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PART 1630—REGULATIONS TO IM- (b) Applicability. This part applies to PLEMENT THE EQUAL EMPLOY- ‘‘covered entities’’ as defined at § 1630.2(b). MENT PROVISIONS OF THE (c) Construction—(1) In general. Ex- AMERICANS WITH DISABILITIES cept as otherwise provided in this part, ACT this part does not apply a lesser stand- ard than the standards applied under Sec. title V of the Rehabilitation Act of 1973 1630.1 Purpose, applicability, and construc- (29 U.S.C. 790–794a, as amended), or the tion. regulations issued by Federal agencies 1630.2 Definitions. pursuant to that title. 1630.3 Exceptions to the definitions of ‘‘Dis- (2) Relationship to other laws. This ability’’ and ‘‘Qualified Individual with a Disability.’’ part does not invalidate or limit the 1630.4 Discrimination prohibited. remedies, rights, and procedures of any 1630.5 Limiting, segregating, and Federal law or law of any State or po- classifying. litical subdivision of any State or ju- 1630.6 Contractual or other arrangements. risdiction that provides greater or 1630.7 Standards, criteria, or methods of ad- equal protection for the rights of indi- ministration. viduals with disabilities than is af- 1630.8 Relationship or association with an forded by this part. individual with a disability. (3) State workers’ compensation laws 1630.9 Not making reasonable accommoda- and disability benefit programs. Nothing tion. in this part alters the standards for de- 1630.10 Qualification standards, tests, and termining eligibility for benefits under other selection criteria. State workers’ compensation laws or 1630.11 Administration of tests. 1630.12 Retaliation and coercion. under State and Federal disability ben- 1630.13 Prohibited medical examinations efit programs. and inquiries. (4) Broad coverage. The primary pur- 1630.14 Medical examinations and inquiries pose of the ADAAA is to make it easier specifically permitted. for people with disabilities to obtain 1630.15 Defenses. protection under the ADA. Consistent 1630.16 Specific activities permitted. with the Amendments Act’s purpose of APPENDIX TO PART 1630—INTERPRETIVE GUID- reinstating a broad scope of protection ANCE ON TITLE I OF THE AMERICANS WITH under the ADA, the definition of ‘‘dis- DISABILITIES ACT ability’’ in this part shall be construed AUTHORITY: 42 U.S.C. 12116 and 12205a of the broadly in favor of expansive coverage Americans with Disabilities Act, as amend- to the maximum extent permitted by ed. the terms of the ADA. The primary ob- ject of attention in cases brought SOURCE: 56 FR 35734, July 26, 1991, unless otherwise noted. under the ADA should be whether cov- ered entities have complied with their § 1630.1 Purpose, applicability, and obligations and whether discrimination construction. has occurred, not whether the indi- vidual meets the definition of dis- (a) Purpose. The purpose of this part ability. The question of whether an in- is to implement title I of the Ameri- dividual meets the definition of dis- cans with Disabilities Act (ADA), as ability under this part should not de- amended by the ADA Amendments Act mand extensive analysis. of 2008 (ADAAA or Amendments Act), 42 U.S.C. 12101, et seq., requiring equal [76 FR 16999, Mar. 25, 2011] employment opportunities for individ- uals with disabilities. The ADA as § 1630.2 Definitions. amended, and these regulations, are in- (a) Commission means the Equal Em- tended to provide a clear and com- ployment Opportunity Commission es- prehensive national mandate for the tablished by section 705 of the Civil elimination of discrimination against Rights Act of 1964 (42 U.S.C. 2000e–4). individuals with disabilities, and to (b) Covered Entity means an em- provide clear, strong, consistent, en- ployer, employment agency, labor or- forceable standards addressing dis- ganization, or joint labor management crimination. committee.

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(c) Person, labor organization, employ- three prongs of the definition of dis- ment agency, commerce and industry af- ability, i.e., paragraphs (g)(1)(i) (the fecting commerce shall have the same ‘‘actual disability’’ prong), (g)(1)(ii) (the meaning given those terms in section ‘‘record of’’ prong), and/or (g)(1)(iii) (the 701 of the Civil Rights Act of 1964 (42 ‘‘regarded as’’ prong) of this section. U.S.C. 2000e). (3) Where an individual is not chal- (d) State means each of the several lenging a covered entity’s failure to States, the District of Columbia, the make reasonable accommodations and Commonwealth of Puerto Rico, Guam, does not require a reasonable accom- American Samoa, the Virgin Islands, modation, it is generally unnecessary the Trust Territory of the Pacific Is- to proceed under the ‘‘actual disability’’ lands, and the Commonwealth of the or ‘‘record of’’ prongs, which require a Northern Mariana Islands. showing of an impairment that sub- (e) Employer—(1) In general. The term stantially limits a major life activity employer means a person engaged in an or a record of such an impairment. In industry affecting commerce who has these cases, the evaluation of coverage 15 or more employees for each working can be made solely under the ‘‘regarded day in each of 20 or more calendar as’’ prong of the definition of disability, weeks in the current or preceding cal- which does not require a showing of an endar year, and any agent of such per- impairment that substantially limits a son, except that, from July 26, 1992 major life activity or a record of such through July 25, 1994, an employer an impairment. An individual may means a person engaged in an industry choose, however, to proceed under the affecting commerce who has 25 or more ‘‘actual disability’’ and/or ‘‘record of’’ employees for each working day in prong regardless of whether the indi- each of 20 or more calendar weeks in vidual is challenging a covered entity’s the current or preceding year and any failure to make reasonable accom- agent of such person. modations or requires a reasonable ac- (2) Exceptions. The term employer commodation. does not include— NOTE TO PARAGRAPH (G): See § 1630.3 for ex- (i) The United States, a corporation ceptions to this definition. wholly owned by the government of the (h) Physical or mental impairment United States, or an Indian tribe; or means— (ii) A bona fide private membership club (other than a labor organization) (1) Any physiological disorder or con- that is exempt from taxation under dition, cosmetic disfigurement, or ana- section 501(c) of the Internal Revenue tomical loss affecting one or more body Code of 1986. systems, such as neurological, mus- (f) Employee means an individual em- culoskeletal, special sense organs, res- ployed by an employer. piratory (including speech organs), car- (g) Definition of ‘‘disability.’’ diovascular, reproductive, digestive, (1) In general. Disability means, with genitourinary, immune, circulatory, respect to an individual— hemic, lymphatic, skin, and endocrine; (i) A physical or mental impairment or that substantially limits one or more (2) Any mental or psychological dis- of the major life activities of such indi- order, such as an intellectual disability vidual; (formerly termed ‘‘mental retarda- (ii) A record of such an impairment; tion’’), organic brain syndrome, emo- or tional or mental illness, and specific (iii) Being regarded as having such an learning disabilities. impairment as described in paragraph (i) Major life activities—(1) In general. (l) of this section. This means that the Major life activities include, but are individual has been subjected to an ac- not limited to: tion prohibited by the ADA as amended (i) Caring for oneself, performing because of an actual or perceived im- manual tasks, seeing, hearing, eating, pairment that is not both ‘‘transitory sleeping, walking, standing, sitting, and minor.’’ reaching, lifting, bending, speaking, (2) An individual may establish cov- breathing, learning, reading, concen- erage under any one or more of these trating, thinking, communicating,

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interacting with others, and working; (iv) The determination of whether an and impairment substantially limits a (ii) The operation of a major bodily major life activity requires an individ- function, including functions of the im- ualized assessment. However, in mak- mune system, special sense organs and ing this assessment, the term ‘‘sub- skin; normal cell growth; and diges- stantially limits’’ shall be interpreted tive, genitourinary, bowel, bladder, and applied to require a degree of func- neurological, brain, respiratory, cir- tional limitation that is lower than the culatory, cardiovascular, endocrine, standard for ‘‘substantially limits’’ ap- hemic, lymphatic, musculoskeletal, plied prior to the ADAAA. and reproductive functions. The oper- (v) The comparison of an individual’s ation of a major bodily function in- performance of a major life activity to cludes the operation of an individual the performance of the same major life organ within a body system. activity by most people in the general (2) In determining other examples of population usually will not require sci- major life activities, the term ‘‘major’’ entific, medical, or statistical analysis. shall not be interpreted strictly to cre- Nothing in this paragraph is intended, ate a demanding standard for dis- however, to prohibit the presentation ability. ADAAA section 2(b)(4) (Find- of scientific, medical, or statistical evi- ings and Purposes). Whether an activ- dence to make such a comparison ity is a ‘‘major life activity’’ is not de- where appropriate. termined by reference to whether it is (vi) The determination of whether an of ‘‘central importance to daily life.’’ impairment substantially limits a (j) Substantially limits— major life activity shall be made with- (1) Rules of construction. The fol- out regard to the ameliorative effects lowing rules of construction apply of mitigating measures. However, the when determining whether an impair- ameliorative effects of ordinary eye- ment substantially limits an individual glasses or contact lenses shall be con- in a major life activity: sidered in determining whether an im- (i) The term substantially limits ‘‘ ’’ pairment substantially limits a major shall be construed broadly in favor of life activity. expansive coverage, to the maximum extent permitted by the terms of the (vii) An impairment that is episodic or in remission is a disability if it ADA. ‘‘Substantially limits’’ is not meant to be a demanding standard. would substantially limit a major life (ii) An impairment is a disability activity when active. within the meaning of this section if it (viii) An impairment that substan- substantially limits the ability of an tially limits one major life activity individual to perform a major life ac- need not substantially limit other tivity as compared to most people in major life activities in order to be con- the general population. An impairment sidered a substantially limiting im- need not prevent, or significantly or se- pairment. verely restrict, the individual from (ix) The six-month ‘‘transitory’’ part performing a major life activity in of the ‘‘transitory and minor’’ exception order to be considered substantially to ‘‘regarded as’’ coverage in § 1630.15(f) limiting. Nonetheless, not every im- does not apply to the definition of ‘‘dis- pairment will constitute a disability ability’’ under paragraphs (g)(1)(i) (the within the meaning of this section. ‘‘actual disability’’ prong) or (g)(1)(ii) (iii) The primary object of attention (the ‘‘record of’’ prong) of this section. in cases brought under the ADA should The effects of an impairment lasting or be whether covered entities have com- expected to last fewer than six months plied with their obligations and wheth- can be substantially limiting within er discrimination has occurred, not the meaning of this section. whether an individual’s impairment (2) Non-applicability to the ‘‘regarded substantially limits a major life activ- as’’ prong. Whether an individual’s im- ity. Accordingly, the threshold issue of pairment ‘‘substantially limits’’ a major whether an impairment ‘‘substantially life activity is not relevant to coverage limits’’ a major life activity should not under paragraph (g)(1)(iii) (the ‘‘re- demand extensive analysis. garded as’’ prong) of this section. 362

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(3) Predictable assessments—(i) The substantially limit brain function. The principles set forth in paragraphs types of impairments described in this (j)(1)(i) through (ix) of this section are section may substantially limit addi- intended to provide for more generous tional major life activities not explic- coverage and application of the ADA’s itly listed above. prohibition on discrimination through (4) Condition, manner, or duration— a framework that is predictable, con- (i) At all times taking into account sistent, and workable for all individ- the principles in paragraphs (j)(1)(i) uals and entities with rights and re- through (ix) of this section, in deter- sponsibilities under the ADA as amend- mining whether an individual is sub- ed. stantially limited in a major life activ- (ii) Applying the principles set forth ity, it may be useful in appropriate in paragraphs (j)(1)(i) through (ix) of cases to consider, as compared to most this section, the individualized assess- people in the general population, the ment of some types of impairments condition under which the individual will, in virtually all cases, result in a performs the major life activity; the determination of coverage under para- manner in which the individual per- graphs (g)(1)(i) (the ‘‘actual disability’’ forms the major life activity; and/or prong) or (g)(1)(ii) (the ‘‘record of’’ the duration of time it takes the indi- prong) of this section. Given their in- vidual to perform the major life activ- herent nature, these types of impair- ity, or for which the individual can per- ments will, as a factual matter, vir- form the major life activity. tually always be found to impose a sub- (ii) Consideration of facts such as stantial limitation on a major life ac- condition, manner, or duration may in- tivity. Therefore, with respect to these clude, among other things, consider- types of impairments, the necessary in- ation of the difficulty, effort, or time dividualized assessment should be par- required to perform a major life activ- ticularly simple and straightforward. ity; pain experienced when performing (iii) For example, applying the prin- a major life activity; the length of ciples set forth in paragraphs (j)(1)(i) time a major life activity can be per- through (ix) of this section, it should formed; and/or the way an impairment easily be concluded that the following affects the operation of a major bodily types of impairments will, at a min- function. In addition, the non-amelio- imum, substantially limit the major rative effects of mitigating measures, life activities indicated: Deafness sub- such as negative side effects of medica- stantially limits hearing; blindness tion or burdens associated with fol- substantially limits seeing; an intellec- lowing a particular treatment regimen, tual disability (formerly termed men- may be considered when determining tal retardation) substantially limits whether an individual’s impairment brain function; partially or completely substantially limits a major life activ- missing limbs or mobility impairments ity. requiring the use of a wheelchair sub- (iii) In determining whether an indi- stantially limit musculoskeletal func- vidual has a disability under the ‘‘ac- tion; autism substantially limits brain tual disability’’ or ‘‘record of’’ prongs of function; cancer substantially limits the definition of disability, the focus is normal cell growth; cerebral palsy sub- on how a major life activity is substan- stantially limits brain function; diabe- tially limited, and not on what out- tes substantially limits endocrine func- comes an individual can achieve. For tion; epilepsy substantially limits neu- example, someone with a learning dis- rological function; Human Immuno- ability may achieve a high level of aca- deficiency Virus (HIV) infection sub- demic success, but may nevertheless be stantially limits immune function; substantially limited in the major life multiple sclerosis substantially limits activity of learning because of the ad- neurological function; muscular dys- ditional time or effort he or she must trophy substantially limits neuro- spend to read, write, or learn compared logical function; and major depressive to most people in the general popu- disorder, bipolar disorder, post-trau- lation. matic stress disorder, obsessive com- (iv) Given the rules of construction pulsive disorder, and schizophrenia set forth in paragraphs (j)(1)(i) through

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(ix) of this section, it may often be un- compared to most people in the general necessary to conduct an analysis in- population, or was misclassified as hav- volving most or all of these types of ing had such an impairment. In deter- facts. This is particularly true with re- mining whether an impairment sub- spect to impairments such as those de- stantially limited a major life activity, scribed in paragraph (j)(3)(iii) of this the principles articulated in paragraph section, which by their inherent nature (j) of this section apply. should be easily found to impose a sub- (3) Reasonable accommodation. An in- stantial limitation on a major life ac- dividual with a record of a substan- tivity, and for which the individualized tially limiting impairment may be en- assessment should be particularly sim- titled, absent undue hardship, to a rea- ple and straightforward. sonable accommodation if needed and (5) Examples of mitigating measures— related to the past disability. For ex- Mitigating measures include, but are ample, an employee with an impair- not limited to: ment that previously limited, but no (i) Medication, medical supplies, longer substantially limits, a major equipment, or appliances, low-vision life activity may need leave or a sched- devices (defined as devices that mag- ule change to permit him or her to at- nify, enhance, or otherwise augment a tend follow-up or ‘‘monitoring’’ appoint- visual image, but not including ordi- ments with a health care provider. nary eyeglasses or contact lenses), (l) ‘‘Is regarded as having such an im- prosthetics including limbs and de- pairment.’’ The following principles vices, hearing aid(s) and cochlear im- apply under the ‘‘regarded as’’ prong of plant(s) or other implantable hearing the definition of disability (paragraph devices, mobility devices, and oxygen (g)(1)(iii) of this section) above: therapy equipment and supplies; (1) Except as provided in § 1630.15(f), (ii) Use of assistive technology; an individual is ‘‘regarded as having (iii) Reasonable accommodations or such an impairment’’ if the individual ‘‘auxiliary aids or services’’ (as defined is subjected to a prohibited action be- by 42 U.S.C. 12103(1)); cause of an actual or perceived phys- (iv) Learned behavioral or adaptive ical or mental impairment, whether or neurological modifications; or not that impairment substantially lim- (v) Psychotherapy, behavioral ther- its, or is perceived to substantially apy, or physical therapy. limit, a major life activity. Prohibited (6) Ordinary eyeglasses or contact actions include but are not limited to lenses—defined. Ordinary eyeglasses or refusal to hire, demotion, placement on contact lenses are lenses that are in- involuntary leave, termination, exclu- tended to fully correct visual acuity or sion for failure to meet a qualification to eliminate refractive error. standard, harassment, or denial of any (k) Has a record of such an impair- other term, condition, or privilege of ment— employment (1) In general. An individual has a (2) Except as provided in § 1630.15(f), record of a disability if the individual an individual is ‘‘regarded as having has a history of, or has been such an impairment’’ any time a cov- misclassified as having, a mental or ered entity takes a prohibited action physical impairment that substantially against the individual because of an ac- limits one or more major life activi- tual or perceived impairment, even if ties. the entity asserts, or may or does ulti- (2) Broad construction. Whether an in- mately establish, a defense to such ac- dividual has a record of an impairment tion. that substantially limited a major life (3) Establishing that an individual is activity shall be construed broadly to ‘‘regarded as having such an impair- the maximum extent permitted by the ment’’ does not, by itself, establish li- ADA and should not demand extensive ability. Liability is established under analysis. An individual will be consid- title I of the ADA only when an indi- ered to have a record of a disability if vidual proves that a covered entity dis- the individual has a history of an im- criminated on the basis of disability pairment that substantially limited within the meaning of section 102 of one or more major life activities when the ADA, 42 U.S.C. 12112.

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(m) The term ‘‘qualified,’’ with respect be considered for the position such to an individual with a disability, qualified applicant desires; or means that the individual satisfies the (ii) Modifications or adjustments to requisite skill, experience, education the work environment, or to the man- and other job-related requirements of ner or circumstances under which the the employment position such indi- position held or desired is customarily vidual holds or desires and, with or performed, that enable a qualified indi- without reasonable accommodation, vidual with a disability to perform the can perform the essential functions of essential functions of that position; or such position. See § 1630.3 for excep- (iii) Modifications or adjustments tions to this definition. that enable a covered entity’s em- (n) Essential functions—(1) In general. ployee with a disability to enjoy equal The term essential functions means the benefits and privileges of employment fundamental job duties of the employ- as are enjoyed by its other similarly ment position the individual with a situated employees without disabil- disability holds or desires. The term ities. ‘‘essential functions’’ does not include (2) Reasonable accommodation may in- the marginal functions of the position. clude but is not limited to: (2) A job function may be considered (i) Making existing facilities used by essential for any of several reasons, in- employees readily accessible to and us- cluding but not limited to the fol- able by individuals with disabilities; lowing: and (i) The function may be essential be- (ii) Job restructuring; part-time or cause the reason the position exists is modified work schedules; reassignment to perform that function; to a vacant position; acquisition or (ii) The function may be essential be- modifications of equipment or devices; cause of the limited number of employ- appropriate adjustment or modifica- ees available among whom the per- tions of examinations, training mate- formance of that job function can be rials, or policies; the provision of quali- distributed; and/or fied readers or interpreters; and other (iii) The function may be highly spe- similar accommodations for individ- cialized so that the incumbent in the uals with disabilities. position is hired for his or her expertise (3) To determine the appropriate rea- or ability to perform the particular sonable accommodation it may be nec- function. essary for the covered entity to ini- (3) Evidence of whether a particular tiate an informal, interactive process function is essential includes, but is with the individual with a disability in not limited to: need of the accommodation. This proc- (i) The employer’s judgment as to ess should identify the precise limita- which functions are essential; tions resulting from the disability and (ii) Written job descriptions prepared potential reasonable accommodations before advertising or interviewing ap- that could overcome those limitations. plicants for the job; (4) A covered entity is required, ab- (iii) The amount of time spent on the sent undue hardship, to provide a rea- job performing the function; sonable accommodation to an other- (iv) The consequences of not requir- wise qualified individual who meets the ing the incumbent to perform the func- definition of disability under the ‘‘ac- tion; tual disability’’ prong (paragraph (v) The terms of a collective bar- (g)(1)(i) of this section), or ‘‘record of’’ gaining agreement; prong (paragraph (g)(1)(ii) of this sec- (vi) The work experience of past in- tion), but is not required to provide a cumbents in the job; and/or reasonable accommodation to an indi- (vii) The current work experience of vidual who meets the definition of dis- incumbents in similar jobs. ability solely under the ‘‘regarded as’’ (o) Reasonable accommodation. (1) The prong (paragraph (g)(1)(iii) of this sec- term reasonable accommodation means: tion). (i) Modifications or adjustments to a (p) Undue hardship—(1) In general. job application process that enable a Undue hardship means, with respect to qualified applicant with a disability to the provision of an accommodation,

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significant difficulty or expense in- able medical judgment that relies on curred by a covered entity, when con- the most current medical knowledge sidered in light of the factors set forth and/or on the best available objective in paragraph (p)(2) of this section. evidence. In determining whether an (2) Factors to be considered. In deter- individual would pose a direct threat, mining whether an accommodation the factors to be considered include: would impose an undue hardship on a (1) The duration of the risk; covered entity, factors to be considered (2) The nature and severity of the po- include: tential harm; (i) The nature and net cost of the ac- (3) The likelihood that the potential commodation needed under this part, harm will occur; and taking into consideration the avail- (4) The imminence of the potential ability of tax credits and deductions, harm. and/or outside funding; (ii) The overall financial resources of [56 FR 35734, July 26, 1991, as amended at 76 the facility or facilities involved in the FR 16999, Mar. 25, 2011] provision of the reasonable accommo- § 1630.3 Exceptions to the definitions dation, the number of persons em- of ‘‘Disability’’ and ‘‘Qualified Indi- ployed at such facility, and the effect vidual with a Disability.’’ on expenses and resources; (iii) The overall financial resources (a) The terms disability and qualified of the covered entity, the overall size individual with a disability do not in- of the business of the covered entity clude individuals currently engaging in with respect to the number of its em- the illegal use of drugs, when the cov- ployees, and the number, type and lo- ered entity acts on the basis of such cation of its facilities; use. (iv) The type of operation or oper- (1) Drug means a controlled sub- ations of the covered entity, including stance, as defined in schedules I the composition, structure and func- through V of section 202 of the Con- tions of the workforce of such entity, trolled Substances Act (21 U.S.C 812) and the geographic separateness and (2) Illegal use of drugs means the use administrative or fiscal relationship of of drugs the possession or distribution the facility or facilities in question to of which is unlawful under the Con- the covered entity; and trolled Substances Act, as periodically (v) The impact of the accommodation updated by the Food and Drug Admin- upon the operation of the facility, in- istration. This term does not include cluding the impact on the ability of the use of a drug taken under the su- other employees to perform their du- pervision of a licensed health care pro- ties and the impact on the facility’s fessional, or other uses authorized by ability to conduct business. the Controlled Substances Act or other (q) Qualification standards means the provisions of Federal law. personal and professional attributes in- (b) However, the terms disability and cluding the skill, experience, edu- qualified individual with a disability cation, physical, medical, safety and may not exclude an individual who: other requirements established by a (1) Has successfully completed a su- covered entity as requirements which pervised drug rehabilitation program an individual must meet in order to be and is no longer engaging in the illegal eligible for the position held or desired. use of drugs, or has otherwise been re- (r) Direct Threat means a significant habilitated successfully and is no risk of substantial harm to the health longer engaging in the illegal use of or safety of the individual or others drugs; or that cannot be eliminated or reduced (2) Is participating in a supervised re- by reasonable accommodation. The de- habilitation program and is no longer termination that an individual poses a engaging in such use; or ‘‘direct threat’’ shall be based on an in- (3) Is erroneously regarded as engag- dividualized assessment of the individ- ing in such use, but is not engaging in ual’s present ability to safely perform such use. the essential functions of the job. This (c) It shall not be a violation of this assessment shall be based on a reason- part for a covered entity to adopt or

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administer reasonable policies or pro- (b) Claims of no disability. Nothing in cedures, including but not limited to this part shall provide the basis for a drug testing, designed to ensure that claim that an individual without a dis- an individual described in paragraph ability was subject to discrimination (b) (1) or (2) of this section is no longer because of his lack of disability, in- engaging in the illegal use of drugs. cluding a claim that an individual with (See § 1630.16(c) Drug testing). a disability was granted an accommo- (d) Disability does not include: dation that was denied to an individual (1) Transvestism, transsexualism, without a disability. pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting [76 FR 17002, Mar. 25, 2011] from physical impairments, or other sexual behavior disorders; § 1630.5 Limiting, segregating, and (2) Compulsive gambling, klep- classifying. tomania, or pyromania; or It is unlawful for a covered entity to (3) Psychoactive substance use dis- limit, segregate, or classify a job appli- orders resulting from current illegal cant or employee in a way that ad- use of drugs. versely affects his or her employment (e) Homosexuality and bisexuality are opportunities or status on the basis of not impairments and so are not disabil- disability. ities as defined in this part. § 1630.6 Contractual or other arrange- § 1630.4 Discrimination prohibited. ments. (a) In general—(1) It is unlawful for a (a) In general. It is unlawful for a cov- covered entity to discriminate on the ered entity to participate in a contrac- basis of disability against a qualified tual or other arrangement or relation- individual in regard to: ship that has the effect of subjecting (i) Recruitment, advertising, and job the covered entity’s own qualified ap- application procedures; plicant or employee with a disability (ii) Hiring, upgrading, promotion, to the discrimination prohibited by award of tenure, demotion, transfer, this part. layoff, termination, right of return (b) Contractual or other arrangement from layoff, and rehiring; defined. The phrase contractual or other (iii) Rates of pay or any other form of arrangement or relationship includes, but compensation and changes in com- is not limited to, a relationship with pensation; an employment or referral agency; (iv) Job assignments, job classifica- labor union, including collective bar- tions, organizational structures, posi- tion descriptions, lines of progression, gaining agreements; an organization and seniority lists; providing fringe benefits to an em- (v) Leaves of absence, sick leave, or ployee of the covered entity; or an or- any other leave; ganization providing training and ap- (vi) Fringe benefits available by vir- prenticeship programs. tue of employment, whether or not ad- (c) Application. This section applies ministered by the covered entity; to a covered entity, with respect to its (vii) Selection and financial support own applicants or employees, whether for training, including: apprentice- the entity offered the contract or initi- ships, professional meetings, con- ated the relationship, or whether the ferences and other related activities, entity accepted the contract or acceded and selection for leaves of absence to to the relationship. A covered entity is pursue training; not liable for the actions of the other (viii) Activities sponsored by a cov- party or parties to the contract which ered entity, including social and rec- only affect that other party’s employ- reational programs; and ees or applicants. (ix) Any other term, condition, or privilege of employment. § 1630.7 Standards, criteria, or meth- (2) The term discrimination includes, ods of administration. but is not limited to, the acts described It is unlawful for a covered entity to in §§ 1630.4 through 1630.13 of this part. use standards, criteria, or methods of

