Facts Sheet

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, the following text generally refers to all covered entities as "employers."

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.

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

The legislative branch of the U.S. Government and certain individuals appointed by elected officials of state and local governments are covered by the DA, but are governed by different enforcement procedures established by the Congress for its employees.

Executive agencies of the U.S. Government are exempt from the ADA, but these agencies are covered by similar requirements under 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 memberships clubs that are not labor organizations and that are exempt from taxation under the Internal Revenue Code.

• State and local governments, regardless of size: January 26, 1992
• Other covered entities with 25 or more employees: July 26, 1992
• Other covered entities with 15 or more employees: July 26, 1994

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."

• 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.

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.

Homosexuality, bisexuality and a number of other behavior disorders are not disabilities under the ADA.

Employers cannot discriminate against people with disabilities in regard to any employment practices or terms, conditions, and privileges of employment including:

• 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.
• Participating in a contractual or other arrangement or relationship that subjects an employer's qualified applicant or employee with a disability to discrimination.
• Denying employment opportunities to a qualified individual because she/he has a relationship or association with a person with a disability.
• Refusing to make reasonable accommodations to the known physical or mental limitations of a qualified applicant or employee with a disability, unless the accommodations would pose an undue hardship on the business.
• 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.
• 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).

Discriminating against an individual because she/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.

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 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 accommodations 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 provide an accommodation if it will impose an undue hardship on the operation of its business. Undue hardship is any 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.

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 accommodations. If an effective accommodation cannot be found, the employer may refuse to hire an applicant or discharge an employee who poses a direct threat.

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.

It is not a violation of the ADA for employers to use drugs 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.

The U.S. Equal Employment Opportunity Commission (EEOC) has responsibility for enforcing compliance with Title I of the ADA. 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.

Two definitions "individual with a disability" and "qualified individual with a disability" are key to the Title I (employment) provisions of the ADA.

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

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

A physical impairment is defined by the ADA as: "any physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body system: 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: "any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities."

Homosexuality and bisexuality are not impairments and therefore are not disabilities covered by the ADA. "Disability" does not include transvestitism, 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.

Simple physical characteristics, such as eye or hair color, left-handedness, or height or weight within a normal range are not impairments. Similarly, personality traits such as poor judgment, quick tempter or irresponsible behavior, are not themselves impairments. Environmental, cultural, or economic disadvantages, such as lack of education or a prison record are not impairments.

A person who currently illegally uses drugs is not protected by the ADA.
What does "substantially limits a major life activity" mean?

For a disability to be 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, including: walking, speaking, breathing, performing manual tasks, seeking, hearing, learning, caring for oneself, working, sitting, standing, lifting, and reading.

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. Three factors to consider in determining whether a person's impairment substantially limits a major life activity are:

1. its nature and severity
2. how long it will last or is expected to last
3. its permanent or long term impact, or expected impact.

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

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.

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

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 the person 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.

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.
2. The individual has an impairment that is substantially limiting because of attitudes of others toward the condition.
3. The individual may have no impairment at all, but is regarded by an employer as having 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 disabilities. It applies to decisions base don unsubstantiated concerns about productivity, safety, insurance, liability, attendance, costs of accommodation, accessibility, workers' compensation costs or acceptance by co-workers and customers.

If an employer makes an adverse employment decision based on unsubstantiated beliefs of 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.

A qualified individual with a disability is a person 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 accommodations, can perform the essential functions of such positions.

To be protected by the ADA, a person must not only be individual with a disability, but must be qualified.

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

1. Determine if the individual meets necessary prerequisites of the job. 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 accommodations.

To be considered "essential" the employees in the position are required to perform the function.

A function could be considered "essential":

1. The position exists to perform the function.
2. There are a limited number of other employees available to perform the function, or among whom the function can be distributed.
3. A function is highly specialized, and the person in the position is hired for special expertise or ability to perform it.

Evidence to be considered in determining whether a function is essential include:

• The employer's judgment
• A written job description prepared before advertising or interviewing applicants for a job.
• The amount of time spent performing the function.
• The consequences of not requiring a person in this job to perform a function.
• The terms of a collective bargaining agreement.
• Work experience of people who have performed a job in the past and work experience of people who currently perform similar jobs.
• The nature of the work operation and the employer's organizational structure.

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.

The ADA does not require that an employer conduct a job analysis of any particular form of job analysis to identify the essential functions of a job.

