EQUAL   EMPLOYMENT   OPPORTUNITY   COMMISSION

January 1992 EEOC-M-1A TABLE   OF   CONTENTS

MANUAL

• How to Use this Manual
• I. Title I: An Overview of Legal Requirements
• II. Who is Protected by the ADA?
  
  • Individual With a Disability
  • Qualified Individual With a Disability
• III. The Reasonable Accommodation Obligation
• IV. Establishing Nondiscriminatory Qualification Standards and Selection Criteria
• V. Nondiscrimination in the Hiring Process: Recruitment; Applications; Pre-Employment Inquiries; Testing
• VI. Medical Examinations and Inquiries
• VII. Nondiscrimination in Other Employment Practices
• VIII.Drug and Alcohol Abuse
• IX. Workers' Compensation and Work-Related Injury
• X. Enforcement Provisions

• A. Titles I and V of the ADA
• B. EEOC Title I Regulations and Interpretive Appendix
• C. Diseases Transmitted Through the Food Supply (issued by Centers for Disease Control, Public Health Service, pursuant to Section 103 (d) of the ADA)
• D. Form and Instructions for ADA-Related Small Business Tax Credit (Section 44 of the Internal Revenue Code)

INTRODUCTION

The Equal Employment Opportunity Commission (EEOC) is issuing this Technical Assistance Manual as part of an active technical assistance program to help employers, other covered entities, and persons with disabilities learn about their obligations and rights under the employment provisions of the Americans with Disabilities Act (Title I of the ADA). ADA requirements for nondiscrimination in employment become effective for employers with 25 or more employees and other covered entities on July 26, 1992, and for employers with 15 to 24 employees on July 26, 1994.

The Manual provides guidance on the practical application of legal requirements established in the statute and EEOC regulations. It also provides a directory of resources to aid in compliance. The Manual is designed to be updated periodically with supplements as the Commission develops further policy guidance and identifies additional resources.

Part One of the Manual explains key legal requirements in practical terms, including:

• who is protected by, and who must comply with, the ADA;
• what the law permits and prohibits with respect to establishing qualification standards, assessing the qualifications and capabilities of people with disabilities to perform specific jobs, and requiring medical examinations and other inquiries;
• the nature of the obligation to make a reasonable accommodation;
• how the law's nondiscrimination requirements apply to aspects of the employment process such as promotion, transfer, termination, compensation, leave, fringe benefits and contractual arrangements;
• how ADA provisions regarding drug and alcohol use affect other legal obligations and employer policies concerning drugs and alcohol; and
• how ADA requirements affect workers' compensation policies and practices.

The manual explains many employment provisions through the use of examples. These examples are used only to illustrate the particular point or principle to which they relate in the text and should not be taken out of context as statements of EEOC policy that would apply in different circumstances.

Part Two of the Manual is a Resource Directory listing public and private agencies and organizations that provide information, expertise, and technical assistance on many aspects of employing people with disabilities, including reasonable accommodation.

EEOC has published informational booklets on the ADA for employers and for people with disabilities, and will provide other written and audiovisual educational materials; it will provide ADA training for people with disabilities, for employers and other covered entities, and will participate in meetings and training programs of various organizations. EEOC also has established a free "800" number "Help line" to respond to individual requests for information and assistance.

The Commission's technical assistance program will be separate and distinct from its enforcement responsibilities. Employers who seek information or assistance from EEOC will not be subject to any enforcement action because of such inquiries. The Commission believes that the majority of employers wish to comply voluntarily with the ADA, and will do so if guidance and technical assistance are provided.

To obtain additional single copies of this Manual or other ADA informational materials, call EEOC at 1-800-669-EEOC (voice) or 1-800-800-3302 (TDD) or write to EEOC Office of Communications and Legislative Affairs, 1801 L Street, N.W., Washington, D.C. 20507. Copies of these materials also are available in Braille, large print, audiotape, and electronic file on computer disk. To obtain copies in an accessible format, call the EEOC Office of Equal Employment Opportunity at (202) 663-4395 or (202) 663-4398 (voice); (202) 663-4399 (TDD) or write this office at the address above.

Introduction and Purpose

The ADA is a federal anti discrimination statute designed to remove barriers which prevent qualified individuals with disabilities from enjoying the same employment opportunities that are available to persons without disabilities.

Like the Civil Rights Act of 1964 that prohibits discrimination on the bases of race, color, religion, national origin, and sex, the ADA seeks to ensure access to equal employment opportunities based on merit. It does not guarantee equal results, establish quotas, or require preferences favoring individuals with disabilities over those without disabilities.

However, while the Civil Rights Act of 1964 prohibits any consideration of personal characteristics such as race or national origin, the ADA necessarily takes a different approach. When an individual's disability creates a barrier to employment opportunities, the ADA requires employers to consider whether reasonable accommodation could remove the barrier.

The ADA thus establishes a process in which the employer must assess a disabled individual's ability to perform the essential functions of the specific job held or desired. While the ADA focuses on eradicating barriers, the ADA does not relieve a disabled employee or applicant from the obligation to perform the essential functions of the job. To the contrary, the ADA is intended to enable disabled persons to compete in the workplace based on the same performance standards and requirements that employers expect of persons who are not disabled.

However, where an individual's functional limitation impedes such job performance, an employer must take steps to reasonably accommodate, and thus help overcome the particular impediment, unless to do so would impose an undue hardship. Such accommodations may be adjustments to the way a job customarily is performed or to the work environment itself.

This process of identifying whether, and to what extent, a reasonable accommodation is required should be flexible, and should involve both the employer and the individual with a disability. Of course, the determination of whether an individual is qualified for a particular position must necessarily be made on a case-by-case basis. No specific form of accommodation is guaranteed for all individuals with a particular disability. Rather, an accommodation must be tailored to match the needs of the disabled individual with the requirements of the job's essential functions.

This case-by-case approach is essential if qualified individuals of varying abilities are to receive equal opportunities to compete for an infinitely diverse range of jobs. For this reason, neither the ADA, EEOC's regulations, nor this manual can supply the "correct" answer in advance for each employment decision concerning an individual with a disability. Instead, the ADA simply establishes parameters to guide employers in how to consider, and take into account, the disabling condition involved.

HOW TO USE THIS MANUAL

The information in this Manual is presented in an order designed to explain the ADA's basic employment nondiscrimination requirements. The first three chapters provide an overview of Title I legal requirements and discuss in detail the basic requirement not to discriminate against a "qualified individual with a disability," including the requirement for reasonable accommodation. The following chapters apply these legal requirements to specific employment practices and activities. Readers familiar with Title I legal requirements may wish to go directly to chapters that address specific practices. However, in many cases, these chapters refer back to the earlier sections to fully explain the requirements that apply.

The following summary of Manual chapters may be helpful in locating specific types of information.

Chapter I.
Provides a summary of Title I legal requirements with cross-references to the chapters where these requirements are discussed.

Chapter II.
Looks at the definitions of "an individual with a disability" and a "qualified individual with a disability," drawing upon guidance set out in EEOC's Title I regulation and interpretive appendix. These definitions are important, because an individual is only protected by the ADA if s/he meets both definitions. In addition, the second definition incorporates the ADA's basic employment nondiscrimination requirement, by defining a "qualified" individual as a person who can "perform the essential functions of a job . . . with or without reasonable accommodation." Chapter II also provides practical guidance on identifying "essential" job functions.

Chapter III.
Provides guidance on the obligation to make a "reasonable accommodation," including why reasonable accommodation is necessary for nondiscrimination and what is required. This chapter also provides many examples of reasonable accommodations for people with different types of disabilities in different jobs. The following chapters provide further guidance on making reasonable accommodations in the employment practices described in those chapters.

Chapter IV.
Explains how to establish qualification standards and selection criteria that do not discriminate under the ADA, including standards necessary to assure health and safety in the workplace.

Chapter V.
Provides guidance on nondiscrimination in recruitment and selection, including important ADA requirements regarding pre-employment inquiries. Among other issues, this chapter discusses nondiscrimination in advertising, recruiting, application forms, and the overall application process, including interviews and testing.

Chapter VI.
Discusses ADA requirements applicable to medical examinations and medical inquiries, including the different requirements that apply before making a job offer, after making a conditional job offer, and after an individual is employed.

Chapter VII.
Discusses and illustrates the obligation to apply ADA nondiscrimination requirements to all other employment practices and activities, and to all terms, conditions, and benefits of employment. In particular, the chapter looks at the application of ADA requirements to promotion and advancement opportunities, training, evaluation, and employee benefits such as insurance. The chapter also discusses the ADA's prohibition of discrimination on the basis of a "relationship or association with a person with a disability."

Chapter VIII.
Discusses ADA requirements related to employment policies regarding drug and alcohol abuse.

Chapter IX.
Provides further guidance on ADA requirements as they relate to workers' compensation practices.

Chapter X.
Describes the enforcement provisions of the ADA and how they will be applied by EEOC.

I. TITLE I: AN OVERVIEW OF LEGAL REQUIREMENTS

This chapter of the manual provides a brief overview of the basic requirements of Title I of the ADA. Following chapters look at these and other requirements in more detail and illustrate how they apply to specific employment practices.

Who Must Comply with Title I of the ADA?

Private employers, state and local governments, employment agencies, labor unions, and joint labor-management committees must comply with Title I of the ADA. The ADA calls these "covered entities." For simplicity, this manual generally refers to all covered entities as "employers," except where there is a specific reason to emphasize the responsibilities of a particular type of entity.

An employer cannot discriminate against qualified applicants and employees on the basis of disability. The ADA's requirements ultimately will apply to employers with 15 or more employees. To give smaller employers more time to prepare for compliance, coverage is phased in two steps as follows:

Number of employees Coverage begins

25 or more July 26, 1992

15 or more July 26, 1994

Covered employers are those who have 25 or more employees (1992) or 15 or more employees (1994), including part-time employees, working for them for 20 or more calendar weeks in the current or preceding calendar year. The ADA's definition of "employee" includes U.S. citizens who work for American companies, their subsidiaries, or firms controlled by Americans outside the USA. However, the Act provides an exemption from coverage for any action in compliance with the ADA which would violate the law of the foreign country in which a workplace is located.

