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Section 1630.2(p) Undue hardship

The Commission has substituted "facility" or "facilities" for
"site" or "sites" in section 1630.2(p)(2) and has deleted the
definition of the term "site."  Many employers and employer
groups expressed concern about the use and meaning of the term
"site." The final regulation's use of the terms "facility" and
"facilities" is consistent with the language of the statute.

The Commission has amended the last paragraph of the interpretive
guidance accompanying section 1630.2(p) to note that, when the
cost of a requested accommodation would result in an undue
hardship and outside funding is not available, an individual with
a disability should be given the option of paying the portion of
the cost that constitutes an undue hardship.  This amendment is
consistent with the legislative history of the Act.  See Senate
Report at 36; House Labor Report at 69.

Several employers and employer groups asked the Commission to
expand the list of factors to be considered when determining if
an accommodation would impose an undue hardship on a covered
entity by adding another factor:  the relationship of an
accommodation's cost to the value of the position at issue, as
measured by the compensation paid to the holder of the position.
Congress, however, specifically rejected this type of factor.
See House Judiciary Report at 41 (noting that the House Judiciary
Committee rejected an amendment proposing that an accommodation
costing more than ten percent of the employee's salary be treated
as an undue hardship).  The Commission, therefore, has not added
this to the list.

Section 1630.2(q) Qualification standards

The Commission has deleted the reference to direct threat from
the definition of qualification standards.  This revision is
consistent with the revisions the Commission has made to sections
1630.10 and 1630.15(b).  (See discussion below).

Section 1630.2(r) Direct threat

Many disability rights groups and individuals with disabilities
asserted that the definition of direct threat should not include
a reference to the health or safety of the individual with a
disability.  They expressed concern that the reference to "risk
to self" would result in direct threat determinations that are
based on negative stereotypes and paternalistic views about what
is best for individuals with disabilities.  Alternatively, the
commenters asked the Commission to clarify that any assessment of
risk must be based on the individual's present condition and not
on speculation about the individual's future condition.  They
also asked the Commission to specify evidence other than medical
knowledge that may be relevant to the determination of direct
threat.

The final regulation retains the reference to the health or
safety of the individual with a disability.  As the Appendix
notes, this is consistent with the legislative history of the ADA
and the case law interpreting section 504 of the Rehabilitation
Act.

To clarify the direct threat standard, the Commission has made
four revisions to section 1630.2(r).  First, the Commission has
amended the first sentence of the definition of direct threat to
refer to a significant risk of substantial harm that cannot be
eliminated "or reduced" by reasonable accommodation.  This
amendment clarifies that the risk need not be eliminated entirely
to fall below the direct threat definition; instead, the risk
need only be reduced to the level at which there no longer exists
a significant risk of substantial harm.  In addition, the
Commission has rephrased the second sentence of section 1630.2(r)
to clarify that an employer's direct threat standard must apply
to all individuals, not just to individuals with disabilities.
Further, the Commission has made clear that a direct threat
determination must be based on "an individualized assessment of
the individual's present ability to safely perform the essential
functions of the job."  This clarifies that a determination that
employment of an individual would pose a direct threat must
involve an individualized inquiry and must be based on the
individual's current condition.  In addition, the Commission has
added "the imminence of the potential harm" to the list of
factors to be considered when determining whether employment of
an individual would pose a direct threat.  This change clarifies
that both the probability of harm and the imminence of harm are
relevant to direct threat determinations. This definition of
direct threat is consistent with the legislative history of the
Act.  See Senate Report at 27, House Labor Report at 56-57,
73-75, House Judiciary Report at 45-46.

Further, the Commission has amended the interpretive guidance on
section 1630.2(r) to highlight the individualized nature of the
direct threat assessment.  In addition, the Commission has cited
examples of evidence other than medical knowledge that may be
relevant to determining whether employment of an individual would
pose a direct threat.

Section 1630.3 Exceptions to the definitions of "Disability" and
"Qualified Individual with a Disability"

Many commenters asked the Commission to clarify that the term
"rehabilitation program" includes self-help groups.  In response
to these comments, the Commission has amended the interpretive
guidance in this area to include a reference to professionally
recognized self-help programs.