However, in identifying essential job functions under the ADA, by doing a job analysis, the 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.

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.

Portions of Title I of the ADA cover non-discrimination requirements in the recruitment, application process, including pre-employment inquiries, testing, etc.

It is advisable that job announcements, advertisements, and other recruitment notices include information on the essential functions of the job. Specific information about essential functions will attract applicants, including individuals with disabilities, who have appropriate qualifications.

Information about job openings should be accessible to people with different disabilities. An employer is not obligated to provide written information in various formats in advance, but should make it available in an accessible format on request.

When an employer uses an employment agency to recruit, screen, and refer potential employees, both the employer and the employment agency may be liable if there is any violation of ADA requirements.

The ADA prohibits any pre-employment inquiries about a disability. This prohibition is necessary to assure that qualified candidates are not screened out because of their disability before their actual ability to do a job is evaluated.

The prohibition on pre-employment inquiries about disability does not prevent an employer from obtaining necessary information regarding an applicant’s qualifications, including medical information necessary to assess qualifications and assure health and safety on the job.

The ADA requires only that such inquiries be made in two separate stages of the hiring process.

1. Before making a job offer. At this stage, an employer may ask questions about an applicant’s ability to perform specific job functions; may not make an inquiry about a disability; may make a job offer that is conditioned on satisfactory results of a post- offer medical examination or inquiry.
2. After making a conditional job offer and before an individual starts work. At this stage, an employer may conduct a medical examination or ask health-related questions, providing that all candidates who receive a conditional job offer in the same job category are required to take the same examination and/or respond to the same inquiries.

An employer may not make any pre-employment inquiry about a disability, or about the nature or severity of a disability

• on application forms
• in job interviews
• in background or reference checks.

An employer may not make any medical inquiry or conduct any medical examination prior to making a conditional offer of employment.

An employer may ask a job applicant questions about ability to perform specific job functions, tasks, or duties, as long as these questions are not phrased in terms of a disability. Questions need not be limited to the "essential" functions of the job. Questions may be asked regarding ability to perform all job functions, not merely those that are essential to the job.

An employer may ask all applicants to describe or demonstrate how they will perform a job, with or without an accommodation.

If an individual has a known disability that might interfere with or prevent performance of job functions, she or he may be asked to describe or demonstrate how these functions will be performed, with or without an accommodation, even if other applicants are not asked to do so; however, if a known disability would not interfere with performance of job functions, an individual may only be required to describe or demonstrate how she or he will perform a job if this is required of all applicants for the position.

An employer may condition a job offer on the results of a medical examination or on the responses to medical inquiries if such an examination or inquiry is required of all entering employees in the same job category, regardless of disability; information obtained from such inquiries or examinations must be handled according to the strict confidentiality requirements of the ADA.

An interviewer may not ask questions about a disability, but may obtain more specific information about the ability to perform job tasks and about any needed accommodation.

Where an applicant has a visible disability (for example, uses a wheelchair or a guide dog, or has a missing limb) or has volunteered information about a disability, the interviewer may not ask questions about

• the nature of the disability;
• the severity of the disability;
• the condition causing the disability;
• any prognosis or expectation regarding the condition or disability;
• or whether the individual will need treatment or special leave because of the disability.

An employer may ask questions to determine whether an applicant can perform specific job functions. The questions should focus on the applicant’s ability to perform the job, not on a disability.

1. Are you able to perform these tasks with or without an accommodation?  If the applicant indicates that she or he can perform the tasks with an accommodation, she or he may be asked.
2. How would you perform the tasks, and with what accommodation(s)?  However, the employer must keep in mind that it cannot refuse to hire a qualified individual with a disability because of this person’s need for an accommodation that would be required by the ADA.

An interviewer may not ask whether an applicant will need or request leave for medical at or for other reasons related to a disability.

The interviewer may provide information on the employer’s regular work hours, leave policies, and any special attendance needs of the job, and ask if the applicant can meet these requirements (provided that the requirements actually are applied to employees in a particular job).

Information about previous work attendance records may be obtained on the application form, in the interview or in reference checks, but the questions should not refer to illness or disability.