(Note that state and local governments, regardless of size, are covered by employment nondiscrimination requirements under Title II of the ADA as of January 26, 1992. (See Coordination of Overlapping Federal Requirements below.)

The definition of "employer" includes persons who are "agents" of the employer, such as managers, supervisors, foremen, or others who act for the employer, such as agencies used to conduct background checks on candidates. Therefore, the employer is responsible for actions of such persons that may violate the law. These coverage requirements are similar to those of Title VII of the Civil Rights Act of 1964.

Special Situations

Religious organizations are covered by the ADA, but they may give employment preference to people of their own religion or religious organization.

For example: A church organization could require that its employees be members of its religion. However, it could not discriminate in employment on the basis of disability against members of its religion.

The legislative branch of the U.S. Government is covered by the ADA, but is governed by different enforcement procedures established by the Congress for its employees.

Certain individuals appointed by elected officials of state and local governments also are covered by the special enforcement procedures established for Congressional employees.

Who Is Exempt?

Executive agencies of the U.S. Government are exempt from the ADA, but these agencies are covered by similar nondiscrimination requirements and additional affirmative employment requirements under Section 501 of the Rehabilitation Act of 1973. Also exempted from the ADA (as they are from Title VII of the Civil Rights Act) are corporations fully owned by the U.S. Government, Indian tribes, and bona fide private membership clubs that are not labor organizations and that are exempt from taxation under the Internal Revenue Code.

Who Is Protected by Title I?

The ADA prohibits employment discrimination against "qualified individuals with disabilities." A qualified individual with a disability is:

an individual with a disability who meets the skill, experience, education, and other job-related requirements of a position held or desired, and who, with or without reasonable accommodation, can perform the essential functions of a job.

To understand who is and who is not protected by the ADA, it is first necessary to understand the Act's definition of an "individual with a disability" and then determine if the individual meets the Act's definition of a "qualified individual with a disability."

The ADA definition of individual with a disability is very specific. A person with a "disability" is an individual who:

• has a physical or mental impairment that substantially limits one or more of his/her major life activities;
• has a record of such an impairment; or
• is regarded as having such an impairment.

(See Chapter II.)

Individuals Specifically not Protected by the ADA

The ADA specifically states that certain individuals are not protected by its provisions:

Persons who currently use drugs illegally

Individuals who currently use drugs illegally are not individuals with disabilities protected under the Act when an employer takes action because of their continued use of drugs. This includes people who use prescription drugs illegally as well as those who use illegal drugs.

However, people who have been rehabilitated and do not currently use drugs illegally, or who are in the process of completing a rehabilitation program may be protected by the ADA. (See Chapter VIII.)

Other specific exclusions

The Act states that homosexuality and bisexuality are not impairments and therefore are not disabilities under the ADA. In addition, the Act specifically excludes a number of behavior disorders from the definition of "individual with a disability." (See Chapter II.)

Employment Practices Regulated by Title I of the ADA

Employers cannot discriminate against people with disabilities in regard to any employment practices or terms, conditions, and privileges of employment. This prohibition covers all aspects of the employment process, including:

• application · promotion
• testing · medical examinations
• hiring · layoff/recall
• assignments · termination
• evaluation · compensation
• disciplinary actions· leave
• training · benefits

Actions which Constitute Discrimination

The ADA specifies types of actions that may constitute discrimination. These actions are discussed more fully in the following chapters, as indicated:

1) Limiting, segregating, or classifying a job applicant or employee in a way that adversely affects employment opportunities for the applicant or employee because of his or her disability. (See Chapter II.)

2) Participating in a contractual or other arrangement or relationship that subjects an employer's qualified applicant or employee with a disability to discrimination. (See Chapter VII.)

3) Denying employment opportunities to a qualified individual because s/he has a relationship or association with a person with a disability. (See Chapter VII.)

4) Refusing to make reasonable accommodation to the known physical or mental limitations of a qualified applicant or employee with a disability, unless the accommodation would pose an undue hardship on the business. (See Chapters III. and VII.)

5) Using qualification standards, employment tests, or other selection criteria that screen out or tend to screen out an individual with a disability unless they are job-related and necessary for the business. (See Chapter IV.)

6) Failing to use employment tests in the most effective manner to measure actual abilities. Tests must accurately reflect the skills, aptitude, or other factors being measured, and not the impaired sensory, manual, or speaking skills of an employee or applicant with a disability (unless those are the skills the test is designed to measure). (See Chapter V.)

7) Denying an employment opportunity to a qualified individual because s/he has a relationship or association with an individual with a disability. (See Chapter VII.)

8) Discriminating against an individual because s/he has opposed an employment practice of the employer or filed a complaint, testified, assisted, or participated in an investigation, proceeding, or hearing to enforce provisions of the Act. (See Chapter X.)

Reasonable Accommodation and the Undue Hardship Limitation

Reasonable accommodation

Reasonable accommodation is a critical component of the ADA's assurance of nondiscrimination. Reasonable accommodation is any change in the work environment or in the way things are usually done that results in equal employment opportunity for an individual with a disability.

An employer must make a reasonable accommodation to the known physical or mental limitations of a qualified applicant or employee with a disability unless it can show that the accommodation would cause an undue hardship on the operation of its business.

Some examples of reasonable accommodation include:

• making existing facilities used by employees readily accessible to, and usable by, an individual with a disability;
• job restructuring;
• modifying work schedules;
• reassignment to a vacant position;
• acquiring or modifying equipment or devices;
• adjusting or modifying examinations, training materials, or policies;
• providing qualified readers or interpreters.

An employer is not required to lower quality or quantity standards to make an accommodation. Nor is an employer obligated to provide personal use items, such as glasses or hearing aids, as accommodations.

Undue hardship

An employer is not required to provide an accommodation if it will impose an undue hardship on the operation of its business. Undue hardship is defined by the ADA as an action that is:

"excessively costly, extensive, substantial, or disruptive, or that would fundamentally alter the nature or operation of the business."

In determining undue hardship, factors to be considered include the nature and cost of the accommodation in relation to the size, the financial resources, the nature and structure of the employer's operation, as well as the impact of the accommodation on the specific facility providing the accommodation. (See Chapter III.)

Health or Safety Defense

An employer may require that an individual not pose a "direct threat" to the health or safety of himself/herself or others. A health or safety risk can only be considered if it is "a significant risk of substantial harm." Employers cannot deny an employment opportunity merely because of a slightly increased risk. An assessment of "direct threat" must be strictly based on valid medical analyses and/or other objective evidence, and not on speculation. Like any qualification standard, this requirement must apply to all applicants and employees, not just to people with disabilities.

If an individual appears to pose a direct threat because of a disability, the employer must first try to eliminate or reduce the risk to an acceptable level with reasonable accommodation. If an effective accommodation cannot be found, the employer may refuse to hire an applicant or discharge an employee who poses a direct threat. (See Chapter IV.)

Pre-employment Inquiries and Medical Examinations

An employer may not ask a job applicant about the existence, nature, or severity of a disability. Applicants may be asked about their ability to perform specific job functions. An employer may not make medical inquiries or conduct a medical examination until after a job offer has been made. A job offer may be conditioned on the results of a medical examination or inquiry, but only if this is required for all entering employees in similar jobs. Medical examinations of employees must be job-related and consistent with the employer's business needs. (See Chapters V. and VI.)

Drug and Alcohol Use

It is not a violation of the ADA for employers to use drug tests to find out if applicants or employees are currently illegally using drugs. Tests for illegal use of drugs are not subject to the ADA's restrictions on medical examinations. Employers may hold illegal users of drugs and alcoholics to the same performance and conduct standards as other employees. (See Chapter VIII.)

Enforcement and Remedies

The U.S. Equal Employment Opportunity Commission (EEOC) has responsibility for enforcing compliance with Title I of the ADA. An individual with a disability who believes that (s)he has been discriminated against in employment can file a charge with EEOC. The procedures for processing charges of discrimination under the ADA are the same as those under Title VII of the Civil Rights Act of 1964. (See Chapter X.)

Remedies that may be required of an employer who is found to have discriminated against an applicant or employee with a disability include compensatory and punitive damages, back pay, front pay, restored benefits, attorney's fees, reasonable accommodation, reinstatement, and job offers. (See Chapter X.)

Posting Notices

An employer must post notices concerning the provisions of the ADA. The notices must be accessible, as needed, to persons with visual or other reading disabilities. A new equal employment opportunity (EEO) poster, containing ADA provisions and other federal employment nondiscrimination provisions may be obtained by writing EEOC at 1801 L Street N.W., Washington, D.C., 20507, or calling 1-800-669-EEOC or 1-800-800-3302 (TDD).

Coordination of Overlapping Federal Requirements

Employers covered by Title I of the ADA also may be covered by other federal requirements that prohibit discrimination on the basis of disability. The ADA directs the agencies with enforcement authority for these legal requirements to coordinate their activities to prevent duplication and avoid conflicting standards. Overlapping requirements exist for both public and private employers.

Title II of the ADA, enforced by the U.S. Department of Justice, prohibits discrimination in all state and local government programs and activities, including employment, after January 26, 1992.

The Department of Justice regulations implementing Title II provide that EEOC's Title I regulations will constitute the employment nondiscrimination requirements for those state and local governments covered by Title I (governments with 25 or more employees after July 26, 1992; governments with 15 or more employees after July 26, 1994). If a government is not covered by Title I, or until it is covered, the Title II employment nondiscrimination requirements will be those in the Department of Justice coordination regulations applicable to federally assisted programs under Section 504 of the Rehabilitation Act of 1973, which prohibits discrimination on the basis of disability by recipients of federal financial assistance.

Section 504 employment requirements in most respects are the same as those of Title I, because the ADA was based on the Section 504 regulatory requirements. (Note that governments receiving federal financial assistance, as well as federally funded private entities, will continue to be covered by Section 504.)

In addition, some private employers are covered by Section 503 of the Rehabilitation Act. Section 503 requires nondiscrimination and affirmative action by federal contractors and subcontractors to employ and advance individuals with disabilities, and is enforced by the Office of Federal Contract Compliance Programs (OFCCP) in the U.S. Department of Labor.