The Commission has added a paragraph to the guidance on section
1630.3 to note that individuals who are not excluded under this
provision from the definitions of the terms "disability" and
"qualified individual with a disability" must still establish
that they meet those definitions to be protected by part 1630.
Several employers and employer groups asked the Commission to
clarify that individuals are not automatically covered by the ADA
simply because they do not fall into one of the exclusions listed
in this section.

The proposed interpretive guidance on section 1630.3 noted that
employers are entitled to seek reasonable assurances that an
individual is not currently engaging in the illegal use of drugs.
In that regard, the guidance stated, "It is essential that the
individual offer evidence, such as a drug test, to prove that he
or she is not currently engaging" in such use.  Many commenters
interpreted this guidance to require individuals to come forward
with evidence even in the absence of a request by the employer.
The Commission has revised the interpretive guidance to clarify
that such evidence is required only upon request.

1630.6 Contractual or other arrangements

The Commission has added a sentence to the first paragraph of the
interpretive guidance on section 1630.6 to clarify that this
section has no impact on whether one is a covered entity or
employer as defined by section 1630.2.

The proposed interpretive guidance on contractual or other
relationships noted that section 1630.6 applied to parties on
either side of the relationship.  To illustrate this point, the
guidance stated that "a copier company would be required to
ensure the provision of any reasonable accommodation necessary to
enable its copier service representative with a disability to
service a client's machine."  Several employers objected to this
example.  In that respect, the commenters argued that the
language of the example was too broad and could be interpreted as
requiring employers to make all customers' premises accessible.
The Commission has revised this example to provide a clearer,
more concrete indication of the scope of the reasonable
accommodation obligations in this area.

In addition, the Commission has clarified the interpretive
guidance by noting that the existence of a contractual
relationship adds no new obligations "under this part."

1630.8 Relationship or association with an individual with a
disability

The Commission has added the phrase "or otherwise discriminate
against" to section 1630.8.  This change clarifies that
harassment or any other form of discrimination against a
qualified individual because of the known disability of a person
with whom the individual has a relationship or an association is
also a prohibited form of discrimination.

The Commission has revised the first sentence of the interpretive
guidance to refer to a person's relationship or association with
an individual who has a "known" disability.  This revision makes
the language of the interpretive guidance consistent with the
language of the regulation.  In addition, to reflect current,
preferred terminology, the Commission has substituted the term
"people who have AIDS" for the term "AIDS patients."  Finally,
the Commission has added a paragraph to clarify that this
provision applies to discrimination in other employment
privileges and benefits, such as health insurance benefits.

1630.9 Not making reasonable accommodation

Section 1630.9(c) provides that "[a] covered entity shall not be
excused from the requirements of this part because of any failure
to receive technical assistance...."  Some employers asked the
Commission to revise this section and to state that the failure
to receive technical assistance is a defense to not providing
reasonable accommodation.  The Commission has not made the
requested revision.  Section 1630.9(c) is consistent with section
506(e) of the ADA, which states that the failure to receive
technical assistance from the federal agencies that administer
the ADA does not excuse a covered entity from compliance with the
requirements of the Act.

The first paragraph of the interpretive guidance accompanying
section 1630.9 notes that the reasonable accommodation obligation
does not require employers to provide adjustments or
modifications that are primarily for the personal use of the
individual with a disability.  The Commission has amended this
guidance to clarify that employers may be required to provide
items that are customarily personal-use items where the items are
specifically designed or required to meet job-related needs.

In addition, the Commission has amended the interpretive guidance
to clarify that there must be a nexus between an individual's
disability and the need for accommodation.  Thus, the guidance
notes that an individual with a disability is "otherwise
qualified" if he or she is qualified for the job except that,
"because of the disability," the individual needs reasonable
accommodation to perform the essential functions of the job.
Similarly, the guidance notes that employers are required to
accommodate only the physical or mental limitations "resulting
from the disability" that are known to the employer.


In response to commenters' requests for clarification, the
Commission has noted that employers may require individuals with
disabilities to provide documentation of the need for reasonable
accommodation when the need for a requested accommodation is not
obvious.

In addition, the Commission has amended the last paragraph of the
interpretive guidance on the "Process of Determining the
Appropriate Reasonable Accommodation."  This amendment clarifies
that an employer must consider allowing an individual with a
disability to provide his or her own accommodation if the
individual wishes to do so.  The employer, however, may not
require the individual to provide the accommodation.

