HIV AIDS Resource Guide/HIV-AIDS Resource Guide.iso/STAT/FEDERAL/ADAEEOC6.WS

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Section 1630.2(m) Qualified Individual with a Disability The ADA
prohibits discrimination on the basis of disability against
qualified individuals with disabilities. The determination of
whether an individual with a disability is "qualified" should be
made in two steps. The first step is to determine if the
individual satisfies the prerequisites for the position, such as
possessing the appropriate educational background, employment
experience, skills, licenses, etc. For example, the first step in
determining whether an accountant who is paraplegic is qualified
for a certified public accountant (CPA) position is to examine
the individual's credentials to determine whether the individual
is a licensed CPA. This is sometimes referred to in the
Rehabilitation Act caselaw as determining whether the individual
is "otherwise qualified" for the position. See Senate Report at
33; House Labor Report at 64-65. (See section 1630.9 Not Making
Reasonable Accommodation).

The second step is to determine whether or not the individual can
perform the essential functions of the position held or desired,
with or without reasonable accommodation. The purpose of this
second step is to ensure that individuals with disabilities who
can perform the essential functions of the position held or
desired are not denied employment opportunities because they are
not able to perform marginal functions of the position. House
Labor Report at 55.

The determination of whether an individual with a disability is
qualified is to be made at the time of the employment decision.
This determination should be based on the capabilities of the
individual with a disability at the time of the employment
decision, and should not be based on speculation that the
employee may become unable in the future or may cause increased
health insurance premiums or workers' compensation costs.

Section 1630.2(n) Essential Functions

The determination of which functions are essential may be
critical to the determination of whether or not the individual
with a disability is qualified. The essential functions are those
functions that the individual who holds the position must be able
to perform unaided or with the assistance of a reasonable
accommodation.

The inquiry into whether a particular function is essential
initially focuses on whether the employer actually requires
employees in the position to perform the functions that the
employer asserts are essential. For example, an employer may
state that typing is an essential function of a position. If, in
fact, the employer has never required any employee in that
particular position to type, this will be evidence that typing is
not actually an essential function of the position.

If the individual who holds the position is actually required to
perform the function the employer asserts is an essential
function, the inquiry will then center around whether removing
the function would fundamentally alter that position. This
determination of whether or not a particular function is
essential will generally include one or more of the following
factors listed in part 1630.

The first factor is whether the position exists to perform a
particular function. For example, an individual may be hired to
proofread documents. The ability to proofread the documents would
then be an essential function, since this is the only reason the
position exists.

The second factor in determining whether a function is essential
is the number of other employees available to perform that job
function or among whom the performance of that job function can
be distributed. This may be a factor either because the total
number of available employees is low, or because of the
fluctuating demands of the business operation. For example, if an
employer has a relatively small number of available employees for
the volume of work to be performed, it may be necessary that each
employee perform a multitude of different functions. Therefore,
the performance of those functions by each employee becomes more
critical and the options for reorganizing the work become more
limited. In such a situation, functions that might not be
essential if there were a larger staff may become essential
because the staff size is small compared to the volume of work
that has to be done. See Treadwell v. Alexander, 707 F.2d 473
(11th Cir. 1983).

A similar situation might occur in a larger work force if the
workflow follows a cycle of heavy demand for labor intensive work
followed by low demand periods. This type of workflow might also
make the performance of each function during the peak periods
more critical and might limit the employer's flexibility in
reorganizing operating procedures. See Dexler v. Tisch, 660 F.
Supp. 1418 (D. Conn. 1987).

The third factor is the degree of expertise or skill required to
perform the function. In certain professions and highly skilled
positions the employee is hired for his or her expertise or
ability to perform the particular function. In such a situation,
the performance of that specialized task would be an essential
function. Whether a particular function is essential is a factual
determination that must be made on a case by case basis. In
determining whether or not a particular function is essential,
all relevant evidence should be considered. Part 1630 lists
various types of evidence, such as an established job
description, that should be considered in determining whether a
particular function is essential. Since the list is not
exhaustive, other relevant evidence may also be presented.
Greater weight will not be granted to the types of evidence
included on the list than to the types of evidence not listed.