The EEOC, the Department of Labor, the Department of Justice and the other agencies that enforce Section 504 (i.e., Federal agencies with programs of financial assistance) will coordinate their enforcement efforts under the ADA and the Rehabilitation Act, to assure consistent standards and to eliminate unnecessary duplication. (See Chapter X. For further information see Resource Directory: "Federal Agencies that Enforce Other Laws Prohibiting Discrimination on the Basis of Disability.")

INDIVIDUAL WITH A DISABILITY

2.1 Introduction

The ADA protects qualified individuals with disabilities from employment discrimination. Under other laws that prohibit employment discrimination, it usually is a simple matter to know whether an individual is covered because of his or her race, color, sex, national origin or age. But to know whether a person is covered by the employment provisions of the ADA can be more complicated. It is first necessary to understand the Act's very specific definitions of "disability" and "qualified individual with a disability." Like other determinations under the ADA, deciding who is a "qualified" individual is a case-by case process, depending on the circumstances of the particular employment situation.

2.2 Individual With a Disability

The ADA has a three-part definition of "disability." This definition, based on the definition under the Rehabilitation Act, reflects the specific types of discrimination experienced by people with disabilities. Accordingly, it is not the same as the definition of disability in other laws, such as state workers' compensation laws or other federal or state laws that provide benefits for people with disabilities and disabled veterans.

Under the ADA, an individual with a disability is a person who has:

• a physical or mental impairment that substantially limits one or more major life activities;
• a record of such an impairment; or
• is regarded as having such an impairment.

2.1(a)An Impairment that Substantially Limits Major Life Activities

The first part of this definition has three major subparts that further define who is and who is not protected by the ADA.

(i) A Physical or Mental Impairment

A physical impairment is defined by the ADA as:

"[a]ny physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and endocrine."

A mental impairment is defined by the ADA as:

"[a]ny mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities."

Neither the statute nor EEOC regulations list all diseases or conditions that make up "physical or mental impairments," because it would be impossible to provide a comprehensive list, given the variety of possible impairments.

A person's impairment is determined without regard to any medication or assistive device that s/he may use.

For example: A person who has epilepsy and uses medication to control seizures, or a person who walks with an artificial leg would be considered to have an impairment, even if the medicine or prosthesis reduces the impact of that impairment.

An impairment under the ADA is a physiological or mental disorder; simple physical characteristics, therefore, such as eye or hair color, left handedness, or height or weight within a normal range, are not impairments. A physical condition that is not the result of a physiological disorder, such as pregnancy, or a predisposition to a certain disease would not be an impairment. Similarly, personality traits such as poor judgment, quick temper or irresponsible behavior, are not themselves impairments. Environmental, cultural, or economic disadvantages, such as lack of education or a prison record also are not impairments.

For example: A person who cannot read due to dyslexia is an individual with a disability because dyslexia, which is a learning disability, is an impairment. But a person who cannot read because she dropped out of school is not an individual with a disability, because lack of education is not an impairment.

"Stress" and "depression" are conditions that may or may not be considered impairments, depending on whether these conditions result from a documented physiological or mental disorder.

For example: A person suffering from general "stress" because of job or personal life pressures would not be considered to have an impairment. However, if this person is diagnosed by a psychiatrist as having an identifiable stress disorder, s/he would have an impairment that may be a disability.

A person who has a contagious disease has an impairment. For example, infection with the Human Immunodeficiency Virus (HIV) is an impairment. The Supreme Court has ruled that an individual with tuberculosis which affected her respiratory system had an impairment under Section 504 of the Rehabilitation Act<1>. However, although a person who has a contagious disease may be covered by the ADA, an employer would not have to hire or retain a person whose contagious disease posed a direct threat to health or safety, if no reasonable accommodation could reduce or eliminate this threat. (See Health and Safety Standards, Chapter IV.)

(ii) Major Life Activities

To be a disability covered by the ADA, an impairment must substantially limit one or more major life activities. These are activities that an average person can perform with little or no difficulty. Examples are:

?· walking ?· seeing

?· speaking ?· hearing

?· breathing ?· learning

?· performing manual?· caring for oneself

tasks ?· working

These are examples only. Other activities such as sitting, standing, lifting, or reading are also major life activities.

(iii)Substantially Limits

An impairment is only a "disability" under the ADA if it substantially limits one or more major life activities. An individual must be unable to perform, or be significantly limited in the ability to perform, an activity compared to an average person in the general population.

The regulations provide three factors to consider in determining whether a person's impairment substantially limits a major life activity.

· its nature and severity;

?·how long it will last or is expected to last;

?·its permanent or long term impact, or expected impact.

These factors must be considered because, generally, it is not the name of an impairment or a condition that determines whether a person is protected by the ADA, but rather the effect of an impairment or condition on the life of a particular person. Some impairments, such as blindness, deafness, HIV infection or AIDS, are by their nature substantially limiting, but many other impairments may be disabling for some individuals but not for others, depending on the impact on their activities.

For example: Although cerebral palsy frequently significantly restricts major life activities such as speaking, walking and performing manual tasks, an individual with very mild cerebral palsy that only slightly interferes with his ability to speak and has no significant impact on other major life activities is not an individual with a disability under this part of the definition.

The determination as to whether an individual is substantially limited must always be based on the effect of an impairment on that individual's life activities.

For example: An individual who had been employed as a receptionist-clerk sustained a back injury that resulted in considerable pain. The pain permanently restricted her ability to walk, sit, stand, drive, care for her home, and engage in recreational activities. Another individual who had been employed as a general laborer had sustained a back injury, but was able to continue an active life, including recreational sports, and had obtained a new position as a security guard. The first individual was found by a court to be an individual with a disability; the second individual was found not significantly restricted in any major life activity, and therefore not an individual with a disability.

Sometimes, an individual may have two or more impairments, neither of which by itself substantially limits a major life activity, but that together have this effect. In such a situation, the individual has a disability.

For example: A person has a mild form of arthritis in her wrists and hands and a mild form of osteoporosis. Neither impairment by itself substantially limits a major life activity. Together, however, these impairments significantly restrict her ability to lift and perform manual tasks. She has a disability under the ADA.

Temporary Impairments

Employers frequently ask whether "temporary disabilities" are covered by the ADA. How long an impairment lasts is a factor to be considered, but does not by itself determine whether a person has a disability under the ADA. The basic question is whether an impairment "substantially limits" one or more major life activities. This question is answered by looking at the extent, duration, and impact of the impairment. Temporary, non-chronic impairments that do not last for a long time and that have little or no long term impact usually are not disabilities.

For example: Broken limbs, sprains, concussions, appendicitis, common colds, or influenza generally would not be disabilities. A broken leg that heals normally within a few months, for example, would not be a disability under the ADA. However, if a broken leg took significantly longer than the normal healing period to heal, and during this period the individual could not walk, s/he would be considered to have a disability. Or, if the leg did not heal properly, and resulted in a permanent impairment that significantly restricted walking or other major life activities, s/he would be considered to have a disability.

Substantially Limited in Working

It is not necessary to consider if a person is substantially limited in the major life activity of "working" if the person is substantially limited in any other major life activity.

For example: If a person is substantially limited in seeing, hearing, or walking, there is no need to consider whether the person is also substantially limited in working.

In general, a person will not be considered to be substantially limited in working if s/he is substantially limited in performing only a particular job for one employer, or unable to perform a very specialized job in a particular field.

For example: A person who cannot qualify as a commercial airline pilot because of a minor vision impairment, but who could qualify as a co-pilot or a pilot for a courier service, would not be considered substantially limited in working just because he could not perform a particular job. Similarly, a baseball pitcher who develops a bad elbow and can no longer pitch would not be substantially limited in working because he could no longer perform the specialized job of pitching in baseball.

But a person need not be totally unable to work in order to be considered substantially limited in working. The person must be significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes, compared to an average person with similar training, skills, and abilities.

The regulations provide factors to help determine whether a person is substantially limited in working. These include:

?· the type of job from which the individual has been disqualified because of the impairment;

?· the geographical area in which the person may reasonably expect to find a job;

?· the number and types of jobs using similar training, knowledge, skill, or abilities from which the individual is disqualified within the geographical area, and/or

?· the number and types of other jobs in the area that do not involve similar training, knowledge, skill, or abilities from which the individual also is disqualified because of the impairment.

For example: A person would be considered significantly restricted in a "class of jobs" if a back condition prevents him from working in any heavy labor job. A person would be considered significantly limited in the ability to perform "a broad range of jobs in various classes" if she has an allergy to a substance found in most high-rise office buildings in the geographic area in which she could reasonably seek work, and the allergy caused extreme difficulty in breathing. In this case, she would be substantially limited in the ability to perform the many different kinds of jobs that are performed in high-rise buildings. By contrast, a person who has a severe allergy to a substance in the particular office in which she works, but who is able to work in many other offices that do not contain this substance, would not be significantly restricted in working.

For example: A computer programmer develops a vision impairment that does not substantially limit her ability to see, but because of poor contrast is unable to distinguish print on computer screens. Her impairment prevents her from working as a computer operator, programmer, instructor, or systems analyst. She is substantially limited in working, because her impairment prevents her from working in the class of jobs requiring use of a computer.

In assessing the "number" of jobs from which a person might be excluded by an impairment, the regulations make clear that it is only necessary to indicate an approximate number of jobs from which an individual would be excluded (such as "few," "many," "most"), compared to an average person with similar training, skills and abilities, to show that the individual would be significantly limited in working.

Specific Exclusions

A person who currently illegally uses drugs is not protected by the ADA , as an "individual with a disability", when an employer acts on the basis of such use. However, former drug addicts who have been successfully rehabilitated may be protected by the Act. (See Chapter VIII). (See also discussion below of a person "regarded as" a drug addict.)

Homosexuality and bisexuality are not impairments and therefore are not disabilities covered by the ADA. The Act also states that the term "disability" does not include the following sexual and behavioral disorders:

?·transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders;

?·compulsive gambling, kleptomania, or pyromania; or

?·psychoactive substance use disorders resulting from current illegal use of drugs.

The discussion so far has focused on the first part of the definition of an "individual with a disability," which protects people who currently have an impairment that substantially limits a major life activity. The second and third parts of the definition protect people who may or may not actually have such an impairment, but who may be subject to discrimination because they have a record of or are regarded as having such an impairment.

