did not require the discriminatory
action, or that there was a non- exclusionary means to comply
with the standard that would not conflict with this part. See
House Labor Report at 74.

Section 1630.16 Specific Activities Permitted
Section 1630.16(a) Religious Entities

Religious organizations are not exempt from title I of the ADA or
this part. A religious corporation, association, educational
institution, or society may give a preference in employment to
individuals of the particular religion, and may require that
applicants and employees conform to the religious tenets of the
organization. However, a religious organization may not
discriminate against an individual who satisfies the permitted
religious criteria because that individual is disabled. The
religious entity, in other words, is required to consider
qualified individuals with disabilities who satisfy the permitted
religious criteria on an equal basis with qualified individuals
without disabilities who similarly satisfy the religious
criteria. See Senate Report at 42; House Labor Report at 76-77;
House Judiciary Report at 46.

Section 1630.16(b) Regulation of Alcohol and Drugs

This provision permits employers to establish or comply with
certain standards regulating the use of drugs and alcohol in the
workplace. It also allows employers to hold alcoholics and
persons who engage in the illegal use of drugs to the same
performance and conduct standards to which it holds all of its
other employees. Individuals disabled by alcoholism are entitled
to the same protections accorded other individuals with
disabilities under this part. As noted above, individuals
currently engaging in the illegal use of drugs are not
individuals with disabilities for purposes of part 1630 when the
employer acts on the basis of such use.

Section 1630.16(c) Drug Testing

This provision reflects title I's neutrality toward testing for
the illegal use of drugs. Such drug tests are neither encouraged,
authorized nor prohibited. The results of such drug tests may be
used as a basis for disciplinary action. Tests for the illegal
use of drugs are not considered medical examinations for purposes
of this part. If the results reveal information about an
individual's medical condition beyond whether the individual is
currently engaging in the illegal use of drugs, this additional
information is to be treated as a confidential medical record.
For example, if a test for the illegal use of drugs reveals the
presence of a controlled substance that has been lawfully
prescribed for a particular medical condition, this information
is to be treated as a confidential medical record. See House
Labor Report at 79; House Judiciary Report at 47.

Section 1630.16(e) Infectious and Communicable Diseases; Food
Handling Jobs

This provision addressing food handling jobs applies the "direct
threat" analysis to the particular situation of accommodating
individuals with infectious or communicable diseases that are
transmitted through the handling of food. The Department of
Health and Human Services is to prepare a list of infectious and
communicable diseases that are transmitted through the handling
of food. If an individual with a disability has one of the listed
diseases and works in or applies for a position in food handling,
the employer must determine whether there is a reasonable
accommodation that will eliminate the risk of transmitting the
disease through the handling of food. If there is an
accommodation that will not pose an undue hardship, and that will
prevent the transmission of the disease through the handling of
food, the employer must provide the accommodation to the
individual. The employer, under these circumstances, would not be
permitted to discriminate against the individual because of the
need to provide the reasonable accommodation and would be
required to maintain the individual in the food handling job.

If no such reasonable accommodation is possible, the employer may
refuse to assign, or to continue to assign the individual to a
position involving food handling. This means that if such an
individual is an applicant for a food handling position the
employer is not required to hire the individual. However, if the
individual is a current employee, the employer would be required
to consider the accommodation of reassignment to a vacant
position not involving food handling for which the individual is
qualified. Conference Report at 61-63. (See section 1630.2(r)
Direct Threat).

Section 1630.16(f) Health Insurance, Life Insurance, and Other
Benefit Plans

This provision is a limited exemption that is only applicable to
those who establish, sponsor, observe or administer benefit
plans, such as health and life insurance plans. It does not apply
to those who establish, sponsor, observe or administer plans not
involving benefits, such as liability insurance plans.

The purpose of this provision is to permit the development and
administration of benefit plans in accordance with accepted
principles of risk assessment. This provision is not intended to
disrupt the current regulatory structure for self-insured
employers. These employers may establish, sponsor, observe, or
administer the terms of a bona fide benefit plan not subject to
state laws that regulate insurance. This provision is also not
intended to disrupt the current nature of insurance underwriting,
or current insurance industry practices in sales, underwriting,
pricing, administrative and other services, claims and similar
insurance related activities based on classification of risks as
regulated by the States.

The activities permitted by this provision do not violate part
1630 even if they result in limitations on individuals with
disabilities, provided that these activities are not used as a
èsubterfuge to evade the purposes of this part. Whether or not
these activities are being used as a subterfuge is to be
determined without regard to the date the insurance plan or
employee benefit plan was adopted.

However, an employer or other covered entity cannot deny a
qualified individual with a disability equal access to insurance
or subject a qualified individual with a disability to different
terms or conditions of insurance based on disability alone, if
the disability does not pose increased risks. Part 1630 requires
that decisions not based on risk classification be made in
conformity with non-discrimination requirements. See Senate
Report at 84-86; House Labor Report at 136-138; House Judiciary
Report at 70-71. See the discussion of section 1630.5 Limiting,
Segregating and Classifying.