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administration, which are not job-re- tions of the position, the individual lated and consistent with business ne- will not be considered qualified. cessity, and: (e) A covered entity is required, ab- (a) That have the effect of discrimi- sent undue hardship, to provide a rea- nating on the basis of disability; or sonable accommodation to an other- (b) That perpetuate the discrimina- wise qualified individual who meets the tion of others who are subject to com- definition of disability under the ‘‘ac- mon administrative control. tual disability’’ prong (§ 1630.2(g)(1)(i)), or ‘‘record of’’ prong (§ 1630.2(g)(1)(ii)), § 1630.8 Relationship or association but is not required to provide a reason- with an individual with a disability. able accommodation to an individual It is unlawful for a covered entity to who meets the definition of disability exclude or deny equal jobs or benefits solely under the ‘‘regarded as’’ prong to, or otherwise discriminate against, a (§ 1630.2(g)(1)(iii)). qualified individual because of the [56 FR 35734, July 26, 1991, as amended at 76 known disability of an individual with FR 17002, Mar. 25, 2011] whom the qualified individual is known to have a family, business, social or § 1630.10 Qualification standards, other relationship or association. tests, and other selection criteria. § 1630.9 Not making reasonable accom- (a) In general. It is unlawful for a cov- modation. \ ered entity to use qualification stand- ards, employment tests or other selec- (a) It is unlawful for a covered entity tion criteria that screen out or tend to not to make reasonable accommoda- screen out an individual with a dis- tion to the known physical or mental ability or a class of individuals with limitations of an otherwise qualified disabilities, on the basis of disability, applicant or employee with a dis- unless the standard, test, or other se- ability, unless such covered entity can lection criteria, as used by the covered demonstrate that the accommodation entity, is shown to be job related for would impose an undue hardship on the the position in question and is con- operation of its business. sistent with business necessity. (b) It is unlawful for a covered entity (b) Qualification standards and tests re- to deny employment opportunities to lated to uncorrected vision. Notwith- an otherwise qualified job applicant or standing § 1630.2(j)(1)(vi) of this part, a employee with a disability based on the covered entity shall not use qualifica- need of such covered entity to make tion standards, employment tests, or reasonable accommodation to such in- other selection criteria based on an in- dividual’s physical or mental impair- dividual’s uncorrected vision unless the ments. standard, test, or other selection cri- (c) A covered entity shall not be ex- terion, as used by the covered entity, is cused from the requirements of this shown to be job related for the position part because of any failure to receive in question and is consistent with busi- technical assistance authorized by sec- ness necessity. An individual chal- tion 507 of the ADA, including any fail- lenging a covered entity’s application ure in the development or dissemina- of a qualification standard, test, or tion of any technical assistance man- other criterion based on uncorrected ual authorized by that Act. vision need not be a person with a dis- (d) An individual with a disability is ability, but must be adversely affected not required to accept an accommoda- by the application of the standard, tion, aid, service, opportunity or ben- test, or other criterion. efit which such qualified individual chooses not to accept. However, if such [76 FR 17002, Mar. 25, 2011] individual rejects a reasonable accom- modation, aid, service, opportunity or § 1630.11 Administration of tests. benefit that is necessary to enable the It is unlawful for a covered entity to individual to perform the essential fail to select and administer tests con- functions of the position held or de- cerning employment in the most effec- sired, and cannot, as a result of that tive manner to ensure that, when a test rejection, perform the essential func- is administered to a job applicant or

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employee who has a disability that im- dation, the applicant will be able to pairs sensory, manual or speaking perform job-related functions. skills, the test results accurately re- (b) Employment entrance examination. flect the skills, aptitude, or whatever A covered entity may require a med- other factor of the applicant or em- ical examination (and/or inquiry) after ployee that the test purports to meas- making an offer of employment to a ure, rather than reflecting the im- job applicant and before the applicant paired sensory, manual, or speaking begins his or her employment duties, skills of such employee or applicant and may condition an offer of employ- (except where such skills are the fac- ment on the results of such examina- tors that the test purports to measure). tion (and/or inquiry), if all entering employees in the same job category are § 1630.12 Retaliation and coercion. subjected to such an examination (and/ (a) Retaliation. It is unlawful to dis- or inquiry) regardless of disability. criminate against any individual be- (1) Information obtained under para- cause that individual has opposed any graph (b) of this section regarding the act or practice made unlawful by this medical condition or history of the ap- part or because that individual made a plicant shall be collected and main- charge, testified, assisted, or partici- tained on separate forms and in sepa- pated in any manner in an investiga- rate medical files and be treated as a tion, proceeding, or hearing to enforce confidential medical record, except any provision contained in this part. that: (b) Coercion, interference or intimida- (i) Supervisors and managers may be tion. It is unlawful to coerce, intimi- informed regarding necessary restric- date, threaten, harass or interfere with tions on the work or duties of the em- any individual in the exercise or enjoy- ployee and necessary accommodations; ment of, or because that individual (ii) First aid and safety personnel aided or encouraged any other indi- may be informed, when appropriate, if vidual in the exercise of, any right the disability might require emergency granted or protected by this part. treatment; and (iii) Government officials inves- § 1630.13 Prohibited medical examina- tigating compliance with this part tions and inquiries. shall be provided relevant information (a) Pre-employment examination or in- on request. quiry. Except as permitted by § 1630.14, (2) The results of such examination it is unlawful for a covered entity to shall not be used for any purpose in- conduct a medical examination of an consistent with this part. applicant or to make inquiries as to (3) Medical examinations conducted whether an applicant is an individual in accordance with this section do not with a disability or as to the nature or have to be job-related and consistent severity of such disability. with business necessity. However, if (b) Examination or inquiry of employ- certain criteria are used to screen out ees. Except as permitted by § 1630.14, it an employee or employees with disabil- is unlawful for a covered entity to re- ities as a result of such an examination quire a medical examination of an em- or inquiry, the exclusionary criteria ployee or to make inquiries as to must be job-related and consistent whether an employee is an individual with business necessity, and perform- with a disability or as to the nature or ance of the essential job functions can- severity of such disability. not be accomplished with reasonable accommodation as required in this § 1630.14 Medical examinations and in- part. (See § 1630.15(b) Defenses to quiries specifically permitted. charges of discriminatory application (a) Acceptable pre-employment inquiry. of selection criteria.) A covered entity may make pre-em- (c) Examination of employees. A cov- ployment inquiries into the ability of ered entity may require a medical ex- an applicant to perform job-related amination (and/or inquiry) of an em- functions, and/or may ask an applicant ployee that is job-related and con- to describe or to demonstrate how, sistent with business necessity. A cov- with or without reasonable accommo- ered entity may make inquiries into

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the ability of an employee to perform § 1630.15 Defenses. job-related functions. Defenses to an allegation of discrimi- (1) Information obtained under para- nation under this part may include, graph (c) of this section regarding the but are not limited to, the following: medical condition or history of any (a) Disparate treatment charges. It may employee shall be collected and main- be a defense to a charge of disparate tained on separate forms and in sepa- treatment brought under §§ 1630.4 rate medical files and be treated as a through 1630.8 and 1630.11 through confidential medical record, except 1630.12 that the challenged action is that: justified by a legitimate, nondiscrim- (i) Supervisors and managers may be inatory reason. informed regarding necessary restric- (b) Charges of discriminatory applica- tions on the work or duties of the em- tion of selection criteria—(1) In general. ployee and necessary accommodations; It may be a defense to a charge of dis- (ii) First aid and safety personnel crimination, as described in § 1630.10, may be informed, when appropriate, if that an alleged application of quali- the disability might require emergency fication standards, tests, or selection treatment; and criteria that screens out or tends to (iii) Government officials inves- screen out or otherwise denies a job or tigating compliance with this part benefit to an individual with a dis- shall be provided relevant information ability has been shown to be job-re- on request. lated and consistent with business ne- (2) Information obtained under para- cessity, and such performance cannot graph (c) of this section regarding the be accomplished with reasonable ac- medical condition or history of any commodation, as required in this part. employee shall not be used for any pur- (2) Direct threat as a qualification pose inconsistent with this part. standard. The term ‘‘qualification (d) Other acceptable examinations and standard’’ may include a requirement inquiries. A covered entity may conduct that an individual shall not pose a di- voluntary medical examinations and rect threat to the health or safety of activities, including voluntary medical the individual or others in the work- histories, which are part of an em- place. (See § 1630.2(r) defining direct ployee health program available to em- threat.) ployees at the work site. (c) Other disparate impact charges. It (1) Information obtained under para- may be a defense to a charge of dis- graph (d) of this section regarding the crimination brought under this part medical condition or history of any that a uniformly applied standard, cri- employee shall be collected and main- terion, or policy has a disparate impact tained on separate forms and in sepa- on an individual with a disability or a rate medical files and be treated as a class of individuals with disabilities confidential medical record, except that the challenged standard, criterion that: or policy has been shown to be job-re- (i) Supervisors and managers may be lated and consistent with business ne- informed regarding necessary restric- cessity, and such performance cannot tions on the work or duties of the em- be accomplished with reasonable ac- ployee and necessary accommodations; commodation, as required in this part. (ii) First aid and safety personnel (d) Charges of not making reasonable may be informed, when appropriate, if accommodation. It may be a defense to a the disability might require emergency charge of discrimination, as described treatment; and in § 1630.9, that a requested or nec- (iii) Government officials inves- essary accommodation would impose tigating compliance with this part an undue hardship on the operation of shall be provided relevant information the covered entity’s business. on request. (e) Conflict with other Federal laws. It (2) Information obtained under para- may be a defense to a charge of dis- graph (d) of this section regarding the crimination under this part that a medical condition or history of any challenged action is required or neces- employee shall not be used for any pur- sitated by another Federal law or regu- pose inconsistent with this part. lation, or that another Federal law or

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regulation prohibits an action (includ- (1) May prohibit the illegal use of ing the provision of a particular rea- drugs and the use of alcohol at the sonable accommodation) that would workplace by all employees; otherwise be required by this part. (2) May require that employees not (f) Claims based on transitory and be under the influence of alcohol or be minor impairments under the ‘‘regarded engaging in the illegal use of drugs at as’’ prong. It may be a defense to a the workplace; charge of discrimination by an indi- (3) May require that all employees vidual claiming coverage under the behave in conformance with the re- ‘‘regarded as’’ prong of the definition of quirements established under the Drug- disability that the impairment is (in Free Workplace Act of 1988 (41 U.S.C. the case of an actual impairment) or 701 et seq.); would be (in the case of a perceived im- (4) May hold an employee who en- pairment) ‘‘transitory and minor.’’ To gages in the illegal use of drugs or who establish this defense, a covered entity must demonstrate that the impairment is an alcoholic to the same qualifica- tion standards for employment or job is both ‘‘transitory’’ and ‘‘minor.’’ Whether the impairment at issue is or performance and behavior to which the would be ‘‘transitory and minor’’ is to entity holds its other employees, even be determined objectively. A covered if any unsatisfactory performance or entity may not defeat ‘‘regarded as’’ behavior is related to the employee’s coverage of an individual simply by drug use or alcoholism; demonstrating that it subjectively be- (5) May require that its employees lieved the impairment was transitory employed in an industry subject to and minor; rather, the covered entity such regulations comply with the must demonstrate that the impairment standards established in the regula- is (in the case of an actual impairment) tions (if any) of the Departments of De- or would be (in the case of a perceived fense and Transportation, and of the impairment) both transitory and Nuclear Regulatory Commission, re- minor. For purposes of this section, garding alcohol and the illegal use of ‘‘transitory’’ is defined as lasting or ex- drugs; and pected to last six months or less. (6) May require that employees em- (g) Additional defenses. It may be a de- ployed in sensitive positions comply fense to a charge of discrimination with the regulations (if any) of the De- under this part that the alleged dis- partments of Defense and Transpor- criminatory action is specifically per- tation and of the Nuclear Regulatory mitted by § 1630.14 or § 1630.16. Commission that apply to employment [56 FR 35734, July 26, 1991, as amended at 76 in sensitive positions subject to such FR 17003, Mar. 25, 2011] regulations. (c) Drug testing—(1) General policy. § 1630.16 Specific activities permitted. For purposes of this part, a test to de- (a) Religious entities. A religious cor- termine the illegal use of drugs is not poration, association, educational in- considered a medical examination. stitution, or society is permitted to Thus, the administration of such drug give preference in employment to indi- tests by a covered entity to its job ap- viduals of a particular religion to per- plicants or employees is not a violation form work connected with the carrying of § 1630.13 of this part. However, this on by that corporation, association, part does not encourage, prohibit, or educational institution, or society of authorize a covered entity to conduct its activities. A religious entity may drug tests of job applicants or employ- require that all applicants and employ- ees to determine the illegal use of ees conform to the religious tenets of drugs or to make employment deci- such organization. However, a religious sions based on such test results. entity may not discriminate against a (2) Transportation employees. This part qualified individual, who satisfies the does not encourage, prohibit, or au- permitted religious criteria, on the thorize the otherwise lawful exercise basis of his or her disability. by entities subject to the jurisdiction (b) Regulation of alcohol and drugs. A of the Department of Transportation of covered entity: authority to:

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(i) Test employees of entities in, and missibility published by the Secretary applicants for, positions involving safe- of Health and Human Services; and ty sensitive duties for the illegal use of (ii) Is designed to protect the public drugs or for on-duty impairment by al- health from individuals who pose a sig- cohol; and nificant risk to the health or safety of (ii) Remove from safety-sensitive po- others, where that risk cannot be sitions persons who test positive for il- eliminated by reasonable accommoda- legal use of drugs or on-duty impair- tion. ment by alcohol pursuant to paragraph (f) Health insurance, life insurance, and (c)(2)(i) of this section. other benefit plans—(1) An insurer, hos- (3) Confidentiality. Any information pital, or medical service company, regarding the medical condition or his- health maintenance organization, or tory of any employee or applicant ob- any agent or entity that administers tained from a test to determine the il- benefit plans, or similar organizations legal use of drugs, except information may underwrite risks, classify risks, or regarding the illegal use of drugs, is administer such risks that are based on subject to the requirements of or not inconsistent with State law. § 1630.14(b) (2) and (3) of this part. (2) A covered entity may establish, (d) Regulation of smoking. A covered sponsor, observe or administer the entity may prohibit or impose restric- terms of a bona fide benefit plan that tions on smoking in places of employ- are based on underwriting risks, ment. Such restrictions do not violate classifying risks, or administering such any provision of this part. risks that are based on or not incon- (e) Infectious and communicable dis- sistent with State law. eases; food handling jobs—(1) In general. (3) A covered entity may establish, Under title I of the ADA, section sponsor, observe, or administer the 103(d)(1), the Secretary of Health and terms of a bona fide benefit plan that is Human Services is to prepare a list, to not subject to State laws that regulate be updated annually, of infectious and insurance. communicable diseases which are (4) The activities described in para- transmitted through the handling of graphs (f) (1), (2), and (3) of this section food. (Copies may be obtained from are permitted unless these activities Center for Infectious Diseases, Centers are being used as a subterfuge to evade for Disease Control, 1600 Clifton Road, the purposes of this part. NE., Mailstop C09, Atlanta, GA 30333.) [56 FR 35734, July 26, 1991, 76 FR 17003, Mar. If an individual with a disability is dis- 25, 2011] abled by one of the infectious or com- municable diseases included on this APPENDIX TO PART 1630—INTERPRETIVE list, and if the risk of transmitting the GUIDANCE ON TITLE I OF THE AMERI- disease associated with the handling of CANS WITH DISABILITIES ACT INTRO- food cannot be eliminated by reason- DUCTION able accommodation, a covered entity The Americans with Disabilities Act (ADA) may refuse to assign or continue to as- is a landmark piece of civil rights legislation sign such individual to a job involving signed into law on July 26, 1990, and amended food handling. However, if the indi- effective January 1, 2009. See 42 U.S.C. 12101 vidual with a disability is a current et seq., as amended. In passing the ADA, Con- employee, the employer must consider gress recognized that ‘‘discrimination against individuals with disabilities con- whether he or she can be accommo- tinues to be a serious and pervasive social dated by reassignment to a vacant po- problem’’ and that the ‘‘continuing existence sition not involving food handling. of unfair and unnecessary discrimination and (2) Effect on State or other laws. This prejudice denies people with disabilities the part does not preempt, modify, or opportunity to compete on an equal basis amend any State, county, or local law, and to pursue those opportunities for which ordinance or regulation applicable to our free society is justifiably famous, and food handling which: costs the United States billions of dollars in unnecessary expenses resulting from depend- (i) Is in accordance with the list, re- ency and nonproductivity.’’ 42 U.S.C. ferred to in paragraph (e)(1) of this sec- 12101(a)(2), (8). Discrimination on the basis of tion, of infectious or communicable disability persists in critical areas such as diseases and the modes of trans- housing, public accommodations, education,

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transportation, communication, recreation, ADA, this typically means they have to show institutionalization, health services, voting, that they meet the statutory definition of access to public services, and employment. ‘‘disability.’’ 2008 House Judiciary Committee 42 U.S.C. 12101(a)(3). Accordingly, the ADA Report at 5. However, ‘‘Congress did not in- prohibits discrimination in a wide range of tend for the threshold question of disability areas, including employment, public serv- to be used as a means of excluding individ- ices, and public accommodations. uals from coverage.’’ Id. Title I of the ADA prohibits disability- In the original ADA, Congress defined ‘‘dis- based discrimination in employment. The ability’’ as (1) a physical or mental impair- Equal Employment Opportunity Commission ment that substantially limits one or more (the Commission or the EEOC) is responsible major life activities of an individual; (2) a for enforcement of title I (and parts of title record of such an impairment; or (3) being re- V) of the ADA. Pursuant to the ADA as garded as having such an impairment. 42 amended, the EEOC is expressly granted the U.S.C. 12202(2). Congress patterned these authority and is expected to amend these three parts of the definition of disability— regulations. 42 U.S.C. 12205a. Under title I of the ‘‘actual,’’ ‘‘record of,’’ and ‘‘regarded as’’ the ADA, covered entities may not discrimi- prongs—after the definition of ‘‘handicap’’ nate against qualified individuals on the found in the Rehabilitation Act of 1973. 2008 basis of disability in regard to job applica- House Judiciary Committee Report at 6. By tion procedures, the hiring, advancement or doing so, Congress intended that the rel- discharge of employees, employee compensa- evant case law developed under the Rehabili- tion, job training, or other terms, condi- tation Act would be generally applicable to tions, and privileges of employment. 42 the term ‘‘disability’’ as used in the ADA. U.S.C. 12112(a). For these purposes, ‘‘dis- H.R. Rep. No. 485 part 3, 101st Cong., 2d Sess. criminate’’ includes (1) limiting, segregating, 27 (1990) (1990 House Judiciary Report or or classifying a job applicant or employee in House Judiciary Report); See also S. Rep. a way that adversely affects the opportuni- No. 116, 101st Cong., 1st Sess. 21 (1989) (1989 ties or status of the applicant or employee; Senate Report or Senate Report); H.R. Rep. (2) participating in a contractual or other ar- No. 485 part 2, 101st Cong., 2d Sess. 50 (1990) rangement or relationship that has the effect (1990 House Labor Report or House Labor Re- of subjecting a covered entity’s qualified ap- port). Congress expected that the definition plicants or employees to discrimination; (3) of disability and related terms, such as ‘‘sub- utilizing standards, criteria, or other meth- stantially limits’’ and ‘‘major life activity,’’ ods of administration that have the effect of would be interpreted under the ADA ‘‘con- discrimination on the basis of disability; (4) sistently with how courts had applied the not making reasonable accommodation to definition of a handicapped individual under the known physical or mental limitations of the Rehabilitation Act’’—i.e., expansively an otherwise qualified individual with a dis- and in favor of broad coverage. ADA Amend- ability, unless the covered entity can dem- ments Act of 2008 (ADAAA or Amendments onstrate that the accommodation would im- Act) at section 2(a)(1)–(8) and (b)(1)–(6) (Find- pose an undue hardship on the operation of ings and Purposes); See also Senate State- the business of the covered entity; (5) deny- ment of the Managers to Accompany S. 3406 ing employment opportunities to a job appli- (2008 Senate Statement of Managers) at 3 cant or employee who is otherwise qualified, (‘‘When Congress passed the ADA in 1990, it if such denial is based on the need to make adopted the functional definition of dis- reasonable accommodation; (6) using quali- ability from section 504 of the Rehabilitation fication standards, employment tests or Act of 1973, in part, because after 17 years of other selection criteria that screen out or development through case law the require- tend to screen out an individual with a dis- ments of the definition were well understood. ability or a class of individuals with disabil- Within this framework, with its generous ities unless the standard, test or other selec- and inclusive definition of disability, courts tion criterion is shown to be job related for the position in question and is consistent tion, or retaliation may be brought by any with business necessity; and (7) subjecting applicant or employee, not just individuals applicants or employees to prohibited med- with disabilities. See, e.g., Cossette v. Min- ical inquiries or examinations. See 42 U.S.C. nesota Power & Light, 188 F.3d 964, 969–70 (8th 12112(b), (d). Cir. 1999); Fredenburg v. Contra Costa County As with other civil rights laws, individuals Dep’t of Health Servs., 172 F.3d 1176, 1182 (9th seeking protection under these anti-dis- Cir. 1999); Griffin v. Steeltek, Inc., 160 F.3d 591, crimination provisions of the ADA generally 594 (10th Cir. 1998). Likewise, a nondisabled must allege and prove that they are mem- applicant or employee may challenge an em- 1 bers of the ‘‘protected class.’’ Under the ployment action that is based on the dis- ability of an individual with whom the appli- 1 Claims of improper disability-related in- cant or employee is known to have a rela- quiries or medical examinations, improper tionship or association. See 42 U.S.C. disclosure of confidential medical informa- 12112(b)(4).

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treated the determination of disability as a in which individuals must demonstrate an threshold issue but focused primarily on inappropriately high degree of functional whether unlawful discrimination had oc- limitation in order to be protected from dis- curred.’’); 2008 House Judiciary Committee crimination under the ADA’’). Report at 6 & n.6 (noting that courts had in- Consequently, Congress amended the ADA terpreted this Rehabilitation Act definition with the Americans with Disabilities Act ‘‘broadly to include persons with a wide Amendments Act of 2008. The ADAAA was range of physical and mental impairments’’). signed into law on September 25, 2008, and That expectation was not fulfilled. ADAAA became effective on January 1, 2009. This leg- section 2(a)(3). The holdings of several Su- islation is the product of extensive bipar- preme Court cases sharply narrowed the tisan efforts, and the culmination of collabo- broad scope of protection Congress originally ration and coordination between legislators intended under the ADA, thus eliminating and stakeholders, including representatives protection for many individuals whom Con- of the disability, business, and education gress intended to protect. Id. For example, in communities. See Statement of Representa- Sutton v. United Air Lines, Inc., 527 U.S. 471 tives Hoyer and Sensenbrenner, 154 Cong. (1999), the Court ruled that whether an im- Rec. H8294–96 (daily ed. Sept. 17, 2008) (Hoyer- pairment substantially limits a major life Sensenbrenner Congressional Record State- activity is to be determined with reference ment); Senate Statement of Managers at 1. to the ameliorative effects of mitigating The express purposes of the ADAAA are, measures. In Sutton, the Court also adopted a among other things: restrictive reading of the meaning of being (1) To carry out the ADA’s objectives of ‘‘regarded as’’ disabled under the ADA’s defi- providing ‘‘a clear and comprehensive na- nition of disability. Subsequently, in Toyota tional mandate for the elimination of dis- Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184 crimination’’ and ‘‘clear, strong, consistent, (2002), the Court held that the terms ‘‘sub- enforceable standards addressing discrimina- stantially’’ and ‘‘major’’ in the definition of tion’’ by reinstating a broad scope of protec- disability ‘‘need to be interpreted strictly to tion under the ADA; create a demanding standard for qualifying (2) To reject the requirement enunciated in as disabled’’ under the ADA, and that to be Sutton and its companion cases that whether substantially limited in performing a major an impairment substantially limits a major life activity under the ADA, ‘‘an individual life activity is to be determined with ref- must have an impairment that prevents or erence to the ameliorative effects of miti- severely restricts the individual from doing gating measures; activities that are of central importance to (3) To reject the Supreme Court’s rea- most people’s daily lives.’’ soning in Sutton with regard to coverage As a result of these Supreme Court deci- under the third prong of the definition of dis- sions, lower courts ruled in numerous cases ability and to reinstate the reasoning of the that individuals with a range of substan- Supreme Court in School Board of Nassau tially limiting impairments were not indi- County v. Arline, 480 U.S. 273 (1987), which set viduals with disabilities, and thus not pro- forth a broad view of the third prong of the tected by the ADA. See 2008 Senate State- definition of handicap under the Rehabilita- ment of Managers at 3 (‘‘After the Court’s de- tion Act of 1973; cisions in Sutton that impairments must be (4) To reject the standards enunciated by considered in their mitigated state and in the Supreme Court in Toyota that the terms Toyota that there must be a demanding ‘‘substantially’’ and ‘‘major’’ in the definition standard for qualifying as disabled, lower of disability under the ADA ‘‘need to be in- courts more often found that an individual’s terpreted strictly to create a demanding impairment did not constitute a disability. standard for qualifying as disabled,’’ and that As a result, in too many cases, courts would to be substantially limited in performing a never reach the question whether discrimi- major life activity under the ADA ‘‘an indi- nation had occurred.’’). Congress concluded vidual must have an impairment that pre- that these rulings imposed a greater degree vents or severely restricts the individual of limitation and expressed a higher stand- from doing activities that are of central im- ard than it had originally intended, and cou- portance to most people’s daily lives’’; pled with the EEOC’s 1991 ADA regulations (5) To convey congressional intent that the which had defined the term ‘‘substantially standard created by the Supreme Court in limits’’ as ‘‘significantly restricted,’’ unduly Toyota for ‘‘substantially limits,’’ and applied precluded many individuals from being cov- by lower courts in numerous decisions, has ered under the ADA. Id. (‘‘[t]hus, some 18 created an inappropriately high level of limi- years later we are faced with a situation in tation necessary to obtain coverage under which physical or mental impairments that the ADA; would previously have been found to con- (6) To convey that it is the intent of Con- stitute disabilities are not considered dis- gress that the primary object of attention in abilities under the Supreme Court’s nar- cases brought under the ADA should be rower standard’’ and ‘‘[t]he resulting court whether entities covered under the ADA decisions contribute to a legal environment have complied with their obligations, and to