1630.10 Qualification standards, tests, and other selection
criteria

The Commission has added the phrase "on the basis of disability"
to section 1630.10(a) to clarify that a selection criterion that
is not job related and consistent with business necessity
violates this section only when it screens out an individual with
a disability (or a class of individuals with disabilities) on the
basis of disability.  That is, there must be a nexus between the
exclusion and the disability.  A selection criterion that screens
out an individual with a disability for reasons that are not
related to the disability does not violate this section.  The
Commission has made similar changes to the interpretive guidance
on this section.

Proposed section 1630.10(b) stated that a covered entity could
use as a qualification standard the requirement that an
individual not pose a direct threat to the health or safety of
the individual or others.  Many individuals with disabilities
objected to the inclusion of the direct threat reference in this
section and asked the Commission to clarify that the direct
threat standard must be raised by the covered entity as a
defense.  In that regard, they specifically asked the Commission
to move the direct threat provision from section 1630.10
(qualification standards) to section 1630.15 (defenses).  The
Commission has deleted the direct threat provision from section
1630.10 and has moved it to section 1630.15. This is consistent
with section 103 of the ADA, which refers to defenses and states
(in section 103(b)) that the term "qualification standards" may
include a requirement that an individual not pose a direct
threat.

1630.11 Administration of tests

The Commission has revised the interpretive guidance concerning
section 1630.11 to clarify that a request for an alternative test
format or other testing accommodation generally should be made
prior to the administration of the test or as soon as the
individual with a disability becomes aware of the need for
accommodation.  In addition, the Commission has amended the last
paragraph of the guidance on this section to note that an
employer can require a written test of an applicant with dyslexia
if the ability to read is "the skill the test is designed to
measure." This language is consistent with the regulatory
language, which refers to the skills a test purports to measure.

Some commenters noted that certain tests are designed to measure
the speed with which an applicant performs a function.  In
response to these comments, the Commission has amended the
interpretive guidance to state that an employer may require an
applicant to complete a test within a specified time frame if
speed is one of the skills being tested.

In response to comments, the Commission has amended the
interpretive guidance accompanying section 1630.14(a) to clarify
that employers may invite applicants to request accommodations
for taking tests. (See section 1630.14(a), below)

1630.12 Retaliation and coercion

The Commission has amended section 1630.12 to clarify that this
section also prohibits harassment.

1630.13 Prohibited medical examinations and inquiries

In response to the Commission's request for comment on certain
workers' compensation matters, many commenters addressed whether
a covered entity may ask applicants about their history of
workers' compensation claims.  Many employers and employer groups
argued that an inquiry about an individual's workers'
compensation history is job related and consistent with business
necessity.  Disability rights groups and individuals with
disabilities, however, asserted that such an inquiry could
disclose the existence of a disability. In response to comments
and to clarify this matter, the Commission has amended the
interpretive guidance accompanying section 1630.13(a).  The
amendment states that an employer may not inquire about an
individual's workers' compensation history at the pre- offer
stage.

The Commission has made a technical change to section 1630.13(b)
by deleting the phrase "unless the examination or inquiry is
shown to be job-related and consistent with business necessity"
from the section.  This change does not affect the substantive
provisions of section 1630.13(b).  The Commission has
incorporated the job- relatedness and business-necessity
requirement into a new section 1630.14(c), which clarifies the
scope of permissible examinations or inquiries of employees. (See
section 1630.14(c), below.)

1630.14 Medical examinations and inquiries specifically permitted
Section 1630.14(a) Acceptable pre-employment inquiry

Proposed section 1630.14(a) stated that a covered entity may make
pre-employment inquiries into an applicant's ability to perform
job-related functions.  The interpretive guidance accompanying
this section noted that an employer may ask an individual whether
he or she can perform a job function with or without reasonable
accommodation.

Many employers asked the Commission to provide additional
guidance in this area.  Specifically, the commenters asked
whether an employer may ask how an individual will perform a job
function when the individual's known disability appears to
interfere with or prevent performance of job-related functions.
To clarify this matter, the Commission has amended section
1630.14(a) to state that a covered entity "may ask an applicant
to describe or to demonstrate how, with or without reasonable
accommodation, the applicant will be able to perform job-related
functions."  The Commission has amended the interpretive guidance
accompanying section 1630.14(a) to reflect this change.