Although part 1630 does not require employers to develop or
maintain job descriptions, written job descriptions prepared
before advertising or interviewing applicants for the job, as
well as the employer's judgment as to what functions are
essential are among the relevant evidence to be considered in
determining whether a particular function is essential. The terms
of a collective bargaining agreement are also relevant to the
determination of whether a particular function is essential. The
work experience of past employees in the job or of current
employees in similar jobs is likewise relevant to the
determination of whether a particular function is essential. See
H.R. Conf. Rep. No. 101-596, 101st Cong., 2d Sess. 58 (1990)
[hereinafter Conference Report]; House Judiciary Report at 33-34.
See also Hall v. U.S. Postal Service, 857 F.2d 1073 (6th Cir.
1988).

The time spent performing the particular function may also be an
indicator of whether that function is essential. For example, if
an employee spends the vast majority of his or her time working
at a cash register, this would be evidence that operating the
cash register is an essential function. The consequences of
failing to require the employee to perform the function may be
another indicator of whether a particular function is essential.
For example, although a firefighter may not regularly have to
carry an unconscious adult out of a burning building, the
consequence of failing to require the firefighter to be able to
perform this function would be serious.

It is important to note that the inquiry into essential functions
is not intended to second guess an employer's business judgment
with regard to production standards, whether qualitative or
quantitative, nor to require employers to lower such standards.
(See section 1630.10 Qualification Standards, Tests and Other
Selection Criteria). If an employer requires its typists to be
able to accurately type 75 words per minute, it will not be
called upon to explain why an inaccurate work product, or a
typing speed of 65 words per minute, would not be adequate.
Similarly, if a hotel requires its service workers to thoroughly
clean 16 rooms per day, it will not have to explain why it
requires thorough cleaning, or why it chose a 16 room rather than
a 10 room requirement. However, if an employer does require
accurate 75 word per minute typing or the thorough cleaning of 16
rooms, it will have to show that it actually imposes such
requirements on its employees in fact, and not simply on paper.
It should also be noted that, if it is alleged that the employer
intentionally selected the particular level of production to
exclude individuals with disabilities, the employer may have to
offer a legitimate, nondiscriminatory reason for its selection.

Section 1630.2(o) Reasonable Accommodation

An individual is considered a "qualified individual with a
disability" if the individual can perform the essential functions
of the position held or desired with or without reasonable
accommodation. In general, an accommodation is any change in the
work environment or in the way things are customarily done that
enables an individual with a disability to enjoy equal employment
opportunities. There are three categories of reasonable
accommodation. These are (1) accommodations that are required to
ensure equal opportunity in the application process; (2)
accommodations that enable the employer's employees with
disabilities to perform the essential functions of the position
held or desired; and (3) accommodations that enable the
employer's employees with disabilities to enjoy equal benefits
and privileges of employment as are enjoyed by employees without
disabilities.  It should be noted that nothing in this part
prohibits employers or other covered entities from providing
accommodations beyond those required by this part.

Part 1630 lists the examples, specified in title I of the ADA, of
the most common types of accommodation that an employer or other
covered entity may be required to provide. There are any number
of other specific accommodations that may be appropriate for
particular situations but are not specifically mentioned in this
listing. This listing is not intended to be exhaustive of
accommodation possibilities. For example, other accommodations
could include permitting the use of accrued paid leave or
providing additional unpaid leave for necessary treatment, making
employer provided transportation accessible, and providing
reserved parking spaces. Providing personal assistants, such as a
page turner for an employee with no hands or a travel attendant
to act as a sighted guide to assist a blind employee on
occasional business trips, may also be a reasonable
accommodation. Senate Report at 31; House Labor Report at 62;
House Judiciary Report at 39.

It may also be a reasonable accommodation to permit an individual
with a disability the opportunity to provide and utilize
equipment, aids or services that an employer is not required to
provide as a reasonable accommodation. For example, it would be a
reasonable accommodation for an employer to permit an individual
who is blind to use a guide dog at work, even though the employer
would not be required to provide a guide dog for the employee.

The accommodations included on the list of reasonable
accommodations are generally self explanatory. However, there are
a few that require further explanation. One of these is the
accommodation of making existing facilities used by employees
readily accessible to, and usable by, individuals with
disabilities. This accommodation includes both those areas that
must be accessible for the employee to perform essential job
functions, as well as non-work areas used by the employer's
employees for other purposes. For example, accessible break
rooms, lunch rooms, training rooms, restrooms etc., may be
required as reasonable accommodations.

Another of the potential accommodations listed is "job
restructuring."  An employer or other covered entity may
restructure a job by reallocating or redistributing nonessential,
marginal job functions. For example, an employer may have two
jobs, each of which entails the performance of a number of
marginal functions. The employer hires a qualified individual
with a disability who is able to perform some of the marginal
functions of each job but not all of the marginal functions of
either job. As an accommodation, the employer may redistribute
the marginal functions so that all of the marginal functions that
the qualified individual with a disability can perform are made a
part of the position to be filled by the qualified individual
with a disability. The remaining marginal functions that the
individual with a disability cannot perform would then be
transferred to the other position. See Senate Report at 31; House
Labor Report at 62.