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convey that the question of whether an indi- nated against on the basis of disability, and vidual’s impairment is a disability under the not unduly focused on the preliminary ques- ADA should not demand extensive analysis; tion of whether a particular person is a ‘per- and son with a disability.’ ’’ 2008 Senate State- (7) To express Congress’ expectation that ment of Managers at 11. the EEOC will revise that portion of its cur- The use of the term ‘‘Americans’’ in the rent regulations that defines the term ‘‘sub- title of the ADA, in the EEOC’s regulations, stantially limits’’ as ‘‘significantly re- or in this appendix as amended is not in- stricted’’ to be consistent with the ADA as tended to imply that the ADA only applies amended. to United States citizens. Rather, the ADA ADAAA section 2(b). The findings and pur- protects all qualified individuals with dis- poses of the ADAAA ‘‘give[] clear guidance to abilities, regardless of their citizenship sta- the courts and * * * [are] intend[ed] to be ap- tus or nationality, from discrimination by a plied appropriately and consistently.’’ 2008 covered entity. Senate Statement of Managers at 5. Finally, the terms ‘‘employer’’ and ‘‘em- The EEOC has amended its regulations to ployer or other covered entity’’ are used reflect the ADAAA’s findings and purposes. interchangeably throughout this appendix to The Commission believes that it is essential refer to all covered entities subject to the also to amend its appendix to the original employment provisions of the ADA. regulations at the same time, and to reissue this interpretive guidance as amended con- Section 1630.1 Purpose, Applicability and currently with the issuance of the amended Construction regulations. This will help to ensure that in- dividuals with disabilities understand their Section 1630.1(a) Purpose rights, and to facilitate and encourage com- The express purposes of the ADA as amend- pliance by covered entities under this part. ed are to provide a clear and comprehensive Accordingly, this amended appendix ad- national mandate for the elimination of dis- dresses the major provisions of this part and crimination against individuals with disabil- explains the major concepts related to dis- ities; to provide clear, strong, consistent, en- ability-based employment discrimination. forceable standards addressing discrimina- This appendix represents the Commission’s tion against individuals with disabilities; to interpretation of the issues addressed within ensure that the Federal Government plays a it, and the Commission will be guided by this central role in enforcing the standards ar- appendix when resolving charges of employ- ticulated in the ADA on behalf of individuals ment discrimination. with disabilities; and to invoke the sweep of NOTE ON CERTAIN TERMINOLOGY USED congressional authority to address the major areas of discrimination faced day-to-day by The ADA, the EEOC’s ADA regulations, people with disabilities. 42 U.S.C. 12101(b). and this appendix use the term ‘‘disabilities’’ The EEOC’s ADA regulations are intended to rather than the term ‘‘handicaps’’ which was implement these Congressional purposes in originally used in the Rehabilitation Act of simple and straightforward terms. 1973, 29 U.S.C. 701–796. Substantively, these terms are equivalent. As originally noted by Section 1630.1(b) Applicability the House Committee on the Judiciary, The EEOC’s ADA regulations as amended ‘‘[t]he use of the term ‘disabilities’ instead of apply to all covered entities as defined at the term ‘handicaps’ reflects the desire of ‘‘ ’’ § 1630.2(b). The ADA defines covered entities the Committee to use the most current ter- ‘‘ ’’ to mean an employer, employment agency, minology. It reflects the preference of per- sons with disabilities to use that term rather labor organization, or joint labor-manage- than ‘handicapped’ as used in previous laws, ment committee. 42 U.S.C. 12111(2). All cov- ered entities are subject to the ADA’s rules such as the Rehabilitation Act of 1973 * * *.’’ 1990 House Judiciary Report at 26–27; See prohibiting discrimination. 42 U.S.C. 12112. also 1989 Senate Report at 21; 1990 House Section 1630.1(c) Construction Labor Report at 50–51. In addition, consistent with the Amend- The ADA must be construed as amended. ments Act, revisions have been made to the The primary purpose of the Amendments Act regulations and this appendix to refer to ‘‘in- was to make it easier for people with disabil- dividual with a disability’’ and ‘‘qualified in- ities to obtain protection under the ADA. dividual’’ as separate terms, and to change See Joint Hoyer-Sensenbrenner Statement the prohibition on discrimination to ‘‘on the on the Origins of the ADA Restoration Act of basis of disability’’ instead of prohibiting dis- 2008, H.R. 3195 (reviewing provisions of H.R. crimination against a qualified individual 3195 as revised following negotiations be- ‘‘with a disability because of the disability of tween representatives of the disability and such individual.’’ ‘‘This ensures that the em- business communities) (Joint Hoyer-Sensen- phasis in questions of disability discrimina- brenner Statement) at 2. Accordingly, under tion is properly on the critical inquiry of the ADA as amended and the EEOC’s regula- whether a qualified person has been discrimi- tions, the definition of ‘‘disability’’ ‘‘shall be

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construed in favor of broad coverage of indi- The ADA does not preempt any Federal viduals under [the ADA], to the maximum law, or any State or local law, that grants to extent permitted by the terms of [the ADA].’’ individuals with disabilities protection 42 U.S.C. 12102(4)(A); See also 2008 Senate greater than or equivalent to that provided Statement of Managers at 3 (‘‘The ADA by the ADA. This means that the existence Amendments Act * * * reiterates that Con- of a lesser standard of protection to individ- gress intends that the scope of the [ADA] be uals with disabilities under the ADA will not broad and inclusive.’’). This construction is provide a defense to failing to meet a higher also intended to reinforce the general rule standard under another law. Thus, for exam- that civil rights statutes must be broadly ple, title I of the ADA would not be a defense construed to achieve their remedial purpose. to failing to prepare and maintain an affirm- Id. at 2; See also 2008 House Judiciary Com- ative action program under section 503 of the mittee Report at 19 (this rule of construction Rehabilitation Act. On the other hand, the ‘‘directs courts to construe the definition of existence of a lesser standard under another ‘disability’ broadly to advance the ADA’s re- law will not provide a defense to failing to medial purposes’’ and thus ‘‘brings treatment meet a higher standard under the ADA. See of the ADA’s definition of disability in line 1990 House Labor Report at 135; 1990 House with treatment of other civil rights laws, Judiciary Report at 69–70. which should be construed broadly to effec- This also means that an individual with a tuate their remedial purposes’’). disability could choose to pursue claims The ADAAA and the EEOC’s regulations under a State discrimination or tort law that does not confer greater substantive also make clear that the primary object of rights, or even confers fewer substantive attention in cases brought under the ADA rights, if the potential available remedies should be whether entities covered under the would be greater than those available under ADA have complied with their obligations, the ADA and this part. The ADA does not re- not whether the individual meets the defini- strict an individual with a disability from tion of disability. ADAAA section 2(b)(5). pursuing such claims in addition to charges This means, for example, examining whether brought under this part. 1990 House Judici- an employer has discriminated against an ary Report at 69–70. employee, including whether an employer The ADA does not automatically preempt has fulfilled its obligations with respect to medical standards or safety requirements es- providing a ‘‘reasonable accommodation’’ to tablished by Federal law or regulations. It an individual with a disability; or whether does not preempt State, county, or local an employee has met his or her responsibil- laws, ordinances or regulations that are con- ities under the ADA with respect to engaging sistent with this part and designed to pro- in the reasonable accommodation ‘‘inter- tect the public health from individuals who active process.’’ See also 2008 Senate State- pose a direct threat to the health or safety of ment of Managers at 4 (‘‘[L]ower court cases others that cannot be eliminated or reduced have too often turned solely on the question by reasonable accommodation. However, the of whether the plaintiff is an individual with ADA does preempt inconsistent require- a disability rather than the merits of dis- ments established by State or local law for crimination claims, such as whether adverse safety or security sensitive positions. See decisions were impermissibly made by the 1989 Senate Report at 27; 1990 House Labor employer on the basis of disability, reason- Report at 57. able accommodations were denied, or quali- An employer allegedly in violation of this fication standards were unlawfully discrimi- part cannot successfully defend its actions natory.’’); 2008 House Judiciary Committee by relying on the obligation to comply with Report at 6 (‘‘An individual who does not the requirements of any State or local law qualify as disabled * * * does not meet th[e] that imposes prohibitions or limitations on threshold question of coverage in the pro- the eligibility of individuals with disabilities tected class and is therefore not permitted to who are qualified to practice any occupation attempt to prove his or her claim of dis- or profession. For example, suppose a mu- criminatory treatment.’’). nicipality has an ordinance that prohibits in- Further, the question of whether an indi- dividuals with tuberculosis from teaching vidual has a disability under this part school children. If an individual with dor- ‘‘should not demand extensive analysis.’’ mant tuberculosis challenges a private ADAAA section 2(b)(5). See also House Edu- school’s refusal to hire him or her on the cation and Labor Committee Report at 9 basis of the tuberculosis, the private school (‘‘The Committee intends that the establish- would not be able to rely on the city ordi- ment of coverage under the ADA should not nance as a defense under the ADA. be overly complex nor difficult. * * *’’). Paragraph (c)(3) is consistent with lan- In addition, unless expressly stated other- guage added to section 501 of the ADA by the wise, the standards applied in the ADA are ADA Amendments Act. It makes clear that intended to provide at least as much protec- nothing in this part is intended to alter the tion as the standards applied under the Re- determination of eligibility for benefits habilitation Act of 1973. under state workers’ compensation laws or

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Federal and State disability benefit pro- Act altered the interpretation and applica- grams. State workers’ compensation laws tion of this critical statutory term in funda- and Federal disability benefit programs, mental ways. See 2008 Senate Statement of such as programs that provide payments to Managers at 1 (‘‘The bill maintains the veterans with service-connected disabilities ADA’s inherently functional definition of and the Social Security Disability Insurance disability’’ but ‘‘clarifies and expands the program, have fundamentally different pur- definition’s meaning and application.’’). poses than title I of the ADA. As noted above, the primary purpose of the ADAAA is to make it easier for people with Section 1630.2 Definitions disabilities to obtain protection under the ADA. See Joint Hoyer-Sensenbrenner State- Sections 1630.2(a)–(f) Commission, Covered ment at 2. Accordingly, the ADAAA provides Entity, etc. rules of construction regarding the defini- The definitions section of part 1630 in- tion of disability. Consistent with the con- cludes several terms that are identical, or al- gressional intent to reinstate a broad scope most identical, to the terms found in title of protection under the ADA, the ADAAA’s VII of the Civil Rights Act of 1964. Among rules of construction require that the defini- these terms are ‘‘Commission,’’ ‘‘Person,’’ tion of ‘‘disability’’ ‘‘shall be construed in ‘‘State,’’ and ‘‘Employer.’’ These terms are to favor of broad coverage of individuals under be given the same meaning under the ADA [the ADA], to the maximum extent per- that they are given under title VII. In gen- mitted by the terms of [the ADA].’’ 42 U.S.C. eral, the term ‘‘employee’’ has the same 12102(4)(A). The legislative history of the meaning that it is given under title VII. ADAAA is replete with references empha- However, the ADA’s definition of ‘‘employee’’ sizing this principle. See Joint Hoyer-Sen- does not contain an exception, as does title senbrenner Statement at 2 (‘‘[The bill] estab- VII, for elected officials and their personal lishes that the definition of disability must staffs. It should further be noted that all be interpreted broadly to achieve the reme- State and local governments are covered by dial purposes of the ADA’’); 2008 Senate title II of the ADA whether or not they are Statement of Managers at 1 (the ADAAA’s also covered by this part. Title II, which is purpose is to ‘‘enhance the protections of the enforced by the Department of Justice, be- [ADA]’’ by ‘‘expanding the definition, and by came effective on January 26, 1992. See 28 rejecting several opinions of the United CFR part 35. States Supreme Court that have had the ef- The term ‘‘covered entity’’ is not found in fect of restricting the meaning and applica- title VII. However, the title VII definitions tion of the definition of disability’’); id. of the entities included in the term ‘‘covered (stressing the importance of removing bar- entity’’ (e.g., employer, employment agency, riers ‘‘to construing and applying the defini- labor organization, etc.) are applicable to tion of disability more generously’’); id. at 4 the ADA. (‘‘The managers have introduced the [ADAAA] to restore the proper balance and Section 1630.2(g) Disability application of the ADA by clarifying and In addition to the term ‘‘covered entity,’’ broadening the definition of disability, and there are several other terms that are unique to increase eligibility for the protections of to the ADA as amended. The first of these is the ADA.’’); id. (‘‘It is our expectation that the term ‘‘disability.’’ ‘‘This definition is of because the bill makes the definition of dis- critical importance because as a threshold ability more generous, some people who were issue it determines whether an individual is not covered before will now be covered.’’); id. covered by the ADA.’’ 2008 Senate Statement (warning that ‘‘the definition of disability of Managers at 6. should not be unduly used as a tool for ex- In the original ADA, ‘‘Congress sought to cluding individuals from the ADA’s protec- protect anyone who experiences discrimina- tions’’); id. (this principle ‘‘sends a clear sig- tion because of a current, past, or perceived nal of our intent that the courts must inter- disability.’’ 2008 Senate Statement of Man- pret the definition of disability broadly rath- agers at 6. Accordingly, the definition of the er than stringently’’); 2008 House Judiciary term ‘‘disability’’ is divided into three prongs: Committee Report at 5 (‘‘The purpose of the An individual is considered to have a ‘‘dis- bill is to restore protection for the broad ability’’ if that individual (1) has a physical range of individuals with disabilities as or mental impairment that substantially originally envisioned by Congress by re- limits one or more of that person’s major life sponding to the Supreme Court’s narrow in- activities (the ‘‘actual disability’’ prong); (2) terpretation of the definition of disability.’’). has a record of such an impairment (the Further, as the purposes section of the ‘‘record of’’ prong); or (3) is regarded by the ADAAA explicitly cautions, the ‘‘primary ob- covered entity as an individual with a dis- ject of attention’’ in cases brought under the ability as defined in § 1630.2(l) (the ‘‘regarded ADA should be whether entities covered as’’ prong). The ADAAA retained the basic under the ADA have complied with their ob- structure and terms of the original defini- ligations. As noted above, this means, for ex- tion of disability. However, the Amendments ample, examining whether an employer has

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discriminated against an employee, includ- commodation or requires a reasonable ac- ing whether an employer has fulfilled its ob- commodation. ligations with respect to providing a ‘‘rea- To fully understand the meaning of the sonable accommodation’’ to an individual term ‘‘disability,’’ it is also necessary to un- with a disability; or whether an employee derstand what is meant by the terms ‘‘phys- has met his or her responsibilities under the ical or mental impairment,’’ ‘‘major life ac- ADA with respect to engaging in the reason- tivity,’’ ‘‘substantially limits,’’ ‘‘record of,’’ able accommodation ‘‘interactive process.’’ and ‘‘regarded as.’’ Each of these terms is dis- ADAAA section 2(b)(5); See also 2008 Senate cussed below. Statement of Managers at 4 (‘‘[L]ower court cases have too often turned solely on the Section 1630.2(h) Physical or Mental question of whether the plaintiff is an indi- Impairment vidual with a disability rather than the mer- Neither the original ADA nor the ADAAA its of discrimination claims, such as whether provides a definition for the terms ‘‘physical adverse decisions were impermissibly made or mental impairment.’’ However, the legisla- by the employer on the basis of disability, tive history of the Amendments Act notes reasonable accommodations were denied, or that Congress ‘‘expect[s] that the current qualification standards were unlawfully dis- regulatory definition of these terms, as pro- criminatory.’’); 2008 House Judiciary Com- mulgated by agencies such as the U.S. Equal mittee Report (criticizing pre-ADAAA court Employment Opportunity Commission decisions which ‘‘prevented individuals that (EEOC), the Department of Justice (DOJ) Congress unquestionably intended to cover and the Department of Education Office of from ever getting a chance to prove their Civil Rights (DOE OCR) will not change.’’ case’’). Accordingly, the threshold coverage 2008 Senate Statement of Managers at 6. The question of whether an individual’s impair- definition of ‘‘physical or mental impair- ment is a disability under the ADA ‘‘should ment’’ in the EEOC’s regulations remains not demand extensive analysis.’’ ADAAA sec- based on the definition of the term ‘‘physical tion 2(b)(5). or mental impairment’’ found in the regula- Section 1630.2(g)(2) provides that an indi- tions implementing section 504 of the Reha- vidual may establish coverage under any one bilitation Act at 34 CFR part 104. However, or more (or all three) of the prongs in the the definition in EEOC’s regulations adds ad- definition of disability. However, to be an in- ditional body systems to those provided in dividual with a disability, an individual is the section 504 regulations and makes clear only required to satisfy one prong. that the list is non-exhaustive. As § 1630.2(g)(3) indicates, in many cases it It is important to distinguish between con- may be unnecessary for an individual to re- ditions that are impairments and physical, sort to coverage under the ‘‘actual disability’’ psychological, environmental, cultural, and or ‘‘record of’’ prongs. Where the need for a economic characteristics that are not im- reasonable accommodation is not at issue— pairments. The definition of the term ‘‘im- for example, where there is no question that pairment’’ does not include physical charac- the individual is ‘‘qualified’’ without a rea- teristics such as eye color, hair color, left- sonable accommodation and is not seeking handedness, or height, weight, or muscle or has not sought a reasonable accommoda- tone that are within ‘‘normal’’ range and are tion—it would not be necessary to determine not the result of a physiological disorder. whether the individual is substantially lim- The definition, likewise, does not include ited in a major life activity (under the actual characteristic predisposition to illness or disability prong) or has a record of a sub- disease. Other conditions, such as pregnancy, stantially limiting impairment (under the that are not the result of a physiological dis- record of prong). Such claims could be evalu- order are also not impairments. However, a ated solely under the ‘‘regarded as’’ prong of pregnancy-related impairment that substan- the definition. In fact, Congress expected the tially limits a major life activity is a dis- first and second prongs of the definition of ability under the first prong of the defini- disability ‘‘to be used only by people who are tion. Alternatively, a pregnancy-related im- affirmatively seeking reasonable accom- pairment may constitute a ‘‘record of’’ a sub- modations * * *’’ and that ‘‘[a]ny individual stantially limiting impairment,’’ or may be who has been discriminated against because covered under the ‘‘regarded as’’ prong if it is of an impairment—short of being granted a the basis for a prohibited employment action reasonable accommodation * * *—should be and is not ‘‘transitory and minor.’’ bringing a claim under the third prong of the The definition of an impairment also does definition which will require no showing not include common personality traits such with regard to the severity of his or her im- as poor judgment or a quick temper where pairment.’’ Joint Hoyer-Sensenbrenner these are not symptoms of a mental or psy- Statement at 4. An individual may choose, chological disorder. Environmental, cul- however, to proceed under the ‘‘actual dis- tural, or economic disadvantages such as ability’’ and/or ‘‘record of’’ prong regardless of poverty, lack of education, or a prison record whether the individual is challenging a cov- are not impairments. Advanced age, in and ered entity’s failure to make reasonable ac- of itself, is also not an impairment. However,

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various medical conditions commonly asso- culoskeletal functions are major bodily func- ciated with age, such as hearing loss, tions not included in the statutory list of ex- osteoporosis, or arthritis would constitute amples but included in § 1630.2(i)(1)(ii). The impairments within the meaning of this Commission has added these examples to fur- part. See 1989 Senate Report at 22–23; 1990 ther illustrate the non-exhaustive list of House Labor Report at 51–52; 1990 House Ju- major life activities, including major bodily diciary Report at 28–29. functions, and to emphasize that the concept of major life activities is to be interpreted Section 1630.2(i) Major Life Activities broadly consistent with the Amendments The ADAAA provided significant new guid- Act. The regulations also provide that the ance and clarification on the subject of operation of a major bodily function may in- ‘‘major life activities.’’ As the legislative his- clude the operation of an individual organ tory of the Amendments Act explains, Con- within a body system. This would include, gress anticipated that protection under the for example, the operation of the kidney, ADA would now extend to a wider range of liver, pancreas, or other organs. cases, in part as a result of the expansion of The link between particular impairments the category of major life activities. See 2008 and various major bodily functions should Senate Statement of Managers at 8 n.17. not be difficult to identify. Because impair- For purposes of clarity, the Amendments ments, by definition, affect the functioning Act provides an illustrative list of major life of body systems, they will generally affect activities, including caring for oneself, per- major bodily functions. For example, cancer forming manual tasks, seeing, hearing, eat- affects an individual’s normal cell growth; ing, sleeping, walking, standing, lifting, diabetes affects the operation of the pan- bending, speaking, breathing, learning, read- creas and also the function of the endocrine ing, concentrating, thinking, commu- system; and Human Immunodeficiency Virus nicating, and working. The ADA Amend- (HIV) infection affects the immune system. ments expressly made this statutory list of Likewise, sickle cell disease affects the func- examples of major life activities non-exhaus- tions of the hemic system, lymphedema af- tive, and the regulations include sitting, fects lymphatic functions, and rheumatoid reaching, and interacting with others as ad- arthritis affects musculoskeletal functions. ditional examples. Many of these major life In the legislative history of the ADAAA, activities listed in the ADA Amendments Congress expressed its expectation that the Act and the regulations already had been in- cluded in the EEOC’s 1991 now-superseded statutory expansion of ‘‘major life activities’’ regulations implementing title I of the ADA to include major bodily functions (along and in sub-regulatory documents, and al- with other statutory changes) would lead to ready were recognized by the courts. more expansive coverage. See 2008 Senate The ADA as amended also explicitly de- Statement of Managers at 8 n.17 (indicating fines ‘‘major life activities’’ to include the op- that these changes will make it easier for in- eration of ‘‘major bodily functions.’’ This was dividuals to show that they are eligible for an important addition to the statute. This the ADA’s protections under the first prong clarification was needed to ensure that the of the definition of disability). The House impact of an impairment on the operation of Education and Labor Committee explained a major bodily function would not be over- that the inclusion of major bodily functions looked or wrongly dismissed as falling out- would ‘‘affect cases such as U.S. v. Happy side the definition of ‘‘major life activities’’ Time Day Care Ctr. in which the courts strug- under the ADA. 2008 House Judiciary Com- gled to analyze whether the impact of HIV mittee Report at 16; See also 2008 Senate infection substantially limits various major Statement of Managers at 8 (‘‘for the first life activities of a five-year-old child, and time [in the ADAAA], the category of ‘major recognizing, among other things, that ‘there life activities’ is defined to include the oper- is something inherently illogical about in- ation of major bodily functions, thus better quiring whether’ a five-year-old’s ability to addressing chronic impairments that can be procreate is substantially limited by his HIV substantially limiting’’). infection; Furnish v. SVI Sys., Inc, in which The regulations include all of those major the court found that an individual with cir- bodily functions identified in the ADA rhosis of the liver caused by Hepatitis B is Amendments Act’s non-exhaustive list of ex- not disabled because liver function—unlike amples and add a number of others that are eating, working, or reproducing—‘is not inte- consistent with the body systems listed in gral to one’s daily existence;’ and Pimental v. the regulations’ definition of ‘‘impairment’’ Dartmouth-Hitchcock Clinic, in which the (at § 1630.2(h)) and with the U.S. Department court concluded that the plaintiff’s stage of Labor’s nondiscrimination and equal em- three breast cancer did not substantially ployment opportunity regulations imple- limit her ability to care for herself, sleep, or menting section 188 of the Workforce Invest- concentrate. The Committee expects that ment Act of 1998, 29 U.S.C. 2801, et seq. Thus, the plaintiffs in each of these cases could es- special sense organs, skin, genitourinary, tablish a [substantial limitation] on major cardiovascular, hemic, lymphatic, and mus- bodily functions that would qualify them for

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protection under the ADA.’’ 2008 House Edu- tral importance to most people’s daily lives, cation and Labor Committee Report at 12. nor must an individual show that he or she The examples of major life activities (in- is substantially limited in performing all cluding major bodily functions) in the manual tasks. ADAAA and the EEOC’s regulations are il- lustrative and non-exhaustive, and the ab- Section 1630.2(j) Substantially Limits sence of a particular life activity or bodily In any case involving coverage solely function from the examples does not create a under the ‘‘regarded as’’ prong of the defini- negative implication as to whether an omit- tion of ‘‘disability’’ (e.g., cases where reason- ted activity or function constitutes a major able accommodation is not at issue), it is not life activity under the statute. See 2008 Sen- necessary to determine whether an indi- ate Statement of Managers at 8; See also 2008 vidual is ‘‘substantially limited’’ in any House Committee on Educ. and Labor Report major life activity. See 2008 Senate State- at 11; 2008 House Judiciary Committee Re- ment of Managers at 10; id. at 13 (‘‘The func- port at 17. tional limitation imposed by an impairment The Commission anticipates that courts is irrelevant to the third ‘regarded as’ will recognize other major life activities, prong.’’). Indeed, Congress anticipated that consistent with the ADA Amendments Act’s the first and second prongs of the definition mandate to construe the definition of dis- of disability would ‘‘be used only by people ability broadly. As a result of the ADA who are affirmatively seeking reasonable ac- Amendments Act’s rejection of the holding commodations * * * ’’ and that ‘‘[a]ny indi- in Toyota Motor Mfg., Ky., Inc. v. Williams, 534 vidual who has been discriminated against U.S. 184 (2002), whether an activity is a because of an impairment—short of being ‘‘major life activity’’ is not determined by granted a reasonable accommodation * * *— reference to whether it is of ‘‘central impor- should be bringing a claim under the third tance to daily life.’’ See Toyota, 534 U.S. at prong of the definition which will require no 197 (defining ‘‘major life activities’’ as activi- showing with regard to the severity of his or ties that are of ‘‘central importance to most her impairment.’’ Joint Hoyer-Sensenbrenner people’s daily lives’’). Indeed, this holding Statement at 4. Of course, an individual may was at odds with the earlier Supreme Court decision of Bragdon v. Abbott, 524 U.S. 624 choose, however, to proceed under the ‘‘ac- (1998), which held that a major life activity tual disability’’ and/or ‘‘record of’’ prong re- (in that case, reproduction) does not have to gardless of whether the individual is chal- have a ‘‘public, economic or daily aspect.’’ Id. lenging a covered entity’s failure to make at 639. reasonable accommodations or requires a Accordingly, the regulations provide that reasonable accommodation. The concept of in determining other examples of major life ‘‘substantially limits’’ is only relevant in activities, the term ‘‘major’’ shall not be in- cases involving coverage under the ‘‘actual terpreted strictly to create a demanding disability’’ or ‘‘record of’’ prong of the defini- standard for disability. Cf. 2008 Senate State- tion of disability. Thus, the information ment of Managers at 7 (indicating that a per- below pertains to these cases only. son is considered an individual with a dis- Section 1630.2(j)(1) Rules of Construction ability for purposes of the first prong when one or more of the individual’s ‘‘important It is clear in the text and legislative his- life activities’’ are restricted) (citing 1989 tory of the ADAAA that Congress concluded Senate Report at 23). The regulations also the courts had incorrectly construed ‘‘sub- reject the notion that to be substantially stantially limits,’’ and disapproved of the limited in performing a major life activity, EEOC’s now-superseded 1991 regulation defin- an individual must have an impairment that ing the term to mean ‘‘significantly re- prevents or severely restricts the individual stricts.’’ See 2008 Senate Statement of Man- from doing ‘‘activities that are of central im- agers at 6 (‘‘We do not believe that the courts portance to most people’s daily lives.’’ Id.; have correctly instituted the level of cov- see also 2008 Senate Statement of Managers erage we intended to establish with the term at 5 n.12. ‘substantially limits’ in the ADA’’ and ‘‘we Thus, for example, lifting is a major life believe that the level of limitation, and the activity regardless of whether an individual intensity of focus, applied by the Supreme who claims to be substantially limited in Court in Toyota goes beyond what we believe lifting actually performs activities of central is the appropriate standard to create cov- importance to daily life that require lifting. erage under this law.’’). Congress extensively Similarly, the Commission anticipates that deliberated over whether a new term other the major life activity of performing manual than ‘‘substantially limits’’ should be adopted tasks (which was at issue in Toyota) could to denote the appropriate functional limita- have many different manifestations, such as tion necessary under the first and second performing tasks involving fine motor co- prongs of the definition of disability. See ordination, or performing tasks involving 2008 Senate Statement of Managers at 6–7. grasping, hand strength, or pressure. Such Ultimately, Congress affirmatively opted to tasks need not constitute activities of cen- retain this term in the Amendments Act,