Employers may use any kind of test to determine job qualifications. The ADA has two major requirements in relation to tests:

1. If a test screens out or tends to screen out an individual with a disability or a class of such individuals on the basis of disability, it must be job related and consistent with business necessity. This requirement applies to all kinds of tests, including, but not limited to: aptitude tests, tests of knowledge and skill, intelligence tests, agility tests, and job demonstrations. An employer is only required to show that a test is job-related and consistent with business necessity if it screens out a person with a disability because of the disability. If a person was screened out for a reason unrelated to disability, ADA requirements do not apply.
2. The ADA requires that tests be given to people who have impaired sensory, speaking or manual skills in a format and manner that does not require use of the impaired skill, unless the test is designed to measure that skill. (Sensory skills include the abilities to hear, see and to process information.) The purpose of this requirement is to assure that tests accurately reflect a person’s job skills, aptitudes, or whatever else the test is supposed to measure, rather than the person’s impaired skills. However, an employer does not have to provide an alternative test format for a person with an impaired skill if the purpose of the test is to measure that skill.

The employer must provide an accommodation, if needed, to enable an applicant to have equal opportunity in the interview and testing process. Needed accommodations may include:

• An accessible location for people with mobility impairments;
• An English sign language interpreter for a deaf person;
• A reader for a blind person;
• Simplifying test language for people who have limited language skills because of a disability;
• Scheduling rest breaks for people with mental and other disabilities that require such relief;
• Assuring that a test site is accessible to a person with a mobility disability;Allowing a person with a mental disability who cannot perform well if there are distractions to take a test in a separate room, if a group test setting is not relevant to the job itself;
• Where it is not possible to test an individual with a disability in an alternative format an employer may be required, as a reasonable accommodation, to evaluate the skill or ability being tested through some other means, such as an interview, education, work experience, licenses or certification, or a job demonstration for a trial period;
• Substituting a written test for an oral test (or written instructions for oral instructions) for people with impaired speaking or hearing skills;
• Administering a test in large print, in Braille, by a reader, or on a computer for people with visual or other reading disabilities;
• Allowing people with visual or learning disabilities or who have limited use or their hands to record test answers by tape recorder, dictation or computer,
• Providing extra time to complete a test for people with certain learning disabilities or impaired writing skills.

Title I of the ADA covers the employment of people with disabilities. Title I of the ADA is enforced by the Equal Employment Opportunity Commission (EEOC) under the same procedures used to enforce Title VII of the Civil Rights Act of 1964.

Charges in discrimination can be filed against private employers with 25 or more employees and other covered entities beginning July 26, 1992. The alleged discriminatory act(s) must have occurred on or after July 26, 1992.

Charges can be filed against private employers with 15 or more employees beginning July 26, 1994. The alleged discriminatory act(s) must have occurred on or after July 26, 1994, if the charge is against an employer with 15 to 24 employees (State and local government beginning January 26, 1992).

An applicant or employee who feels that she/he has been discriminated against in employment on the basis of disability can file a charge with EEOC. An individual, group or organization also can file a charge on behalf of another person. A charge can be filed at:

Equal Employment Opportunity Commission
210 Park Avenue, Suite 1350
Oklahoma City, OK 73104
405-231-4911
405-231-5745

A charge of discrimination on the basis of disability must be filed with EEOC within 180 days of the alleged discriminatory act.

An individual can file a lawsuit against an employer, but she/he must first file the charge with EEOC. The charging party can request a "right to sue" letter from the EEOC 180 days after the charge was first filed with the Commission. A charging party will then have 90 days to file suit after receiving the notice of right to sue. If the charging party files suit, EEOC will ordinarily dismiss the original charges filed with the Commission. "Right to sue" letters also are issued when EEOC does not believe discrimination occurred or when conciliation attempts to fail and EEOC decides not to sue on the charging party's behalf.

If the investigation finds no cause to believe discrimination occurred, EEOC will take no further action. EEOC will issue a "right to sue" letter to the charging party, who may initiate a private suit.

If the investigation shows that there is reasonable cause to believe that discrimination occurred, EEOC, will attempt to resolve the issue through conciliation and to obtain full relief consistent with EEOC's standards for remedies for the charging party. If EEOC has found cause to believe that discrimination occurred, but cannot resolve the issue through conciliation, the case will be considered for litigation. If EEOC decides to litigate, a lawsuit will be filed in federal district court. If the Commission decides not to litigate, it will send the charging party a "right-to-sue" letter. The charging party may then initiate a private civil suit within 90 days, if desired. If conciliation fails a charge against a state or local government, EEOC will refer the case to the Department of Justice for consideration of litigation or issuance of a "right-to-sue" letter.

