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Equal Employment Opportunity Commission

29 CFR Part 1630

Equal Employment Opportunity for Individuals with Disabilities


AGENCY: Equal Employment Opportunity Commission


ACTION: Final Rule

SUMMARY: On July 26, 1990, the Americans with Disabilities Act
(ADA) was signed into law.  Section 106 of the ADA requires that
the Equal Employment Opportunity Commission (EEOC) issue
substantive regulations implementing title I (Employment) within
one year of the date of enactment of the Act.  Pursuant to this
mandate, the Commission is publishing a new part 1630 to its
regulations to implement title I and sections 3(2), 3(3), 501,
503, 506(e), 508, 510, and 511 of the ADA as those sections
pertain to employment. New part 1630 prohibits discrimination
against qualified individuals with disabilities in all aspects of
employment.

EFFECTIVE DATE: July 26, 1992.

FOR FURTHER INFORMATION CONTACT: Elizabeth M. Thornton, Deputy
Legal Counsel, [phone] (voice), [phone] (TDD) or
Christopher G. Bell, Acting Associate Legal Counsel for Americans
with Disabilities Act Services, [phone] (voice), (202)
663- 7026. Copies of this final rule and interpretive appendix
may be obtained by calling the Office of Communications and
Legislative Affairs at [phone]. Copies in alternate
formats may be obtained from the Office of Equal Employment
Opportunity by calling (202) 663- 4398 or [phone] (voice)
or [phone] (TDD). The alternate formats available are:
large print, braille, electronic file on computer disk, and
audio-tape.

SUPPLEMENTARY INFORMATION:

                       Rulemaking History

The Commission actively solicited and considered public comment
in the development of part 1630.  On August 1, 1990, the
Commission published an advance notice of proposed rulemaking
(ANPRM), 55 FR 31192, informing the public that the Commission
had begun the process of developing substantive regulations
pursuant to title I of the ADA and inviting comment from
interested groups and individuals.  The comment period ended on
August 31, 1990.  In response to the ANPRM, the Commission
received 138 comments from various disability rights
organizations, employer groups, and individuals.  Comments were
also solicited at 62 ADA input meetings conducted by Commission
field offices throughout the country.  More than 2400
representatives from disability rights organizations and employer
groups participated in these meetings.

On February 28, 1991, the Commission published a notice of
proposed rulemaking (NPRM), 56 FR 8578, setting forth proposed
part 1630 for public comment.  The comment period ended April 29,
1991.  In response to the NPRM, the Commission received 697
timely comments from interested groups and individuals.  In many
instances, a comment was submitted on behalf of several parties
and represented the views of numerous groups, employers, or
individuals with disabilities.  The comments have been analyzed
and considered in the development of this final rule.


                     Overview of Regulations

The format of part 1630 reflects congressional intent, as
expressed in the legislative history, that the regulations
implementing the employment provisions of the ADA be modeled on
the regulations implementing Section 504 of the Rehabilitation
Act of 1973, as amended, 34 CFR part 104.  Accordingly, in
developing part 1630, the Commission has been guided by the
Section 504 regulations and the case law interpreting those
regulations.

It is the intent of Congress that the regulations implementing
the ADA be comprehensive and easily understood.  Part 1630,
therefore, defines terms not previously defined in the
regulations implementing Section 504 of the Rehabilitation Act,
such as "substantially limits," "essential functions," and
"reasonable accommodation."  Of necessity, many of the
determinations that may be required by this part must be made on
a case-by-case basis. Where possible, part 1630 establishes
parameters to serve as guidelines in such inquiries.

The Commission is also issuing interpretive guidance concurrently
with the issuance of part 1630 in order to ensure that qualified
individuals with disabilities understand their rights under this
part and to facilitate and encourage compliance by covered
entities.  Therefore, part 1630 is accompanied by an Appendix.
This Appendix represents the Commission's interpretation of the
issues discussed, and the Commission will be guided by it when
resolving charges of employment discrimination.  The Appendix
addresses the major provisions of part 1630 and explains the
major concepts of disability rights.  Further, the Appendix cites
to the authority, such as the legislative history of the ADA and
case law interpreting Section 504 of the Rehabilitation Act, that
provides the basis and purpose of the rule and interpretative
guidance.

