HIV AIDS Resource Guide/HIV-AIDS Resource Guide.iso/STAT/FEDERAL/ADAEEOC4.ASC

Text File | 1994-01-14 | 21KB | 458 lines

1630.4    Discrimination prohibited.

It is unlawful for a covered entity to discriminate on
the basis of disability against a qualified individual
with a disability in regard to:

          (a)  Recruitment, advertising, and job application
               procedures;

          (b)  Hiring, upgrading, promotion, award of tenure,
               demotion, transfer, layoff, termination, right of
               return from layoff, and rehiring;

          (c)  Rates of pay or any other form of compensation and
               changes in compensation;

          (d)  Job assignments, job classifications,
               organizational structures, position descriptions,
               lines of progression, and seniority lists;

          (e)  Leaves of absence, sick leave, or any other leave;

          (f)  Fringe benefits available by virtue of employment,
               whether or not administered by the covered entity;

          (g)  Selection and financial support for training,
               including: apprenticeships, professional meetings,
               conferences and other related activities, and
               selection for leaves of absence to pursue training;

          (h)  Activities sponsored by a covered entity including
               social and recreational programs; and

          (i)  Any other term, condition, or privilege of
               employment.

The term "discrimination" includes, but is not limited to, the
acts described in sections 1630.5 through 1630.13 of this part.

1630.5    Limiting, segregating, and classifying.

It is unlawful for a covered entity to limit, segregate, or
classify a job applicant or employee in a way that adversely
affects his or her employment opportunities or status on the
basis of disability.

1630.6    Contractual or other arrangements.

(a)  In general.  It is unlawful for a covered entity to
participate in a contractual or other arrangement or relationship
that has the effect of subjecting the covered entity's own
qualified applicant or employee with a disability to the
discrimination prohibited by this part.

(b)  Contractual or other arrangement defined.  The phrase
"contractual or other arrangement or relationship" includes, but
is not limited to, a relationship with an employment or referral
agency;  labor union, including collective bargaining agreements;
an organization providing fringe benefits to an employee of the
covered entity; or an organization providing training and
apprenticeship programs.

(c)  Application.  This section applies to a covered entity, with
respect to its own applicants or employees, whether the entity
offered the contract or initiated the relationship, or whether
the entity accepted the contract or acceded to the relationship.
A covered entity is not liable for the actions of the other party
or parties to the contract which only affect that other party's
employees or applicants.

1630.7    Standards, criteria, or methods of administration.

It is unlawful for a covered entity to use standards, criteria,
or methods of administration, which are not job-related and
consistent with business necessity, and:

(a)  That have the effect of discriminating on the basis of
disability; or

(b) That perpetuate the discrimination of others who are subject
to common administrative control.

1630.8    Relationship or association with an individual with a
          disability.

It is unlawful for a covered entity to exclude or deny equal jobs
or benefits to, or otherwise discriminate against, a qualified
individual because of the known disability of an individual with
whom the qualified individual is known to have a family,
business, social or other relationship or association.

1630.9    Not making reasonable accommodation.

(a)  It is unlawful for a covered entity not to make reasonable
accommodation to the known physical or mental limitations of an
otherwise qualified applicant or employee with a disability,
unless such covered entity can demonstrate that the accommodation
would impose an undue hardship on the operation of its business.

(b)  It is unlawful for a covered entity to deny employment
opportunities to an otherwise qualified job applicant or employee
with a disability based on the need of such covered entity to
make reasonable accommodation to such individual's physical or
mental impairments.

(c)  A covered entity shall not be excused from the requirements
of this part because of any failure to receive technical
assistance authorized by section 506 of the ADA, including any
failure in the development or dissemination of any technical
assistance manual authorized by that Act.

(d)  A qualified individual with a disability is not required to
accept an accommodation, aid, service, opportunity or benefit
which such qualified individual chooses not to accept. However,
if such individual rejects a reasonable accommodation, aid,
service, opportunity or benefit that is necessary to enable the
individual to perform the essential functions of the position
held or desired, and cannot, as a result of that rejection,
perform the essential functions of the position, the individual
will not be considered a qualified individual with a disability.