2.2(b)Record of a Substantially Limiting Condition

This part of the definition protects people who have a history of a disability from discrimination, whether or not they currently are substantially limited in a major life activity.

For example: It protects people with a history of cancer, heart disease, or other debilitating illness, whose illnesses are either cured, controlled or in remission. It also protects people with a history of mental illness.

This part of the definition also protects people who may have been misclassified or misdiagnosed as having a disability.

For example: It protects a person who may at one time have been erroneously classified as having mental retardation or having a learning disability. These people have a record of disability. (If an employer relies on any record [such as an educational, medical or employment record] containing such information to make an adverse employment decision about a person who currently is qualified to perform a job, the action is subject to challenge as a discriminatory practice.)

Other examples of individuals who have a record of disability, and of potential violations of the ADA if an employer relies on such a record to make an adverse employment decision:

?·A job applicant formerly was a patient at a state institution. When very young she was misdiagnosed as being psychopathic and this misdiagnosis was never removed from her records. If this person is otherwise qualified for a job, and an employer does not hire her based on this record, the employer has violated the ADA.

?·A person who has a learning disability applies for a job as secretary/receptionist. The employer reviews records from a previous employer indicating that he was labeled as "mentally retarded." Even though the person's resume shows that he meets all requirements for the job, the employer does not interview him because he doesn't want to hire a person who has mental retardation. This employer has violated the ADA.

?·A job applicant was hospitalized for treatment for cocaine addiction several years ago. He has been successfully rehabilitated and has not engaged in the illegal use of drugs since receiving treatment. This applicant has a record of an impairment that substantially limited his major life activities. If he is qualified to perform a job, it would be discriminatory to reject him based on the record of his former addiction.

In the last example above, the individual was protected by the ADA because his drug addiction was an impairment that substantially limited his major life activities. However, if an individual had a record of casual drug use, s/he would not be protected by the ADA, because casual drug use, as opposed to addiction, does not substantially limit a major life activity.

To be protected by the ADA under this part of the definition, a person must have a record of a physical or mental impairment that substantially limits one or more major life activities. A person would not be protected, for example, merely because s/he has a record of being a "disabled veteran," or a record of " disability" under another Federal statute or program unless this person also met the ADA definition of an individual with a record of a disability.

2.2(c)Regarded as Substantially Limited

This part of the definition protects people who are not substantially limited in a major life activity from discriminatory actions taken because they are perceived to have such a limitation. Such protection is necessary, because, as the Supreme Court has stated and the Congress has reiterated, "society's myths and fears about disability and disease are as handicapping as are the physical limitations that flow from actual impairments."

The legislative history of the ADA indicates that Congress intended this part of the definition to protect people from a range of discriminatory actions based on "myths, fears and stereotypes" about disability, which occur even when a person does not have a substantially limiting impairment.

An individual may be protected under this part of the definition in three circumstances:

1. The individual may have an impairment which is not substantially limiting, but is treated by the employer as having such an impairment.

For example: An employee has controlled high blood pressure which does not substantially limit his work activities. If an employer reassigns the individual to a less strenuous job because of unsubstantiated fear that the person would suffer a heart attack if he continues in the present job, the employer has "regarded" this person as disabled.

2. The individual has an impairment that is substantially limiting because of attitudes of others toward the condition.

For example: An experienced assistant manager of a convenience store who had a prominent facial scar was passed over for promotion to store manager. The owner promoted a less experienced part-time clerk, because he believed that customers and vendors would not want to look at this person. The employer discriminated against her on the basis of disability, because he perceived and treated her as a person with a substantial limitation.

3. The individual may have no impairment at all, but is regarded by an employer as having a substantially limiting impairment.

For example: An employer discharged an employee based on a rumor that the individual had HIV disease. This person did not have any impairment, but was treated as though she had a substantially limiting impairment.

This part of the definition protects people who are "perceived" as having disabilities from employment decisions based on stereotypes, fears, or misconceptions about disability. It applies to decisions based on unsubstantiated concerns about productivity, safety, insurance, liability, attendance, costs of accommodation, accessibility, workers' compensation costs or acceptance by co-workers and customers.

Accordingly, if an employer makes an adverse employment decision based on unsubstantiated beliefs or fears that a person's perceived disability will cause problems in areas such as those listed above, and cannot show a legitimate, nondiscriminatory reason for the action, that action would be discriminatory under this part of the definition.

2.3 Qualified Individual with a Disability

To be protected by the ADA, a person must not only be an individual with a disability, but must be qualified. An employer is not required to hire or retain an individual who is not qualified to perform a job. The regulations define a qualified individual with a disability as a person with a disability who:

"satisfies the requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desires, and who, with or without reasonable accommodation, can perform the essential functions of such position."

There are two basic steps in determining whether an individual is "qualified" under the ADA:

(1) Determine if the individual meets necessary prerequisites for the job, such as:

?·education;

?·work experience;

?·training;

?·skills;

?·licenses;

?·certificates;

?·other job-related requirements, such as good judgment or ability to work with other people.

For example: The first step in determining whether an accountant who has cerebral palsy is qualified for a certified public accountant job is to determine if the person is a licensed CPA. If not, s/he is not qualified. Or, if it is a company's policy that all its managers have at least three years' experience working with the company, an individual with a disability who has worked for two years for the company would not be qualified for a managerial position.

This first step is sometimes referred to as determining if an individual with a disability is "otherwise qualified." Note, however, that if an individual meets all job prerequisites except those that s/he cannot meet because of a disability, and alleges discrimination because s/he is "otherwise qualified" for a job, the employer would have to show that the requirement that screened out this person is "job related and consistent with business necessity." (See Chapter IV.)

If the individual with a disability meets the necessary job prerequisites:

(2) Determine if the individual can perform the essential functions of the job, with or without reasonable accommodation.

This second step, a key aspect of nondiscrimination under the ADA, has two parts:

?·Identifying "essential functions of the job"; and

?·Considering whether the person with a disability can perform these functions, unaided or with a "reasonable accommodation."

The ADA requires an employer to focus on the essential functions of a job to determine whether a person with a disability is qualified. This is an important nondiscrimination requirement. Many people with disabilities who can perform essential job functions are denied employment because they cannot do things that are only marginal to the job.

For example: A file clerk position description may state that the person holding the job answers the telephone, but if in fact the basic functions of the job are to file and retrieve written materials, and telephones actually or usually are handled by other employees, a person whose hearing impairment prevents use of a telephone and who is qualified to do the basic file clerk functions should not be considered unqualified for this position.

2.3(a)Identifying the Essential Functions of a Job

Sometimes it is necessary to identify the essential functions of a job in order to know whether an individual with a disability is "qualified" to do the job. The regulations provide guidance on identifying the essential functions of the job. The first consideration is whether employees in the position actually are required to perform the function.

For example: A job announcement or job description for a secretary or receptionist may state that typing is a function of the job. If, in fact, the employer has never or seldom required an employee in that position to type, this could not be considered an essential function.

If a person holding a job does perform a function, the next consideration is whether removing that function would fundamentally change the job.

The regulations list several reasons why a function could be considered essential:

1. The position exists to perform the function.

For example:

?·A person is hired to proofread documents. The ability to proofread accurately is an essential function, because this is the reason that this position exists.

?·A company advertises a position for a "floating" supervisor to substitute when regular supervisors on the day, night, and graveyard shifts are absent. The only reason this position exists is to have someone who can work on any of the three shifts in place of an absent supervisor. Therefore, the ability to work at any time of day is an essential function of the job.

2. There are a limited number of other employees available to perform the function, or among whom the function can be distributed.

This may be a factor because there are only a few other employees, or because of fluctuating demands of a business operation.

For example: It may be an essential function for a file clerk to answer the telephone if there are only three employees in a very busy office and each employee has to perform many different tasks. Or, a company with a large workforce may have periods of very heavy labor-intensive activity alternating with less active periods. The heavy work flow during peak periods may make performance of each function essential, and limit an employer's flexibility to reassign a particular function.

3. A function is highly specialized, and the person in the position is hired for special expertise or ability to perform it.

For example, A company wishes to expand its business with Japan. For a new sales position, in addition to sales experience, it requires a person who can communicate fluently in the Japanese language. Fluent communication in the Japanese language is an essential function of the job.

The regulation also lists several types of evidence to be considered in determining whether a function is essential. This list is not all-inclusive, and factors not on the list may be equally important as evidence. Evidence to be considered includes:

a. The employer's judgment

An employer's judgment as to which functions are essential is important evidence. However, the legislative history of the ADA indicates that Congress did not intend that this should be the only evidence, or that it should be the prevailing evidence. Rather, the employer's judgment is a factor to be considered along with other relevant evidence.

However, the consideration of various kinds of evidence to determine which functions are essential does not mean that an employer will be second-guessed on production standards, setting the quality or quantity of work that must be performed by a person holding a job, or be required to set lower standards for the job.

For example: If an employer requires its typists to be able to accurately type 75 words per minute, the employer is not required to show that such speed and accuracy are "essential" to a job or that less accuracy or speed would not be adequate. Similarly, if a hotel requires its housekeepers to thoroughly clean 16 rooms per day, it does not have to justify this standard as "essential." However, in each case, if a person with a disability is disqualified by such a standard, the employer should be prepared to show that it does in fact require employees to perform at this level, that these are not merely paper requirements and that the standard was not established for a discriminatory reason.

b. A written job description prepared before advertising or interviewing applicants for a job

The ADA does not require an employer to develop or maintain job descriptions. A written job description that is prepared before advertising or interviewing applicants for a job will be considered as evidence along with other relevant factors. However, the job description will not be given greater weight than other relevant evidence.

A written job description may state that an employee performs a certain essential function. The job description will be evidence that the function is essential, but if individuals currently performing the job do not in fact perform this function, or perform it very infrequently, a review of the actual work performed will be more relevant evidence than the job description.

If an employer uses written job descriptions, the ADA does not require that they be limited to a description of essential functions or that "essential functions" be identified. However, if an employer wishes to use a job description as evidence of essential functions, it should in some way identify those functions that the employer believes to be important in accomplishing the purpose of the job.