More detailed guidance on specific issues will be forthcoming in
the Commission's Compliance Manual.  Several Compliance Manual
sections and policy guidances on ADA issues are currently under
development and are expected to be issued prior to the effective
date of the Act.  Among the issues to be addressed in depth are
the theories of discrimination; definitions of disability and of
qualified individual with a disability; reasonable accommodation
and undue hardship, including the scope of reassignment; and
pre-employment inquiries.

To assist us in the development of this guidance, the Commission
requested comment in the NPRM from disability rights
organizations, employers, unions, state agencies concerned with
employment or workers compensation practices, and interested
individuals on specific questions about insurance, workers'
compensation, and collective bargaining agreements.  Many
commenters responded to these questions, and several commenters
addressed other matters pertinent to these areas.  The Commission
has considered these comments in the development of the final
rule and will continue to consider them as it develops further
ADA guidance.

In the NPRM, the Commission raised questions about a number of
insurance-related matters.  Specifically, the Commission asked
commenters to discuss risk assessment and classification, the
relationship between "risk" and "cost," and whether employers
should consider the effects that changes in insurance coverage
will have on individuals with disabilities before making those
changes. Many commenters provided information about insurance
practices and explained some of the considerations that affect
insurance decisions.  In addition, some commenters discussed
their experiences with insurance plans and coverage.  The
commenters presented a wide range of opinions on
insurance-related matters, and the Commission will consider the
comments as it continues to analyze these complex matters.

The Commission received a large number of comments concerning
inquiries about an individual's workers' compensation history.
Many employers asserted that such inquiries are job related and
consistent with business necessity.  Several individuals with
disabilities and disability rights organizations, however, argued
that such inquiries are prohibited pre-employment inquiries and
are not job related and consistent with business necessity.   The
Commission has addressed this issue in the interpretive guidance
accompanying section 1630.14(a) and will discuss the matter
further in future guidance.

There was little controversy about the submission of medical
information to workers' compensation offices.  A number of
employers and employer groups pointed out that the workers'
compensation offices of many states request medical information
in connection with the administration of second-injury funds.
Further, they noted that the disclosure of medical information
may be necessary to the defense of a workers' compensation claim.
The Commission has responded to these comments by amending the
interpretive guidance accompanying section 1630.14(b).  This
amendment, discussed below, notes that the submission of medical
information to workers' compensation offices in accordance with
state workers' compensation laws is not inconsistent with section
1630.14(b).  The Commission will address this area in greater
detail and will discuss other issues concerning workers'
compensation matters in future guidances, including the policy
guidance on pre-employment inquiries. ½ _║7╔3
J
 ½ ΦWith respect to
collective bargaining agreements, the Commission asked commenters
to discuss the relationship between collective bargaining
agreements and such matters as undue hardship, reassignment to a
vacant position, the determination of what constitutes a "vacant"
position, and the confidentiality requirements of the ADA.  The
comments that we received reflected a wide variety of views.
For example, some commenters argued that it would always be an
undue hardship for an employer to provide a reasonable
accommodation that conflicted with the provisions of a collective
bargaining agreement.  Other commenters, however, argued that an
accommodation's effect on an agreement should not be considered
when assessing undue hardship.  Similarly, some commenters stated
that the appropriateness of reassignment to a vacant position
should depend upon the provisions of a collective bargaining
agreement while others asserted that an agreement cannot limit
the right to reassignment.  Many commenters discussed the
relationship between an agreement's seniority provisions and an
employer's reasonable accommodation obligations.

In response to comments, the Commission has amended section
1630.2(n)(3) to include "the terms of a collective bargaining
agreement" in the types of evidence relevant to determining the
essential functions of a position.  The Commission has made a
corresponding change to the interpretive guidance on section
1630.2(n)(3).  In addition, the Commission has amended the
interpretive guidance on section 1630.15(d) to note that the
terms of a collective bargaining agreement may be relevant to
determining whether an accommodation would pose an undue hardship
on the operation of a covered entity's business.