The "relief" or remedies available for employment discrimination, whether caused by intentional acts or by practices that have a discriminatory effect, may include hiring, reinstatement, promotion, back pay, front pay, reasonable accommodation, or other actions that will make an individual "whole" (in the condition she/he would have been but for the discrimination). Remedies also may include payment of attorney's fees, expert witness fees and court costs.

Compensatory and punitive damages also may be available where intentional discrimination is found. Damages may be available to compensate for actual monetary losses, for future monetary losses, for mental anguish and inconvenience. Punitive damages also may be available if an employer acted with malice or reckless indifference. The total amount of punitive damages and compensatory damages for future monetary loss and emotional injury for each individual is limited, based upon the size of the employer.

Punitive damages are not available against state or local governments.

In cases concerning reasonable accommodation, compensatory or punitive damages may not be awarded to the charging party if an employer can demonstrate that "good faith" efforts were made to provide reasonable accommodation.

The ADA does not prevent employers from obtaining medical and related information necessary to evaluate the ability of applicants and employees to perform essential job functions, or to promote health and safety on the job. However, to protect individuals with disabilities from actions based on such information that are not job-related and consistent with business necessity, including protection of health and safety, the ADA imposes specific and differing obligations on the employer at three stages of the employment process:

1.   Before making a job offer, an employer may not make any medical inquiry or conduct any medical examination.
2. After making a conditional job offer, before a person starts work, an employer may make unrestricted medical inquiries, but may not refuse to hire an individual with a disability based on results of such inquiries, unless the reason for rejection is job-related and justified by business necessity.
3. After employment, any medical examination or inquiry required of an employee must be job-related and justified by business necessity. Exceptions are voluntary examinations conducted as part of employee health programs and examinations required by other federal laws.

The ADA prohibits medical inquiries or medical examinations before making a conditional job offer to an applicant. This prohibition is necessary because the results of such inquiries and job examinations frequently are used to exclude people with disabilities from jobs they are able to perform.

Some employers have medical policies or rely on doctors' medical assessments that overestimate the impact of a particular condition on a particular individual, and/or underestimate the ability of an individual to cope with his or her condition. Medical policies that focus on disability, rather than the ability of a particular person, frequently will be discriminatory under the ADA.

An employer may condition a job offer on the satisfactory result of a post-offer medical examination or medical inquiry if this is required of all entering employees in the same job category. A post-offer medical examination does not have to be given to all entering employees in all jobs, only to those in the same job category.

The ADA does not require an employer to justify its requirement of a post-offer medical examination. An employer may wish to conduct a post-offer medical exam or make post-offer medical inquiries for purposes such as:

1. To determine if an individual currently has the physical or mental qualifications necessary to perform certain jobs;
2. To determine that a person can perform a job without posing a "direct threat" to the health or safety of self or others;
3. Compliance with medical requirements of other Federal laws.

Employers also may conduct post-offer medical examinations that are required by state laws, but, may not take actions based on such examinations if the state law is inconsistent with ADA requirements.

After making a conditional job offer, an employer may make inquiries or conduct examinations to get any information that it believes to be relevant to a person's ability to perform a job.

A post-offer medical examination or inquiry, made before an individual starts work, need not focus on ability to perform job functions. Such inquiries and examinations themselves, unlike examinations/inquiries of employees, do not have to be "job-related" and "consistent with business necessity." However, if a conditional job offer is withdrawn because of the results of such examination or inquiry, an employer must be able to show that:

1. the reasons for the exclusion are job-related and consistent with business necessity, or the person is being excluded to avoid a "direct threat" to health or safety; and that
2. no reasonable accommodation was available that would enable this person to perform the essential job functions without a significant risk to health or safety, or that such an accommodation would cause undue hardship.

The results of a medical injury or examination may not be used to disqualify persons who care currently able to perform the essential functions of a job, either with or without an accommodation, because of fear or speculation that a disability may indicate a greater risk of future injury, or absenteeism, or may cause future workers' compensation or insurance costs. An employer may use such information to exclude an individual with a disability where there is specific medical documentation, reflecting current medical knowledge, that this individual would pose a significant, current risk of substantial harm to health or safety.

Under the ADA, "medical" documentation concerning the qualifications of an individual constitutes a "direct threat" to health and safety, does not mean only information from medical doctors. It may be necessary to obtain information from other sources, such as rehabilitation experts, occupational or physical therapists, psychologists, and others knowledgeable about the individual and the disability concerned. It also may be more relevant to look at the individual's previous work history in making such determinations than to rely on an examination or tests by a physician.