Many commenters asked the Commission to state that employers may
inquire, before tests are taken, whether candidates will require
any reasonable accommodations to take the tests.  They asked the
Commission to acknowledge that such inquiries constitute
permissible pre-employment inquiries.  In response to these
comments, the Commission has added a new paragraph to the
interpretive guidance on section 1630.14(a).  This paragraph
clarifies that employers may ask candidates to inform them of the
need for reasonable accommodation within a reasonable time before
the administration of the test and may request documentation
verifying the need for accommodation.

The Commission has received many comments from law enforcement
and other public safety agencies concerning the administration of
physical agility tests.  In response to those comments, the
Commission has added a new paragraph clarifying that such tests
are not medical examinations.

Many employers and employer groups have asked the Commission to
discuss whether employers may invite applicants to self-identify
as individuals with disabilities.  In that regard, many of the
commenters noted that Section 503 of the Rehabilitation Act
imposes certain obligations on government contractors.  The
interpretive guidance accompanying sections 1630.1(b) and (c)
notes that "title I of the ADA would not be a defense to failing
to collect information required to satisfy the affirmative action
requirements of Section 503 of the Rehabilitation Act."  To
reiterate this point, the Commission has amended the interpretive
guidance accompanying section 1630.14(a) to note specifically
that this section does not restrict employers from collecting
information and inviting individuals to identify themselves as
individuals with disabilities as required to satisfy the
affirmative action requirements of Section 503 of the
Rehabilitation Act.

Section 1630.14(b) Employment entrance examinations

Section 1630.14(b) has been amended to include the phrase
"(and/or inquiry)" after references to medical examinations. Some
commenters were concerned that the regulation as drafted
prohibited covered entities from making any medical inquiries or
administering questionnaires that did not constitute
examinations.  This change clarifies that the term "employment
entrance examinations" includes medical inquiries as well as
medical examinations.

Section 1630.14(b)(2) has been revised to state that the results
of employment entrance examinations "shall not be used for any
purpose inconsistent with this part."  This language is
consistent with the language used in section 1630.14(c)(2).

The second paragraph of the proposed interpretive guidance on
this section referred to "relevant" physical and psychological
criteria. Some commenters questioned the use of the term
"relevant" and expressed concern about its meaning.  The
Commission has deleted this term from the paragraph.

Many commenters addressed the confidentiality provisions of this
section.  They noted that it may be necessary to disclose medical
information in defense of workers' compensation claims or during
the course of other legal proceedings.  In addition, they pointed
out that the workers' compensation offices of many states request
such information for the administration of second-injury funds or
for other administrative purposes.

The Commission has revised the last paragraph of the interpretive
guidance on section 1630.14(b) to reflect that the information
obtained during a permitted employment entrance examination or
inquiry may be used only "in a manner not inconsistent with this
part."  In addition, the Commission has added language clarifying
that it is permissible to submit the information to state
workers' compensation offices.

Several commenters asked the Commission to clarify whether
information obtained from employment entrance examinations and
inquiries may be used for insurance purposes.  In response to
these comments, the Commission has noted in the interpretive
guidance that such information may be used for insurance purposes
described in section 1630.16(f).


Section 1630.14(c) Examination of employees

The Commission has added a new section 1630.14(c), Examination of
employees, that clarifies the scope of permissible medical
examinations and inquiries.  Several employers and employer
groups expressed concern that the proposed version of part 1630
did not make it clear that covered entities may require employee
medical examinations, such as fitness-for-duty examinations, that
are job related and consistent with business necessity.  New
section 1630.14(c) clarifies this by expressly permitting covered
entities to require employee medical examinations and inquiries
that are job related and consistent with business necessity.  The
information obtained from such examinations or inquiries must be
treated as a confidential medical record.  This section also
incorporates the last sentence of proposed section 1630.14(c).
The remainder of proposed section 1630.14(c) has become section
1630.14(d).

To comport with this technical change in the regulation, the
Commission has made corresponding changes in the interpretive
guidance.  Thus, the Commission has moved the second paragraph of
the proposed guidance on section 1630.13(b) to the guidance on
section 1630.14(c).  In addition, the Commission has reworded the
paragraph to note that this provision permits (rather than does
not prohibit) certain medical examinations and inquiries.