1630.10   Qualification standards, tests, and other selection
          criteria.

It is unlawful for a covered entity to use qualification
standards, employment tests or other selection criteria that
screen out or tend to screen out an individual with a disability
or a class of individuals with disabilities, on the basis of
disability, unless the standard, test or other selection
criteria, as used by the covered entity, is shown to be
job-related for the position in question and is consistent with
business necessity.

1630.11   Administration of tests.

It is unlawful for a covered entity to fail to select and
administer tests concerning employment in the most effective
manner to ensure that, when a test is administered to a job
applicant or employee who has a disability that impairs sensory,
manual or speaking skills, the test results accurately reflect
the skills, aptitude, or whatever other factor of the applicant
or employee that the test purports to measure, rather than
reflecting the impaired sensory, manual, or speaking skills of
such employee or applicant (except where such skills are the
factors that the test purports to measure).

1630.12   Retaliation and coercion.

(a)  Retaliation.  It is unlawful to discriminate against any
individual because that individual has any act or practice made
unlawful by this part or because that individual made a charge,
testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing to enforce any provision
contained in this part.

(b)  Coercion, interference or intimidation.  It is unlawful to
coerce, intimidate, threaten, harass or interfere with any
individual in the exercise or enjoyment of, or because that
individual aided or encouraged any other individual in the
exercise of, any right granted or protected by this part.

1630.13   Prohibited medical examinations and inquiries.

(a)  Pre-employment examination or inquiry.  Except as permitted
by section 1630.14, it is unlawful for a covered entity to
conduct a medical examination of an applicant or to make
inquiries as to whether an applicant is an individual with a
disability or as to the nature or severity of such disability.

(b)  Examination or inquiry of employees. Except as permitted by
section 1630.14, it is unlawful for a covered entity to require a
medical examination of an employee or to make inquiries as to
whether an employee is an individual with a disability or as to
the nature or severity of such disability.

1630.14   Medical examinations and inquiries specifically
          permitted.

(a)  Acceptable pre-employment inquiry.  A covered entity may
make pre-employment inquiries into the ability of an applicant to
perform job-related functions, and/or may ask an applicant to
describe the applicant to demonstrate how, with or without
reasonable accommodation, the applicant will be able to perform
job-related functions.

(b)  Employment entrance examination.  A covered entity may
require a medical examination (and/or inquiry) after making an
offer of employment to a job applicant and before the applicant
begins his or her employment duties, and may condition an offer
of employment on the results of such examination (and/or
inquiry), if all entering employees in the same job category are
subjected to such an examination (and/or inquiry) regardless of
disability.

(1) Information obtained under paragraph (b) of this section
regarding the medical condition or history of the applicant shall
be collected and maintained on separate forms and in separate
medical files and be treated as a confidential medical record,
except that:

(i) Supervisors and managers may be informed regarding necessary
restrictions on the work or duties of the employee and necessary
accommodations;

(ii) First aid and safety personnel may be informed, when
appropriate, if the disability might require emergency treatment;
and

(iii) Government officials investigating compliance with this
part shall be provided relevant information on request.

(2) The results of such examination shall not be used for any
purpose inconsistent with this part.

(3) Medical examinations conducted in accordance with this
section do not have to be job-related and consistent with
business necessity. However, if certain criteria are used to
screen out an employee or employees with disabilities as a result
of such an examination or inquiry, the exclusionary criteria must
be job-related and consistent with business necessity, and
performance of the essential job functions cannot be accomplished
with reasonable accommodation as required in this part. (See
section 1630.15(b) Defenses to charges of discriminatory
application of selection criteria).

(c)  Examination of employees.  A covered entity may require a
medical examination (and/or inquiry) of an employee that is
job-related and consistent with business necessity. A covered
entity may make inquiries into the ability of an employee to
perform job-related functions.