If an employer uses written job descriptions, they should be reviewed to be sure that they accurately reflect the actual functions of the current job. Job descriptions written years ago frequently are inaccurate.

For example: A written job description may state that an employee reads temperature and pressure gauges and adjusts machine controls to reflect these readings. The job description will be evidence that these functions are essential. However, if this job description is not up-to-date, and in fact temperature and pressure are now determined automatically, the machine is controlled by a computer and the current employee does not perform the stated functions or does so very infrequently, a review of actual work performed will be more relevant evidence of what the job requires.

In identifying an essential function to determine if an individual with a disability is qualified, the employer should focus on the purpose of the function and the result to be accomplished, rather than the manner in which the function presently is performed. An individual with a disability may be qualified to perform the function if an accommodation would enable this person to perform the job in a different way, and the accommodation does not impose an undue hardship. Although it may be essential that a function be performed, frequently it is not essential that it be performed in a particular way.

For example: In a job requiring use of a computer, the essential function is the ability to access, input, and retrieve information from the computer. It is not "essential" that a person in this job enter information manually, or visually read the information on the computer screen. Adaptive devices or computer software can enable a person without arms or a person with impaired vision to perform the essential functions of the job.

Similarly, an essential function of a job on a loading dock may be to move heavy packages from the dock to a storage room, rather than to lift and carry packages from the dock to the storage room.

(See also discussion of Job Analysis and Essential Functions of a Job, below).

If the employer intends to use a job description as evidence of essential functions, the job description must be prepared before advertising or interviewing for a job; a job description prepared after an alleged discriminatory action will not be considered as evidence.

c. The amount of time spent performing the function

For example: If an employee spends most of the time or a majority of the time operating one machine, this would be evidence that operating this machine was an essential function.

d. The consequences of not requiring a person in this job to perform a function

Sometimes a function that is performed infrequently may be essential because there will be serious consequences if it is not performed.

For example:

?·An airline pilot spends only a few minutes of a flight landing a plane, but landing the plane is an essential function because of the very serious consequences if the pilot could not perform this function.

?·A fire fighter may only occasionally have to carry a heavy person from a burning building, but being able to perform this function would be essential to the fire fighter's job.

?·A clerical worker may spend only a few minutes a day answering the telephones, but this could be an essential function if no one else is available to answer the phones at that time, and business calls would go unanswered.

e. The terms of a collective bargaining agreement

Where a collective bargaining agreement lists duties to be performed in particular jobs, the terms of the agreement may provide evidence of essential functions. However, like a position description, the agreement would be considered along with other evidence, such as the actual duties performed by people in these jobs.

f. Work experience of people who have performed a job in the past and work experience of people who currently perform similar jobs

The work experience of previous employees in a job and the experience of current employees in similar jobs provide pragmatic evidence of actual duties performed. The employer should consult such employees and observe their work operations to identify essential job functions, since the tasks actually performed provide significant evidence of these functions.

g. Other relevant factors

The nature of the work operation and the employer's organizational structure may be factors in determining whether a function is essential.

For example:

?·A particular manufacturing facility receives large orders for its product intermittently. These orders must be filled under very tight deadlines. To meet these deadlines, it is necessary that each production worker be able to perform a variety of different tasks with different requirements. All of these tasks are essential functions for a production worker at that facility. However, another facility that receives orders on a continuous basis finds it most efficient to organize an assembly line process, in which each production worker repeatedly performs one major task. At this facility, this single task may be the only essential function of the production worker's job.

?·An employer may structure production operations to be carried out by a "team" of workers. Each worker performs a different function, but every worker is required, on a rotating basis, to perform each different function. In this situation, all the functions may be considered to be essential for the job, rather than the function that any one worker performs at a particular time.

Changing Essential Job Functions

The ADA does not limit an employer's ability to establish or change the content, nature, or functions of a job. It is the employer's province to establish what a job is and what functions are required to perform it. The ADA simply requires that an individual with a disability's qualifications for a job are evaluated in relation to its essential functions.

For example: A grocery store may have two different jobs at the checkout stand, one titled, "checkout clerk" and the other "baggier." The essential functions of the checkout clerk are entering the price for each item into a cash register, receiving money, making change, and passing items to the baggier. The essential functions of the bagging job are putting items into bags, giving the bags to the customer directly or placing them in grocery carts.

For legitimate business reasons, the store management decides to combine the two jobs in a new job called "checker-baggier." In the new job, each employee will have to perform the essential functions of both former jobs. Each employee now must enter prices in a new, faster computer-scanner, put the items in bags, give the bags to the customer or place them in carts. The employee holding this job would have to perform all of these functions. There may be some aspects of each function, however, that are not "essential" to the job, or some possible modification in the way these functions are performed, that would enable a person employed as a "checker" whose disability prevented performance of all the bagging operations to do the new job.

For example: If the checker's disability made it impossible to lift any item over one pound, s/he might not be qualified to perform the essential bagging functions of the new job. But if the disability only precluded lifting items of more than 20 pounds, it might be possible for this person to perform the bagging functions, except for the relatively few instances when items or loaded bags weigh more than 20 pounds. If other employees are available who could help this individual with the few heavy items, perhaps in exchange for some incidental functions that they perform, or if this employee could keep filled bags loads under 20 pounds, then bagging loads over 20 pounds would not be an essential function of the new job.

2.3(b)Job Analysis and the "Essential Functions" of a Job

The ADA does not require that an employer conduct a job analysis or any particular form of job analysis to identify the essential functions of a job. The information provided by a job analysis may or may not be helpful in properly identifying essential job functions, depending on how it is conducted.

The term "job analysis" generally is used to describe a formal process in which information about a specific job or occupation is collected and analyzed. Formal job analysis may be conducted by a number of different methods. These methods obtain different kinds of information that is used for different purposes. Some of these methods will not provide information sufficient to determine if an individual with a disability is qualified to perform "essential" job functions.

For example: One kind of formal job analysis looks at specific job tasks and classifies jobs according to how these tasks deal with data, people, and objects. This type of job analysis is used to set wage rates for various jobs; however, it may not be adequate to identify the essential functions of a particular job, as required by the ADA. Another kind of job analysis looks at the kinds of knowledge, skills, and abilities that are necessary to perform a job. This type of job analysis is used to develop selection criteria for various jobs. The information from this type of analysis sometimes helps to measure the importance of certain skills, knowledge and abilities, but it does not take into account the fact that people with disabilities often can perform essential functions using other skills and abilities.

Some job analysis methods ask current employees and their supervisors to rate the importance of general characteristics necessary to perform a job, such as "strength," "endurance," or "intelligence," without linking these characteristics to specific job functions or specific tasks that are part of a function. Such general information may not identify, for example, whether upper body or lower body "strength" is required, or whether muscular endurance or cardiovascular "endurance" is needed to perform a particular job function. Such information, by itself, would not be sufficient to determine whether an individual who has particular limitations can perform an essential function with or without an accommodation.

As already stated, the ADA does not require a formal job analysis or any particular method of analysis to identify the essential functions of a job. A small employer may wish to conduct an informal analysis by observing and consulting with people who perform the job or have previously performed it and their supervisors. If possible, it is advisable to observe and consult with several workers under a range of conditions, to get a better idea of all job functions and the different ways they may be performed. Production records and work loads also may be relevant factors to consider.

To identify essential job functions under the ADA, a job analysis should focus on the purpose of the job and the importance of actual job functions in achieving this purpose. Evaluating "importance" may include consideration of the frequency with which a function is performed, the amount of time spent on the function, and the consequences if the function is not performed. The analysis may include information on the work environment (such as unusual heat, cold, humidity, dust, toxic substances or stress factors). The job analysis may contain information on the manner in which a job currently is performed, but should not conclude that ability to perform the job in that manner is an essential function, unless there is no other way to perform the function without causing undue hardship. A job analysis will be most helpful for purposes of the ADA if it focuses on the results or outcome of a function, not solely on the way it customarily is performed.

For example:

?·An essential function of a computer programmer job might be described as "ability to develop programs that accomplish necessary objectives," rather than "ability to manually write programs." Although a person currently performing the job may write these programs by hand, that is not the essential function, because programs can be developed directly on the computer.

?·If a job requires mastery of information contained in technical manuals, this essential function would be "ability to learn technical material," rather than "ability to read technical manuals." People with visual and other reading impairments could perform this function using other means, such as audio tapes.

?·A job that requires objects to be moved from one place to another should state this essential function. The analysis may note that the person in the job "lifts 50 pound cartons to a height of 3 or 4 feet and loads them into truck-trailers 5 hours daily," but should not identify the "ability to manually lift and load 50 pound cartons" as an essential function unless this is the only method by which the function can be performed without causing an undue hardship.

A job analysis that is focused on outcomes or results also will be helpful in establishing appropriate qualification standards, developing job descriptions, conducting interviews, and selecting people in accordance with ADA requirements. It will be particularly useful in helping to identify accommodations that will enable an individual with specific functional abilities and limitations to perform the job. (See Chapter III.)

2.3(c)Perform Essential Functions "With or Without Reasonable Accommodation"

Many individuals with disabilities are qualified to perform the essential functions of jobs without need of any accommodation. However, if an individual with a disability who is otherwise qualified cannot perform one or more essential job functions because of his or her disability, the employer, in assessing whether the person is qualified to do the job, must consider whether there are modifications or adjustments that would enable the person to perform these functions. Such modifications or adjustments are called "reasonable accommodations."

Reasonable accommodation is a key nondiscrimination requirement under the ADA. An employer must first consider reasonable accommodation in determining whether an individual with a disability is qualified; reasonable accommodation also must be considered when making many other employment decisions regarding people with disabilities. The following chapter discusses the employer's obligation to provide reasonable accommodation and the limits to that obligation. The chapter also provides examples of reasonable accommodations.