The divergent views expressed in the public comments demonstrate
the complexity of employment-related issues concerning insurance,
workers' compensation, and collective bargaining agreement
matters. These highly complex issues require extensive research
and analysis and warrant further consideration.  Accordingly, the
Commission has decided to address the issues in depth in future
Compliance Manual sections and policy guidances.  The Commission
will consider the public comments that it received in response to
the NPRM as it develops further guidance on the application of
title I of the ADA to these matters.

The Commission has also decided to address burdens-of-proof
issues in future guidance documents, including the Compliance
Manual section on the theories of discrimination.  Many
commenters discussed the allocation of the various burdens of
proof under title I of the ADA and asked the Commission to
clarify those burdens.  The comments in this area addressed such
matters as determining whether a person is a qualified individual
with a disability, job relatedness and business necessity, and
undue hardship.  The Commission will consider these comments as
it prepares further guidance in this area.

A discussion of other significant comments and an explanation of
the changes made in part 1630 since publication of the NPRM
follows.

Section-by-Section Analysis of Comments and Revisions

Section 1630.1 Purpose, applicability, and construction

The Commission has made a technical correction to section
1630.1(a) by adding section 506(e) to the list of statutory
provisions implemented by this part.  Section 506(e) of the ADA
provides that the failure to receive technical assistance from
the federal agencies that administer the ADA is not a defense to
failing to meet the obligations of title I.

Some commenters asked the Commission to note that the ADA does
not preempt state claims, such as state tort claims, that confer
greater remedies than are available under the ADA.  The
Commission has added a paragraph to that effect in the Appendix
discussion of sections 1630.1(b) and (c).  This interpretation is
consistent with the legislative history of the Act.  See H.R.
Rep. No. 485 Part 3, 101st Cong., 2d Sess. 69-70 (1990)
[hereinafter referred to as House Judiciary Report].

In addition, the Commission has made a technical amendment to the
Appendix discussion to note that the ADA does not automatically
preempt medical standards or safety requirements established by
Federal law or regulations.  The Commission has also amended the
discussion to refer to a direct threat that cannot be eliminated
"or reduced" through reasonable accommodation.  This language is
consistent with the regulatory definition of direct threat. (See
section 1630.2(r), below.)

Section 1630.2 Definitions

Section 1630.2(h) Physical or mental impairment

The Commission has amended the interpretive guidance accompanying
section 1630.2(h) to note that the definition of the term
"impairment" does not include characteristic predisposition to
illness or disease.

In addition, the Commission has specifically noted in the
interpretive guidance that pregnancy is not an impairment.  This
change responds to the numerous questions that the Commission has
received concerning whether pregnancy is a disability covered by
the ADA.  Pregnancy, by itself, is not an impairment and is
therefore not a disability.

Section 1630.2(j) Substantially limits


The Commission has revised the interpretive guidance accompanying
section 1630.2(j) to make clear that the determination of whether
an impairment substantially limits one or more major life
activities is to be made without regard to the availability of
medicines, assistive devices, or other mitigating measures.  This
interpretation is consistent with the legislative history of the
ADA.  See S. Rep. No. 116, 101st Cong., 1st Sess. 23 (1989)
[hereinafter referred to as Senate Report]; H.R. Rep.
No. 485 Part 2, 101st Cong., 2d Sess. 52 (1990) [hereinafter
referred to as House Labor Report]; House Judiciary Report at 28.
The Commission has also revised the examples in the third
paragraph of this section's guidance.  The examples now focus on
the individual's capacity to perform major life activities rather
than on the presence or absence of mitigating measures.  These
revisions respond to comments from disability rights groups,
which were concerned that the discussion could be misconstrued to
exclude from ADA coverage individuals with disabilities who
function well because of assistive devices or other mitigating
measures.