Any medical assessment should focus on only two concerns: 1) whether this person currently is able to perform this specific job, with out without an accommodation and 2) whether this person can perform this job without posing a "direct threat" to the health or safety or the person or others.

When an individual is rejected on the basis of a "direct threat" to health and safety:

• the employer must be prepared to show a significant current risk of substantial harm (not from a speculative or remote risk);
• the specific risk must be identified;
• the risk must be documented by objective medical or other factual evidence regarding the particular individual;
• even if a genuine significant risk of substantial harm exists, the employer must consider whether it can be eliminated or reduced below the level of a "direct threat" by reasonable accommodation.

A doctor's evaluation of any future risk must be supported by valid medical analysis indicating a high probability of substantial harm if this individual performed the particular functions of the particular job in question. Conclusions of general medical studies about work restrictions for people with certain disabilities will not be sufficient evidence, because they do not relate to a particular individual and do not consider reasonable accommodation.

All information obtained from post-offer medical examinations and inquiries must be collected and maintained on separate forms, in separate medical files and must treated as a confidential medical record. Therefore, an employer should not place any medical-related material in an employee's personnel file.

All medical-related information must be kept confidential, with the following exceptions:

• Supervisors and managers may be informed about necessary restrictions on the work or duties of an employee and necessary accommodations.
• First aid and safety personnel may be informed, when appropriate, if the disability might require emergency treatment or if any specific procedures are needed in the case of fire or other evacuations.
• Government officials investigating compliance with ADA and other Federal and state laws prohibiting discrimination on the basis of disability or handicap should be provided relevant information on request.
• Relevant information may be provided to state workers' compensation offices or "second injury" funds, in accordance with state workers' compensation laws.
• Relevant information may be provided to insurance companies where the company requires a medical examination to provide health or life insurance for employees.

An employer may conduct voluntary medical examinations and inquires as part of an employee health program (such as medical screening for high blood pressure, weight control, and cancer detection), providing that:

1. participation in the program is voluntary
2. information obtained is maintained according to the confidentiality requirements of the ADA
3. this information is not used to discriminate against an employee.

The ADA's requirements concerning medical examinations and inquiries of employees are more stringent than those affecting applicants who are being evaluated for employment after a conditional job offer. IN order for a medical examination or inquiry to be made of an employee, it must be job-related and consistent with business necessity. The need for the examination may be triggered by some evidence of problems related to job performance or safety, or an examination may be necessary to determine whether individuals in physically demanding jobs continue to be fit for duty. In either case, the scope of the examination also must be job-related.

Medical examinations or inquires may be job-related and necessary under several circumstances:

1. When an employee is having difficulty performing his or her job effectively;
2. When an employee becomes disabled; or
3. Examination necessary for reasonable accommodations.

The ADA specifically permits employers to ensure that the workplace is free from the illegal use of drugs and the use alcohol, and to comply with other Federal laws and regulations regarding alcohol and drug use. At the same time, the ADA provides limited protection from discrimination for recovering drug addicts and for alcoholics.

• An individual who is currently engaging in the illegal use of drugs is not an "individual with a disability" when the employer acts on the basis of such use.
• An employer may prohibit the illegal use of drugs and the use of alcohol at the workplace.
• It is not a violation of the ADA for an employer to give tests for the illegal use of drugs.
• An employer may discharge or deny employment to persons who currently engage in the illegal use of drugs.
• An employer may not discriminate against a drug addict who is not currently using drugs and who has been rehabilitated, because of a history of drug addiction.
• A person who is an alcoholic is an "individual with a disability" under the ADA.
• An employer may discipline, discharge, or deny employment to an alcoholic whose use of alcohol impairs job performance or conduct to the extent that she/he is not a "qualified individual with a disability."
• Employees who use drugs or alcohol may be required to meet the same standards of performance and conduct that are set for other employees.
• Employees may be required to follow the Drug-Free Workplace Act of 1988 and rules set by Federal agencies pertaining to drug and alcohol use in the workplace.