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rather than replace it. It concluded that courts must interpret the definition of dis- ‘‘adopting a new, undefined term that is sub- ability broadly rather than stringently’’). ject to widely disparate meanings is not the Put most succinctly, ‘‘substantially limits’’ best way to achieve the goal of ensuring con- ‘‘is not meant to be a demanding standard.’’ sistent and appropriately broad coverage 2008 Senate Statement of Managers at 7. under this Act.’’ Id. Instead, Congress deter- mined ‘‘a better way * * * to express [its] dis- Section 1630.2(j)(1)(ii): Significant or Severe Re- approval of Sutton and Toyota (along with the striction Not Required; Nonetheless, Not Every current EEOC regulation) is to retain the Impairment Is Substantially Limiting words ‘substantially limits,’ but clarify that Section 1630.2(j)(1)(ii) states: ‘‘An impair- it is not meant to be a demanding standard.’’ ment is a disability within the meaning of Id. at 7. To achieve that goal, Congress set this section if it substantially limits the forth detailed findings and purposes and ability of an individual to perform a major ‘‘rules of construction’’ to govern the inter- life activity as compared to most people in pretation and application of this concept the general population. An impairment need going forward. See ADAAA Sections 2–4; 42 not prevent, or significantly or severely re- U.S.C. 12102(4). strict, the individual from performing a The Commission similarly considered major life activity in order to be considered whether to provide a new definition of ‘‘sub- substantially limiting. Nonetheless, not stantially limits’’ in the regulation. Fol- every impairment will constitute a ‘dis- lowing Congress’s lead, however, the Com- ability’ within the meaning of this section.’’ mission ultimately concluded that a new def- In keeping with the instruction that the inition would inexorably lead to greater term ‘‘substantially limits’’ is not meant to focus and intensity of attention on the be a demanding standard, the regulations threshold issue of coverage than intended by provide that an impairment is a disability if Congress. Therefore, the regulations simply it substantially limits the ability of an indi- provide rules of construction that must be vidual to perform a major life activity as applied in determining whether an impair- compared to most people in the general pop- ment substantially limits (or substantially ulation. However, to be substantially limited limited) a major life activity. These are each in performing a major life activity an indi- discussed in greater detail below. vidual need not have an impairment that prevents or significantly or severely re- Section 1630.2(j)(1)(i): Broad Construction; not a stricts the individual from performing a Demanding Standard major life activity. See 2008 Senate State- Section 1630.2(j)(1)(i) states: ‘‘The term ment of Managers at 2, 6–8 & n.14; 2008 House ‘substantially limits’ shall be construed Committee on Educ. and Labor Report at 9– broadly in favor of expansive coverage, to 10 (‘‘While the limitation imposed by an im- the maximum extent permitted by the terms pairment must be important, it need not rise of the ADA. ‘Substantially limits’ is not to the level of severely restricting or signifi- meant to be a demanding standard.’’ cantly restricting the ability to perform a Congress stated in the ADA Amendments major life activity to qualify as a dis- Act that the definition of disability ‘‘shall be ability.’’); 2008 House Judiciary Committee construed in favor of broad coverage,’’ and Report at 16 (similarly requiring an ‘‘impor- that ‘‘the term ‘substantially limits’ shall be tant’’ limitation). The level of limitation re- interpreted consistently with the findings quired is ‘‘substantial’’ as compared to most and purposes of the ADA Amendments Act of people in the general population, which does 2008.’’ 42 U.S.C. 12101(4)(A)–(B), as amended. not require a significant or severe restric- ‘‘This is a textual provision that will legally tion. Multiple impairments that combine to guide the agencies and courts in properly in- substantially limit one or more of an indi- terpreting the term ‘substantially limits.’ ’’ vidual’s major life activities also constitute Hoyer-Sensenbrenner Congressional Record a disability. Nonetheless, not every impair- Statement at H8295. As Congress noted in the ment will constitute a ‘‘disability’’ within the legislative history of the ADAAA, ‘‘[t]o be meaning of this section. See 2008 Senate clear, the purposes section conveys our in- Statement of Managers at 4 (‘‘We reaffirm tent to clarify not only that ‘substantially that not every individual with a physical or limits’ should be measured by a lower stand- mental impairment is covered by the first ard than that used in Toyota, but also that prong of the definition of disability in the the definition of disability should not be un- ADA.’’) duly used as a tool for excluding individuals Section 1630.2(j)(1)(iii): Substantial Limitation from the ADA’s protections.’’ 2008 Senate Should Not Be Primary Object of Attention; Statement of Managers at 5 (also stating Extensive Analysis Not Needed that ‘‘[t]his rule of construction, together with the rule of construction providing that Section 1630.2(j)(1)(iii) states: ‘‘The primary the definition of disability shall be construed object of attention in cases brought under in favor of broad coverage of individuals the ADA should be whether covered entities sends a clear signal of our intent that the have complied with their obligations, not

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whether an individual’s impairment substan- its’ as construed consistently with the find- tially limits a major life activity. Accord- ings and purposes of this legislation estab- ingly, the threshold issue of whether an im- lishes an appropriate functionality test of pairment ‘substantially limits’ a major life determining whether an individual has a dis- activity should not demand extensive anal- ability’’ and that ‘‘using the correct stand- ysis.’’ ard—one that is lower than the strict or de- Congress retained the term ‘‘substantially manding standard created by the Supreme limits’’ in part because it was concerned that Court in Toyota—will make the disability de- adoption of a new phrase—and the resulting termination an appropriate threshold issue need for further judicial scrutiny and con- but not an onerous burden for those seeking struction—would not ‘‘help move the focus accommodations or modifications’’). from the threshold issue of disability to the Consequently, this rule of construction primary issue of discrimination.’’ 2008 Senate makes clear that the question of whether an Statement of Managers at 7. impairment substantially limits a major life This was the primary problem Congress activity should not demand extensive anal- sought to solve in enacting the ADAAA. It ysis. As the legislative history explains, recognized that ‘‘clearing the initial [dis- [w]e expect that courts interpreting [the ability] threshold is critical, as individuals ‘‘ ADA] will not demand such an extensive who are excluded from the definition ‘never have the opportunity to have their condition analysis over whether a person’s physical or evaluated in light of medical evidence and a mental impairment constitutes a disability.’’ determination made as to whether they [are] Hoyer-Sensenbrenner Congressional Record ‘otherwise qualified.’ ’ ’’ 2008 House Judiciary Statement at H8295; see id. (‘‘Our goal Committee Report at 7; See also id. (express- throughout this process has been to simplify ing concern that ‘‘[a]n individual who does that analysis.’’) not qualify as disabled does not meet th[e] threshold question of coverage in the pro- Section 1630.2(j)(1)(iv): Individualized Assess- tected class and is therefore not permitted to ment Required, But With Lower Standard attempt to prove his or her claim of dis- Than Previously Applied criminatory treatment’’); 2008 Senate State- Section 1630.2(j)(1)(iv) states: ‘‘The deter- ment of Managers at 4 (criticizing pre- mination of whether an impairment substan- ADAAA lower court cases that ‘‘too often tially limits a major life activity requires an turned solely on the question of whether the individualized assessment. However, in mak- plaintiff is an individual with a disability ing this assessment, the term ‘substantially rather than the merits of discrimination limits’ shall be interpreted and applied to re- claims, such as whether adverse decisions quire a degree of functional limitation that were impermissibly made by the employer is lower than the standard for ‘substantially on the basis of disability, reasonable accom- limits’ applied prior to the ADAAA.’’ modations were denied, or qualification By retaining the essential elements of the standards were unlawfully discriminatory’’). Accordingly, the Amendments Act and the definition of disability including the key amended regulations make plain that the term ‘‘substantially limits,’’ Congress re- emphasis in ADA cases now should be affirmed that not every individual with a squarely on the merits and not on the initial physical or mental impairment is covered by coverage question. The revised regulations the first prong of the definition of disability therefore provide that an impairment is a in the ADA. See 2008 Senate Statement of disability if it substantially limits the abil- Managers at 4. To be covered under the first ity of an individual to perform a major life prong of the definition, an individual must activity as compared to most people in the establish that an impairment substantially general population and deletes the language limits a major life activity. That has not to which Congress objected. The Commission changed—nor will the necessity of making believes that this provides a useful frame- this determination on an individual basis. Id. work in which to analyze whether an impair- However, what the ADAAA changed is the ment satisfies the definition of disability. standard required for making this deter- Further, this framework better reflects mination. Id. at 4–5. Congress’s expressed intent in the ADA The Amendments Act and the EEOC’s reg- Amendments Act that the definition of the ulations explicitly reject the standard enun- term ‘‘disability’’ shall be construed broadly, ciated by the Supreme Court in Toyota Motor and is consistent with statements in the Mfg., Ky., Inc. v. Williams, 534 U.S. 184 (2002), Amendments Act’s legislative history. See and applied in the lower courts in numerous 2008 Senate Statement of Managers at 7 cases. See ADAAA section 2(b)(4). That pre- (stating that ‘‘adopting a new, undefined vious standard created ‘‘an inappropriately term’’ and the ‘‘resulting need for further ju- high level of limitation necessary to obtain dicial scrutiny and construction will not coverage under the ADA.’’ Id. at section help move the focus from the threshold issue 2(b)(5). The Amendments Act and the EEOC’s of disability to the primary issue of discrimi- regulations reject the notion that ‘‘substan- nation,’’ and finding that ‘‘ ‘substantially lim- tially limits’’ should be interpreted strictly

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to create a demanding standard for quali- the ameliorative effects of mitigating meas- fying as disabled. Id. at section 2(b)(4). In- ures, including therapies, learned behavioral stead, the ADAAA and these regulations es- or adaptive neurological modifications, as- tablish a degree of functional limitation re- sistive devices (e.g., audio recordings, screen quired for an impairment to constitute a dis- reading devices, voice activated software), ability that is consistent with what Congress studying longer, or receiving more time to originally intended. 2008 Senate Statement take a test, are disregarded as required of Managers at 7. This will make the dis- under the ADA Amendments Act. ability determination an appropriate thresh- old issue but not an onerous burden for those Section 1630.2(j)(1)(vi): Mitigating Measures seeking to prove discrimination under the Section 1630.2(j)(1)(vi) states: The deter- ADA. Id. ‘‘ mination of whether an impairment substan- Section 1630.2(j)(1)(v): Scientific, Medical, or tially limits a major life activity shall be Statistical Analysis Not Required, But Permis- made without regard to the ameliorative ef- sible When Appropriate fects of mitigating measures. However, the ameliorative effects of ordinary eyeglasses Section 1630.2(j)(1)(v) states: ‘‘The compari- or contact lenses shall be considered in de- son of an individual’s performance of a major termining whether an impairment substan- life activity to the performance of the same tially limits a major life activity.’’ major life activity by most people in the The ameliorative effects of mitigating general population usually will not require measures shall not be considered in deter- scientific, medical, or statistical analysis. mining whether an impairment substantially Nothing in this paragraph is intended, how- limits a major life activity. Thus, ‘‘[w]ith the ever, to prohibit the presentation of sci- exception of ordinary eyeglasses and contact entific, medical, or statistical evidence to lenses, impairments must be examined in make such a comparison where appropriate.’’ their unmitigated state.’’ See 2008 Senate The term average person in the general ‘‘ Statement of Managers at 5. population,’’ as the basis of comparison for determining whether an individual’s impair- This provision in the ADAAA and the ment substantially limits a major life activ- EEOC’s regulations ‘‘is intended to eliminate the catch-22 that exist[ed] * * * where indi- ity, has been changed to ‘‘most people in the general population.’’ This revision is not a viduals who are subjected to discrimination substantive change in the concept, but rath- on the basis of their disabilities [we]re fre- er is intended to conform the language to the quently unable to invoke the ADA’s protec- simpler and more straightforward termi- tions because they [we]re not considered peo- nology used in the legislative history to the ple with disabilities when the effects of their Amendments Act. The comparison between medication, medical supplies, behavioral ad- the individual and ‘‘most people’’ need not be aptations, or other interventions [we]re con- exacting, and usually will not require sci- sidered.’’ Joint Hoyer-Sensenbrenner State- entific, medical, or statistical analysis. ment at 2; See also 2008 Senate Statement of Nothing in this subparagraph is intended, Managers at 9 (‘‘This provision is intended to however, to prohibit the presentation of sci- eliminate the situation created under [prior] entific, medical, or statistical evidence to law in which impairments that are mitigated make such a comparison where appropriate. [did] not constitute disabilities but [were the The comparison to most people in the gen- basis for discrimination].’’). To the extent eral population continues to mean a com- cases pre-dating the 2008 Amendments Act parison to other people in the general popu- reasoned otherwise, they are contrary to the lation, not a comparison to those similarly law as amended. See 2008 House Judiciary situated. For example, the ability of an indi- Committee Report at 9 & nn.25, 20–21 (citing, vidual with an amputated limb to perform a e.g., McClure v. General Motors Corp., 75 F. major life activity is compared to other peo- App’x 983 (5th Cir. 2003) (court held that indi- ple in the general population, not to other vidual with muscular dystrophy who, with amputees. This does not mean that disability the mitigating measure of ‘‘adapting’’ how he cannot be shown where an impairment, such performed manual tasks, had successfully as a learning disability, is clinically diag- learned to live and work with his disability nosed based in part on a disparity between was therefore not an individual with a dis- an individual’s aptitude and that individual’s ability); Orr v. Wal-Mart Stores, Inc., 297 F.3d actual versus expected achievement, taking 720 (8th Cir. 2002) (court held that Sutton v. into account the person’s chronological age, United Air Lines, Inc., 527 U.S. 471 (1999), re- measured intelligence, and age-appropriate quired consideration of the ameliorative ef- education. Individuals diagnosed with dys- fects of plaintiff’s careful regimen of medi- lexia or other learning disabilities will typi- cine, exercise and diet, and declined to con- cally be substantially limited in performing sider impact of uncontrolled diabetes on activities such as learning, reading, and plaintiff’s ability to see, speak, read, and thinking when compared to most people in walk); Gonzales v. National Bd. of Med. Exam- the general population, particularly when iners, 225 F.3d 620 (6th Cir. 2000) (where the

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court found that an individual with a diag- examples of mitigating measures provided in nosed learning disability was not substan- the ADA and the regulations is non-exhaus- tially limited after considering the impact of tive. See 2008 House Judiciary Committee self-accommodations that allowed him to Report at 20. The absence of any particular read and achieve academic success); mitigating measure from the list in the regu- McMullin v. Ashcroft, 337 F. Supp. 2d 1281 (D. lations should not convey a negative impli- Wyo. 2004) (individual fired because of clin- cation as to whether the measure is a miti- ical depression not protected because of the gating measure under the ADA. See 2008 Sen- successful management of the condition with ate Statement of Managers at 9. medication for fifteen years); Eckhaus v. For example, the fact that mitigating Consol. Rail Corp., 2003 WL 23205042 (D.N.J. measures include ‘‘reasonable accommoda- Dec. 24, 2003) (individual fired because of a tions’’ generally makes it unnecessary to hearing impairment was not protected be- mention specific kinds of accommodations. cause a hearing aid helped correct that im- Nevertheless, the use of a service animal, job pairment); Todd v. Academy Corp., 57 F. Supp. coach, or personal assistant on the job would 2d 448, 452 (S.D. Tex. 1999) (court held that certainly be considered types of mitigating because medication reduced the frequency measures, as would the use of any device and intensity of plaintiff’s seizures, he was that could be considered assistive tech- not disabled)). nology, and whether individuals who use An individual who, because of the use of a these measures have disabilities would be de- mitigating measure, has experienced no limi- termined without reference to their amelio- tations, or only minor limitations, related to rative effects. See 2008 House Judiciary Com- the impairment may still be an individual mittee Report at 20; 2008 House Educ. & with a disability, where there is evidence Labor Rep. at 15. Similarly, adaptive strate- that in the absence of an effective miti- gies that might mitigate, or even allow an gating measure the individual’s impairment individual to otherwise avoid performing would be substantially limiting. For exam- particular major life activities, are miti- ple, someone who began taking medication gating measures and also would not be con- for hypertension before experiencing sub- sidered in determining whether an impair- stantial limitations related to the impair- ment is substantially limiting. Id. ment would still be an individual with a dis- The determination of whether or not an in- ability if, without the medication, he or she dividual’s impairment substantially limits a would now be substantially limited in func- major life activity is unaffected by whether tions of the cardiovascular or circulatory the individual chooses to forgo mitigating system. measures. For individuals who do not use a Evidence showing that an impairment mitigating measure (including for example would be substantially limiting in the ab- medication or reasonable accommodation sence of the ameliorative effects of miti- that could alleviate the effects of an impair- gating measures could include evidence of ment), the availability of such measures has limitations that a person experienced prior no bearing on whether the impairment sub- to using a mitigating measure, evidence con- stantially limits a major life activity. The cerning the expected course of a particular limitations posed by the impairment on the disorder absent mitigating measures, or individual and any negative (non-ameliora- readily available and reliable information of tive) effects of mitigating measures used de- other types. However, we expect that con- termine whether an impairment is substan- sistent with the Amendments Act’s com- tially limiting. The origin of the impair- mand (and the related rules of construction ment, whether its effects can be mitigated, in the regulations) that the definition of dis- and any ameliorative effects of mitigating ability ‘‘should not demand extensive anal- measures in fact used may not be considered ysis,’’ covered entities and courts will in in determining if the impairment is substan- many instances be able to conclude that a tially limiting. However, the use or non-use substantial limitation has been shown with- of mitigating measures, and any con- out resort to such evidence. sequences thereof, including any ameliora- The Amendments Act provides an ‘‘illus- tive and non-ameliorative effects, may be trative but non-comprehensive list of the relevant in determining whether the indi- types of mitigating measures that are not to vidual is qualified or poses a direct threat to be considered.’’ See 2008 Senate Statement of safety. Managers at 9. Section 1630.2(j)(5) of the reg- The ADA Amendments Act and the regula- ulations includes all of those mitigating tions state that ‘‘ordinary eyeglasses or con- measures listed in the ADA Amendments tact lenses’’ shall be considered in deter- Act’s illustrative list of mitigating meas- mining whether someone has a disability. ures, including reasonable accommodations This is an exception to the rule that the (as applied under title I) or ‘‘auxiliary aids or ameliorative effects of mitigating measures services’’ (as defined by 42 U.S.C. 12103(1) and are not to be taken into account. ‘‘The ra- applied under titles II and III). tionale behind this exclusion is that the use Since it would be impossible to guarantee of ordinary eyeglasses or contact lenses, comprehensiveness in a finite list, the list of without more, is not significant enough to

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warrant protection under the ADA.’’ Joint Section 1630.2(j)(1)(vii): Impairments That Are Hoyer-Sensenbrenner Statement at 2. Never- Episodic or in Remission theless, as discussed in greater detail below Section 1630.2(j)(1)(vii) states: ‘‘An impair- at § 1630.10(b), if an applicant or employee is ment that is episodic or in remission is a dis- faced with a qualification standard that re- ability if it would substantially limit a quires uncorrected vision (as the plaintiffs in major life activity when active.’’ the Sutton case were), and the applicant or An impairment that is episodic or in re- employee who is adversely affected by the mission is a disability if it would substan- standard brings a challenge under the ADA, tially limit a major life activity in its active an employer will be required to demonstrate state. ‘‘This provision is intended to reject that the qualification standard is job related the reasoning of court decisions concluding and consistent with business necessity. 2008 that certain individuals with certain condi- Senate Statement of Managers at 9. tions—such as epilepsy or post traumatic The ADAAA and the EEOC’s regulations stress disorder—were not protected by the both define the term ‘‘ordinary eyeglasses or ADA because their conditions were episodic contact lenses’’ as lenses that are ‘‘intended or intermittent.’’ Joint Hoyer-Sensenbrenner to fully correct visual acuity or eliminate Statement at 2–3. The legislative history refractive error.’’ So, if an individual with se- provides: ‘‘This * * * rule of construction vere myopia uses eyeglasses or contact thus rejects the reasoning of the courts in lenses that are intended to fully correct vis- cases like Todd v. Academy Corp. [57 F. Supp. ual acuity or eliminate refractive error, they 2d 448, 453 (S.D. Tex. 1999)] where the court are ordinary eyeglasses or contact lenses, found that the plaintiff’s epilepsy, which re- and therefore any inquiry into whether such sulted in short seizures during which the individual is substantially limited in seeing plaintiff was unable to speak and experi- or reading would be based on how the indi- enced tremors, was not sufficiently limiting, vidual sees or reads with the benefit of the at least in part because those seizures oc- eyeglasses or contact lenses. Likewise, if the curred episodically. It similarly rejects the only visual loss an individual experiences af- results reached in cases [such as Pimental v. fects the ability to see well enough to read, Dartmouth-Hitchock Clinic, 236 F. Supp. 2d 177, and the individual’s ordinary reading glasses 182–83 (D.N.H. 2002)] where the courts have are intended to completely correct for this discounted the impact of an impairment visual loss, the ameliorative effects of using [such as cancer] that may be in remission as the reading glasses must be considered in de- too short-lived to be substantially limiting. It is thus expected that individuals with im- termining whether the individual is substan- pairments that are episodic or in remission tially limited in seeing. Additionally, eye- (e.g., epilepsy, multiple sclerosis, cancer) glasses or contact lenses that are the wrong will be able to establish coverage if, when ac- prescription or an outdated prescription may tive, the impairment or the manner in which nevertheless be ‘‘ordinary’’ eyeglasses or con- it manifests (e.g., seizures) substantially tact lenses, if a proper prescription would limits a major life activity.’’ 2008 House Judi- fully correct visual acuity or eliminate re- ciary Committee Report at 19–20. fractive error. Other examples of impairments that may Both the statute and the regulations dis- be episodic include, but are not limited to, tinguish ‘‘ordinary eyeglasses or contact hypertension, diabetes, asthma, major de- lenses’’ from ‘‘low vision devices,’’ which func- pressive disorder, bipolar disorder, and schiz- tion by magnifying, enhancing, or otherwise ophrenia. See 2008 House Judiciary Com- augmenting a visual image, and which are mittee Report at 19–20. The fact that the pe- not considered when determining whether riods during which an episodic impairment is someone has a disability. The regulations do active and substantially limits a major life not establish a specific level of visual acuity activity may be brief or occur infrequently is (e.g., 20/20) as the basis for determining no longer relevant to determining whether whether eyeglasses or contact lenses should the impairment substantially limits a major be considered ‘‘ordinary’’ eyeglasses or con- life activity. For example, a person with tact lenses. Whether lenses fully correct vis- post-traumatic stress disorder who experi- ual acuity or eliminate refractive error is ences intermittent flashbacks to traumatic best determined on a case-by-case basis, in events is substantially limited in brain func- light of current and objective medical evi- tion and thinking. dence. Moreover, someone who uses ordinary Section 1630.2(j)(1)(viii): Substantial Limitation eyeglasses or contact lenses is not automati- in Only One Major Life Activity Required cally considered to be outside the ADA’s pro- tection. Such an individual may demonstrate Section 1630.2(j)(1)(viii) states: ‘‘An impair- that, even with the use of ordinary eye- ment that substantially limits one major life glasses or contact lenses, his vision is still activity need not substantially limit other substantially limited when compared to major life activities in order to be considered most people. a substantially limiting impairment.’’