In an amendment to the paragraph concerning the factors to
consider when determining whether an impairment is substantially
limiting, the Commission has provided a second example of an
impairment's "impact."  This example notes that a traumatic head
injury's affect on cognitive functions is the "impact" of that
impairment.

Many commenters addressed the provisions concerning the
definition of "substantially limits" with respect to the major
life activity of working (section 1630.2(j)(3)).  Some employers
generally supported the definition but argued that it should be
applied narrowly.  Other employers argued that the definition is
too broad. Disability rights groups and individuals with
disabilities, on the other hand, argued that the definition is
too narrow, unduly limits coverage, and places an onerous burden
on individuals seeking to establish that they are covered by the
ADA.  The Commission has responded to these comments by making a
number of clarifications in this area.

The Commission has revised section 1630.2(j)(3)(ii) and the
accompanying interpretive guidance to note that the listed
factors "may" be considered when determining whether an
individual is substantially limited in working.  This revision
clarifies that the factors are relevant to, but are not required
elements of, a showing of a substantial limitation in working.

Disability rights groups asked the Commission to clarify that
"substantially limited in working" applies only when an
individual is not substantially limited in any other major life
activity.  In addition, several other commenters indicated
confusion about whether and when the ability to work should be
considered when assessing if an individual has a disability.  In
response to these comments, the Commission has amended the
interpretive guidance by adding a new paragraph clarifying the
circumstances under which one should determine whether an
individual is substantially limited in the major life activity of
working.  This paragraph makes clear that a determination of
whether an individual is substantially limited in the ability to
work should be made only when the individual is not disabled in
any other major life activity.  Thus, individuals need not
establish that they are substantially limited in working if they
already have established that they are, have a record of, or are
regarded as being substantially limited in another major life
activity. The proposed interpretive guidance in this area
provided an example concerning a surgeon with a slight hand
impairment.  Several commenters expressed concern about this
example.  Many of these comments indicated that the example
confused, rather than clarified, the matter.  The Commission,
therefore, has deleted this example.  To explain further the
application of the "substantially limited in working" concept,
the Commission has provided another example (concerning a
commercial airline pilot) in the interpretive guidance.

In addition, the Commission has clarified that the terms "numbers
and types of jobs" (see section 1630.2(j)(3)(ii)(B)) and "numbers
and types of other jobs" (see section 1630.2(j)(3)(ii)(C)) do not
require an onerous evidentiary showing.

In the proposed Appendix, after the interpretive guidance
accompanying section 1630.2(l), the Commission included a
discussion entitled "Frequently Disabling Impairments."  Many
commenters expressed concern about this discussion.  In response
to these comments, and to avoid confusion, the Commission has
revised the discussion and has deleted the list of frequently
disabling impairments.  The revised discussion now appears in the
interpretive guidance accompanying section 1630.2(j).

Section 1630.2(l) Is regarded as having such an impairment

Section 1630.2(l)(3) has been changed to refer to "a
substantially limiting impairment" rather than "such an
impairment."  This change clarifies that an individual meets the
definition of the term "disability" when a covered entity treats
the individual as having a substantially limiting impairment.
That is, section 1630.2(l)(3) refers to any substantially
limiting impairment, rather than just to one of the impairments
described in sections 1630.2(l)(1) or (2).

The proposed interpretive guidance on section 1630.2(l) stated
that, when determining whether an individual is regarded as
substantially limited in working, "it should be assumed that all
similar employers would apply the same exclusionary qualification
standard that the employer charged with discrimination has used."
The Commission specifically requested comment on this proposal,
and many commenters addressed this issue. The Commission has
decided to eliminate this assumption and to revise the
interpretive guidance. The guidance now explains that an
individual meets the "regarded as" part of the definition of
disability if he or she can show that a covered entity made an
employment decision because of a perception of a disability based
on "myth, fear, or stereotype." This is consistent with the
legislative history of the ADA. See House Judiciary Report at 30.