III. THE REASONABLE ACCOMMODATION OBLIGATION

3.1 Overview of Legal Obligations

• An employer must provide a reasonable accommodation to the known physical or mental limitations of a qualified applicant or employee with a disability unless it can show that the accommodation would impose an undue hardship on the business.
• Reasonable accommodation is any modification or adjustment to a job, an employment practice, or the work environment that makes it possible for an individual with a disability to enjoy an equal employment opportunity.
• The obligation to provide a reasonable accommodation applies to all aspects of employment. This duty is ongoing and may arise any time that a person's disability or job changes.
• An employer cannot deny an employment opportunity to a qualified applicant or employee because of the need to provide reasonable accommodation, unless it would cause an undue hardship.
• An employer does not have to make an accommodation for an individual who is not otherwise qualified for a position.
• Generally, it is the obligation of an individual with a disability to request a reasonable accommodation.
• A qualified individual with a disability has the right to refuse an accommodation. However, if the individual cannot perform the essential functions of the job without the accommodation, s/he may not be qualified for the job.
• If the cost of an accommodation would impose an undue hardship on the employer, the individual with a disability should be given the option of providing the accommodation or paying that portion of the cost which would constitute an undue hardship.

3.2 Why Is a Reasonable Accommodation Necessary?

Reasonable accommodation is a key nondiscrimination requirement of the ADA because of the special nature of discrimination faced by people with disabilities. Many people with disabilities can perform jobs without any need for accommodations. But many others are excluded from jobs that they are qualified to perform because of unnecessary barriers in the workplace and the work environment. The ADA recognizes that such barriers may discriminate against qualified people with disabilities just as much as overt exclusionary practices. For this reason, the ADA requires reasonable accommodation as a means of overcoming unnecessary barriers that prevent or restrict employment opportunities for otherwise qualified individuals with disabilities.

People with disabilities are restricted in employment opportunities by many different kinds of barriers. Some face physical barriers that make it difficult to get into and around a work site or to use necessary work equipment. Some are excluded or limited by the way people communicate with each other. Others are excluded because of rigid work schedules that allow no flexibility for people with special needs caused by disability. Many are excluded only by barriers in other people's minds; these include unfounded fears, stereotypes, presumptions, and misconceptions about job performance, safety, absenteeism, costs, or acceptance by co-workers and customers.

Under the ADA, when an individual with a disability is qualified to perform the essential functions of a job except for functions that cannot be performed because of related limitations and existing job barriers, an employer must try to find a reasonable accommodation that would enable this person to perform these functions. The reasonable accommodation should reduce or eliminate unnecessary barriers between the individual's abilities and the requirements for performing the essential job functions.

3.3 What Is a Reasonable Accommodation?

Reasonable accommodation is a modification or adjustment to a job, the work environment, or the way things usually are done that enables a qualified individual with a disability to enjoy an equal employment opportunity. An equal employment opportunity means an opportunity to attain the same level of performance or to enjoy equal benefits and privileges of employment as are available to an average similarly-situated employee without a disability. The ADA requires reasonable accommodation in three aspects of employment:

· to ensure equal opportunity in the application process;

· to enable a qualified individual with a disability

to perform the essential functions of a job; and

· to enable an employee with a disability to enjoy equal benefits and privileges of employment.

Reasonable Accommodation in the Application Process

Reasonable accommodation must be provided in the job application process to enable a qualified applicant to have an equal opportunity to be considered for a job.

For example: A person who uses a wheelchair may need an accommodation if an employment office or interview site is not accessible. A person with a visual disability or a person who lacks manual dexterity may need assistance in filling out an application form. Without such accommodations, these individuals may have no opportunity to be considered for a job.

(See Chapter V. for further discussion of accommodations in the application process).

Accommodations to Perform the Essential Functions of a Job

Reasonable accommodation must be provided to enable a qualified applicant to perform the essential functions of the job s/he is seeking, and to enable a qualified employee with a disability to perform the essential functions of a job currently held. Modifications or adjustments may be required in the work environment, in the manner or circumstances in which the job customarily is performed, or in employment policies. Many accommodations of this nature are discussed later in this chapter.

Accommodations to Ensure Equal Benefits of Employment

Reasonable accommodations must be provided to enable an employee with a disability to enjoy benefits and privileges of employment equal to those enjoyed by similarly situated non disabled employees.

For example: Employees with disabilities must have equal access to lunchrooms, employee lounges, rest rooms, meeting rooms, and other employer-provided or sponsored services such as health programs, transportation, and social events.

(See Chapter VII. for further discussion of this requirement).

3.4 Some Basic Principles of Reasonable Accommodation

A reasonable accommodation must be an effective accommodation. It must provide an opportunity for a person with a disability to achieve the same level of performance or to enjoy benefits or privileges equal to those of an average similarly-situated non disabled person. However, the accommodation does not have to ensure equal results or provide exactly the same benefits or privileges.

For example: An employer provides an employee lunchroom with food and beverages on the second floor of a building that has no elevator. If it would be an undue hardship to install an elevator for an employee who uses a wheelchair, the employer must provide a comparable facility on the first floor. The facility does not have to be exactly the same as that on the second floor, but must provide food, beverages and space for the disabled employee to eat with co-workers. It would not be a reasonable accommodation merely to provide a place for this employee to eat by himself. Nor would it be a reasonable accommodation to provide a separate facility for the employee if access to the common facility could be provided without undue hardship. For example, if the lunchroom was only several steps up, a portable ramp could provide access.

The reasonable accommodation obligation applies only to accommodations that reduce barriers to employment related to a person's disability; it does not apply to accommodations that a disabled person may request for some other reason.

For example: Reassignment is one type of accommodation that may be required under the ADA. If an employee whose job requires driving loses her sight, reassignment to a vacant position that does not require driving would be a reasonable accommodation, if the employee is qualified for that position with or without an accommodation. However, if a blind computer operator working at an employer's Michigan facility requested reassignment to a facility in Florida because he prefers to work in a warmer climate, this would not be a reasonable accommodation required by the ADA. In the second case, the accommodation is not needed because of the employee's disability.

A reasonable accommodation need not be the best accommodation available, as long as it is effective for the purpose; that is, it gives the person with a disability an equal opportunity to be considered for a job, to perform the essential functions of the job, or to enjoy equal benefits and privileges of the job.

For example: An employer would not have to hire a full-time reader for a blind employee if a co-worker is available as a part-time reader when needed, and this will enable the blind employee to perform his job duties effectively.

An employer is not required to provide an accommodation that is primarily for personal use. Reasonable accommodation applies to modifications that specifically assist an individual in performing the duties of a particular job. Equipment or devices that assist a person in daily activities on and off the job are considered personal items that an employer is not required to provide. However, in some cases, equipment that otherwise would be considered "personal" may be required as an accommodation if it is specifically designed or required to meet job-related rather than personal needs.

For example: An employer generally would not be required to provide personal items such as eyeglasses, a wheelchair, or an artificial limb. However, the employer might be required to provide a person who has a visual impairment with glasses that are specifically needed to use a computer monitor. Or, if deep pile carpeting in a work area makes it impossible for an individual to use a manual wheelchair, the employer may need to replace the carpet, place a usable surface over the carpet in areas used by the employee, or provide a motorized wheelchair.

The ADA's requirements for certain types of adjustments and modifications to meet the reasonable accommodation obligation do not prevent an employer from providing accommodations beyond those required by the ADA.

For example: "Supported employment" programs may provide free job coaches and other assistance to enable certain individuals with severe disabilities to learn and/or to progress in jobs. These programs typically require a range of modifications and adjustments to customary employment practices. Some of these modifications may also be required by the ADA as reasonable accommodations. However, supported employment programs may require modifications beyond those required under the ADA, such as restructuring of essential job functions. Many employers have found that supported employment programs are an excellent source of reliable productive new employees. Participation in these programs advances the underlying goal of the ADA - - to increase employment opportunities for people with disabilities. Making modifications for supported employment beyond those required by the ADA in no way violates the ADA.

3.5 Some Examples of Reasonable Accommodation

The statute and EEOC's regulations provide examples of common types of reasonable accommodation that an employer may be required to provide, but many other accommodations may be appropriate for particular situations. Accommodations may include:

· making facilities readily accessible to and usable by an individual with a disability;

·restructuring a job by reallocating or redistributing marginal job functions;

· altering when or how an essential job function is performed;

· part-time or modified work schedules;

· obtaining or modifying equipment or devices;

· modifying examinations, training materials or policies;

· providing qualified readers and interpreters;

· reassignment to a vacant position;

· permitting use of accrued paid leave or unpaid leave for necessary treatment;

· providing reserved parking for a person with a mobility impairment;

· allowing an employee to provide equipment or devices that an employer is not required to provide.

These and other types of reasonable accommodation are discussed in the pages that follow. However, the examples in this Manual cannot cover the range of potential accommodations, because every reasonable accommodation must be determined on an individual basis. A reasonable accommodation always must take into consideration two unique factors:

·the specific abilities and functional limitations of a particular applicant or employee with a disability; and

· the specific functional requirements of a particular job.

In considering an accommodation, the focus should be on the abilities and limitations of the individual, not on the name of a disability or a particular physical or mental condition. This is necessary because people who have any particular disability may have very different abilities and limitations. Conversely, people with different kinds of disabilities may have similar functional limitations.

For example: If it is an essential function of a job to press a foot pedal a certain number of times a minute and an individual with a disability applying for the job has some limitation that makes this difficult or impossible, the accommodation process should focus on ways that this person might be able to do the job function, not on the nature of her disability or on how persons with this kind of disability generally might be able to perform the job.

3.6 Who Is Entitled to a Reasonable Accommodation?

As detailed in Chapter II, an individual is entitled to a reasonable accommodation if s/he:

meets the ADA definition of "a qualified individual with a disability" (meets all prerequisites for performing the essential functions of a job [being considered for a job or enjoying equal benefits and privileges of a job] except any that cannot be met because of a disability).

If there is a reasonable accommodation that will enable this person to perform the essential functions of a job (be considered, or receive equal benefits, etc.), the employer is obligated to provide it, unless it would impose an undue hardship on the operation of the business.

When is an Employer Obligated to Make a Reasonable Accommodation?

An employer is obligated to make an accommodation only to the known limitations of an otherwise qualified individual with a disability. In general, it is the responsibility of the applicant or employee with a disability to inform the employer that an accommodation is needed to participate in the application process, to perform essential job functions or to receive equal benefits and privileges of employment. An employer is not required to provide an accommodation if unaware of the need.

However, the employer is responsible for notifying job applicants and employees of its obligation to provide accommodations for otherwise qualified individuals with disabilities.