An employer or other covered entity is not required to reallocate
essential functions. The essential functions are by definition
those that the individual who holds the job would have to
perform, with or without reasonable accommodation, in order to be
considered qualified for the position. For example, suppose a
security guard position requires the individual who holds the job
to inspect identification cards. An employer would not have to
provide an individual who is legally blind with an assistant to
look at the identification cards for the legally blind employee.
In this situation the assistant would be performing the job for
the individual with a disability rather than assisting the
individual to perform the job. See Coleman v. Darden, 595 F.2d
533 (10th Cir. 1979).

An employer or other covered entity may also restructure a job by
altering when and/or how an essential function is performed. For
example, an essential function customarily performed in the early
morning hours may be rescheduled until later in the day as a
reasonable accommodation to a disability that precludes
performance of the function at the customary hour. Likewise, as a
reasonable accommodation, an employee with a disability that
inhibits the ability to write, may be permitted to computerize
records that were customarily maintained manually.

Reassignment to a vacant position is also listed as a potential
reasonable accommodation. In general, reassignment should be
considered only when accommodation within the individual's
current position would pose an undue hardship. Reassignment is
not available to applicants. An applicant for a position must be
qualified for, and be able to perform the essential functions of,
the position sought with or without reasonable accommodation.

Reassignment may not be used to limit, segregate, or otherwise
discriminate against employees with disabilities by forcing
reassignments to undesirable positions or to designated offices
or facilities. Employers should reassign the individual to an
equivalent position, in terms of pay, status, etc., if the
individual is qualified, and if the position is vacant within a
reasonable amount of time. A "reasonable amount of time" should
be determined in light of the totality of the circumstances. As
an example, suppose there is no vacant position available at the
time that an individual with a disability requests reassignment
as a reasonable accommodation. The employer, however, knows that
an equivalent position for which the individual is qualified,
will become vacant next week. Under these circumstances, the
employer should reassign the individual to the position when it
becomes available.

An employer may reassign an individual to a lower graded position
if there are no accommodations that would enable the employee to
remain in the current position and there are no vacant equivalent
positions for which the individual is qualified with or without
reasonable accommodation. An employer, however, is not required
to maintain the reassigned individual with a disability at the
salary of the higher graded position if it does not so maintain
reassigned employees who are not disabled. It should also be
noted that an employer is not required to promote an individual
with a disability as an accommodation. See Senate Report at
31-32; House Labor Report at 63.

The determination of which accommodation is appropriate in a
particular situation involves a process in which the employer and
employee identify the precise limitations imposed by the
disability and explore potential accommodations that would
overcome those limitations. This process is discussed more fully
in section 1630.9 Not Making Reasonable Accommodation.

Section 1630.2(p) Undue Hardship

An employer or other covered entity is not required to provide an
accommodation that will impose an undue hardship on the operation
of the employer's or other covered entity's business. The term
"undue hardship" means significant difficulty or expense in, or
resulting from, the provision of the accommodation. The "undue
hardship" provision takes into account the financial realities of
the particular employer or other covered entity. However, the
concept of undue hardship is not limited to financial difficulty.
"Undue hardship" refers to any accommodation that would be unduly
costly, extensive, substantial, or disruptive, or that would
fundamentally alter the nature or operation of the business. See
Senate Report at 35; House Labor Report at 67.

For example, suppose an individual with a disabling visual
impairment that makes it extremely difficult to see in dim
lighting applies for a position as a waiter in a nightclub and
requests that the club be brightly lit as a reasonable
accommodation. Although the individual may be able to perform the
job in bright lighting, the nightclub will probably be able to
demonstrate that that particular accommodation, though
inexpensive, would impose an undue hardship if the bright
lighting would destroy the ambience of the nightclub and/or make
it difficult for the customers to see the stage show. The fact
that that particular accommodation poses an undue hardship,
however, only means that the employer is not required to provide
that accommodation. If there is another accommodation that will
not create an undue hardship, the employer would be required to
provide the alternative accommodation.