Section 1630.2(m) Qualified individual with a disability

Under the proposed part 1630, the first step in determining
whether an individual with a disability is a qualified individual
with a disability was to determine whether the individual
"satisfies the requisite skill, experience and education
requirements of the employment position" the individual holds or
desires.  Many employers and employer groups asserted that the
proposed regulation unduly limited job prerequisites to skill,
experience, and education requirements and did not permit
employers to consider other job-related qualifications.  To
clarify that the reference to skill, experience, and education
requirements was not intended to be an exhaustive list of
permissible qualification requirements, the Commission has
revised the phrase to include "skill, experience, education, and
other job-related requirements."  This revision recognizes that
other types of job-related requirements may be relevant to
determining whether an individual is qualified for a position.

Many individuals with disabilities and disability rights groups
asked the Commission to emphasize that the determination of
whether a person is a qualified individual with a disability must
be made at the time of the employment action in question and
cannot be based on speculation that the individual will become
unable to perform the job in the future or may cause increased
health insurance or workers' compensation costs.  The Commission
has amended the interpretive guidance on section 1630.2(m) to
reflect this point.  This guidance is consistent with the
legislative history of the Act.  See Senate Report at 26, House
Labor Report at 55, 136; House Judiciary Report at 34, 71.

Section 1630.2(n) Essential functions

Many employers and employer groups objected to the use of the
terms "primary" and "intrinsic" in the definition of essential
functions. To avoid confusion about the meanings of "primary" and
"intrinsic," the Commission has deleted these terms from the
definition.  The final regulation defines essential functions as
"fundamental job duties" and notes that essential functions do
not include the marginal functions of a position.

The proposed interpretive guidance accompanying section
1630.2(n)(2)(ii) noted that one of the factors in determining
whether a function is essential is the number of employees
available to perform a job function or among whom the performance
of that function can be distributed.  The proposed guidance
explained that "[t]his may be a factor either because the total
number of employees is low, or because of the fluctuating demands
of the business operations."  Some employers and employer groups
expressed concern that this language could be interpreted as
requiring an assessment of whether a job function could be
distributed among all employees in any job at any level.  The
Commission has amended the interpretive guidance on this factor
to clarify that the factor refers only to distribution among
"available" employees.

Section 1630.2(n)(3) lists several kinds of evidence that are
relevant to determining whether a particular job function is
essential.  Some employers and unions asked the Commission to
recognize that collective bargaining agreements may help to
identify a position's essential functions.  In response to these
comments, the Commission has added  "[t]he terms of a collective
bargaining agreement" to the list.  In addition, the Commission
has amended the interpretive guidance to note specifically that
this type of evidence is relevant to the determination of
essential functions.  This addition is consistent with the
legislative history of the Act.  See Senate Report at 32; House
Labor Report at 63.

Proposed section 1630.2(n)(3) referred to the evidence on the
list as evidence "that may be considered in determining whether a
particular function is essential."  The Commission has revised
this section to refer to evidence "of" whether a particular
function is essential.  The Commission made this revision in
response to concerns about the meaning of the phrase "may be
considered."  In that regard, some commenters questioned whether
the phrase meant that some of the listed evidence might not be
considered when determining whether a function is essential to a
position.  This revision clarifies that all of the types of
evidence on the list, when available, are relevant to the
determination of a position's essential functions.  As the final
rule and interpretive guidance make clear, the list is not an
exhaustive list of all types of relevant evidence.  Other types
of available evidence may also be relevant to the determination.

The Commission has amended the interpretive guidance concerning
section 1630.2(n)(3)(ii) to make clear that covered entities are
not required to develop and maintain written job descriptions.
Such job descriptions are relevant to a determination of a
position's essential functions, but they are not required by part
1630.

Several commenters suggested that the Commission establish a
rebuttable presumption in favor of the employer's judgment
concerning what functions are essential.  The Commission has not
done so.  On that point, the Commission notes that the House
Committee on the Judiciary specifically rejected an amendment
that would have created such a presumption.  See House Judiciary
Report at 33-34.