(1) Information obtained under paragraph (c) of this section
regarding the medical condition or history of any employee shall
be collected and maintained on separate forms and in separate
medical files and be treated as a confidential medical record,
except that:

(i) Supervisors and managers may be informed regarding necessary
restrictions on the work or duties of the employee and necessary
accommodations;

(ii) First aid and safety personnel may be informed, when
appropriate, if the disability might require emergency treatment;
and

(iii) Government officials investigating compliance with this
part shall be provided relevant information on request.

(2) Information obtained under paragraph (c) of this section
regarding the medical condition or history of any employee shall
not be used for any purpose inconsistent with this part.

(d)  Other acceptable examinations and inquiries.  A covered
entity may conduct voluntary medical examinations and activities,
including voluntary medical histories, which are part of an
employee health program available to employees at the work site.

(1) Information obtained under paragraph (d) of this section
regarding the medical condition or history of any employee shall
be collected and maintained on separate forms and in separate
medical files and be treated as a confidential medical record,
except that:

(i) Supervisors and managers may be informed regarding necessary
restrictions on the work or duties of the employee and necessary
accommodations;

(ii) First aid and safety personnel may be informed, when
appropriate, if the disability might require emergency treatment;
and

(iii) Government officials investigating compliance with this
part shall be provided relevant information on request.

(2) Information obtained under paragraph (d) of this section
regarding the medical condition or history of any employee shall
not be used for any purpose inconsistent with this part.

1630.15   Defenses.

Defenses to an allegation of discrimination under this part may
include, but are not limited to, the following:

(a)  Disparate treatment charges. It may be a defense to a charge
of disparate treatment brought under sections 1630.4 through
1630.8 and 1630.11 through 1630.12 that the challenged action is
justified by a legitimate, nondiscriminatory reason.

(b)  Charges of discriminatory application of selection criteria.
-- (1) In general. It may be a defense to a charge of
discrimination, as described in section 1630.10, that an alleged
application of qualification standards, tests, or selection
criteria that screens out or tends to screen out or otherwise
denies a job or benefit to an individual with a disability has
been shown to be job-related and consistent with business
necessity, and such performance cannot be accomplished with
reasonable accommodation, as required in this part.

(2) Direct threat as a qualification standard. The term
"qualification standard" may include a requirement that an
individual shall not pose a direct threat to the health or safety
of the individual or others in the workplace. (See section
1630.2(r) defining direct threat).

(c)  Other disparate impact charges. It may be a defense to a
charge of discrimination brought under this part that a uniformly
applied standard, criterion, or policy has a disparate impact on
an individual with a disability or a class of individuals with
disabilities that the challenged standard, criterion or policy
has been shown to be job- related and consistent with business
necessity, and such performance cannot be accomplished with
reasonable accommodation, as required in this part.

(d)  Charges of not making reasonable accommodation. It may be a
defense to a charge of discrimination, as described in section
1630.9, that a requested or necessary accommodation would impose
an undue hardship on the operation of the covered entity's
business.

(e)  Conflict with other federal laws. It may be a defense to a
charge of discrimination under this part that a challenged action
is required or necessitated by another Federal law or regulation,
or that another Federal law or regulation prohibits an action
(including the provision of a particular reasonable
accommodation) that would otherwise be required by this part.

(f)  Additional defenses.  It may be a defense to a charge of
discrimination under this part that the alleged discriminatory
action is specifically permitted by sections 1630.14 or 1630.16.

1630.16   Specific activities permitted.

(a)  Religious entities. A religious corporation, association,
educational institution, or society is permitted to give
preference in employment to individuals of a particular religion
to perform work connected with the carrying on by that
corporation, association, educational institution, or society of
its activities. A religious entity may require that all
applicants and employees conform to the religious tenets of such
organization. However, a religious entity may not discriminate
against a qualified individual, who satisfies the permitted
religious criteria, because of his or her disability.