• The illegal use of drugs includes the use, possession, or distribution of drugs which are unlawful under the Controlled Substances Act. It includes the use of illegal drugs and the illegal use of prescription drugs that are "controlled substances."
• The illegal use of drugs does not include drugs taken under supervision of a licensed health care professional, including experimental drugs for people with AIDS, epilepsy, or mental illness.
• An individual who illegally uses drugs but also has a disability, such as epilepsy, is only protected by the ADA from discrimination on the basis of the disability (epilepsy). An employer can discharge or deny employment to such an individual on the basis of the disability (epilepsy). An employer can discharge or deny employment to such a individual on the basis of his/her illegal use of drugs.
• If an individual tests positive on a test for the illegal use of drugs, the individual will be considered a current drug user under the ADA where the test correctly indicates that the individual is engaging in the illegal use of a controlled substance.
• "Current" drug use means that illegal use of drugs occurred recently enough to justify a employer's reasonable belief that involvement with drugs is an on-going problem. It is not limited to the day of use, or recent weeks or days, in terms of an employment action. It is determined on a case-by-case basis.

The Title II regulation covers "public entities," effective January 26, 1992.

"Public entities" include any State or local government and any of its departments, agencies, or other instrumentalities

All activities, services, and programs of public entities are covered, including activities of State legislatures and courts, town meetings, police and fire departments, motor vehicle licensing, and employment. Unlike Section 504 of the Rehabilitation Act of 1973, which only covers programs receiving Federal financial assistance, Title II extends to all the activities of State and local governments whether or not they receive Federal funds.

Public transportation services operated by State and local governments are also covered by Title II. Regulations of the Department of Transportation establish specific requirements for transportation vehicles and facilities, including a requirement that all new buses must be equipped to provide services to people who use wheelchairs.

State and local governments may not refuse to allow a person with a disability to participate in a service, program, or activity because the person has a disability.

Programs and services must be provided in an integrated setting, unless separate or different measures are necessary to ensure equal opportunity.

State and local governments must eliminate unnecessary eligibility standards or rules that deny individuals with disabilities an equal opportunity to enjoy their services, programs or activities unless they are "necessary" for the provision of the service, program or activity.

Requirements that tend to screen out individuals with disabilities, such as requiring a driver's license as the only acceptable means of identification, are also prohibited.

Safety requirements that are necessary for the safe operation of the program in question, such as requirements for eligibility for drivers' licenses, may be imposed if they are based on actual risks and not. on mere speculation, stereotypes, or generalizations about individuals with disabilities.

State and local governments are required to make reasonable modifications in policies, practices, and procedures that deny equal access to individuals with disabilities, unless a fundamental alteration in the program would result.

Auxiliary aids and services must be furnished when necessary to ensure effective communication, unless an undue burden or fundamental alteration would result.

State and local governments may provide special benefits, beyond those required by the regulation, to individuals with disabilities.

Special charges may not be placed on individuals with disabilities to cover the costs of measures necessary to ensure nondiscriminatory treatment, such as making modifications required to provide program accessibility or providing qualified interpreters.

State and local governments shall operate their programs so that, when viewed in their entirety, they are readily accessible to and usable by individuals with disabilities.

An "individual with a disability" is a person who:

• Has a physical or mental impairment that substantially limits a "major life activity," or
• Has a record of such an impairment, or
• Is regarded as having such an impairment.

Physical or mental impairments include, but are not limited to, such contagious and noncontagious diseases and conditions as orthopedic, visual, speech, and hearing impairments; cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, mental retardation, emotional illness,, specific learning disabilities, HIV disease (whether symptomatic or asymptomatic), tuberculosis, drug addiction, and alcoholism. Homosexuality and bisexuality are not physical or mental impairments under the ADA.

"Major life activities" include functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.

Individuals who currently engage in the illegal use of drugs are not protected by the ADA when an action is taken on the basis of their current illegal use of drugs.

A "qualified" individual with a disability is one who meets the essential eligibility requirements for the program or activity offered by a public entity. The "essential eligibility requirements" will depend on the type of service or activity involved. For some activities, such as State licensing programs, the ability to meet specific skill and performance requirements may be "essential." For other activities, such as where the public entity provides information to anyone who requests it, the "essential eligibility requirements" would be minimal.

State and local governments must ensure that individuals with disabilities are not excluded from services, programs, and activities because buildings are inaccessible.

Physical barriers, such as stairs, in all existing buildings, need not be removed, as long as they make their programs accessible to individuals who are unable to use an inaccessible existing facility.

Services, programs, and activities may be offered in the facility to individuals with disabilities through alternative methods, if physical barriers are not removed. Examples include:

Relocating a service to an accessible facility, e.g., moving a public information office from the third floor to the first floor of a building.

Providing an aide or personal assistant to enable an individual with a disability to obtain the service.