The ADA requires an employer to post notices containing the provisions of the ADA, including the reasonable accommodation obligation, in conspicuous places on its premises. Such notices should be posted in employment offices and other places where applicants and employees can readily see them. EEOC provides posters for this purpose. (See Chapter I for additional information on the required notice.)

Information about the reasonable accommodation obligation also can be included in job application forms, job vacancy notices, and in personnel manuals, and may be communicated orally.

An applicant or employee does not have to specifically request a "reasonable accommodation," but must only let the employer know that some adjustment or change is needed to do a job because of the limitations caused by a disability.

If a job applicant or employee has a "hidden" disability - - one that is not obvious - - it is up to that individual to make the need for an accommodation known. If an applicant has a known disability, such as a visible disability, that appears to limit, interfere with, or prevent the individual from performing job-related functions, the employer may ask the applicant to describe or demonstrate how s/he would perform the function with or without a reasonable accommodation. Chapter V provides guidance on how to make such an inquiry without violating the ADA prohibition against pre-employment inquiries in the application and interview process.

If an employee with a known disability is not performing well or is having difficulty in performing a job, the employer should assess whether this is due to a disability. The employer may inquire at any time whether the employee needs an accommodation.

Documentation of Need for Accommodation

If an applicant or employee requests an accommodation and the need for the accommodation is not obvious, or if the employer does not believe that the accommodation is needed, the employer may request documentation of the individual's functional limitations to support the request.

For example: An employer may ask for written documentation from a doctor, psychologist, rehabilitation counselor, occupational or physical therapist, independent living specialist, or other professional with knowledge of the person's functional limitations. Such documentation might indicate, for example, that this person cannot lift more than 15 pounds without assistance.

3.7 How Does an Employer Determine What Is a Reasonable Accommodation?

When a qualified individual with a disability requests an accommodation, the employer must make a reasonable effort to provide an accommodation that is effective for the individual (gives the individual an equally effective opportunity to apply for a job, perform essential job functions, or enjoy equal benefits and privileges).

In many cases, an appropriate accommodation will be obvious and can be made without difficulty and at little or no cost. Frequently, the individual with a disability can suggest a simple change or adjustment, based on his or her life or work experience.

An employer should always consult the person with the disability as the first step in considering an accommodation. Often this person can suggest much simpler and less costly accommodations than the employer might have believed necessary.

For example: A small employer believed it necessary to install a special lower drinking fountain for an employee using a wheelchair, but the employee indicated that he could use the existing fountain if paper cups were provided in a holder next to the fountain.

However, in some cases, the appropriate accommodation may not be so easy to identify. The individual requesting the accommodation may not know enough about the equipment being used or the exact nature of the work site to suggest an accommodation, or the employer may not know enough about the individual's functional limitations in relation to specific job tasks.

In such cases, the employer and the individual with a disability should work together to identify the appropriate accommodation. EEOC regulations require, when necessary, an informal, interactive process to find an effective accommodation. The process is described below in relation to an accommodation that will enable an individual with a disability to perform the essential functions of a job. However, the same approach can be used to identify accommodations for job applicants and accommodations to provide equal benefits and privileges of employment.

3.8 A process for identifying a reasonable accommodation

1.Look at the particular job involved. Determine its purpose and its essential functions.

Chapter II recommended that the essential functions of the job be identified before advertising or interviewing for a job. However, it is useful to reexamine the specific job at this point to determine or confirm its essential functions and requirements.

2. Consult with the individual with a disability to find out his or her specific physical or mental abilities and limitations as they relate to the essential job functions. Identify the barriers to job performance and assess how these barriers could be overcome with an accommodation.

3. In consultation with the individual, identify potential accommodations and assess how effective each would be in enabling the individual to perform essential job functions. If this consultation does not identify an appropriate accommodation, technical assistance is available from a number of sources, many without cost. There are also financial resources to help with accommodation costs. (See Financial and Technical Assistance for Accommodations, 4.1 below).

4. If there are several effective accommodations that would provide an equal employment opportunity, consider the preference of the individual with a disability and select the accommodation that best serves the needs of the individual and the employer.

If more than one accommodation would be effective for the individual with a disability, or if the individual would prefer to provide his or her own accommodation, the individual's preference should be given first consideration. However, the employer is free to choose among effective accommodations, and may choose one that is less expensive or easier to provide.

The fact that an individual is willing to provide his or her own accommodation does not relieve the employer of the duty to provide this or another reasonable accommodation should this individual for any reason be unable or unwilling to continue to provide the accommodation.

Examples of the Reasonable Accommodation Process:

• A "sack-handler" position requires that the employee in this job pick up 50 pound sacks from a loading dock and carry them to the storage room. An employee who is disabled by a back impairment requests an accommodation. The employer analyzes the job and finds that its real purpose and essential function is to move the sacks from the loading dock to the store room. The person in the job does not necessarily have to lift and carry the sacks. The employer consults with the employee to determine his exact physical abilities and limitations. With medical documentation, it is determined that this person can lift 50 pound sacks to waist level, but cannot carry them to the storage room. A number of potential accommodations are identified: use of a dolly, a hand-truck or a cart. The employee prefers the dolly. After considering the relative cost, efficiency, and availability of the alternative accommodations, and after considering the preference of the employee, the employer provides the dolly as an accommodation. In this case, the employer found the dolly to be the most cost-effective accommodation, as well as the one preferred by the employee. If the employer had found a hand-truck to be as efficient, it could have provided the hand-truck as a reasonable accommodation.
• A company has an opening for a warehouse foreman. Among other functions, the job requires checking stock for inventory, completing bills of lading and other reports, and using numbers. To perform these functions, the foreman must have good math skills. An individual with diabetes who has good experience performing similar warehouse supervisory functions applies for the job. Part of the application process is a computerized test for math skills, but the job itself does not require use of a computer. The applicant tells the employer that although he has no problem reading print, his disability causes some visual impairment which makes it difficult to read a computer screen. He says he can take the test if it is printed out by the computer. However, this accommodation won't work, because the computer test is interactive, and the questions change based on the applicant's replies to each previous question. Instead, the employer offers a reader as an accommodation; this provides an effective equivalent method to test the applicant's math skills.

An individual with a disability is not required to accept an accommodation if the individual has not requested an accommodation and does not believe that one is needed. However, if the individual refuses an accommodation necessary to perform essential job functions, and as a result cannot perform those functions, the individual may not be considered qualified.

For example: An individual with a visual impairment that restricts her field of vision but who is able to read would not be required to accept a reader as an accommodation. However, if this person could not read accurately unaided, and reading is an essential function of the job, she would not be qualified for the job if she refused an accommodation that would enable her to read accurately.

3.9 The Undue Hardship Limitation

An employer is not required to make a reasonable accommodation if it would impose an undue hardship on the operation of the business. However, if a particular accommodation would impose an undue hardship, the employer must consider whether there are alternative accommodations that would not impose such hardship.

An undue hardship is an action that requires "significant difficulty or expense" in relation to the size of the employer, the resources available, and the nature of the operation.

Accordingly, whether a particular accommodation will impose an undue hardship must always be determined on a case-by-case basis. An accommodation that poses an undue hardship for one employer at a particular time may not pose an undue hardship for another employer, or even for the same employer at another time. In general, a larger employer would be expected to make accommodations requiring greater effort or expense than would be required of a smaller employer.

The concept of undue hardship includes any action that is:

·unduly costly;

·extensive;

·substantial;

·disruptive; or

·that would fundamentally alter the nature or operation of the business.

The statute and regulations provide factors to be considered in determining whether an accommodation would impose an undue hardship on a particular business:

1. The nature and net cost of the accommodation needed.

The cost of an accommodation that is considered in determining undue hardship will be the actual cost to the employer. Specific Federal tax credits and tax deductions are available to employers for making accommodations required by the ADA, and there are also sources of funding to help pay for some accommodations. If an employer can receive tax credits or tax deductions or partial funding for an accommodation, only the net cost to the employer will be considered in a determination of undue hardship. (See Financial and Technical Assistance for Accommodations, 4.1 below);

2. The financial resources of the facility making the accommodation, the number of employees at this facility, and the effect on expenses and resources of the facility.

If an employer has only one facility, the cost and impact of the accommodation will be considered in relation to the effect on expenses and resources of that facility. However, if the facility is part of a larger entity that is covered by the ADA, factors 3. and 4. below also will be considered in determinations of undue hardship.

3. The overall financial resources, size, number of employees, and type and location of facilities of the entity covered by the ADA (if the facility involved in the accommodation is part of a larger entity).

4. The type of operation of the covered entity, including the structure and functions of the workforce, the geographic separateness, and the administrative or fiscal relationship of the facility involved in making the accommodation to the larger entity.

Factor 4. may include consideration of special types of employment operations, on a case-by-case basis, where providing a particular accommodation might be an undue hardship.

For example: It might " fundamentally alter" the nature of a temporary construction site or be unduly costly to make it physically accessible to an employee using a wheelchair, if the terrain and structures are constantly changing as construction progresses.

Factor 4. will be considered, along with factors 2. and 3., where a covered entity operates more than one facility, in order to assess the financial resources actually available to the facility making the accommodation, in light of the interrelationship between the facility and the covered entity. In some cases, consideration of the resources of the larger covered entity may not be justified, because the particular facility making the accommodation may not have access to those resources.

For example: A local, independently owned fast food franchise of a national company that receives no funding from that company may assert that it would be an undue hardship to provide an interpreter to enable a deaf applicant for store manager to participate in weekly staff meetings, because its own resources are inadequate and it has no access to resources of the national company. If the financial relationship between the national company and the local company is limited to payment of an annual franchise fee, only the resources of the local franchise would be considered in determining whether this accommodation would be an undue hardship. However, if the facility was part of a national company with financial and administrative control over all of its facilities, the resources of the company as a whole would be considered in making this determination.

5.The impact of the accommodation on the operation of the facility that is making the accommodation.

This may include the impact on the ability of other employees to perform their duties and the impact on the facility's ability to conduct business.

An employer may be able to show that providing a particular accommodation would be unduly disruptive to its other employees or to its ability to conduct business.