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The ADAAA explicitly states that an im- ited in lifting. Similarly, someone with mo- pairment need only substantially limit one nocular vision whose depth perception or major life activity to be considered a dis- field of vision would be substantially lim- ability under the ADA. See ADAAA Section ited, with or without any compensatory 4(a); 42 U.S.C. 12102(4)(C). ‘‘This responds to strategies the individual may have devel- and corrects those courts that have required oped, need not also show that he is unable to individuals to show that an impairment sub- perform activities of central importance to stantially limits more than one life activ- daily life that require seeing in order to be ity.’’ 2008 Senate Statement of Managers at 8. substantially limited in seeing. In addition, this rule of construction is ‘‘in- tended to clarify that the ability to perform Section 1630.2(j)(1)(ix): Effects of an Impairment one or more particular tasks within a broad Lasting Fewer Than Six Months Can Be Sub- category of activities does not preclude cov- stantially Limiting erage under the ADA.’’ Id. To the extent Section 1630.2(j)(1)(ix) states: ‘‘The six- cases pre-dating the applicability of the 2008 month ‘transitory’ part of the ‘transitory Amendments Act reasoned otherwise, they and minor’ exception to ‘regarded as’ cov- are contrary to the law as amended. Id. (cit- erage in § 1630.2(l) does not apply to the defi- ing Holt v. Grand Lake Mental Health Ctr., nition of ‘disability’ under § 1630.2(g)(1)(i) or Inc., 443 F. 3d 762 (10th Cir. 2006) (holding an § 1630.2(g)(1)(ii). The effects of an impairment individual with cerebral palsy who could not lasting or expected to last fewer than six independently perform certain specified months can be substantially limiting within manual tasks was not substantially limited the meaning of this section.’’ in her ability to perform a broad range of ‘‘ ’’ The regulations include a clear statement manual tasks)); See also 2008 House Judici- that the definition of an impairment as tran- ary Committee Report at 19 & n.52 (this leg- sitory, that is, ‘‘lasting or expected to last islatively corrects court decisions that, with for six months or less,’’ only applies to the regard to the major life activity of per- ‘‘regarded as’’ (third) prong of the definition forming manual tasks, ‘‘have offset substan- of disability as part of the transitory and tial limitation in the performance of some ‘‘ ’’ ‘‘ minor’’ defense to ‘‘regarded as’’ coverage. It tasks with the ability to perform others’’ does not apply to the first or second prong of (citing Holt)). For example, an individual with diabetes is the definition of disability. See Joint Hoyer- substantially limited in endocrine function Sensenbrenner Statement at 3 (‘‘[T]here is no and thus an individual with a disability need for the transitory and minor exception under the first prong of the definition. He under the first two prongs because it is clear need not also show that he is substantially from the statute and the legislative history limited in eating to qualify for coverage that a person can only bring a claim if the under the first prong. An individual whose impairment substantially limits one or more normal cell growth is substantially limited major life activities or the individual has a due to lung cancer need not also show that record of an impairment that substantially she is substantially limited in breathing or limits one or more major life activities.’’). respiratory function. And an individual with Therefore, an impairment does not have to HIV infection is substantially limited in the last for more than six months in order to be function of the immune system, and there- considered substantially limiting under the fore is an individual with a disability with- first or the second prong of the definition of out regard to whether his or her HIV infec- disability. For example, as noted above, if an tion substantially limits him or her in repro- individual has a back impairment that re- duction. sults in a 20-pound lifting restriction that In addition, an individual whose impair- lasts for several months, he is substantially ment substantially limits a major life activ- limited in the major life activity of lifting, ity need not additionally demonstrate a re- and therefore covered under the first prong sulting limitation in the ability to perform of the definition of disability. At the same activities of central importance to daily life time, ‘‘[t]he duration of an impairment is one in order to be considered an individual with factor that is relevant in determining wheth- a disability under § 1630.2(g)(1)(i) or er the impairment substantially limits a § 1630.2(g)(1)(ii), as cases relying on the Su- major life activity. Impairments that last preme Court’s decision in Toyota Motor Mfg., only for a short period of time are typically Ky., Inc. v. Williams, 534 U.S. 184 (2002), had not covered, although they may be covered if held prior to the ADA Amendments Act. sufficiently severe.’’ Joint Hoyer-Sensen- Thus, for example, someone with an im- brenner Statement at 5. pairment resulting in a 20-pound lifting re- Section 1630.2(j)(3) Predictable Assessments striction that lasts or is expected to last for several months is substantially limited in As the regulations point out, disability is the major life activity of lifting, and need determined based on an individualized as- not also show that he is unable to perform sessment. There is no ‘‘per se’’ disability. activities of daily living that require lifting However, as recognized in the regulations, in order to be considered substantially lim- the individualized assessment of some kinds

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of impairments will virtually always result illnesses and other disabilities would have in a determination of disability. The inher- their ADA claims denied because they would ent nature of these types of medical condi- be considered too functional to meet the def- tions will in virtually all cases give rise to a inition of disability’’); 2008 Senate Statement substantial limitation of a major life activ- of Managers at 3 (explaining that ‘‘we [we]re ity. Cf. Heiko v. Columbo Savings Bank, F.S.B., faced with a situation in which physical or 434 F.3d 249, 256 (4th Cir. 2006) (stating, even mental impairments that would previously pre-ADAAA, that ‘‘certain impairments are [under the Rehabilitation Act] have been by their very nature substantially limiting: found to constitute disabilities [we]re not the major life activity of seeing, for exam- considered disabilities’’ and citing individ- ple, is always substantially limited by blind- uals with impairments such as amputation, ness’’). Therefore, with respect to these types intellectual disabilities, epilepsy, multiple of impairments, the necessary individualized sclerosis, diabetes, muscular dystrophy, and assessment should be particularly simple and cancer as examples). straightforward. Of course, the impairments listed in sub- This result is the consequence of the com- paragraph 1630.2(j)(3)(iii) may substantially bined effect of the statutory changes to the limit a variety of other major life activities definition of disability contained in the in addition to those listed in the regulation. Amendments Act and flows from application For example, mobility impairments requir- of the rules of construction set forth in ing the use of a wheelchair substantially §§ 1630.2(j)(1)(i)–(ix) (including the lower limit the major life activity of walking. Dia- standard for ‘‘substantially limits’’; the rule betes may substantially limit major life ac- that major life activities include major bod- tivities such as eating, sleeping, and think- ily functions; the principle that impairments ing. Major depressive disorder may substan- that are episodic or in remission are disabil- tially limit major life activities such as ities if they would be substantially limiting thinking, concentrating, sleeping, and inter- when active; and the requirement that the acting with others. Multiple sclerosis may ameliorative effects of mitigating measures substantially limit major life activities such (other than ordinary eyeglasses or contact as walking, bending, and lifting. lenses) must be disregarded in assessing By using the term ‘‘brain function’’ to de- whether an individual has a disability). scribe the system affected by various mental The regulations at § 1630.2(j)(3)(iii) provide impairments, the Commission is expressing examples of the types of impairments that no view on the debate concerning whether should easily be found to substantially limit mental illnesses are caused by environ- a major life activity. The legislative history mental or biological factors, but rather in- states that Congress modeled the ADA defi- tends the term to capture functions such as nition of disability on the definition con- tained in the Rehabilitation Act, and said it the ability of the brain to regulate thought wished to return courts to the way they had processes and emotions. construed that definition. See 2008 House Ju- Section 1630.2(j)(4) Condition, Manner, or diciary Committee Report at 6. Describing Duration this goal, the legislative history states that courts had interpreted the Rehabilitation The regulations provide that facts such as Act definition ‘‘broadly to include persons the ‘‘condition, manner, or duration’’ of an in- with a wide range of physical and mental im- dividual’s performance of a major life activ- pairments such as epilepsy, diabetes, mul- ity may be useful in determining whether an tiple sclerosis, and intellectual and develop- impairment results in a substantial limita- mental disabilities * * * even where a miti- tion. In the legislative history of the gating measure—like medication or a hear- ADAAA, Congress reiterated what it had said ing aid—might lessen their impact on the in- at the time of the original ADA: ‘‘A person is dividual.’’ Id.; See also id. at 9 (referring to considered an individual with a disability for individuals with disabilities that had been purposes of the first prong of the definition covered under the Rehabilitation Act and when [one or more of] the individual’s impor- that Congress intended to include under the tant life activities are restricted as to the ADA—‘‘people with serious health conditions conditions, manner, or duration under which like epilepsy, diabetes, cancer, cerebral they can be performed in comparison to most palsy, multiple sclerosis, intellectual and de- people.’’ 2008 Senate Statement of Managers velopmental disabilities’’); id. at n.6 (citing at 7 (citing 1989 Senate Report at 23). Accord- cases also finding that cerebral palsy, hear- ing to Congress: ‘‘We particularly believe ing impairments, mental retardation, heart that this test, which articulated an analysis disease, and vision in only one eye were dis- that considered whether a person’s activities abilities under the Rehabilitation Act); id. at are limited in condition, duration and man- 10 (citing testimony from Rep. Steny H. ner, is a useful one. We reiterate that using Hoyer, one of the original lead sponsors of the correct standard—one that is lower than the ADA in 1990, stating that ‘‘we could not the strict or demanding standard created by have fathomed that people with diabetes, the Supreme Court in Toyota—will make the epilepsy, heart conditions, cancer, mental disability determination an appropriate

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threshold issue but not an onerous burden such as condition, manner, or duration, the for those seeking accommodations * * *. At non-ameliorative effects of mitigating meas- the same time, plaintiffs should not be con- ures may be considered. Such ‘‘non-ameliora- strained from offering evidence needed to es- tive effects’’ could include negative side ef- tablish that their impairment is substan- fects of medicine, burdens associated with tially limiting.’’ 2008 Senate Statement of following a particular treatment regimen, Managers at 7. and complications that arise from surgery, Consistent with the legislative history, an among others. Of course, in many instances, impairment may substantially limit the it will not be necessary to assess the nega- ‘‘condition’’ or ‘‘manner’’ under which a major tive impact of a mitigating measure in de- life activity can be performed in a number of termining that a particular impairment sub- ways. For example, the condition or manner stantially limits a major life activity. For under which a major life activity can be per- example, someone with end-stage renal dis- formed may refer to the way an individual ease is substantially limited in kidney func- performs a major life activity. Thus, the con- tion, and it thus is not necessary to consider dition or manner under which a person with the burdens that dialysis treatment imposes. an amputated hand performs manual tasks Condition, manner, or duration may also will likely be more cumbersome than the suggest the amount of time or effort an indi- way that someone with two hands would per- vidual has to expend when performing a form the same tasks. major life activity because of the effects of Condition or manner may also describe an impairment, even if the individual is able how performance of a major life activity af- to achieve the same or similar result as fects the individual with an impairment. For someone without the impairment. For this example, an individual whose impairment reason, the regulations include language causes pain or fatigue that most people which says that the outcome an individual would not experience when performing that with a disability is able to achieve is not de- major life activity may be substantially lim- terminative of whether he or she is substan- ited. Thus, the condition or manner under tially limited in a major life activity. which someone with coronary artery disease Thus, someone with a learning disability performs the major life activity of walking may achieve a high level of academic suc- would be substantially limiting if the indi- cess, but may nevertheless be substantially vidual experiences shortness of breath and limited in the major life activity of learning fatigue when walking distances that most because of the additional time or effort he or people could walk without experiencing such she must spend to read, write, or learn com- effects. Similarly, condition or manner may pared to most people in the general popu- refer to the extent to which a major life ac- lation. As Congress emphasized in passing tivity, including a major bodily function, the Amendments Act, ‘‘[w]hen considering can be performed. For example, the condi- the condition, manner, or duration in which tion or manner under which a major bodily an individual with a specific learning dis- function can be performed may be substan- ability performs a major life activity, it is tially limited when the impairment ‘‘causes critical to reject the assumption that an in- the operation [of the bodily function] to dividual who has performed well academi- over-produce or under-produce in some cally cannot be substantially limited in ac- harmful fashion.’’ See 2008 House Judiciary tivities such as learning, reading, writing, Committee Report at 17. thinking, or speaking.’’ 2008 Senate State- ‘‘Duration’’ refers to the length of time an ment of Managers at 8. Congress noted that: individual can perform a major life activity ‘‘In particular, some courts have found that or the length of time it takes an individual students who have reached a high level of to perform a major life activity, as compared academic achievement are not to be consid- to most people in the general population. ered individuals with disabilities under the For example, a person whose back or leg im- ADA, as such individuals may have difficulty pairment precludes him or her from standing demonstrating substantial limitation in the for more than two hours without significant major life activities of learning or reading pain would be substantially limited in stand- relative to ‘most people.’ When considering ing, since most people can stand for more the condition, manner or duration in which than two hours without significant pain. an individual with a specific learning dis- However, a person who can walk for ten ability performs a major life activity, it is miles continuously is not substantially lim- critical to reject the assumption that an in- ited in walking merely because on the elev- dividual who performs well academically or enth mile, he or she begins to experience otherwise cannot be substantially limited in pain because most people would not be able activities such as learning, reading, writing, to walk eleven miles without experiencing thinking, or speaking. As such, the Com- some discomfort. See 2008 Senate Statement mittee rejects the findings in Price v. Na- of Managers at 7 (citing 1989 Senate Report tional Board of Medical Examiners, Gonzales v. at 23). National Board of Medical Examiners, and The regulations provide that in assessing Wong v. Regents of University of California. substantial limitation and considering facts The Committee believes that the comparison

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of individuals with specific learning disabil- does not impose a substantial limitation on ities to ‘most people’ is not problematic unto a major life activity. However, a showing of itself, but requires a careful analysis of the substantial limitation is not defeated by method and manner in which an individual’s facts related to ‘‘condition, manner, or dura- impairment limits a major life activity. For tion’’ that are not pertinent to the substan- the majority of the population, the basic me- tial limitation the individual has proffered. chanics of reading and writing do not pose extraordinary lifelong challenges; rather, Sections 1630.2(j)(5) and (6) Examples of recognizing and forming letters and words Mitigating Measures; Ordinary Eyeglasses are effortless, unconscious, automatic proc- or Contact Lenses esses. Because specific learning disabilities These provisions of the regulations provide are neurologically-based impairments, the numerous examples of mitigating measures process of reading for an individual with a and the definition of ‘‘ordinary eyeglasses or reading disability (e.g. dyslexia) is word-by- contact lenses.’’ These definitions have been word, and otherwise cumbersome, painful, more fully discussed in the portions of this deliberate and slow—throughout life. The interpretive guidance concerning the rules of Committee expects that individuals with construction in § 1630.2(j)(1). specific learning disabilities that substan- tially limit a major life activity will be bet- Substantially Limited in Working ter protected under the amended Act. 2008 ’’ The Commission has removed from the House Educ. & Labor Rep. at 10–11. text of the regulations a discussion of the It bears emphasizing that while it may be major life activity of working. This is con- useful in appropriate cases to consider facts sistent with the fact that no other major life such as condition, manner, or duration, it is activity receives special attention in the always necessary to consider and apply the regulation, and with the fact that, in light of rules of construction in § 1630.2(j)(1)(i)–(ix) the expanded definition of disability estab- that set forth the elements of broad coverage lished by the Amendments Act, this major enacted by Congress. 2008 Senate Statement life activity will be used in only very tar- of Managers at 6. Accordingly, while the geted situations. Commission’s regulations retain the concept In most instances, an individual with a dis- of condition, manner, or duration, they no ‘‘ ’’ ability will be able to establish coverage by longer include the additional list of sub- ‘‘ showing substantial limitation of a major stantial limitation factors contained in the ’’ life activity other than working; impair- previous version of the regulations (i.e., the ments that substantially limit a person’s nature and severity of the impairment, dura- ability to work usually substantially limit tion or expected duration of the impairment, one or more other major life activities. This and actual or expected permanent or long- will be particularly true in light of the term impact of or resulting from the impair- changes made by the ADA Amendments Act. ment). See, e.g., Corley v. Dep’t of Veterans Affairs ex Finally, ‘‘condition, manner, or duration’’ rel Principi, 218 F. App’x. 727, 738 (10th Cir. are not intended to be used as a rigid three- 2007) (employee with seizure disorder was not part standard that must be met to establish substantially limited in working because he a substantial limitation. ‘‘Condition, man- was not foreclosed from jobs involving driv- ner, or duration’’ are not required ‘‘factors’’ that must be considered as a talismanic test. ing, operating machinery, childcare, mili- tary service, and other jobs; employee would Rather, in referring to ‘‘condition, manner, or now be substantially limited in neurological duration,’’ the regulations make clear that these are merely the types of facts that may function); Olds v. United Parcel Serv., Inc., 127 be considered in appropriate cases. To the F. App’x. 779, 782 (6th Cir. 2005) (employee extent such aspects of limitation may be with bone marrow cancer was not substan- useful or relevant to show a substantial limi- tially limited in working due to lifting re- tation in a particular fact pattern, some or strictions caused by his cancer; employee all of them (and related facts) may be con- would now be substantially limited in nor- sidered, but evidence relating to each of mal cell growth); Williams v. Philadelphia these facts may not be necessary to establish Hous. Auth. Police Dep’t, 380 F.3d 751, 763–64 coverage. (3d Cir. 2004) (issue of material fact con- At the same time, individuals seeking cov- cerning whether police officer’s major de- erage under the first or second prong of the pression substantially limited him in per- definition of disability should not be con- forming a class of jobs due to restrictions on strained from offering evidence needed to es- his ability to carry a firearm; officer would tablish that their impairment is substan- now be substantially limited in brain func- 2 tially limiting. See 2008 Senate Statement of tion). Managers at 7. Of course, covered entities may defeat a showing of ‘‘substantial limita- 2 In addition, many cases previously ana- tion’’ by refuting whatever evidence the indi- lyzed in terms of whether the plaintiff was vidual seeking coverage has offered, or by of- ‘‘substantially limited in working’’ will now fering evidence that shows an impairment Continued

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In the rare cases where an individual has a Demonstrating a substantial limitation in need to demonstrate that an impairment performing the unique aspects of a single substantially limits him or her in working, specific job is not sufficient to establish that the individual can do so by showing that the a person is substantially limited in the impairment substantially limits his or her major life activity of working. ability to perform a class of jobs or broad A class of jobs may be determined by ref- range of jobs in various classes as compared erence to the nature of the work that an in- to most people having comparable training, dividual is limited in performing (such as skills, and abilities. In keeping with the commercial truck driving, assembly line findings and purposes of the Amendments jobs, food service jobs, clerical jobs, or law Act, the determination of coverage under the enforcement jobs) or by reference to job-re- law should not require extensive and elabo- lated requirements that an individual is lim- rate assessment, and the EEOC and the ited in meeting (for example, jobs requiring courts are to apply a lower standard in de- repetitive bending, reaching, or manual termining when an impairment substantially tasks, jobs requiring repetitive or heavy lift- limits a major life activity, including the ing, prolonged sitting or standing, extensive major life activity of working, than they ap- walking, driving, or working under condi- plied prior to the Amendments Act. The tions such as high temperatures or noise lev- Commission believes that the courts, in ap- els). plying an overly strict standard with regard For example, if a person whose job requires to ‘‘substantially limits’’ generally, have heavy lifting develops a disability that pre- reached conclusions with regard to what is vents him or her from lifting more than fifty necessary to demonstrate a substantial limi- pounds and, consequently, from performing tation in the major life activity of working not only his or her existing job but also that would be inconsistent with the changes other jobs that would similarly require now made by the Amendments Act. Accord- heavy lifting, that person would be substan- ingly, as used in this section the terms ‘‘class tially limited in working because he or she is of jobs’’ and ‘‘broad range of jobs in various substantially limited in performing the class classes’’ will be applied in a more straight- of jobs that require heavy lifting. forward and simple manner than they were Section 1630.2(k) Record of a Substantially applied by the courts prior to the Amend- Limiting Impairment ments Act.3 The second prong of the definition of ‘‘dis- ability provides that an individual with a be analyzed under the ‘‘regarded as’’ prong of ’’ the definition of disability as revised by the record of an impairment that substantially Amendments Act. See, e.g., Cannon v. Levi limits or limited a major life activity is an Strauss & Co., 29 F. App’x. 331 (6th Cir. 2002) individual with a disability. The intent of (factory worker laid off due to her carpal this provision, in part, is to ensure that peo- tunnel syndrome not regarded as substan- ple are not discriminated against because of tially limited in working because her job of a history of disability. For example, the record of provision would protect an indi- sewing machine operator was not a ‘‘broad ‘‘ ’’ vidual who was treated for cancer ten years class of jobs’’; she would now be protected under the third prong because she was fired ago but who is now deemed by a doctor to be because of her impairment, carpal tunnel free of cancer, from discrimination based on syndrome); Bridges v. City of Bossier, 92 F.3d that prior medical history. This provision 329 (5th Cir. 1996) (applicant not hired for also ensures that individuals are not dis- firefighting job because of his mild hemo- criminated against because they have been philia not regarded as substantially limited misclassified as disabled. For example, indi- in working; applicant would now be pro- viduals misclassified as having learning dis- tected under the third prong because he was abilities or intellectual disabilities (formerly not hired because of his impairment, hemo- termed ‘‘mental retardation’’) are protected philia). from discrimination on the basis of that er- roneous classification. Senate Report at 23; 3 In analyzing working as a major life ac- tivity in the past, some courts have imposed a complex and onerous standard that would eral Express Corp., 429 F.3d 461, 463–64 (4th Cir. be inappropriate under the Amendments Act. 2005) (employee’s impairment did not sub- See, e.g., Duncan v. WMATA, 240 F.3d 1110, stantially limit him in working because, 1115 (DC Cir. 2001) (manual laborer whose even though evidence showed that employ- back injury prevented him from lifting more ee’s injury disqualified him from working in than 20 pounds was not substantially limited numerous jobs in his geographic region, it in working because he did not present evi- also showed that he remained qualified for dence of the number and types of jobs avail- many other jobs). Under the Amendments able to him in the Washington area; testi- Act, the determination of whether a person mony concerning his inquiries and applica- is substantially limited in working is more tions for truck driving jobs that all required straightforward and simple than it was prior heavy lifting was insufficient); Taylor v. Fed- to the Act.

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House Labor Report at 52–53; House Judici- conclusion, which has been the Commission’s ary Report at 29; 2008 House Judiciary Re- long-standing position, is confirmed by lan- port at 7–8 & n.14. Similarly, an employee guage in the ADA Amendments Act stating who in the past was misdiagnosed with bipo- that individuals covered only under the ‘‘re- lar disorder and hospitalized as the result of garded as’’ prong of the definition of dis- a temporary reaction to medication she was ability are not entitled to reasonable accom- taking has a record of a substantially lim- modation. See 42 U.S.C. 12201(h). By implica- iting impairment, even though she did not tion, this means that individuals covered actually have bipolar disorder. under the first or second prongs are other- This part of the definition is satisfied wise eligible for reasonable accommodations. where evidence establishes that an indi- See 2008 House Judiciary Committee Report vidual has had a substantially limiting im- at 22 (‘‘This makes clear that the duty to ac- pairment. The impairment indicated in the commodate . . . arises only when an indi- record must be an impairment that would vidual establishes coverage under the first or substantially limit one or more of the indi- second prong of the definition.’’). Thus, as vidual’s major life activities. There are the regulations explain, an employee with an many types of records that could potentially impairment that previously substantially contain this information, including but not limited but no longer substantially limits, a limited to, education, medical, or employ- major life activity may need leave or a ment records. schedule change to permit him or her to at- Such evidence that an individual has a tend follow-up or ‘‘monitoring’’ appointments past history of an impairment that substan- from a health care provider. tially limited a major life activity is all that is necessary to establish coverage under the Section 1630.2(l) Regarded as Substantially second prong. An individual may have a Limited in a Major Life Activity ‘‘record of’’ a substantially limiting impair- Coverage under the ‘‘regarded as’’ prong of ment—and thus be protected under the the definition of disability should not be dif- ‘‘record of’’ prong of the statute—even if a ficult to establish. See 2008 House Judiciary covered entity does not specifically know Committee Report at 17 (explaining that about the relevant record. Of course, for the Congress never expected or intended it would covered entity to be liable for discrimination be a difficult standard to meet). Under the under title I of the ADA, the individual with third prong of the definition of disability, an a record of a substantially limiting impair- ‘‘ ’’ individual is ‘‘regarded as having such an im- ment must prove that the covered entity dis- pairment’’ if the individual is subjected to an criminated on the basis of the record of the action prohibited by the ADA because of an disability. actual or perceived impairment that is not The terms ‘‘substantially limits’’ and ‘‘transitory and minor.’’ major life activity under the second prong ‘‘ ’’ This third prong of the definition of dis- of the definition of disability are to be con- ‘‘ ’’ ability was originally intended to express strued in accordance with the same prin- Congress’s understanding that ‘‘unfounded ciples applicable under the ‘‘actual dis- concerns, mistaken beliefs, fears, myths, or ability’’ prong, as set forth in § 1630.2(j). prejudice about disabilities are often just as Individuals who are covered under the disabling as actual impairments, and [its] ‘‘record of’’ prong will often be covered under corresponding desire to prohibit discrimina- the first prong of the definition of disability tion founded on such perceptions. 2008 Sen- as well. This is a consequence of the rule of ’’ ate Statement of Managers at 9; 2008 House construction in the ADAAA and the regula- Judiciary Committee Report at 17 (same). In tions providing that an individual with an passing the original ADA, Congress relied ex- impairment that is episodic or in remission tensively on the reasoning of can be protected under the first prong if the School Board of v. 4 that the negative impairment would be substantially limiting Nassau County Arline ‘‘ reactions of others are just as disabling as when active. See 42 U.S.C. 12102(4)(D); the actual impact of an impairment. 2008 § 1630.2(j)(1)(vii). Thus, an individual who has ’’ Senate Statement of Managers at 9. The cancer that is currently in remission is an ADAAA reiterates Congress’s reliance on the individual with a disability under the ‘‘actual broad views enunciated in that decision, and disability’’ prong because he has an impair- Congress believe[s] that courts should con- ment that would substantially limit normal ‘‘ tinue to rely on this standard. Id. cell growth when active. He is also covered ’’ Accordingly, the ADA Amendments Act by the ‘‘record of’’ prong based on his history broadened the application of the regarded of having had an impairment that substan- ‘‘ as prong of the definition of disability. 2008 tially limited normal cell growth. ’’ Senate Statement of Managers at 9–10. In Finally, this section of the EEOC’s regula- doing so, Congress rejected court decisions tions makes it clear that an individual with that had required an individual to establish a record of a disability is entitled to a rea- that a covered entity perceived him or her to sonable accommodation currently needed for limitations resulting from or relating to the past substantially limiting impairment. This 4 480 U.S. at 282–83.

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have an impairment that substantially lim- vidual meets the burden of proving that the ited a major life activity. This provision is covered entity discriminated unlawfully designed to restore Congress’s intent to within the meaning of section 102 of the allow individuals to establish coverage under ADA, 42 U.S.C. 12112. the ‘‘regarded as’’ prong by showing that they Whether a covered entity can ultimately were treated adversely because of an impair- establish a defense to liability is an inquiry ment, without having to establish the cov- separate from, and follows after, a deter- ered entity’s beliefs concerning the severity mination that an individual was regarded as of the impairment. Joint Hoyer-Sensen- having a disability. Thus, for example, an brenner Statement at 3. employer who terminates an employee with Thus it is not necessary, as it was prior to angina from a manufacturing job that re- the ADA Amendments Act, for an individual quires the employee to work around machin- to demonstrate that a covered entity per- ery, believing that the employee will pose a ceived him as substantially limited in the safety risk to himself or others if he were ability to perform a major life activity in suddenly to lose consciousness, has regarded order for the individual to establish that he the individual as disabled. Whether the em- or she is covered under the ‘‘regarded as’’ ployer has a defense (e.g., that the employee prong. Nor is it necessary to demonstrate posed a direct threat to himself or cowork- that the impairment relied on by a covered ers) is a separate inquiry. entity is (in the case of an actual impair- The fact that the regarded as prong re- ment) or would be (in the case of a perceived ‘‘ ’’ quires proof of causation in order to show impairment) substantially limiting for an in- that a person is covered does not mean that dividual to be ‘‘regarded as having such an proving a regarded as claim is complex. impairment.’’ In short, to qualify for cov- ‘‘ ’’ While a person must show, for both coverage erage under the ‘‘regarded as’’ prong, an indi- vidual is not subject to any functional test. under the ‘‘regarded as’’ prong and for ulti- See 2008 Senate Statement of Managers at 13 mate liability, that he or she was subjected (‘‘The functional limitation imposed by an to a prohibited action because of an actual impairment is irrelevant to the third ‘re- or perceived impairment, this showing need garded as’ prong.’’); 2008 House Judiciary only be made once. Thus, evidence that a Committee Report at 17 (that is, ‘‘the indi- covered entity took a prohibited action be- vidual is not required to show that the per- cause of an impairment will establish cov- ceived impairment limits performance of a erage and will be relevant in establishing li- major life activity’’). The concepts of ‘‘major ability, although liability may ultimately life activities’’ and ‘‘substantial limitation’’ turn on whether the covered entity can es- simply are not relevant in evaluating wheth- tablish a defense. er an individual is ‘‘regarded as having such As prescribed in the ADA Amendments an impairment.’’ Act, the regulations provide an exception to To illustrate how straightforward applica- coverage under the ‘‘regarded as’’ prong tion of the ‘‘regarded as’’ prong is, if an em- where the impairment on which a prohibited ployer refused to hire an applicant because action is based is both transitory (having an of skin graft scars, the employer has re- actual or expected duration of six months or garded the applicant as an individual with a less) and minor. The regulations make clear disability. Similarly, if an employer termi- (at § 1630.2(l)(2) and § 1630.15(f)) that this ex- nates an employee because he has cancer, ception is a defense to a claim of discrimina- the employer has regarded the employee as tion. ‘‘Providing this exception responds to an individual with a disability. concerns raised by employer organizations A ‘‘prohibited action’’ under the ‘‘regarded and is reasonable under the ‘regarded as’ as’’ prong refers to an action of the type that prong of the definition because individuals would be unlawful under the ADA (but for seeking coverage under this prong need not any defenses to liability). Such prohibited meet the functional limitation requirement actions include, but are not limited to, re- contained in the first two prongs of the defi- fusal to hire, demotion, placement on invol- nition.’’ 2008 Senate Statement of Managers untary leave, termination, exclusion for fail- at 10; See also 2008 House Judiciary Com- ure to meet a qualification standard, harass- mittee Report at 18 (explaining that ‘‘absent ment, or denial of any other term, condition, this exception, the third prong of the defini- or privilege of employment. tion would have covered individuals who are Where an employer bases a prohibited em- regarded as having common ailments like ployment action on an actual or perceived the cold or flu, and this exception responds impairment that is not ‘‘transitory and to concerns raised by members of the busi- minor,’’ the employer regards the individual ness community regarding potential abuse of as disabled, whether or not myths, fears, or this provision and misapplication of re- stereotypes about disability motivated the sources on individuals with minor ailments employer’s decision. Establishing that an in- that last only a short period of time’’). How- dividual is ‘‘regarded as having such an im- ever, as an exception to the general rule for pairment’’ does not, by itself, establish liabil- broad coverage under the ‘‘regarded as’’ ity. Liability is established only if an indi- prong, this limitation on coverage should be