(b)  Regulation of alcohol and drugs.  A covered entity:

(1) May prohibit the illegal use of drugs and the use of alcohol
at the workplace by all employees;

(2) May require that employees not be under the influence of
alcohol or be engaging in the illegal use of drugs at the
workplace;

(3) May require that all employees behave in conformance with the
requirements established under the Drug-Free Workplace Act of
1988 (41 U.S.C. 701 et seq.);

(4) May hold an employee who engages in the illegal use of drugs
or who is an alcoholic to the same qualification standards for
employment or job performance and behavior to which the entity
holds its other employees, even if any unsatisfactory performance
or behavior is related to the employee's drug use or alcoholism;

(5) May require that its employees employed in an industry
subject to such regulations comply with the standards established
in the regulations (if any) of the Departments of Defense and
Transportation, and of the Nuclear Regulatory Commission,
regarding alcohol and the illegal use of drugs; and

(6) May require that employees employed in sensitive positions
comply with the regulations (if any) of the Departments of
Defense and Transportation and of the Nuclear Regulatory
Commission that apply to employment in sensitive positions
subject to such regulations.

(c)  Drug testing. -- (1) General policy. For purposes of this
part, a test to determine the illegal use of drugs is not
considered a medical examination. Thus, the administration of
such drug tests by a covered entity to its job applicants or
employees is not a violation of section 1630.13 of this part.
However, this part does not encourage, prohibit, or authorize a
covered entity to conduct drug tests of job applicants or
employees to determine the illegal use of drugs or to make
employment decisions based on such test results.

(2)  Transportation Employees.  This part does not encourage,
prohibit, or authorize the otherwise lawful exercise by entities
subject to the jurisdiction of the Department of Transportation
of authority to:

(i) Test employees of entities in, and applicants for, positions
involving safety sensitive duties for the illegal use of drugs or
for on-duty impairment by alcohol; and

(ii) Remove from safety-sensitive positions persons who test
positive for illegal use of drugs or on-duty impairment by
alcohol pursuant to paragraph (c)(2)(i) of this section.

(3)  Confidentiality. Any information regarding the medical
condition or history of any employee or applicant obtained from a
test to determine the illegal use of drugs, except information
regarding the illegal use of drugs, is subject to the
requirements of section 1630.14(b)(2) and (3) of this part.

(d)  Regulation of smoking.  A covered entity may prohibit or
impose restrictions on smoking in places of employment. Such
restrictions do not violate any provision of this part.

(e)  Infectious and communicable diseases; food handling jobs. --
(1) In general. Under title I of the ADA, section 103(d)(1), the
Secretary of Health and Human Services is to prepare a list, to
be updated annually, of infectious and communicable diseases
which are transmitted through the handling of food. If an
individual with a disability is disabled by one of the infectious
or communicable diseases included on this list, and if the risk
of transmitting the disease associated with the handling of food
cannot be eliminated by reasonable accommodation, a covered
entity may refuse to assign or continue to assign such individual
to a job involving food handling. However, if the individual with
a disability is a current employee, the employer must consider
whether he or she can be accommodated by reassignment to a vacant
position not involving food handling.

(2) Effect on state or other laws.  This part does not preempt,
modify, or amend any State, county, or local law, ordinance or
regulation applicable to food handling which:

(i) Is in accordance with the list, referred to in paragraph
(e)(1) of this section, of infectious or communicable diseases
and the modes of transmissibility published by the Secretary of
Health and Human Services; and

(ii) Is designed to protect the public health from individuals
who pose a significant risk to the health or safety of others,
where that risk cannot be eliminated by reasonable accommodation.

(f)  Health insurance, life insurance, and other benefit plans.
-- (1) An insurer, hospital, or medical service company, health
maintenance organization, or any agent or entity that administers
benefit plans, or similar organizations may underwrite risks,
classify risks, or administer such risks that are based on or not
inconsistent with State law.

(2) A covered entity may establish, sponsor, observe or
administer the terms of a bona fide benefit plan that are based
on underwriting risks, classifying risks, or administering such
risks that are based on or not inconsistent with State law.

(3) A covered entity may establish, sponsor, observe, or
administer the terms of a bona fide benefit plan that is not
subject to State laws that regulate insurance.

(4) The activities described in paragraphs (f)(1),(2), and (3) of
this section are permitted unless these activities are being used
as a subterfuge to evade the purposes of this part.