An employer's claim that the cost of a particular accommodation
will impose an undue hardship will be analyzed in light of the
factors outlined in part 1630. In part, this analysis requires a
determination of whose financial resources should be considered
in deciding whether the accommodation is unduly costly. In some
cases the financial resources of the employer or other covered
entity in its entirety should be considered in determining
whether the cost of an accommodation poses an undue hardship. In
other cases, consideration of the financial resources of the
employer or other covered entity as a whole may be inappropriate
because it may not give an accurate picture of the financial
resources available to the particular facility that will actually
be required to provide the accommodation. See House Labor Report
at 68-69; House Judiciary Report at 40-41; see also Conference
Report at 56-57.


If the employer or other covered entity asserts that only the
financial resources of the facility where the individual will be
employed should be considered, part 1630 requires a factual
determination of the relationship between the employer or other
covered entity and the facility that will provide the
accommodation. As an example, suppose that an independently owned
fast food franchise that receives no money from the franchisor
refuses to hire an individual with a hearing impairment because
it asserts that it would be an undue hardship to provide an
interpreter to enable the individual to participate in monthly
staff meetings. Since the financial relationship between the
franchisor and the franchise is limited to payment of an annual
franchise fee, only the financial resources of the franchise
would be considered in determining whether or not providing the
accommodation would be an undue hardship. See House Labor Report
at 68; House Judiciary Report at 40.

If the employer or other covered entity can show that the cost of
the accommodation would impose an undue hardship, it would still
be required to provide the accommodation if the funding is
available from another source, e.g., a State vocational
rehabilitation agency, or if Federal, State or local tax
deductions or tax credits are available to offset the cost of the
accommodation. If the employer or other covered entity receives,
or is eligible to receive, monies from an external source that
would pay the entire cost of the accommodation, it cannot claim
cost as an undue hardship. In the absence of such funding, the
individual with a disability requesting the accommodation should
be given the option of providing the accommodation or of paying
that portion of the cost which constitutes the undue hardship on
the operation of the business. To the extent that such monies pay
or would pay for only part of the cost of the accommodation, only
that portion of the cost of the accommodation that could not be
recovered - the final net cost to the entity - may be considered
in determining undue hardship. (See section 1630.9 Not Making
Reasonable Accommodation). See Senate Report at 36; House Labor
Report at 69.

Section 1630.2(r) Direct Threat

An employer may require, as a qualification standard, that an
individual not pose a direct threat to the health or safety of
himself/herself or others. Like any other qualification standard,
such a standard must apply to all applicants or employees and not
just to individuals with disabilities.  If, however, an
individual poses a direct threat as a result of a disability, the
employer must determine whether a reasonable accommodation would
either eliminate the risk or reduce it to an acceptable level. If
no accommodation exists that would either eliminate or reduce the
risk, the employer may refuse to hire an applicant or may
discharge an employee who poses a direct threat.

An employer, however, is not permitted to deny an employment
opportunity to an individual with a disability merely because of
a slightly increased risk. The risk can only be considered when
it poses a significant risk, i.e., high probability, of
substantial harm; a speculative or remote risk is insufficient.
See Senate Report at 27; House Report Labor Report at 56-57;
House Judiciary Report at 45.

Determining whether an individual poses a significant risk of
substantial harm to others must be made on a case by case basis.
The employer should identify the specific risk posed by the
individual. For individuals with mental or emotional
disabilities, the employer must identify the specific behavior on
the part of the individual that would pose the direct threat. For
individuals with physical disabilities, the employer must
identify the aspect of the disability that would pose the direct
threat. The employer should then consider the four factors listed
in part 1630:

     (1) the duration of the risk;
     (2) the nature and severity of the potential harm;
     (3) the likelihood that the potential harm will occur; and
     (4) the imminence of the potential harm.

Such consideration must rely on objective, factual evidence - -
not on subjective perceptions, irrational fears, patronizing
attitudes, or stereotypes - - about the nature or effect of a
particular disability, or of disability generally. See Senate
Report at 27; House Labor Report at 56-57; House Judiciary Report
at 45-46. See also Strathie v. Department of Transportation, 716
F.2d 227 (3d Cir. 1983). Relevant evidence may include input from
the individual with a disability, the experience of the
individual with a disability in previous similar positions, and
opinions of medical doctors, rehabilitation counselors, or
physical therapists who have expertise in the disability involved
and/or direct knowledge of the individual with the disability.