Providing benefits or services at an individual's home, or at an alternative accessible site.

Carrying an individual with a disability as a method of providing program access is not permissible, except in "manifestly exceptional" circumstances.

State and local governments are not required to take any action that would result in a fundamental alteration in the nature of the service, program, or activity or in undue financial and administrative burdens. However, public entities must take any other action , if available. that would not result in a fundamental alteration or undue burdens but would ensure that individuals with disabilities receive the benefits or services.

Public entities may not provide services or benefits to individuals with disabilities through programs that are separate or different, unless the separate programs are necessary to ensure that the benefits and services are equally effective.

Even when separate programs are permitted, an individual with a disability still has the right to choose to participate in the regular program. State and local governments may not require an individual with a disability to accept a special accommodation or benefit if the individual chooses not to accept it.

State and local governments must ensure effective communication with individuals with disabilities.

Where necessary to ensure that communications with individuals with hearing, vision, or speech impairments are as effective as communications with others, the public entity must provide appropriate auxiliary aids.

"Auxiliary aids" include such services or devices as qualified interpreters, assistive listening headsets, television captioning and decoders, telecommunications devices for deaf persons (TDD's), videotext displays, readers, taped texts, Braille materials, and large print materials.

A public entity may not charge an individual with a disability for the use of an auxiliary aid.

Telephone emergency services, including 911 services, must provide direct access to individuals with speech or hearing impairments.

Public entities are not required to provide auxiliary aids that would result in a fundamental alteration in the nature of a service, program, or activity or in undue financial and administrative burdens. However, public entities must still furnish another auxiliary aid, if available, that does not result in a fundamental alteration or undue burdens.

Public entities must ensure that newly constructed buildings and facilities are free of architectural and communication barriers that restrict access or use by individuals with disabilities.

When a public entity undertakes alterations to an existing building, it must also ensure that the altered portions are accessible.

The ADA does not require retrofitting of existing buildings to eliminate barriers, but does establish a high standard of accessibility for new buildings.

Public entities may choose between two technical standards for accessible design: The Uniform Federal Accessibility Standard (UFAS), or the Americans with Disabilities Act Accessibility Guidelines (minus the elevator exemption for small buildings).

Private parties may bring lawsuits to enforce their rights under Title II of the ADA. The remedies available are the same as those provided under Section 504 of the Rehabilitation Act of 1973. A reasonable attorney's fee may be awarded to the prevailing party.

Individuals may also file complaints with appropriate administrative agencies. The regulation designates eight Federal agencies to handle complaints filed under Title II.

Any individual who believes that he or she is a victim of discrimination prohibited by the regulation may file a complaint. Complaints on behalf of classes of individuals are also permitted.

Complaints should be in writing, signed by the complainant or an authorized representative, and should contain the complainant's name and address and describe the public entity's alleged discriminatory action.

Complaints may be sent to:

   Disability Rights Section
   U.S. Department of Justice
   Civil Rights Division
   950 Pennsylvania Ave., NW
   Disability Rights Section, NYA
   Washington, DC 20530
   (202) 307-0663 (Voice and TDD)
   Fax: (202) 307-1198

The design requirements of Title III of the ADA affect "places of public accommodation" and "commercial facilities."

A "place of public accommodation" is defined as a facility, operated by a private entity, whose operations affect commerce and fall within at least one of the following categories:

1. An inn, hotel, motel, or other place of lodging, except for an establishment located within a building that contains not more than five rooms for rent or hire and that is actually occupied by the proprietor of the establishment as the residence of the proprietor,
2. A restaurant, bar, or other establishment serving food or drink;
3. A motion picture house, theater, concert hall, stadium, or other place of exhibition or entertainment;
4. An auditorium, convention center, lecture hall, or other place of public gathering;
5. A bakery, grocery store, clothing store, hardware store, shopping center, or other sales or rental establishment;
6. A laundromat, dry cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a health care provider, hospital, or other service establishment;
7. A terminal, depot, or other station used for specified public transportation;
8. A museum, library, gallery, or other place of public display or collection;
9. A park, zoo, amusement park, or other place of recreation;
10. A nursery, elementary, secondary, undergraduate, or postgraduate private school, or other place of education.
11. A day care center, senior citizen center, homeless shelter, food bank, adoption agency, or other social service center establishment;
12. A gymnasium, golf course, or other place of exercise or recreation.