For example: If an employee with a disability requested that the thermostat in the workplace be raised to a certain level to accommodate her disability, and this level would make it uncomfortably hot for other employees or customers, the employer would not have to provide this accommodation. However, if there was an alternative accommodation that would not be an undue hardship, such as providing a space heater or placing the employee in a room with a separate thermostat, the employer would have to provide that accommodation.

For example: A person with a visual impairment who requires bright light to see well applies for a waitress position at an expensive nightclub. The club maintains dim lighting to create an intimate setting, and lowers its lights further during the floor show. If the job applicant requested bright lighting as an accommodation so that she could see to take orders, the employer could assert that this would be an undue hardship, because it would seriously affect the nature of its operation.

In determining whether an accommodation would cause an undue hardship, an employer may consider the impact of an accommodation on the ability of other employees to do their jobs. However, an employer may not claim undue hardship solely because providing an accommodation has a negative impact on the morale of other employees. Nor can an employer claim undue hardship because of "disruption" due to employees' fears about, or prejudices toward, a person's disability.

For example: If restructuring a job to accommodate an individual with a disability creates a heavier workload for other employees, this may constitute an undue hardship. But if other employees complain because an individual with a disability is allowed to take additional unpaid leave or to have a special flexible work schedule as a reasonable accommodation, such complaints or other negative reactions would not constitute an undue hardship.

For example: If an employee objects to working with an individual who has a disability because the employee feels uncomfortable or dislikes being near this person, this would not constitute an undue hardship. In this case, the problem is caused by the employee's fear or prejudice toward the individual's disability, not by an accommodation.

Problems of employee morale and employee negative attitudes should be addressed by the employer through appropriate consultations with supervisors and, where relevant, with union representatives. Employers also may wish to provide supervisors, managers and employees with "awareness" training, to help overcome fears and misconceptions about disabilities, and to inform them of the employer's obligations under the ADA.

Other Cost Issues

An employer may not claim undue hardship simply because the cost of an accommodation is high in relation to an employee's wage or salary. When enacting the ADA "factors" for determining undue hardship, Congress rejected a proposed amendment that would have established an undue hardship if an accommodation exceeded 10% of an individual's salary. This approach was rejected because it would unjustifiably harm lower-paid workers who need accommodations. Instead, Congress clearly established that the focus for determining undue hardship should be the resources available to the employer.

If an employer finds that the cost of an accommodation would impose an undue hardship and no funding is available from another source, an applicant or employee with a disability should be offered the option of paying for the portion of the cost that constitutes an undue hardship, or of providing the accommodation.

For example: If the cost of an assistive device is $2000, and an employer believes that it can demonstrate that spending more than $1500 would be an undue hardship, the individual with a disability should be offered the option of paying the additional $500. Or, if it would be an undue hardship for an employer to purchase brailling equipment for a blind applicant, the applicant should be offered the option of providing his own equipment (if there is no other effective accommodation that would not impose an undue hardship).

The terms of a collective bargaining agreement may be relevant in determining whether an accommodation would impose an undue hardship.

For example: A worker who has a deteriorated disc condition and cannot perform the heavy labor functions of a machinist job, requests reassignment to a vacant clerk's job as a reasonable accommodation. If the collective bargaining agreement has specific seniority lists and requirements governing each craft, it might be an undue hardship to reassign this person if others had seniority for the clerk's job.

However, since both the employer and the union are covered by the ADA's requirements, including the duty to provide a reasonable accommodation, the employer should consult with the union and try to work out an acceptable accommodation.

To avoid continuing conflicts between a collective bargaining agreement and the duty to provide reasonable accommodation, employers may find it helpful to seek a provision in agreements negotiated after the effective date of the ADA permitting the employer to take all actions necessary to comply with this law. (See Chapter VII.)

3.10 Examples of Reasonable Accommodations

1.Making Facilities Accessible and Usable

The ADA establishes different requirements for accessibility under different sections of the Act. A private employer's obligation to make its facilities accessible to its job applicants and employees under Title I of the ADA differs from the obligation of a place of public accommodation to provide access in existing facilities to its customers and clients, and from the obligations of public accommodations and commercial facilities to provide accessibility in renovated or newly constructed buildings under Title III of the Act. The obligation of a state and local government to provide access for applicants and employees under Title I also differs from its obligation to provide accessibility under Title II of the ADA.

The employer's obligation under Title I is to provide access for an individual applicant to participate in the job application process, and for an individual employee with a disability to perform the essential functions of his/her job, including access to a building, to the work site, to needed equipment, and to all facilities used by employees. The employer must provide such access unless it would cause an undue hardship.

Under Title I, an employer is not required to make its existing facilities accessible until a particular applicant or employee with a particular disability needs an accommodation, and then the modifications should meet that individual's work needs. The employer does not have to make changes to provide access in places or facilities that will not be used by that individual for employment related activities or benefits.

In contrast, Title III of the ADA requires that places of public accommodation (such as banks, retail stores, theaters, hotels and restaurants) make their goods and services accessible generally, to all people with disabilities. Under Title III, existing buildings and facilities of a public accommodation must be made accessible by removing architectural barriers or communications barriers that are structural in nature, if this is "readily achievable." If this is not "readily achievable," services must be provided to people with disabilities in some alternative manner if this is "readily achievable."

The obligation for state and local governments to provide "program accessibility" in existing facilities under Title II also differs from their obligation to provide access as employers under Title I. Title II requires that these governments operate each service, program or activity in existing facilities so that, when viewed in its entirety, it is readily accessible to and useable by persons with disabilities, unless this would cause a "fundamental alteration" in the nature of the program or service, or would result in "undue financial and administrative burdens."

In addition, private employers that occupy commercial facilities or operate places of public accommodation and state and local governments must conform to more extensive accessibility requirements under Title III and Title II when making alterations to existing facilities or undertaking new construction. (see Requirements for Renovation and New Construction below.)

The accessibility requirements under Title II and III are established in Department of Justice regulations. Employers may contact the Justice Department's Office on the Americans with Disabilities Act for information on these requirements and for copies of the regulations with applicable accessibility guidelines (see Resource Directory).

When making changes to meet an individual's needs under Title I, an employer will find it helpful to consult the applicable Department of Justice accessibility guidelines as a starting point. It is advisable to make changes that conform to these guidelines, if they meet the individual's needs and do not impose an undue hardship, since such changes will be useful in the future for accommodating others. However, even if a modification meets the standards required under Title II or III, further adaptations may be needed to meet the needs of a particular individual.

For example: A restroom may be modified to meet standard accessibility requirements (including wider door and stalls, and grab bars in specified locations) but it may be necessary to install a lower grab bar for a very short person in a wheelchair so that this person can transfer from the chair to the toilet.

Although the requirement for accessibility in employment is triggered by the needs of a particular individual, employers should consider initiating changes that will provide general accessibility, particularly for job applicants, since it is likely that people with disabilities will apply for jobs in the future.

For example: Employment offices and interview facilities should be accessible to people using wheelchairs and others with mobility impairments. Plans also should be in place for making job information accessible and for communicating with people who have visual or hearing impairments. (See Chapter V. for additional guidance on accommodation in the application process.)

Accessibility to Perform the Essential Functions of the Job

The obligation to provide accessibility for a qualified individual with a disability includes accessibility of the job site itself and all work-related facilities.

Examples of accommodations that may be needed to make facilities accessible and usable include:

?·installing a ramp at the entrance to a building;

?·removing raised thresholds;

?·reserving parking spaces close to the work site that are wide enough to allow people using wheelchairs to get in and out of vehicles;

?·making restrooms accessible, including toilet stalls, sinks, soap, and towels;

?·rearranging office furniture and equipment;

?·making a drinking fountain accessible (for example, by installing a paper cup dispenser);

?·making accessible, and providing an accessible "path of travel" to, equipment and facilities used by an employee, such as copying machines, meeting and training rooms, lunchrooms and lounges;

?·removing obstacles that might be potential hazards in the path of people without vision;

?·adding flashing lights when alarm bells are normally used, to alert an employee with a hearing impairment to emergencies.

Requirements for Renovation or New Construction

While an employer's requirements for accessibility under Title I relate to accommodation of an individual, as described above, employers will have more extensive accessibility requirements under Title II or III of the ADA if they make renovations to their facilities or undertake new construction.

Title III of the ADA requires that any alterations to, or new construction of "commercial facilities," as well as places of public accommodation, made after January 26, 1992, must conform to the "ADA Accessibility Guidelines" (incorporated in Department of Justice Title III regulations). "Commercial facilities" are defined as any nonresidential facility whose operations affect commerce, including office buildings, factories and warehouses; therefore, the facilities of most employers will be subject to this requirement. An alteration is any change that affects the "usability" of a facility; it does not include normal maintenance, such as painting, roofing or changes to mechanical or electrical systems, unless the changes affect the "usability" of the facility.

For example: If, during remodeling or renovation, a doorway is relocated, the new doorway must be wide enough to meet the requirements of the ADA Accessibility Guidelines.

Under Title III, all newly constructed public accommodations and commercial facilities for which the last building permit is certified after January 26, 1992, and which are occupied after January 26, 1993, must be accessible in accordance with the standards of the ADA Accessibility Guidelines. However, Title III does not require elevators in facilities under 3 stories or with less than 3000 square feet per floor, unless the building is a shopping center, mall, professional office of a health provider, or public transportation station.

Under Title II, any alterations to, or new construction of, State or local government facilities made after January 26, 1992, must conform either with the ADA Accessibility Guidelines (however, the exception regarding elevators does not apply to State or local governments) or with the Uniform Federal Accessibility Standards. Facilities under design on January 26, 1992 must comply with this requirement if bids were invited after that date.

Providing accessibility in remodeled and new buildings usually can be accomplished at minimal additional cost. Over time, fully accessible new and remodeled buildings will reduce the need for many types of individualized reasonable accommodations. Employers planning alterations to their facilities or new construction should contact the Office on the Americans with Disabilities Act in the U.S. Department of Justice for information on accessibility requirements, including the ADA Accessibility Guidelines and the Uniform Federal Accessibility Guidelines. Employers may get specific technical information and guidance on accessibility by calling, toll-free, the Architectural and Transportation Barriers Compliance Board, at 1-800-USA-ABLE. (See Resource Directory.)

2.Job Re