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construed narrowly. 2008 House Judiciary Report at 64–65. (See § 1630.9 Not Making Rea- Committee Report at 18. sonable Accommodation). The relevant inquiry is whether the actual The second step is to determine whether or or perceived impairment on which the em- not the individual can perform the essential ployer’s action was based is objectively functions of the position held or desired, ‘‘transitory and minor,’’ not whether the em- with or without reasonable accommodation. ployer claims it subjectively believed the im- The purpose of this second step is to ensure pairment was transitory and minor. For ex- that individuals with disabilities who can ample, an employer who terminates an em- perform the essential functions of the posi- ployee whom it believes has bipolar disorder tion held or desired are not denied employ- cannot take advantage of this exception by ment opportunities because they are not able asserting that it believed the employee’s im- to perforn marginal functions of the posi- pairment was transitory and minor, since bi- tion. House Labor Report at 55. The determination of whether an indi- polar disorder is not objectively transitory vidual with a disability is qualified is to be and minor. At the same time, an employer made at the time of the employment deci- that terminated an employee with an objec- sion. This determination should be based on tively transitory and minor hand wound, ‘‘ ’’ the capabilities of the individual with a dis- mistakenly believing it to be symptomatic ability at the time of the employment deci- of HIV infection, will nevertheless have ‘‘re- sion, and should not be based on speculation garded’’ the employee as an individual with a that the employee may become unable in the disability, since the covered entity took a future or may cause increased health insur- prohibited employment action based on a ance premiums or workers compensation perceived impairment (HIV infection) that is costs. not ‘‘transitory and minor.’’ An individual covered only under the ‘‘re- Section 1630.2(n) Essential Functions garded as’’ prong is not entitled to reasonable The determination of which functions are accommodation. 42 U.S.C. 12201(h). Thus, in essential may be critical to the determina- cases where reasonable accommodation is tion of whether or not the individual with a not at issue, the third prong provides a more disability is qualified. The essential func- straightforward framework for analyzing tions are those functions that the individual whether discrimination occurred. As Con- who holds the position must be able to per- gress observed in enacting the ADAAA: ‘‘[W]e form unaided or with the assistance of a rea- expect [the first] prong of the definition to sonable accommodation. be used only by people who are affirmatively The inquiry into whether a particular seeking reasonable accommodations or function is essential initially focuses on modifications. Any individual who has been whether the employer actually requires em- discriminated against because of an impair- ployees in the position to perform the func- ment—short of being granted a reasonable tions that the employer asserts are essential. accommodation or modification—should be For example, an employer may state that bringing a claim under the third prong of the typing is an essential function of a position. definition which will require no showing If, in fact, the employer has never required with regard to the severity of his or her im- any employee in that particular position to pairment.’’ Joint Hoyer-Sensenbrenner type, this will be evidence that typing is not Statement at 6. actually an essential function of the posi- tion. Section 1630.2(m) Qualified Individual If the individual who holds the position is actually required to perform the function The ADA prohibits discrimination on the the employer asserts is an essential function, basis of disability against a qualified indi- the inquiry will then center around whether vidual. The determination of whether an in- removing the function would fundamentally dividual with a disability is ‘‘qualified’’ alter that position. This determination of should be made in two steps. The first step is whether or not a particular function is es- to determine if the individual satisfies the sential will generally include one or more of prerequisites for the position, such as pos- the following factors listed in part 1630. sessing the appropriate educational back- The first factor is whether the position ex- ground, employment experience, skills, li- ists to perform a particular function. For ex- censes, etc. For example, the first step in de- ample, an individual may be hired to proof- termining whether an accountant who is par- read documents. The ability to proofread the aplegic is qualified for a certified public ac- documents would then be an essential func- countant (CPA) position is to examine the tion, since this is the only reason the posi- individual’s credentials to determine wheth- tion exists. er the individual is a licensed CPA. This is The second factor in determining whether sometimes referred to in the Rehabilitation a function is essential is the number of other Act caselaw as determining whether the in- employees available to perform that job dividual is ‘‘otherwise qualified’’ for the posi- function or among whom the performance of tion. See Senate Report at 33; House Labor that job function can be distributed. This

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may be a factor either because the total after Conference Report]; House Judiciary number of available employees is low, or be- Report at 33–34. See also Hall v. U.S. Postal cause of the fluctuating demands of the busi- Service, 857 F.2d 1073 (6th Cir. 1988). ness operation. For example, if an employer The time spent performing the particular has a relatively small number of available function may also be an indicator of whether employees for the volume of work to be per- that function is essential. For example, if an formed, it may be necessary that each em- employee spends the vast majority of his or ployee perform a multitude of different func- her time working at a cash register, this tions. Therefore, the performance of those would be evidence that operating the cash functions by each employee becomes more register is an essential function. The con- critical and the options for reorganizing the sequences of failing to require the employee work become more limited. In such a situa- to perform the function may be another indi- tion, functions that might not be essential if cator of whether a particular function is es- there were a larger staff may become essen- sential. For example, although a firefighter tial because the staff size is small compared may not regularly have to carry an uncon- to the volume of work that has to be done. scious adult out of a burning building, the See Treadwell v. Alexander, 707 F.2d 473 (11th consequence of failing to require the fire- Cir. 1983). fighter to be able to perform this function A similar situation might occur in a larger would be serious. work force if the workflow follows a cycle of It is important to note that the inquiry heavy demand for labor intensive work fol- into essential functions is not intended to lowed by low demand periods. This type of second guess an employer’s business judg- workflow might also make the performance ment with regard to production standards, of each function during the peak periods whether qualitative or quantitative, nor to more critical and might limit the employer’s require employers to lower such standards. flexibility in reorganizing operating proce- (See § 1630.10 Qualification Standards, Tests dures. See Dexler v. Tisch, 660 F. Supp. 1418 and Other Selection Criteria). If an employer (D. Conn. 1987). requires its typists to be able to accurately The third factor is the degree of expertise type 75 words per minute, it will not be or skill required to perform the function. In called upon to explain why an inaccurate certain professions and highly skilled posi- work product, or a typing speed of 65 words tions the employee is hired for his or her ex- per minute, would not be adequate. Simi- pertise or ability to perform the particular larly, if a hotel requires its service workers function. In such a situation, the perform- to thoroughly clean 16 rooms per day, it will ance of that specialized task would be an es- not have to explain why it requires thorough sential function. cleaning, or why it chose a 16 room rather Whether a particular function is essential than a 10 room requirement. However, if an is a factual determination that must be employer does require accurate 75 word per made on a case by case basis. In determining minute typing or the thorough cleaning of 16 whether or not a particular function is es- rooms, it will have to show that it actually sential, all relevant evidence should be con- imposes such requirements on its employees sidered. Part 1630 lists various types of evi- in fact, and not simply on paper. It should dence, such as an established job description, also be noted that, if it is alleged that the that should be considered in determining employer intentionally selected the par- whether a particular function is essential. ticular level of production to exclude indi- Since the list is not exhaustive, other rel- viduals with disabilities, the employer may evant evidence may also be presented. Great- have to offer a legitimate, nondiscrim- er weight will not be granted to the types of inatory reason for its selection. evidence included on the list than to the types of evidence not listed. Section 1630.2(o) Reasonable Although part 1630 does not require em- Accommodation ployers to develop or maintain job descrip- An individual with a disability is consid- tions, written job descriptions prepared be- ered ‘‘qualified’’ if the individual can perform fore advertising or interviewing applicants the essential functions of the position held for the job, as well as the employer’s judg- or desired with or without reasonable accom- ment as to what functions are essential are modation. A covered entity is required, ab- among the relevant evidence to be consid- sent undue hardship, to provide reasonable ered in determining whether a particular accommodation to an otherwise qualified in- function is essential. The terms of a collec- dividual with a substantially limiting im- tive bargaining agreement are also relevant pairment or a ‘‘record of’’ such an impair- to the determination of whether a particular ment. However, a covered entity is not re- function is essential. The work experience of quired to provide an accommodation to an past employees in the job or of current em- individual who meets the definition of dis- ployees in similar jobs is likewise relevant ability solely under the ‘‘regarded as’’ prong. to the determination of whether a particular The legislative history of the ADAAA function is essential. See H.R. Conf. Rep. No. makes clear that Congress included this pro- 101–596, 101st Cong., 2d Sess. 58 (1990) [herein- vision in response to various court decisions

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that had held (pre-Amendments Act) that in- disabilities. This accommodation includes dividuals who were covered solely under the both those areas that must be accessible for ‘‘regarded as’’ prong were eligible for reason- the employee to perform essential job func- able accommodations. In those cases, the tions, as well as non-work areas used by the plaintiffs had been found not to be covered employer’s employees for other purposes. under the first prong of the definition of dis- For example, accessible break rooms, lunch ability ‘‘because of the overly stringent man- rooms, training rooms, restrooms etc., may ner in which the courts had been inter- be required as reasonable accommodations. preting that prong.’’ 2008 Senate Statement Another of the potential accommodations of Managers at 11. The legislative history listed is ‘‘job restructuring.’’ An employer or goes on to explain that ‘‘[b]ecause of other covered entity may restructure a job [Congress’s] strong belief that accommo- by reallocating or redistributing non- dating individuals with disabilities is a key essential, marginal job functions. For exam- goal of the ADA, some members [of Con- ple, an employer may have two jobs, each of gress] continue to have reservations about which entails the performance of a number this provision.’’ Id. However, Congress ulti- of marginal functions. The employer hires an mately concluded that clarifying that indi- individual with a disability who is able to viduals covered solely under the ‘‘regarded perform some of the marginal functions of as’’ prong are not entitled to reasonable ac- each job but not all of the marginal func- commodations ‘‘is an acceptable compromise tions of either job. As an accommodation, given our strong expectation that such indi- the employer may redistribute the marginal viduals would now be covered under the first functions so that all of the marginal func- prong of the definition [of disability], prop- tions that the individual with a disability erly applied’’). Further, individuals covered can perform are made a part of the position only under the third prong still may bring to be filled by the individual with a dis- discrimination claims (other than failure-to- ability. The remaining marginal functions accommodate claims) under title I of the that the individual with a disability cannot ADA. 2008 Senate Statement of Managers at perform would then be transferred to the 9–10. other position. See Senate Report at 31; In general, an accommodation is any House Labor Report at 62. change in the work environment or in the An employer or other covered entity is not way things are customarily done that en- required to reallocate essential functions. ables an individual with a disability to enjoy The essential functions are by definition equal employment opportunities. There are those that the individual who holds the job three categories of reasonable accommoda- would have to perform, with or without rea- tion. These are (1) accommodations that are sonable accommodation, in order to be con- required to ensure equal opportunity in the sidered qualified for the position. For exam- application process; (2) accommodations that ple, suppose a security guard position re- enable the employer’s employees with dis- quires the individual who holds the job to in- abilities to perform the essential functions spect identification cards. An employer of the position held or desired; and (3) ac- would not have to provide an individual who commodations that enable the employer’s is legally blind with an assistant to look at employees with disabilities to enjoy equal the identification cards for the legally blind benefits and privileges of employment as are employee. In this situation the assistant enjoyed by employees without disabilities. It would be performing the job for the indi- should be noted that nothing in this part vidual with a disability rather than assisting prohibits employers or other covered entities the individual to perform the job. See Cole- from providing accommodations beyond man v. Darden, 595 F.2d 533 (10th Cir. 1979). those required by this part. An employer or other covered entity may It may also be a reasonable accommoda- also restructure a job by altering when and/ tion to permit an individual with a disability or how an essential function is performed. the opportunity to provide and utilize equip- For example, an essential function custom- ment, aids or services that an employer is arily performed in the early morning hours not required to provide as a reasonable ac- may be rescheduled until later in the day as commodation. For example, it would be a a reasonable accommodation to a disability reasonable accommodation for an employer that precludes performance of the function to permit an individual who is blind to use a at the customary hour. Likewise, as a rea- guide dog at work, even though the employer sonable accommodation, an employee with a would not be required to provide a guide dog disability that inhibits the ability to write, for the employee. may be permitted to computerize records The accommodations included on the list that were customarily maintained manually. of reasonable accommodations are generally Reassignment to a vacant position is also self explanatory. However, there are a few listed as a potential reasonable accommoda- that require further explanation. One of tion. In general, reassignment should be con- these is the accommodation of making exist- sidered only when accommodation within ing facilities used by employees readily ac- the individual’s current position would pose cessible to, and usable by, individuals with an undue hardship. Reassignment is not

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available to applicants. An applicant for a tial, or disruptive, or that would fundamen- position must be qualified for, and be able to tally alter the nature or operation of the perform the essential functions of, the posi- business. See Senate Report at 35; House tion sought with or without reasonable ac- Labor Report at 67. commodation. For example, suppose an individual with a Reassignment may not be used to limit, disabling visual impairment that makes it segregate, or otherwise discriminate against extremely difficult to see in dim lighting ap- employees with disabilities by forcing re- plies for a position as a waiter in a nightclub assignments to undesirable positions or to and requests that the club be brightly lit as designated offices or facilities. Employers a reasonable accommodation. Although the should reassign the individual to an equiva- individual may be able to perform the job in lent position, in terms of pay, status, etc., if bright lighting, the nightclub will probably the individual is qualified, and if the posi- be able to demonstrate that that particular tion is vacant within a reasonable amount of accommodation, though inexpensive, would time. A ‘‘reasonable amount of time’’ should impose an undue hardship if the bright light- be determined in light of the totality of the ing would destroy the ambience of the night- circumstances. As an example, suppose there club and/or make it difficult for the cus- is no vacant position available at the time tomers to see the stage show. The fact that that an individual with a disability requests that particular accommodation poses an reassignment as a reasonable accommoda- undue hardship, however, only means that tion. The employer, however, knows that an the employer is not required to provide that equivalent position for which the individual accommodation. If there is another accom- is qualified, will become vacant next week. modation that will not create an undue hard- Under these circumstances, the employer ship, the employer would be required to pro- should reassign the individual to the posi- vide the alternative accommodation. tion when it becomes available. An employer’s claim that the cost of a par- An employer may reassign an individual to ticular accommodation will impose an undue a lower graded position if there are no ac- hardship will be analyzed in light of the fac- commodations that would enable the em- tors outlined in part 1630. In part, this anal- ployee to remain in the current position and ysis requires a determination of whose finan- there are no vacant equivalent positions for cial resources should be considered in decid- which the individual is qualified with or ing whether the accommodation is unduly without reasonable accommodation. An em- costly. In some cases the financial resources ployer, however, is not required to maintain of the employer or other covered entity in the reassigned individual with a disability at its entirety should be considered in deter- the salary of the higher graded position if it mining whether the cost of an accommoda- does not so maintain reassigned employees tion poses an undue hardship. In other cases, who are not disabled. It should also be noted consideration of the financial resources of that an employer is not required to promote the employer or other covered entity as a an individual with a disability as an accom- whole may be inappropriate because it may modation. See Senate Report at 31–32; House not give an accurate picture of the financial Labor Report at 63. resources available to the particular facility The determination of which accommoda- that will actually be required to provide the tion is appropriate in a particular situation accommodation. See House Labor Report at involves a process in which the employer and 68–69; House Judiciary Report at 40–41; see employee identify the precise limitations also Conference Report at 56–57. imposed by the disability and explore poten- If the employer or other covered entity as- tial accommodations that would overcome serts that only the financial resources of the those limitations. This process is discussed facility where the individual will be em- more fully in § 1630.9 Not Making Reasonable ployed should be considered, part 1630 re- Accommodation. quires a factual determination of the rela- tionship between the employer or other cov- Section 1630.2(p) Undue Hardship ered entity and the facility that will provide An employer or other covered entity is not the accommodation. As an example, suppose required to provide an accommodation that that an independently owned fast food fran- will impose an undue hardship on the oper- chise that receives no money from the ation of the employer’s or other covered en- franchisor refuses to hire an individual with tity’s business. The term ‘‘undue hardship’’ a hearing impairment because it asserts that means significant difficulty or expense in, or it would be an undue hardship to provide an resulting from, the provision of the accom- interpreter to enable the individual to par- modation. The ‘‘undue hardship’’ provision ticipate in monthly staff meetings. Since the takes into account the financial realities of financial relationship between the franchisor the particular employer or other covered en- and the franchise is limited to payment of an tity. However, the concept of undue hardship annual franchise fee, only the financial re- is not limited to financial difficulty. ‘‘Undue sources of the franchise would be considered hardship’’ refers to any accommodation that in determining whether or not providing the would be unduly costly, extensive, substan- accommodation would be an undue hardship.

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See House Labor Report at 68; House Judici- ical disabilities, the employer must identify ary Report at 40. the aspect of the disability that would pose If the employer or other covered entity can the direct threat. The employer should then show that the cost of the accommodation consider the four factors listed in part 1630: would impose an undue hardship, it would (1) The duration of the risk; still be required to provide the accommoda- (2) The nature and severity of the potential tion if the funding is available from another harm; source, e.g., a State vocational rehabilitation (3) The likelihood that the potential harm agency, or if Federal, State or local tax de- will occur; and ductions or tax credits are available to offset (4) The imminence of the potential harm. the cost of the accommodation. If the em- Such consideration must rely on objective, ployer or other covered entity receives, or is factual evidence—not on subjective percep- eligible to receive, monies from an external tions, irrational fears, patronizing attitudes, source that would pay the entire cost of the or stereotypes—about the nature or effect of accommodation, it cannot claim cost as an a particular disability, or of disability gen- undue hardship. In the absence of such fund- erally. See Senate Report at 27; House Labor ing, the individual with a disability request- Report at 56–57; House Judiciary Report at ing the accommodation should be given the 45–46. See also Strathie v. Department of option of providing the accommodation or of Transportation, 716 F.2d 227 (3d Cir. 1983). Rel- paying that portion of the cost which con- evant evidence may include input from the stitutes the undue hardship on the operation individual with a disability, the experience of the business. To the extent that such mon- of the individual with a disability in pre- ies pay or would pay for only part of the cost vious similar positions, and opinions of med- of the accommodation, only that portion of ical doctors, rehabilitation counselors, or the cost of the accommodation that could physical therapists who have expertise in the not be recovered—the final net cost to the disability involved and/or direct knowledge entity—may be considered in determining of the individual with the disability. undue hardship. (See § 1630.9 Not Making An employer is also permitted to require Reasonable Accommodation). See Senate Re- that an individual not pose a direct threat of port at 36; House Labor Report at 69. harm to his or her own safety or health. If performing the particular functions of a job Section 1630.2(r) Direct Threat would result in a high probability of substan- An employer may require, as a qualifica- tial harm to the individual, the employer tion standard, that an individual not pose a could reject or discharge the individual un- direct threat to the health or safety of him- less a reasonable accommodation that would self/herself or others. Like any other quali- not cause an undue hardship would avert the fication standard, such a standard must harm. For example, an employer would not apply to all applicants or employees and not be required to hire an individual, disabled by just to individuals with disabilities. If, how- narcolepsy, who frequently and unexpectedly ever, an individual poses a direct threat as a loses consciousness for a carpentry job the result of a disability, the employer must de- essential functions of which require the use termine whether a reasonable accommoda- of power saws and other dangerous equip- tion would either eliminate the risk or re- ment, where no accommodation exists that duce it to an acceptable level. If no accom- will reduce or eliminate the risk. modation exists that would either eliminate The assessment that there exists a high or reduce the risk, the employer may refuse probability of substantial harm to the indi- to hire an applicant or may discharge an em- vidual, like the assessment that there exists ployee who poses a direct threat. a high probability of substantial harm to An employer, however, is not permitted to others, must be strictly based on valid med- deny an employment opportunity to an indi- ical analyses and/or on other objective evi- vidual with a disability merely because of a dence. This determination must be based on slightly increased risk. The risk can only be individualized factual data, using the factors considered when it poses a significant risk, discussed above, rather than on stereotypic i.e., high probability, of substantial harm; a or patronizing assumptions and must con- speculative or remote risk is insufficient. sider potential reasonable accommodations. See Senate Report at 27; House Report Labor Generalized fears about risks from the em- Report at 56–57; House Judiciary Report at ployment environment, such as exacerbation 45. of the disability caused by stress, cannot be Determining whether an individual poses a used by an employer to disqualify an indi- significant risk of substantial harm to oth- vidual with a disability. For example, a law ers must be made on a case by case basis. firm could not reject an applicant with a his- The employer should identify the specific tory of disabling mental illness based on a risk posed by the individual. For individuals generalized fear that the stress of trying to with mental or emotional disabilities, the make partner might trigger a relapse of the employer must identify the specific behavior individual’s mental illness. Nor can general- on the part of the individual that would pose ized fears about risks to individuals with dis- the direct threat. For individuals with phys- abilities in the event of an evacuation or

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other emergency be used by an employer to that he or she was regarded as a drug addict disqualify an individual with a disability. in order to demonstrate that he or she meets See Senate Report at 56; House Labor Report the definition of ‘‘disability’’ as defined in at 73–74; House Judiciary Report at 45. See this part. also Mantolete v. Bolger, 767 F.2d 1416 (9th Cir. Employers are entitled to seek reasonable 1985); Bentivegna v. U.S. Department of Labor, assurances that no illegal use of drugs is oc- 694 F.2d 619 (9th Cir.1982). curring or has occurred recently enough so that continuing use is a real and ongoing Section 1630.3 Exceptions to the Definitions of problem. The reasonable assurances that em- ‘‘Disability’’ and ‘‘Qualified Individual with a ployers may ask applicants or employees to Disability’’ provide include evidence that the individual is participating in a drug treatment program Section 1630.3 (a) through (c) Illegal Use of and/or evidence, such as drug test results, to Drugs show that the individual is not currently en- Part 1630 provides that an individual cur- gaging in the illegal use of drugs. An em- rently engaging in the illegal use of drugs is ployer, such as a law enforcement agency, not an individual with a disability for pur- may also be able to impose a qualification poses of this part when the employer or standard that excludes individuals with a other covered entity acts on the basis of history of illegal use of drugs if it can show such use. Illegal use of drugs refers both to that the standard is job-related and con- the use of unlawful drugs, such as cocaine, sistent with business necessity. (See § 1630.10 and to the unlawful use of prescription Qualification Standards, Tests and Other Se- drugs. lection Criteria) See Conference Report at Employers, for example, may discharge or 64. deny employment to persons who illegally use drugs, on the basis of such use, without Section 1630.4 Discrimination Prohibited fear of being held liable for discrimination. Paragraph (a) of this provision prohibits The term ‘‘currently engaging’’ is not in- discrimination on the basis of disability tended to be limited to the use of drugs on against a qualified individual in all aspects the day of, or within a matter of days or of the employment relationship. The range weeks before, the employment action in of employment decisions covered by this question. Rather, the provision is intended nondiscrimination mandate is to be con- to apply to the illegal use of drugs that has strued in a manner consistent with the regu- occurred recently enough to indicate that lations implementing section 504 of the Re- the individual is actively engaged in such habilitation Act of 1973. conduct. See Conference Report at 64. Paragraph (b) makes it clear that the lan- Individuals who are erroneously perceived guage ‘‘on the basis of disability’’ is not in- as engaging in the illegal use of drugs, but tended to create a cause of action for an in- are not in fact illegally using drugs are not dividual without a disability who claims excluded from the definitions of the terms that someone with a disability was treated ‘‘disability’’ and ‘‘qualified individual with a more favorably (disparate treatment), or was disability.’’ Individuals who are no longer il- provided a reasonable accommodation that legally using drugs and who have either been an individual without a disability was not rehabilitated successfully or are in the proc- provided. See 2008 House Judiciary Com- ess of completing a rehabilitation program mittee Report at 21 (this provision ‘‘prohibits are, likewise, not excluded from the defini- reverse discrimination claims by disallowing tions of those terms. The term ‘‘rehabilita- claims based on the lack of disability’’). Ad- tion program’’ refers to both in-patient and ditionally, the ADA and this part do not af- out-patient programs, as well as to appro- fect laws that may require the affirmative priate employee assistance programs, profes- recruitment or hiring of individuals with dis- sionally recognized self-help programs, such abilities, or any voluntary affirmative ac- as Narcotics Anonymous, or other programs tion employers may undertake on behalf of that provide professional (not necessarily individuals with disabilities. However, part medical) assistance and counseling for indi- 1630 is not intended to limit the ability of viduals who illegally use drugs. See Con- covered entities to choose and maintain a ference Report at 64; see also House Labor qualified workforce. Employers can continue Report at 77; House Judiciary Report at 47. to use criteria that are job related and con- It should be noted that this provision sim- sistent with business necessity to select ply provides that certain individuals are not qualified employees, and can continue to excluded from the definitions of ‘‘disability’’ hire employees who can perform the essen- and ‘‘qualified individual with a disability.’’ tial functions of the job. Consequently, such individuals are still re- The Amendments Act modified title I’s quired to establish that they satisfy the re- nondiscrimination provision to replace the quirements of these definitions in order to be prohibition on discrimination ‘‘against a protected by the ADA and this part. An indi- qualified individual with a disability because vidual erroneously regarded as illegally of the disability of such individual’’ with a using drugs, for example, would have to show prohibition on discrimination ‘‘against a

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qualified individual on the basis of dis- with such a disability, or based on general- ability.’’ As the legislative history of the ized assumptions about the absenteeism rate ADAAA explains: ‘‘[T]he bill modifies the of an individual with such a disability. ADA to conform to the structure of Title VII In addition, it should also be noted that and other civil rights laws by requiring an this part is intended to require that employ- individual to demonstrate discrimination ‘on ees with disabilities be accorded equal access the basis of disability’ rather than discrimi- to whatever health insurance coverage the nation ‘against an individual with a dis- employer provides to other employees. This ability’ because of the individual’s dis- part does not, however, affect pre-existing ability. We hope this will be an important condition clauses included in health insur- signal to both lawyers and courts to spend ance policies offered by employers. Con- less time and energy on the minutia of an in- dividual’s impairment, and more time and sequently, employers may continue to offer energy on the merits of the case—including policies that contain such clauses, even if whether discrimination occurred because of they adversely affect individuals with dis- the disability, whether an individual was abilities, so long as the clauses are not used qualified for a job or eligible for a service, as a subterfuge to evade the purposes of this and whether a reasonable accommodation or part. modification was called for under the law.’’ So, for example, it would be permissible for Joint Hoyer-Sensenbrenner Statement at 4; an employer to offer an insurance policy See also 2008 House Judiciary Report at 21 that limits coverage for certain procedures (‘‘This change harmonizes the ADA with or treatments to a specified number per other civil rights laws by focusing on wheth- year. Thus, if a health insurance plan pro- er a person who has been discriminated vided coverage for five blood transfusions a against has proven that the discrimination year to all covered employees, it would not was based on a personal characteristic (dis- be discriminatory to offer this plan simply ability), not on whether he or she has proven because a hemophiliac employee may require that the characteristic exists.’’). more than five blood transfusions annually. Section 1630.5 Limiting, Segregating and However, it would not be permissible to limit Classifying or deny the hemophiliac employee coverage for other procedures, such as heart surgery This provision and the several provisions or the setting of a broken leg, even though that follow describe various specific forms of the plan would not have to provide coverage discrimination that are included within the for the additional blood transfusions that general prohibition of § 1630.4. The capabili- may be involved in these procedures. Like- ties of qualified individuals must be deter- wise, limits may be placed on reimburse- mined on an individualized, case by case ments for certain procedures or on the types basis. Covered entities are also prohibited from segregating qualified employees into of drugs or procedures covered (e.g. limits on separate work areas or into separate lines of the number of permitted X-rays or non-cov- advancement on the basis of their disabil- erage of experimental drugs or procedures), ities. but that limitation must be applied equally Thus, for example, it would be a violation to individuals with and without disabilities. of this part for an employer to limit the du- See Senate Report at 28–29; House Labor Re- ties of an employee with a disability based port at 58–59; House Judiciary Report at 36. on a presumption of what is best for an indi- Leave policies or benefit plans that are vidual with such a disability, or on a pre- uniformly applied do not violate this part sumption about the abilities of an individual simply because they do not address the spe- with such a disability. It would be a viola- cial needs of every individual with a dis- tion of this part for an employer to adopt a ability. Thus, for example, an employer that separate track of job promotion or progres- reduces the number of paid sick leave days sion for employees with disabilities based on that it will provide to all employees, or re- a presumption that employees with disabil- duces the amount of medical insurance cov- ities are uninterested in, or incapable of, per- erage that it will provide to all employees, is forming particular jobs. Similarly, it would not in violation of this part, even if the bene- be a violation for an employer to assign or fits reduction has an impact on employees reassign (as a reasonable accommodation) with disabilities in need of greater sick leave employees with disabilities to one particular and medical coverage. Benefits reductions office or installation, or to require that em- ployees with disabilities only use particular adopted for discriminatory reasons are in employer provided non-work facilities such violation of this part. See Alexander v. as segregated break-rooms, lunch rooms, or Choate, 469 U.S. 287 (1985). See Senate Report lounges. It would also be a violation of this at 85; House Labor Report at 137. (See also, part to deny employment to an applicant or the discussion at § 1630.16(f) Health Insur- employee with a disability based on general- ance, Life Insurance, and Other Benefit ized fears about the safety of an individual Plans).