An employer is also permitted to require that an individual not
pose a direct threat of harm to his or her own safety or health.
If performing the particular functions of a job would result in a
high probability of substantial harm to the individual, the
employer could reject or discharge the individual unless a
reasonable accommodation that would not cause an undue hardship
would avert the harm. For example, an employer would not be
required to hire an individual, disabled by narcolepsy, who
frequently and unexpectedly loses consciousness for a carpentry
job the essential functions of which require the use of power
saws and other dangerous equipment, where no accommodation exists
that will reduce or eliminate the risk.

The assessment that there exists a high probability of
substantial harm to the individual, like the assessment that
there exists a high probability of substantial harm to others,
must be strictly based on valid medical analyses and/or on other
objective evidence. This determination must be based on
individualized factual data, using the factors discussed above,
rather than on stereotypic or patronizing assumptions and must
consider potential reasonable accommodations. Generalized fears
about risks from the employment environment, such as exacerbation
of the disability caused by stress, cannot be used by an employer
to disqualify an individual with a disability. For example, a law
firm could not reject an applicant with a history of disabling
mental illness based on a generalized fear that the stress of
trying to make partner might trigger a relapse of the
individual's mental illness. Nor can generalized fears about
risks to individuals with disabilities in the event of an
evacuation or other emergency be used by an employer to
disqualify an individual with a disability.  See Senate Report at
56; House Labor Report at 73-74; House Judiciary Report at 45.
See also Mantolete v. Bolger, 767 F.2d 1416 (9th Cir. 1985);
Bentivegna v. U.S. Department of Labor, 694 F.2d 619 (9th Cir.
1982).

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

Section 1630.3 (a) through (c) Illegal Use of Drugs Part 1630
provides that an individual currently engaging in the illegal use
of drugs is not an individual with a disability for purposes of
this part when the employer or other covered entity acts on the
basis of such use. Illegal use of drugs refers both to the use of
unlawful drugs, such as cocaine, and to the unlawful use of
prescription drugs.

Employers, for example, may discharge or deny employment to
persons who illegally use drugs, on the basis of such use,
without fear of being held liable for discrimination. The term
"currently engaging" is not intended to be limited to the use of
drugs on the day of, or within a matter of days or weeks before,
the employment action in question. Rather, the provision is
intended to apply to the illegal use of drugs that has occurred
recently enough to indicate that the individual is actively
engaged in such conduct. See Conference Report at 64.

Individuals who are erroneously perceived as engaging in the
illegal use of drugs, but are not in fact illegally using drugs
are not excluded from the definitions of the terms "disability"
and "qualified individual with a disability." Individuals who are
no longer illegally using drugs and who have either been
rehabilitated successfully or are in the process of completing a
rehabilitation program are, likewise, not excluded from the
definitions of those terms. The term "rehabilitation program"
refers to both in-patient and out-patient programs, as well as to
appropriate employee assistance programs, professionally
recognized self-help programs, such as Narcotics Anonymous, or
other programs that provide professional (not necessarily
medical) assistance and counseling for individuals who illegally
use drugs. See Conference Report at 64; see also House Labor
Report at 77; House Judiciary Report at 47.

It should be noted that this provision simply provides that
certain individuals are not excluded from the definitions of
"disability" and "qualified individual with a disability."
Consequently, such individuals are still required to establish
that they satisfy the requirements of these definitions in order
to be protected by the ADA and this part. An individual
erroneously regarded as illegally using drugs, for example, would
have to show that he or she was regarded as a drug addict in
order to demonstrate that he or she meets the definition of
"disability" as defined in this part.

Employers are entitled to seek reasonable assurances that no
illegal use of drugs is occurring or has occurred recently enough
so that continuing use is a real and ongoing problem. The
reasonable assurances that employers may ask applicants or
employees to provide include evidence that the individual is
participating in a drug treatment program and/or evidence, such
as drug test results, to show that the individual is not
currently engaging in the illegal use of drugs. An employer, such
as a law enforcement agency, may also be able to impose a
qualification standard that excludes individuals with a history
of illegal use of drugs if it can show that the standard is
job-related and consistent with business necessity. (See section
1630.10 Qualification Standards, Tests and Other Selection
Criteria) See Conference Report at 64.

Section 1630.4 Discrimination Prohibited

This provision prohibits discrimination against a qualified
individual with a disability in all aspects of the employment
relationship.  The range of employment decisions covered by this
nondiscrimination mandate is to be construed in a manner
consistent with the regulations implementing Section 504 of the
Rehabilitation Act of 1973.

Part 1630 is not intended to limit the ability of covered
entities to choose and maintain a qualified workforce. Employers
can continue to use job-related criteria to select qualified
employees, and can continue to hire employees who can perform the
essential functions of the job.