The last paragraph of the interpretive guidance on section
1630.2(n) notes that the inquiry into what constitutes a
position's essential functions is not intended to second guess an
employer's business judgment regarding production standards,
whether qualitative or quantitative.  In response to several
comments, the Commission has revised this paragraph to
incorporate examples of qualitative production standards.

Section 1630.2(o) Reasonable accommodation

The Commission has deleted the reference to undue hardship from
the definition of reasonable accommodation.  This is a technical
change reflecting that undue hardship is a defense to, rather
than an aspect of, reasonable accommodation.  As some commenters
have noted, a defense to a term should not be part of the term's
definition.  Accordingly, we have separated the concept of undue
hardship from the definition of reasonable accommodation.  This
change does not affect the obligations of employers or the rights
of individuals with disabilities. Accordingly, a covered entity
remains obligated to make reasonable accommodation to the known
physical or mental limitations of an otherwise qualified
individual with a disability unless to do so would impose an
undue hardship on the operation of the covered entity's business.
See section 1630.9.

With respect to section 1630.2(o)(1)(i), some commenters
expressed confusion about the use of the phrase "qualified
individual with a disability."  In that regard, they noted that
the phrase has a specific definition under this part (see section
1630.2(m)) and questioned whether an individual must meet that
definition to request an accommodation with regard to the
application process. The Commission has substituted the phrase
"qualified applicant with a disability" for "qualified individual
with a disability."  This change clarifies that an individual
with a disability who requests a reasonable accommodation to
participate in the application process must be eligible only with
respect to the application process.

The Commission has modified section 1630.2(o)(1)(iii) to state
that reasonable accommodation includes modifications or
adjustments that enable employees with disabilities to enjoy
benefits and privileges that are "equal" to (rather than "the
same" as) the benefits and privileges that are enjoyed by other
employees.  This change clarifies that such modifications or
adjustments must ensure that individuals with disabilities
receive equal access to the benefits and privileges afforded to
other employees but may not be able to ensure that the
individuals receive the same results of those benefits and
privileges or precisely the same benefits and privileges.

Many commenters discussed whether the provision of daily
attendant care is a form of reasonable accommodation.  Employers
and employer groups asserted that reasonable accommodation does
not include such assistance.  Disability rights groups and
individuals with disabilities, however, asserted that such
assistance is a form of reasonable accommodation but that this
part did not make that clear.  To clarify the extent of the
reasonable accommodation obligation with respect to daily
attendant care, the Commission has amended the interpretive
guidance on section 1630.2(o) to make clear that it may be a
reasonable accommodation to provide personal assistants to help
with specified duties related to the job.

The Commission also has amended the interpretive guidance to note
that allowing an individual with a disability to provide and use
equipment, aids, or services that an employer is not required to
provide may also be a form of reasonable accommodation.  Some
individuals with disabilities and disability rights groups asked
the Commission to make this clear.

The interpretive guidance points out that reasonable
accommodation may include making non-work areas accessible to
individuals with disabilities.  Many commenters asked the
Commission to include rest rooms in the examples of accessible
areas that may be required as reasonable accommodations.  In
response to those comments, the Commission has added rest rooms
to the examples.

In response to other comments, the Commission has added a
paragraph to the guidance concerning job restructuring as a form
of reasonable accommodation.  The new paragraph notes that job
restructuring may involve changing when or how an essential
function is performed.

Several commenters asked the Commission to provide additional
guidance concerning the reasonable accommodation of reassignment
to a vacant position.  Specifically, commenters asked the
Commission to clarify how long an employer must wait for a
vacancy to arise when considering reassignment and to explain
whether the employer is required to maintain the salary of an
individual who is reassigned from a higher-paying position to a
lower-paying one. The Commission has amended the discussion of
reassignment to refer to reassignment to a position that is
vacant "within a reasonable amount of time ... in light of the
totality of the circumstances." In addition, the Commission has
noted that an employer is not required to maintain the salaries
of reassigned individuals with disabilities if it does not
maintain the salaries of individuals who are not disabled.