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Section 1630.6 Contractual or Other service. Thus, if the training company were Arrangements planning to conduct the training at an inac- cessible location, thereby making it impos- An employer or other covered entity may sible for an employee who uses a wheelchair not do through a contractual or other rela- to attend, the employer would have a duty to tionship what it is prohibited from doing di- make reasonable accommodation unless to rectly. This provision does not affect the de- do so would impose an undue hardship. termination of whether or not one is a ‘‘cov- Under these circumstances, appropriate ac- ered entity’’ or ‘‘employer’’ as defined in commodations might include (1) having the § 1630.2. training company identify accessible train- This provision only applies to situations ing sites and relocate the training program; where an employer or other covered entity (2) having the training company make the has entered into a contractual relationship training site accessible; (3) directly making that has the effect of discriminating against the training site accessible or providing the its own employees or applicants with disabil- training company with the means by which ities. Accordingly, it would be a violation for to make the site accessible; (4) identifying an employer to participate in a contractual and contracting with another training com- relationship that results in discrimination pany that uses accessible sites; or (5) any against the employer’s employees with dis- other accommodation that would result in abilities in hiring, training, promotion, or in making the training available to the em- any other aspect of the employment rela- ployee. tionship. This provision applies whether or not the employer or other covered entity in- As another illustration, assume that in- tended for the contractual relationship to stead of contracting with a training com- have the discriminatory effect. pany, the employer contracts with a hotel to Part 1630 notes that this provision applies host a conference for its employees. The em- to parties on either side of the contractual ployer will have a duty to ascertain and en- or other relationship. This is intended to sure the accessibility of the hotel and its highlight that an employer whose employees conference facilities. To fulfill this obliga- provide services to others, like an employer tion the employer could, for example, in- whose employees receive services, must en- spect the hotel first-hand or ask a local dis- sure that those employees are not discrimi- ability group to inspect the hotel. Alter- nated against on the basis of disability. For natively, the employer could ensure that the example, a copier company whose service contract with the hotel specifies it will pro- representative is a dwarf could be required to vide accessible guest rooms for those who provide a stepstool, as a reasonable accom- need them and that all rooms to be used for modation, to enable him to perform the nec- the conference, including exhibit and meet- essary repairs. However, the employer would ing rooms, are accessible. If the hotel not be required, as a reasonable accommoda- breaches this accessibility provision, the tion, to make structural changes to its cus- hotel may be liable to the employer, under a tomer’s inaccessible premises. non-ADA breach of contract theory, for the The existence of the contractual relation- cost of any accommodation needed to pro- ship adds no new obligations under part 1630. vide access to the hotel and conference, and The employer, therefore, is not liable for any other costs accrued by the employer. through the contractual arrangement for (In addition, the hotel may also be independ- any discrimination by the contractor against ently liable under title III of the ADA). How- the contractors own employees or appli- ever, this would not relieve the employer of cants, although the contractor, as an em- its responsibility under this part nor shield ployer, may be liable for such discrimina- it from charges of discrimination by its own tion. employees. See House Labor Report at 40; An employer or other covered entity, on House Judiciary Report at 37. the other hand, cannot evade the obligations Section 1630.8 Relationship or Association imposed by this part by engaging in a con- With an Individual With a Disability tractual or other relationship. For example, an employer cannot avoid its responsibility This provision is intended to protect any to make reasonable accommodation subject qualified individual, whether or not that in- to the undue hardship limitation through a dividual has a disability, from discrimina- contractual arrangement. See Conference tion because that person is known to have an Report at 59; House Labor Report at 59–61; association or relationship with an indi- House Judiciary Report at 36–37. vidual who has a known disability. This pro- To illustrate, assume that an employer is tection is not limited to those who have a fa- seeking to contract with a company to pro- milial relationship with an individual with a vide training for its employees. Any respon- disability. sibilities of reasonable accommodation ap- To illustrate the scope of this provision, plicable to the employer in providing the assume that a qualified applicant without a training remain with that employer even if disability applies for a job and discloses to it contracts with another company for this the employer that his or her spouse has a

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disability. The employer thereupon declines are specifically designed or required to meet to hire the applicant because the employer job-related rather than personal needs. An believes that the applicant would have to employer, for example, may have to provide miss work or frequently leave work early in an individual with a disabling visual impair- order to care for the spouse. Such a refusal ment with eyeglasses specifically designed to to hire would be prohibited by this provision. enable the individual to use the office com- Similarly, this provision would prohibit an puter monitors, but that are not otherwise employer from discharging an employee be- needed by the individual outside of the of- cause the employee does volunteer work fice. with people who have AIDS, and the em- The term ‘‘supported employment,’’ which ployer fears that the employee may contract has been applied to a wide variety of pro- the disease. grams to assist individuals with severe dis- This provision also applies to other bene- abilities in both competitive and non-com- fits and privileges of employment. For exam- ple, an employer that provides health insur- petitive employment, is not synonymous ance benefits to its employees for their de- with reasonable accommodation. Examples pendents may not reduce the level of those of supported employment include modified benefits to an employee simply because that training materials, restructuring essential employee has a dependent with a disability. functions to enable an individual to perform This is true even if the provision of such ben- a job, or hiring an outside professional (‘‘job efits would result in increased health insur- coach’’) to assist in job training. Whether a ance costs for the employer. particular form of assistance would be re- It should be noted, however, that an em- quired as a reasonable accommodation must ployer need not provide the applicant or em- be determined on an individualized, case by ployee without a disability with a reasonable case basis without regard to whether that as- accommodation because that duty only ap- sistance is referred to as ‘‘supported employ- plies to qualified applicants or employees ment.’’ For example, an employer, under cer- with disabilities. Thus, for example, an em- tain circumstances, may be required to pro- ployee would not be entitled to a modified vide modified training materials or a tem- work schedule as an accommodation to en- porary ‘‘job coach’’ to assist in the training of able the employee to care for a spouse with an individual with a disability as a reason- a disability. See Senate Report at 30; House able accommodation. However, an employer Labor Report at 61–62; House Judiciary Re- would not be required to restructure the es- port at 38–39. sential functions of a position to fit the skills of an individual with a disability who Section 1630.9 Not Making Reasonable is not otherwise qualified to perform the po- Accommodation sition, as is done in certain supported em- The obligation to make reasonable accom- ployment programs. See 34 CFR part 363. It modation is a form of non-discrimination. It should be noted that it would not be a viola- applies to all employment decisions and to tion of this part for an employer to provide the job application process. This obligation any of these personal modifications or ad- does not extend to the provision of adjust- justments, or to engage in supported employ- ments or modifications that are primarily ment or similar rehabilitative programs. for the personal benefit of the individual The obligation to make reasonable accom- with a disability. Thus, if an adjustment or modation applies to all services and pro- modification is job-related, e.g., specifically grams provided in connection with employ- assists the individual in performing the du- ment, and to all non-work facilities provided ties of a particular job, it will be considered or maintained by an employer for use by its a type of reasonable accommodation. On the employees. Accordingly, the obligation to other hand, if an adjustment or modification accommodate is applicable to employer assists the individual throughout his or her sponsored placement or counseling services, daily activities, on and off the job, it will be and to employer provided cafeterias, considered a personal item that the em- ployer is not required to provide. Accord- lounges, gymnasiums, auditoriums, trans- ingly, an employer would generally not be portation and the like. required to provide an employee with a dis- The reasonable accommodation require- ability with a prosthetic limb, wheelchair, or ment is best understood as a means by which eyeglasses. Nor would an employer have to barriers to the equal employment oppor- provide as an accommodation any amenity tunity of an individual with a disability are or convenience that is not job-related, such removed or alleviated. These barriers may, as a private hot plate, hot pot or refrigerator for example, be physical or structural obsta- that is not provided to employees without cles that inhibit or prevent the access of an disabilities. See Senate Report at 31; House individual with a disability to job sites, fa- Labor Report at 62. cilities or equipment. Or they may be rigid It should be noted, however, that the pro- work schedules that permit no flexibility as vision of such items may be required as a to when work is performed or when breaks reasonable accommodation where such items may be taken, or inflexible job procedures

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that unduly limit the modes of communica- Employers are obligated to make reason- tion that are used on the job, or the way in able accommodation only to the physical or which particular tasks are accomplished. mental limitations resulting from the dis- The term ‘‘otherwise qualified’’ is intended ability of an individual with a disability that to make clear that the obligation to make is known to the employer. Thus, an employer reasonable accommodation is owed only to would not be expected to accommodate dis- an individual with a disability who is quali- abilities of which it is unaware. If an em- fied within the meaning of § 1630.2(m) in that ployee with a known disability is having dif- he or she satisfies all the skill, experience, ficulty performing his or her job, an em- education and other job-related selection cri- ployer may inquire whether the employee is teria. An individual with a disability is ‘‘oth- in need of a reasonable accommodation. In erwise qualified,’’ in other words, if he or she general, however, it is the responsibility of is qualified for a job, except that, because of the individual with a disability to inform the the disability, he or she needs a reasonable employer that an accommodation is needed. accommodation to be able to perform the When the need for an accommodation is not job’s essential functions. obvious, an employer, before providing a rea- For example, if a law firm requires that all sonable accommodation, may require that incoming lawyers have graduated from an the individual with a disability provide docu- accredited law school and have passed the mentation of the need for accommodation. See Senate Report at 34; House Labor Re- bar examination, the law firm need not pro- port at 65. vide an accommodation to an individual with a visual impairment who has not met Process of Determining the Appropriate these selection criteria. That individual is Reasonable Accommodation not entitled to a reasonable accommodation because the individual is not ‘‘otherwise Once an individual with a disability has re- qualified’’ for the position. quested provision of a reasonable accommo- On the other hand, if the individual has dation, the employer must make a reason- graduated from an accredited law school and able effort to determine the appropriate ac- passed the bar examination, the individual commodation. The appropriate reasonable accommodation is best determined through a would be ‘‘otherwise qualified.’’ The law firm would thus be required to provide a reason- flexible, interactive process that involves both the employer and the individual with a able accommodation, such as a machine that disability. Although this process is described magnifies print, to enable the individual to below in terms of accommodations that en- perform the essential functions of the attor- able the individual with a disability to per- ney position, unless the necessary accommo- form the essential functions of the position dation would impose an undue hardship on held or desired, it is equally applicable to ac- the law firm. See Senate Report at 33–34; commodations involving the job application House Labor Report at 64–65. process, and to accommodations that enable The reasonable accommodation that is re- the individual with a disability to enjoy quired by this part should provide the indi- equal benefits and privileges of employment. vidual with a disability with an equal em- See Senate Report at 34–35; House Labor Re- ployment opportunity. Equal employment port at 65–67. opportunity means an opportunity to attain When an individual with a disability has the same level of performance, or to enjoy requested a reasonable accommodation to the same level of benefits and privileges of assist in the performance of a job, the em- employment as are available to the average ployer, using a problem solving approach, similarly situated employee without a dis- should: ability. Thus, for example, an accommoda- (1) Analyze the particular job involved and tion made to assist an employee with a dis- determine its purpose and essential func- ability in the performance of his or her job tions; must be adequate to enable the individual to (2) Consult with the individual with a dis- perform the essential functions of the rel- ability to ascertain the precise job-related evant position. The accommodation, how- limitations imposed by the individual’s dis- ever, does not have to be the ‘‘best’’ accom- ability and how those limitations could be modation possible, so long as it is sufficient overcome with a reasonable accommodation; to meet the job-related needs of the indi- (3) In consultation with the individual to vidual being accommodated. Accordingly, an be accommodated, identify potential accom- employer would not have to provide an em- modations and assess the effectiveness each ployee disabled by a back impairment with a would have in enabling the individual to per- state-of-the art mechanical lifting device if form the essential functions of the position; it provided the employee with a less expen- and sive or more readily available device that en- (4) Consider the preference of the indi- abled the employee to perform the essential vidual to be accommodated and select and functions of the job. See Senate Report at 35; implement the accommodation that is most House Labor Report at 66; see also Carter v. appropriate for both the employee and the Bennett, 840 F.2d 63 (DC Cir. 1988). employer.

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In many instances, the appropriate reason- tion agencies, or from disability constituent able accommodation may be so obvious to ei- organizations. It should be noted, however, ther or both the employer and the individual that, as provided in § 1630.9(c) of this part, with a disability that it may not be nec- the failure to obtain or receive technical as- essary to proceed in this step-by-step fash- sistance from the Federal agencies that ad- ion. For example, if an employee who uses a minister the ADA will not excuse the em- wheelchair requests that his or her desk be ployer from its reasonable accommodation placed on blocks to elevate the desktop obligation. above the arms of the wheelchair and the Once potential accommodations have been employer complies, an appropriate accom- identified, the employer should assess the ef- modation has been requested, identified, and fectiveness of each potential accommodation provided without either the employee or em- in assisting the individual in need of the ac- ployer being aware of having engaged in any commodation in the performance of the es- sort of ‘‘reasonable accommodation process.’’ sential functions of the position. If more However, in some instances neither the in- than one of these accommodations will en- dividual requesting the accommodation nor able the individual to perform the essential the employer can readily identify the appro- functions or if the individual would prefer to priate accommodation. For example, the in- provide his or her own accommodation, the dividual needing the accommodation may preference of the individual with a disability not know enough about the equipment used should be given primary consideration. How- by the employer or the exact nature of the ever, the employer providing the accommo- work site to suggest an appropriate accom- dation has the ultimate discretion to choose modation. Likewise, the employer may not between effective accommodations, and may know enough about the individual’s dis- choose the less expensive accommodation or ability or the limitations that disability the accommodation that is easier for it to would impose on the performance of the job provide. It should also be noted that the in- to suggest an appropriate accommodation. dividual’s willingness to provide his or her Under such circumstances, it may be nec- own accommodation does not relieve the em- essary for the employer to initiate a more ployer of the duty to provide the accommo- defined problem solving process, such as the dation should the individual for any reason step-by-step process described above, as part be unable or unwilling to continue to provide of its reasonable effort to identify the appro- the accommodation. priate reasonable accommodation. This process requires the individual assess- Reasonable Accommodation Process ment of both the particular job at issue, and Illustrated the specific physical or mental limitations of the particular individual in need of reason- The following example illustrates the in- able accommodation. With regard to assess- formal reasonable accommodation process. ment of the job, ‘‘individual assessment’’ Suppose a Sack Handler position requires means analyzing the actual job duties and that the employee pick up fifty pound sacks determining the true purpose or object of the and carry them from the company loading job. Such an assessment is necessary to as- dock to the storage room, and that a sack certain which job functions are the essential handler who is disabled by a back impair- functions that an accommodation must en- ment requests a reasonable accommodation. able an individual with a disability to per- Upon receiving the request, the employer form. analyzes the Sack Handler job and deter- After assessing the relevant job, the em- mines that the essential function and pur- ployer, in consultation with the individual pose of the job is not the requirement that requesting the accommodation, should make the job holder physically lift and carry the an assessment of the specific limitations im- sacks, but the requirement that the job hold- posed by the disability on the individual’s er cause the sack to move from the loading performance of the job’s essential functions. dock to the storage room. This assessment will make it possible to as- The employer then meets with the sack certain the precise barrier to the employ- handler to ascertain precisely the barrier ment opportunity which, in turn, will make posed by the individual’s specific disability it possible to determine the accommoda- to the performance of the job’s essential tion(s) that could alleviate or remove that function of relocating the sacks. At this barrier. meeting the employer learns that the indi- If consultation with the individual in need vidual can, in fact, lift the sacks to waist of the accommodation still does not reveal level, but is prevented by his or her dis- potential appropriate accommodations, then ability from carrying the sacks from the the employer, as part of this process, may loading dock to the storage room. The em- find that technical assistance is helpful in ployer and the individual agree that any of a determining how to accommodate the par- number of potential accommodations, such ticular individual in the specific situation. as the provision of a dolly, hand truck, or Such assistance could be sought from the cart, could enable the individual to transport Commission, from State or local rehabilita- the sacks that he or she has lifted.

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Upon further consideration, however, it is not entitled to reasonable accommodation determined that the provision of a cart is under the ADA if the individual is only cov- not a feasible effective option. No carts are ered under the ‘‘regarded as’’ prong of the def- currently available at the company, and inition of ‘‘individual with a disability.’’ How- those that can be purchased by the company ever, if the individual is covered under both are the wrong shape to hold many of the the ‘‘regarded as’’ prong and one or both of bulky and irregularly shaped sacks that the other two prongs of the definition of dis- must be moved. Both the dolly and the hand ability, the ordinary rules concerning the truck, on the other hand, appear to be effec- provision of reasonable accommodation tive options. Both are readily available to apply. the company, and either will enable the indi- vidual to relocate the sacks that he or she Section 1630.10 Qualification Standards, Tests, has lifted. The sack handler indicates his or and Other Selection Criteria her preference for the dolly. In consideration of this expressed preference, and because the Section 1630.10(a)—In General employer feels that the dolly will allow the individual to move more sacks at a time and The purpose of this provision is to ensure so be more efficient than would a hand that individuals with disabilities are not ex- truck, the employer ultimately provides the cluded from job opportunities unless they sack handler with a dolly in fulfillment of are actually unable to do the job. It is to en- the obligation to make reasonable accommo- sure that there is a fit between job criteria dation. and an applicant’s (or employee’s) actual ability to do the job. Accordingly, job cri- Section 1630.9(b) teria that even unintentionally screen out, This provision states that an employer or or tend to screen out, an individual with a other covered entity cannot prefer or select disability or a class of individuals with dis- a qualified individual without a disability abilities because of their disability may not over an equally qualified individual with a be used unless the employer demonstrates disability merely because the individual that those criteria, as used by the employer, with a disability will require a reasonable are job related for the position to which they accommodation. In other words, an individ- are being applied and are consistent with ual’s need for an accommodation cannot business necessity. The concept of ‘‘business enter into the employer’s or other covered necessity’’ has the same meaning as the con- entity’s decision regarding hiring, discharge, cept of ‘‘business necessity’’ under section 504 promotion, or other similar employment de- of the Rehabilitation Act of 1973. cisions, unless the accommodation would im- Selection criteria that exclude, or tend to pose an undue hardship on the employer. See exclude, an individual with a disability or a House Labor Report at 70. class of individuals with disabilities because Section 1630.9(d) of their disability but do not concern an es- sential function of the job would not be con- The purpose of this provision is to clarify sistent with business necessity. that an employer or other covered entity The use of selection criteria that are re- may not compel an individual with a dis- ability to accept an accommodation, where lated to an essential function of the job may that accommodation is neither requested nor be consistent with business necessity. How- needed by the individual. However, if a nec- ever, selection criteria that are related to an essary reasonable accommodation is refused, essential function of the job may not be used the individual may not be considered quali- to exclude an individual with a disability if fied. For example, an individual with a vis- that individual could satisfy the criteria ual impairment that restricts his or her field with the provision of a reasonable accommo- of vision but who is able to read unaided dation. Experience under a similar provision would not be required to accept a reader as of the regulations implementing section 504 an accommodation. However, if the indi- of the Rehabilitation Act indicates that vidual were not able to read unaided and challenges to selection criteria are, in fact, reading was an essential function of the job, often resolved by reasonable accommoda- the individual would not be qualified for the tion. job if he or she refused a reasonable accom- This provision is applicable to all types of modation that would enable him or her to selection criteria, including safety require- read. See Senate Report at 34; House Labor ments, vision or hearing requirements, walk- Report at 65; House Judiciary Report at 71– ing requirements, lifting requirements, and 72. employment tests. See 1989 Senate Report at 37–39; House Labor Report at 70–72; House Ju- Section 1630.9(e) diciary Report at 42. As previously noted, The purpose of this provision is to incor- however, it is not the intent of this part to porate the clarification made in the ADA second guess an employer’s business judg- Amendments Act of 2008 that an individual is ment with regard to production standards.

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See § 1630.2(n) (Essential Functions). Con- The employer or other covered entity is, sequently, production standards will gen- generally, only required to provide such rea- erally not be subject to a challenge under sonable accommodation if it knows, prior to this provision. the administration of the test, that the indi- The Uniform Guidelines on Employee Se- vidual is disabled and that the disability im- lection Procedures (UGESP) 29 CFR part 1607 pairs sensory, manual or speaking skills. do not apply to the Rehabilitation Act and Thus, for example, it would be unlawful to are similarly inapplicable to this part. administer a written employment test to an individual who has informed the employer, Section 1630.10(b)—Qualification Standards prior to the administration of the test, that and Tests Related to Uncorrected Vision he is disabled with dyslexia and unable to This provision allows challenges to quali- read. In such a case, as a reasonable accom- fication standards based on uncorrected vi- modation and in accordance with this provi- sion, even where the person excluded by a sion, an alternative oral test should be ad- standard has fully corrected vision with ordi- ministered to that individual. By the same nary eyeglasses or contact lenses. An indi- token, a written test may need to be sub- vidual challenging a covered entity’s appli- stituted for an oral test if the applicant tak- cation of a qualification standard, test, or ing the test is an individual with a disability other criterion based on uncorrected vision that impairs speaking skills or impairs the need not be a person with a disability. In processing of auditory information. order to have standing to challenge such a Occasionally, an individual with a dis- standard, test, or criterion, however, a per- ability may not realize, prior to the adminis- son must be adversely affected by such tration of a test, that he or she will need an standard, test or criterion. The Commission accommodation to take that particular test. also believes that such individuals will usu- In such a situation, the individual with a dis- ally be covered under the ‘‘regarded as’’ prong ability, upon becoming aware of the need for of the definition of disability. Someone who an accommodation, must so inform the em- wears eyeglasses or contact lenses to correct ployer or other covered entity. For example, vision will still have an impairment, and a suppose an individual with a disabling visual qualification standard that screens the indi- impairment does not request an accommoda- vidual out because of the impairment by re- tion for a written examination because he or quiring a certain level of uncorrected vision she is usually able to take written tests with to perform a job will amount to an action the aid of his or her own specially designed prohibited by the ADA based on an impair- lens. When the test is distributed, the indi- ment. (See § 1630.2(l); appendix to § 1630.2(l).) vidual with a disability discovers that the In either case, a covered entity may still lens is insufficient to distinguish the words defend a qualification standard requiring a of the test because of the unusually low certain level of uncorrected vision by show- color contrast between the paper and the ing that it is job related and consistent with ink, the individual would be entitled, at that business necessity. For example, an appli- point, to request an accommodation. The cant or employee with uncorrected vision of employer or other covered entity would, 20/100 who wears glasses that fully correct thereupon, have to provide a test with higher his vision may challenge a police depart- contrast, schedule a retest, or provide any ment’s qualification standard that requires other effective accommodation unless to do all officers to have uncorrected vision of no so would impose an undue hardship. less than 20/40 in one eye and 20/100 in the Other alternative or accessible test modes other, and visual acuity of 20/20 in both eyes or formats include the administration of with correction. The department would then tests in large print or braille, or via a reader have to establish that the standard is job re- or sign interpreter. Where it is not possible lated and consistent with business necessity. to test in an alternative format, the em- ployer may be required, as a reasonable ac- Section 1630.11 Administration of Tests commodation, to evaluate the skill to be The intent of this provision is to further tested in another manner (e.g., through an emphasize that individuals with disabilities interview, or through education license, or are not to be excluded from jobs that they work experience requirements). An employer can actually perform merely because a dis- may also be required, as a reasonable accom- ability prevents them from taking a test, or modation, to allow more time to complete negatively influences the results of a test, the test. In addition, the employer’s obliga- that is a prerequisite to the job. Read to- tion to make reasonable accommodation ex- gether with the reasonable accommodation tends to ensuring that the test site is acces- requirement of section 1630.9, this provision sible. (See § 1630.9 Not Making Reasonable requires that employment tests be adminis- Accommodation) See Senate Report at 37–38; tered to eligible applicants or employees House Labor Report at 70–72; House Judici- with disabilities that impair sensory, man- ary Report at 42; see also Stutts v. Freeman, ual, or speaking skills in formats that do not 694 F.2d 666 (11th Cir. 1983); Crane v. Dole, 617 require the use of the impaired skill. F. Supp. 156 (D.D.C. 1985).