Some commenters asked the Commission to clarify whether employers
may make inquiries or require medical examinations in connection
with the reasonable accommodation process.  The Commission has
noted in the interpretive guidance that such inquiries and
examinations are permissible when they are necessary to the
reasonable accommodation process described in this part.

1630.15 Defenses

The Commission has added a sentence to the interpretive guidance
on section 1630.15(a) to clarify that the assertion that an
insurance plan does not cover an individual's disability or that
the disability would cause increased insurance or workers'
compensation costs does not constitute a legitimate,
nondiscriminatory reason for disparate treatment of an individual
with a disability.  This clarification, made in response to many
comments from individuals with disabilities and disability rights
groups, is consistent with the legislative history of the ADA.
See Senate Report at 85; House Labor Report at 136; House
Judiciary Report at 71.

The Commission has amended section 1630.15(b) by stating that the
term "qualification standard" may include a requirement that an
individual not pose a direct threat.  As noted above, this is
consistent with section 103 of the ADA and responds to many
comments from individuals with disabilities.

The Commission has made a technical correction to section
1630.15(c) by changing the phrase "an individual or class of
individuals with disabilities" to "an individual with a
disability or a class of individuals with disabilities."

Several employers and employer groups asked the Commission to
acknowledge that undue hardship considerations about reasonable
accommodations at temporary work sites may be different from the
considerations relevant to permanent work sites.  In response to
these comments, the Commission has amended the interpretive
guidance on section 1630.15(d) to note that an accommodation that
poses an undue hardship in a particular job setting, such as a
temporary construction site, may not pose an undue hardship in
another setting.  This guidance is consistent with the
legislative history of the ADA.  See House Labor Report at 69-70;
House

Judiciary Report at 41-42.

The Commission also has amended the interpretive guidance to note
that the terms of a collective bargaining agreement may be
relevant to the determination of whether a requested
accommodation would pose an undue hardship on the operation of a
covered entity's business.  This amendment, which responds to
commenters' requests that the Commission recognize the relevancy
of collective bargaining agreements, is consistent with the
legislative history of the Act.  See Senate Report at 32; House
Labor Report at 63.

Section 1630.2(p)(2)(v) provides that the impact of an
accommodation on the ability of other employees to perform their
duties is one of the factors to be considered when determining
whether the accommodation would impose an undue hardship on a
covered entity.  Many commenters addressed whether an
accommodation's impact on the morale of other employees may be
relevant to a determination of undue hardship.  Some employers
and employer groups asserted that a negative impact on employee
morale should be considered an undue hardship.  Disability rights
groups and individuals with disabilities, however, argued that
undue hardship determinations must not be based on the morale of
other employees.  It is the Commission's view that a negative
effect on morale, by itself, is not sufficient to meet the undue
hardship standard.  Accordingly, the Commission has noted in the
guidance on section 1630.15(d) that an employer cannot establish
undue hardship by showing only that an accommodation would have a
negative impact on employee morale.

1630.16 Specific activities permitted

The Commission has revised the second sentence of the
interpretive guidance on section 1630.16(b) to state that an
employer may hold individuals with alcoholism and individuals who
engage in the illegal use of drugs to the same performance and
conduct standards to which it holds "all of its" other employees.
In addition, the Commission has deleted the term "otherwise" from
the third sentence of the guidance.  These revisions clarify that
employers may hold all employees, disabled (including those
disabled by alcoholism or drug addiction) and nondisabled, to the
same performance and conduct standards.

Many commenters asked the Commission to clarify that the drug
testing provisions of section 1630.16(c) pertain only to tests to
determine the illegal use of drugs.  Accordingly, the Commission
has amended section 1630.16(c)(1) to refer to the administration
of "such" drug tests and section 1630.16(c)(3) to refer to
information obtained from a "test to determine the illegal use of
drugs."  We have also made a change in the grammatical structure
of the last sentence of section 1630.16(c)(1).  We have made
similar changes to the corresponding section of the interpretive
guidance.  In addition, the Commission has amended the
interpretive guidance to state that such tests are neither
encouraged, "authorized," nor prohibited.  This amendment
conforms the language of the guidance to the language of section
1630.16(c)(1).