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This provision does not require that an em- employee to be tested for AIDS, HIV infec- ployer offer every applicant his or her choice tion, or cancer unless the employer can dem- of test format. Rather, this provision only onstrate that such testing is job-related and requires that an employer provide, upon ad- consistent with business necessity. See Sen- vance request, alternative, accessible tests ate Report at 39; House Labor Report at 75; to individuals with disabilities that impair House Judiciary Report at 44. sensory, manual, or speaking skills needed to take the test. Section 1630.14 Medical Examinations and This provision does not apply to employ- Inquiries Specifically Permitted ment tests that require the use of sensory, manual, or speaking skills where the tests Section 1630.14(a) Pre-employment Inquiry are intended to measure those skills. Thus, Employers are permitted to make pre-em- an employer could require that an applicant ployment inquiries into the ability of an ap- with dyslexia take a written test for a par- plicant to perform job-related functions. ticular position if the ability to read is the This inquiry must be narrowly tailored. The skill the test is designed to measure. Simi- employer may describe or demonstrate the larly, an employer could require that an ap- job function and inquire whether or not the plicant complete a test within established applicant can perform that function with or time frames if speed were one of the skills without reasonable accommodation. For ex- for which the applicant was being tested. ample, an employer may explain that the job However, the results of such a test could not requires assembling small parts and ask if be used to exclude an individual with a dis- the individual will be able to perform that ability unless the skill was necessary to per- function, with or without reasonable accom- form an essential function of the position modation. See Senate Report at 39; House and no reasonable accommodation was avail- Labor Report at 73; House Judiciary Report able to enable the individual to perform that at 43. function, or the necessary accommodation would impose an undue hardship. An employer may also ask an applicant to describe or to demonstrate how, with or Section 1630.13 Prohibited Medical without reasonable accommodation, the ap- Examinations and Inquiries plicant will be able to perform job-related functions. Such a request may be made of all Section 1630.13(a) Pre-employment applicants in the same job category regard- Examination or Inquiry less of disability. Such a request may also be This provision makes clear that an em- made of an applicant whose known disability ployer cannot inquire as to whether an indi- may interfere with or prevent the perform- vidual has a disability at the pre-offer stage ance of a job-related function, whether or of the selection process. Nor can an employer not the employer routinely makes such a re- inquire at the pre-offer stage about an appli- quest of all applicants in the job category. cant’s workers’ compensation history. For example, an employer may ask an indi- Employers may ask questions that relate vidual with one leg who applies for a position to the applicant’s ability to perform job-re- as a home washing machine repairman to lated functions. However, these questions demonstrate or to explain how, with or with- should not be phrased in terms of disability. out reasonable accommodation, he would be An employer, for example, may ask whether able to transport himself and his tools down the applicant has a driver’s license, if driving basement stairs. However, the employer may is a job function, but may not ask whether not inquire as to the nature or severity of the applicant has a visual disability. Em- the disability. Therefore, for example, the ployers may ask about an applicant’s ability employer cannot ask how the individual lost to perform both essential and marginal job the leg or whether the loss of the leg is indic- functions. Employers, though, may not ative of an underlying impairment. refuse to hire an applicant with a disability On the other hand, if the known disability because the applicant’s disability prevents of an applicant will not interfere with or pre- him or her from performing marginal func- vent the performance of a job-related func- tions. See Senate Report at 39; House Labor tion, the employer may only request a de- Report at 72–73; House Judiciary Report at scription or demonstration by the applicant 42–43. if it routinely makes such a request of all ap- plicants in the same job category. So, for ex- Section 1630.13(b) Examination or Inquiry ample, it would not be permitted for an em- of Employees ployer to request that an applicant with one The purpose of this provision is to prevent leg demonstrate his ability to assemble the administration to employees of medical small parts while seated at a table, if the tests or inquiries that do not serve a legiti- employer does not routinely request that all mate business purpose. For example, if an applicants provide such a demonstration. employee suddenly starts to use increased An employer that requires an applicant amounts of sick leave or starts to appear with a disability to demonstrate how he or sickly, an employer could not require that she will perform a job-related function must

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either provide the reasonable accommoda- Section 1630.14(b) Employment Entrance tion the applicant needs to perform the func- Examination tion or permit the applicant to explain how, An employer is permitted to require post- with the accommodation, he or she will per- offer medical examinations before the em- form the function. If the job-related function ployee actually starts working. The em- is not an essential function, the employer ployer may condition the offer of employ- may not exclude the applicant with a dis- ment on the results of the examination, pro- ability because of the applicant’s inability to vided that all entering employees in the perform that function. Rather, the employer same job category are subjected to such an must, as a reasonable accommodation, either examination, regardless of disability, and provide an accommodation that will enable that the confidentiality requirements speci- the individual to perform the function, fied in this part are met. transfer the function to another position, or This provision recognizes that in many in- exchange the function for one the applicant dustries, such as air transportation or con- is able to perform. struction, applicants for certain positions An employer may not use an application are chosen on the basis of many factors in- form that lists a number of potentially dis- cluding physical and psychological criteria, abling impairments and ask the applicant to some of which may be identified as a result check any of the impairments he or she may of post-offer medical examinations given have. In addition, as noted above, an em- prior to entry on duty. Only those employees ployer may not ask how a particular indi- who meet the employer’s physical and psy- vidual became disabled or the prognosis of chological criteria for the job, with or with- the individual’s disability. The employer is out reasonable accommodation, will be also prohibited from asking how often the in- qualified to receive confirmed offers of em- dividual will require leave for treatment or ployment and begin working. use leave as a result of incapacitation be- Medical examinations permitted by this cause of the disability. However, the em- section are not required to be job-related and ployer may state the attendance require- consistent with business necessity. However, ments of the job and inquire whether the ap- if an employer withdraws an offer of employ- plicant can meet them. ment because the medical examination re- An employer is permitted to ask, on a test veals that the employee does not satisfy cer- announcement or application form, that in- tain employment criteria, either the exclu- dividuals with disabilities who will require a sionary criteria must not screen out or tend reasonable accommodation in order to take to screen out an individual with a disability the test so inform the employer within a rea- or a class of individuals with disabilities, or sonable established time period prior to the they must be job-related and consistent with administration of the test. The employer business necessity. As part of the showing may also request that documentation of the that an exclusionary criteria is job-related need for the accommodation accompany the and consistent with business necessity, the request. Requested accommodations may in- employer must also demonstrate that there clude accessible testing sites, modified test- is no reasonable accommodation that will ing conditions and accessible test formats. enable the individual with a disability to (See § 1630.11 Administration of Tests). perform the essential functions of the job. Physical agility tests are not medical ex- See Conference Report at 59–60; Senate Re- aminations and so may be given at any point port at 39; House Labor Report at 73–74; in the application or employment process. House Judiciary Report at 43. Such tests must be given to all similarly sit- As an example, suppose an employer makes uated applicants or employees regardless of a conditional offer of employment to an ap- disability. If such tests screen out or tend to plicant, and it is an essential function of the screen out an individual with a disability or job that the incumbent be available to work a class of individuals with disabilities, the every day for the next three months. An em- employer would have to demonstrate that ployment entrance examination then reveals the test is job-related and consistent with that the applicant has a disabling impair- business necessity and that performance can- ment that, according to reasonable medical not be achieved with reasonable accommoda- judgment that relies on the most current tion. (See § 1630.9 Not Making Reasonable medical knowledge, will require treatment Accommodation: Process of Determining the that will render the applicant unable to Appropriate Reasonable Accommodation). work for a portion of the three month period. As previously noted, collecting informa- Under these circumstances, the employer tion and inviting individuals to identify would be able to withdraw the employment themselves as individuals with disabilities as offer without violating this part. required to satisfy the affirmative action re- The information obtained in the course of quirements of section 503 of the Rehabilita- a permitted entrance examination or inquiry tion Act is not restricted by this part. (See is to be treated as a confidential medical § 1630.1 (b) and (c) Applicability and Con- record and may only be used in a manner not struction). inconsistent with this part. State workers’

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compensation laws are not preempted by the tion. Voluntary activities, such as blood ADA or this part. These laws require the col- pressure monitoring and the administering lection of information from individuals for of prescription drugs, such as insulin, are State administrative purposes that do not also permitted. It should be noted, however, conflict with the ADA or this part. Con- that the medical records developed in the sequently, employers or other covered enti- course of such activities must be maintained ties may submit information to State work- in the confidential manner required by this ers’ compensation offices or second injury part and must not be used for any purpose in funds in accordance with State workers’ violation of this part, such as limiting compensation laws without violating this health insurance eligibility. House Labor Re- part. port at 75; House Judiciary Report at 43–44. Consistent with this section and with § 1630.16(f) of this part, information obtained Section 1630.15 Defenses in the course of a permitted entrance exam- ination or inquiry may be used for insurance The section on defenses in part 1630 is not purposes described in § 1630.16(f). intended to be exhaustive. However, it is in- tended to inform employers of some of the Section 1630.14(c) Examination of potential defenses available to a charge of Employees discrimination under the ADA and this part. This provision permits employers to make inquiries or require medical examinations Section 1630.15(a) Disparate Treatment (fitness for duty exams) when there is a need Defenses to determine whether an employee is still The ‘‘traditional’’ defense to a charge of dis- able to perform the essential functions of his parate treatment under title VII, as ex- or her job. The provision permits employers or other covered entities to make inquiries pressed in McDonnell Douglas Corp. v. Green, or require medical examinations necessary 411 U.S. 792 (1973), Texas Department of Com- to the reasonable accommodation process de- munity Affairs v. Burdine, 450 U.S. 248 (1981), scribed in this part. This provision also per- and their progeny, may be applicable to mits periodic physicals to determine fitness charges of disparate treatment brought for duty or other medical monitoring if such under the ADA. See Prewitt v. U.S. Postal physicals or monitoring are required by med- Service, 662 F.2d 292 (5th Cir. 1981). Disparate ical standards or requirements established treatment means, with respect to title I of by Federal, State, or local law that are con- the ADA, that an individual was treated dif- sistent with the ADA and this part (or in the ferently on the basis of his or her disability. case of a Federal standard, with section 504 For example, disparate treatment has oc- of the Rehabilitation Act) in that they are curred where an employer excludes an em- job-related and consistent with business ne- ployee with a severe facial disfigurement cessity. from staff meetings because the employer Such standards may include Federal safety does not like to look at the employee. The regulations that regulate bus and truck driv- individual is being treated differently be- er qualifications, as well as laws establishing cause of the employer’s attitude towards his medical requirements for pilots or other air or her perceived disability. Disparate treat- transportation personnel. These standards ment has also occurred where an employer also include health standards promulgated has a policy of not hiring individuals with pursuant to the Occupational Safety and AIDS regardless of the individuals’ qualifica- Health Act of 1970, the Federal Coal Mine tions. Health and Safety Act of 1969, or other simi- lar statutes that require that employees ex- The crux of the defense to this type of posed to certain toxic and hazardous sub- charge is that the individual was treated dif- stances be medically monitored at specific ferently not because of his or her disability intervals. See House Labor Report at 74–75. but for a legitimate nondiscriminatory rea- The information obtained in the course of son such as poor performance unrelated to such examination or inquiries is to be treat- the individual’s disability. The fact that the ed as a confidential medical record and may individual’s disability is not covered by the only be used in a manner not inconsistent employer’s current insurance plan or would with this part. cause the employer’s insurance premiums or workers’ compensation costs to increase, Section 1630.14(d) Other Acceptable would not be a legitimate nondiscriminatory Examinations and Inquiries reason justifying disparate treatment of an Part 1630 permits voluntary medical ex- individual with a disability. Senate Report aminations, including voluntary medical his- at 85; House Labor Report at 136 and House tories, as part of employee health programs. Judiciary Report at 70. The defense of a le- These programs often include, for example, gitimate nondiscriminatory reason is rebut- medical screening for high blood pressure, ted if the alleged nondiscriminatory reason weight control counseling, and cancer detec- is shown to be pretextual.

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Section 1630.15 (b) and (c) Disparate Impact have to be job-related and consistent with Defenses business necessity, subject to consideration of reasonable accommodation. Disparate impact means, with respect to It should be noted, however, that some uni- title I of the ADA and this part, that uni- formly applied employment policies or prac- formly applied criteria have an adverse im- tices, such as leave policies, are not subject pact on an individual with a disability or a to challenge under the adverse impact the- disproportionately negative impact on a ory. ‘‘No-leave’’ policies (e.g., no leave during class of individuals with disabilities. Section the first six months of employment) are like- 1630.15(b) clarifies that an employer may use wise not subject to challenge under the ad- selection criteria that have such a disparate verse impact theory. However, an employer, impact, i.e., that screen out or tend to screen in spite of its ‘‘no-leave’’ policy, may, in ap- out an individual with a disability or a class propriate circumstances, have to consider of individuals with disabilities only when the provision of leave to an employee with a they are job-related and consistent with disability as a reasonable accommodation, business necessity. unless the provision of leave would impose For example, an employer interviews two an undue hardship. See discussion at § 1630.5 candidates for a position, one of whom is Limiting, Segregating and Classifying, and blind. Both are equally qualified. The em- § 1630.10 Qualification Standards, Tests, and ployer decides that while it is not essential Other Selection Criteria. to the job it would be convenient to have an employee who has a driver’s license and so Section 1630.15(d) Defense To Not Making could occasionally be asked to run errands Reasonable Accommodation by car. The employer hires the individual An employer or other covered entity al- who is sighted because this individual has a leged to have discriminated because it did driver’s license. This is an example of a uni- not make a reasonable accommodation, as formly applied criterion, having a driver’s required by this part, may offer as a defense permit, that screens out an individual who that it would have been an undue hardship to has a disability that makes it impossible to make the accommodation. obtain a driver’s permit. The employer It should be noted, however, that an em- would, thus, have to show that this criterion ployer cannot simply assert that a needed is job-related and consistent with business accommodation will cause it undue hardship, necessity. See House Labor Report at 55. as defined in § 1630.2(p), and thereupon be re- However, even if the criterion is job-re- lieved of the duty to provide accommoda- lated and consistent with business necessity, tion. Rather, an employer will have to an employer could not exclude an individual present evidence and demonstrate that the with a disability if the criterion could be accommodation will, in fact, cause it undue met or job performance accomplished with a hardship. Whether a particular accommoda- reasonable accommodation. For example, tion will impose an undue hardship for a par- suppose an employer requires, as part of its ticular employer is determined on a case by application process, an interview that is job- case basis. Consequently, an accommodation related and consistent with business neces- that poses an undue hardship for one em- sity. The employer would not be able to ployer at a particular time may not pose an refuse to hire a hearing impaired applicant undue hardship for another employer, or because he or she could not be interviewed. even for the same employer at another time. This is so because an interpreter could be Likewise, an accommodation that poses an provided as a reasonable accommodation undue hardship for one employer in a par- that would allow the individual to be inter- ticular job setting, such as a temporary con- viewed, and thus satisfy the selection cri- struction worksite, may not pose an undue terion. hardship for another employer, or even for With regard to safety requirements that the same employer at a permanent worksite. screen out or tend to screen out an indi- See House Judiciary Report at 42. vidual with a disability or a class of individ- The concept of undue hardship that has uals with disabilities, an employer must evolved under section 504 of the Rehabilita- demonstrate that the requirement, as ap- tion Act and is embodied in this part is un- plied to the individual, satisfies the ‘‘direct like the ‘‘undue hardship’’ defense associated threat’’ standard in § 1630.2(r) in order to with the provision of religious accommoda- show that the requirement is job-related and tion under title VII of the Civil Rights Act of consistent with business necessity. 1964. To demonstrate undue hardship pursu- Section 1630.15(c) clarifies that there may ant to the ADA and this part, an employer be uniformly applied standards, criteria and must show substantially more difficulty or policies not relating to selection that may expense than would be needed to satisfy the also screen out or tend to screen out an indi- ‘‘de minimis’’ title VII standard of undue vidual with a disability or a class of individ- hardship. For example, to demonstrate that uals with disabilities. Like selection criteria the cost of an accommodation poses an that have a disparate impact, non-selection undue hardship, an employer would have to criteria having such an impact may also show that the cost is undue as compared to

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the employer’s budget. Simply comparing standard that would not conflict with this the cost of the accommodation to the salary part. See House Labor Report at 74. of the individual with a disability in need of the accommodation will not suffice. More- Section 1630.15(f) Claims Based on Transitory over, even if it is determined that the cost of and Minor Impairments Under the ‘‘Re- an accommodation would unduly burden an garded As’’ Prong employer, the employer cannot avoid mak- It may be a defense to a charge of discrimi- ing the accommodation if the individual nation where coverage would be shown solely with a disability can arrange to cover that under the ‘‘regarded as’’ prong of the defini- portion of the cost that rises to the undue tion of disability that the impairment is (in hardship level, or can otherwise arrange to the case of an actual impairment) or would provide the accommodation. Under such cir- be (in the case of a perceived impairment) cumstances, the necessary accommodation would no longer pose an undue hardship. See both transitory and minor. Section Senate Report at 36; House Labor Report at 1630.15(f)(1) explains that an individual can- 68–69; House Judiciary Report at 40–41. not be ‘‘regarded as having such an impair- Excessive cost is only one of several pos- ment’’ if the impairment is both transitory sible bases upon which an employer might be (defined by the ADAAA as lasting or ex- able to demonstrate undue hardship. Alter- pected to last less than six months) and natively, for example, an employer could minor. Section 1630.15(f)(2) explains that the demonstrate that the provision of a par- determination of ‘‘transitory and minor’’ is ticular accommodation would be unduly dis- made objectively. For example, an individual ruptive to its other employees or to the func- who is denied a promotion because he has a tioning of its business. The terms of a collec- minor back injury would be ‘‘regarded as’’ an tive bargaining agreement may be relevant individual with a disability if the back im- to this determination. By way of illustra- pairment lasted or was expected to last more tion, an employer would likely be able to than six months. Although minor, the im- show undue hardship if the employer could pairment is not transitory. Similarly, if an show that the requested accommodation of employer discriminates against an employee the upward adjustment of the business’ ther- based on the employee’s bipolar disorder (an mostat would result in it becoming unduly impairment that is not transitory and hot for its other employees, or for its pa- minor), the employee is ‘‘regarded as’’ having trons or customers. The employer would a disability even if the employer subjectively thus not have to provide this accommoda- believes that the employee’s disorder is tran- tion. However, if there were an alternate ac- sitory and minor. commodation that would not result in undue Section 1630.16 Specific Activities Permitted hardship, the employer would have to pro- vide that accommodation. Section 1630.16(a) Religious Entities It should be noted, moreover, that the em- ployer would not be able to show undue hard- Religious organizations are not exempt ship if the disruption to its employees were from title I of the ADA or this part. A reli- the result of those employees fears or preju- gious corporation, association, educational dices toward the individual’s disability and institution, or society may give a preference not the result of the provision of the accom- in employment to individuals of the par- modation. Nor would the employer be able to ticular religion, and may require that appli- demonstrate undue hardship by showing that cants and employees conform to the reli- the provision of the accommodation has a gious tenets of the organization. However, a negative impact on the morale of its other religious organization may not discriminate employees but not on the ability of these against an individual who satisfies the per- employees to perform their jobs. mitted religious criteria because that indi- vidual is disabled. The religious entity, in Section 1630.15(e) Defense—Conflicting other words, is required to consider individ- Federal Laws and Regulations uals with disabilities who are qualified and who satisfy the permitted religious criteria There are several Federal laws and regula- on an equal basis with qualified individuals tions that address medical standards and without disabilities who similarly satisfy the safety requirements. If the alleged discrimi- religious criteria. See Senate Report at 42; natory action was taken in compliance with House Labor Report at 76–77; House Judici- another Federal law or regulation, the em- ary Report at 46. ployer may offer its obligation to comply with the conflicting standard as a defense. Section 1630.16(b) Regulation of Alcohol and The employer’s defense of a conflicting Fed- Drugs eral requirement or regulation may be rebut- ted by a showing of pretext, or by showing This provision permits employers to estab- that the Federal standard did not require the lish or comply with certain standards regu- discriminatory action, or that there was a lating the use of drugs and alcohol in the nonexclusionary means to comply with the workplace. It also allows employers to hold

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alcoholics and persons who engage in the il- that if such an individual is an applicant for legal use of drugs to the same performance a food handling position the employer is not and conduct standards to which it holds all required to hire the individual. However, if of its other employees. Individuals disabled the individual is a current employee, the em- by alcoholism are entitled to the same pro- ployer would be required to consider the ac- tections accorded other individuals with dis- commodation of reassignment to a vacant abilities under this part. As noted above, in- position not involving food handling for dividuals currently engaging in the illegal which the individual is qualified. Conference use of drugs are not individuals with disabil- Report at 61–63. (See § 1630.2(r) Direct ities for purposes of part 1630 when the em- Threat). ployer acts on the basis of such use. Section 1630.16(f) Health Insurance, Life Section 1630.16(c) Drug Testing Insurance, and Other Benefit Plans This provision reflects title I’s neutrality This provision is a limited exemption that toward testing for the illegal use of drugs. is only applicable to those who establish, Such drug tests are neither encouraged, au- sponsor, observe or administer benefit plans, thorized nor prohibited. The results of such such as health and life insurance plans. It drug tests may be used as a basis for discipli- does not apply to those who establish, spon- nary action. Tests for the illegal use of drugs sor, observe or administer plans not involv- are not considered medical examinations for ing benefits, such as liability insurance purposes of this part. If the results reveal in- plans. formation about an individual’s medical con- The purpose of this provision is to permit dition beyond whether the individual is cur- the development and administration of ben- rently engaging in the illegal use of drugs, efit plans in accordance with accepted prin- this additional information is to be treated ciples of risk assessment. This provision is as a confidential medical record. For exam- not intended to disrupt the current regu- ple, if a test for the illegal use of drugs re- latory structure for self-insured employers. veals the presence of a controlled substance These employers may establish, sponsor, ob- that has been lawfully prescribed for a par- serve, or administer the terms of a bona fide ticular medical condition, this information benefit plan not subject to State laws that is to be treated as a confidential medical regulate insurance. This provision is also not record. See House Labor Report at 79; House intended to disrupt the current nature of in- Judiciary Report at 47. surance underwriting, or current insurance industry practices in sales, underwriting, Section 1630.16(e) Infectious and pricing, administrative and other services, Communicable Diseases; Food Handling Jobs claims and similar insurance related activi- ties based on classification of risks as regu- This provision addressing food handling lated by the States. jobs applies the ‘‘direct threat’’ analysis to The activities permitted by this provision the particular situation of accommodating do not violate part 1630 even if they result in individuals with infectious or communicable limitations on individuals with disabilities, diseases that are transmitted through the provided that these activities are not used as handling of food. The Department of Health a subterfuge to evade the purposes of this and Human Services is to prepare a list of in- part. Whether or not these activities are fectious and communicable diseases that are being used as a subterfuge is to be deter- transmitted through the handling of food. If mined without regard to the date the insur- an individual with a disability has one of the ance plan or employee benefit plan was listed diseases and works in or applies for a adopted. position in food handling, the employer must However, an employer or other covered en- determine whether there is a reasonable ac- tity cannot deny an individual with a dis- commodation that will eliminate the risk of ability who is qualified equal access to insur- transmitting the disease through the han- ance or subject an individual with a dis- dling of food. If there is an accommodation ability who is qualified to different terms or that will not pose an undue hardship, and conditions of insurance based on disability that will prevent the transmission of the dis- alone, if the disability does not pose in- ease through the handling of food, the em- creased risks. Part 1630 requires that deci- ployer must provide the accommodation to sions not based on risk classification be the individual. The employer, under these made in conformity with non-discrimination circumstances, would not be permitted to requirements. See Senate Report at 84–86; discriminate against the individual because House Labor Report at 136–138; House Judici- of the need to provide the reasonable accom- ary Report at 70–71. See the discussion of modation and would be required to maintain § 1630.5 Limiting, Segregating and the individual in the food handling job. Classifying. If no such reasonable accommodation is possible, the employer may refuse to assign, [56 FR 35734, July 26, 1991, as amended at 65 or to continue to assign the individual to a FR 36327, June 8, 2000; 76 FR 17003, Mar. 25, position involving food handling. This means 2011]

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PART 1635—GENETIC INFORMA- conduct, even where the subject of the TION NONDISCRIMINATION ACT investigation is an employee of the OF 2008 covered entity. § 1635.2 Definitions—general. Sec. 1635.1 Purpose. (a) Commission means the Equal Em- 1635.2 Definitions—general. ployment Opportunity Commission, as 1635.3 Definitions specific to GINA. established by section 705 of the Civil 1635.4 Prohibited practices—in general. Rights Act of 1964, 42 U.S.C. 2000e–4. 1635.5 Limiting, segregating, and (b) Covered Entity means an em- classifying. ployer, employing office, employment 1635.6 Causing a covered entity to discrimi- nate. agency, labor organization, or joint 1635.7 Retaliation. labor-management committee. 1635.8 Acquisition of genetic information. (c) Employee means an individual em- 1635.9 Confidentiality. ployed by a covered entity, as well as 1635.10 Enforcement and remedies. an applicant for employment and a 1635.11 Construction. former employee. An employee, includ- 1635.12 Medical information that is not ge- ing an applicant for employment and a netic information. former employee, is: AUTHORITY: 110 Stat. 233; 42 U.S.C. 2000ff. (1) As defined by section 701 of the SOURCE: 75 FR 68932, Nov. 9, 2010, unless Civil Rights Act of 1964, 42 U.S.C. 2000e, otherwise noted. an individual employed by a person en- gaged in an industry affecting com- § 1635.1 Purpose. merce who has fifteen or more employ- (a) The purpose of this part is to im- ees for each working day in each of plement Title II of the Genetic Infor- twenty or more calendar weeks in the mation Nondiscrimination Act of 2008, current or preceding calendar year and 42 U.S.C. 2000ff, et seq. Title II of GINA: any agent of such a person; (1) Prohibits use of genetic informa- (2) As defined by section 304(a) of the tion in employment decision-making; Government Employee Rights Act, 42 (2) Restricts employers and other en- U.S.C. 2000e–16c(a), a person chosen or tities subject to Title II of GINA from appointed by an individual elected to requesting, requiring, or purchasing ge- public office by a State or political netic information; subdivision of a State to serve as part (3) Requires that genetic information of the personal staff of the elected offi- be maintained as a confidential med- cial, to serve the elected official on a ical record, and places strict limits on policy-making level, or to serve the disclosure of genetic information; and elected official as the immediate advi- (4) Provides remedies for individuals sor on the exercise of the elected offi- whose genetic information is acquired, cial’s constitutional or legal powers. used, or disclosed in violation of its (3) As defined by section 101 of the protections. Congressional Accountability Act, 2 (b) This part does not apply to ac- U.S.C. 1301, any employee of the House tions of covered entities that do not of Representatives, the Senate, the pertain to an individual’s status as an Capitol Guide Service, the Capitol Po- employee, member of a labor organiza- lice, the Congressional Budget Office, tion, or participant in an apprentice- the Office of the Architect of the Cap- ship program. For example, this part itol, the Office of the Attending Physi- would not apply to: cian, the Office of Compliance, or the (1) A medical examination of an indi- Office of Technology Assessment; vidual for the purpose of diagnosis and (4) As defined by, and subject to the treatment unrelated to employment, limitations in, section 2(a) of the Presi- which is conducted by a health care dential and Executive Office Account- professional at the hospital or other ability Act, 3 U.S.C. 411(c), any em- health care facility where the indi- ployee of the executive branch not oth- vidual is an employee; or erwise covered by section 717 of the (2) Activities of a covered entity car- Civil Rights Act of 1964, 42 U.S.C. 2000e– ried on in its capacity as a law enforce- 16, section 15 of the Age Discrimination ment agency investigating criminal in Employment Act of 1967, 29 U.S.C.

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