A "commercial facility" is defined as a facility

• whose operations will affect commerce;
• that are intended for nonresidential use by a private entity; and
• are not aircraft, railroad vehicle, or facilities that are covered or expressly exempted from the Fair Housing Act of 1968. Examples include factories, warehouses, office buildings and other buildings where employment may occur.

The term "facility" is defined to mean all or any portion of buildings, structures, sites, complexes, equipment, rolling stock or other conveyances (such as cruise ships, floating restaurants, etc.), roads, walks, passageways, parking lots, or other real or personal property, including the site where the building, property, structure, or equipment is located.

1. State and local government buildings are not covered. However, they are covered under Title II of the ADA.
2. Federal government buildings and facilities are not covered. However, they are covered under the Architectural Barriers Act.
3. Private clubs are exempted. Private clubs are defined under Title II of the Civil Rights Act of 1964. Public accommodations that are not private clubs, but which lease space from a private club, are covered.
4. Religious organizations or entities controlled by a religious organization, including places of worship, are exempted. Public accommodations that are not religious organizations, but which lease space from a religious organization, are covered.
5. Private homes, if used exclusively as a residence, are exempted. If part of the home is used as a place of public accommodation, the portions used in such a manner are covered.
6. Multi-family housing is exempted. However, they are covered under the Federal Fair Housing Amendments Act.
   What is required in terms of physical accessibility to public accommodations and commercial facilities?

Public accommodations and commercial facilities undergoing new construction must meet the design requirements outlined in the Americans with Disabilities Act Design Guidelines.

Public accommodations and commercial facilities undergoing alterations must meet the design requirements outlined in the Americans with Disabilities Act Design Guidelines.

Public accommodations (but not commercial facilities) must take steps to remove existing barriers which are readily achievable.

Note: A separate Fact Sheet outlines the requirements for new construction and alterations. A separate Fact Sheet outlines the requirements for removal of existing barriers.

The design requirements of Title III of the ADA affect "places of public accommodation" and "commercial facilities." (See accompanying Fact Sheet describing places of public accommodation and commercial facilities.)

New construction is defined as the design or construction of a facility for first occupancy.

All construction of places of public accommodation and commercial facilities for first occupancy after January 26, 1993 must be accessible to and usable by individuals with disabilities.

First occupancy is determined if:

1. the last application for a building permit or permit extension for the facility is certified to be complete or received by a State or County government after January 26, 1992 and
2. if the first certificate of occupancy for the facility is issued after January 26, 1993.

A facility may be exempted from this requirement if it can demonstrate that it is structurally impracticable to comply.

An alteration is a change to a place of public accommodation or a commercial facility that affects or could affect the usability of the building or facility of any part thereof.

Examples include additions, remodeling, renovation, rehabilitation, reconstruction, historic restoration, changes or rearrangement in structural parts or elements, and changes or rearrangement in the plan configuration of walls and full partitions. It does not include normal maintenance, reroofing, painting or wallpapering, asbestos removal, or changes to mechanical or electrical systems unless they affect the usability of the building or facility.

Any alteration to a place of public accommodation or a commercial facility, after January 26, 1992, must be made so as to ensure that, to the maximum extent feasible, the altered portions of the facility are readily accessible to and usable by individuals with disabilities. An alteration is deemed to be undertaken after January 26, 1992 if the physical alteration begins after that date.

If the alteration affects or could affect the usability of or access to an area of a facility that contains a primary function, the path of travel to the altered areas and the restrooms, telephones and drinking fountains serving the altered area should, to the maximum extent feasible, be readily accessible to and usable by individuals with disabilities. In no case, however, will an entity be required to spend more than twenty (20) percent of the total cost of altering the primary function area to provide such an accessible path. If it would cost more than twenty percent of the total cost to do so then only an amount equal to twenty percent of the intended alteration has to be spent.

Yes. The installation of an elevator is not required for either new construction or alterations in facilities that are less than three stories or have less than 3,000 square feet per floor, unless it houses a shopping center, a shopping mall, a professional office of a health care provider, a terminal, depot or other station used for specified public transportation, or an airport passenger terminal.

A qualified historic building or facility is one that is either listed, or eligible for listing, in the national Register of Historic Places, or one that is designated as historic under state or local law.

If making the altered portion of a "qualified historic building" readily accessible would threaten or destroy the historic significance of that building or facility certain alternative minimum accessibility standards may instead be applied. In some instances, it will still not be possible to achieve compliance with the alternative accessibility requirements without’ destroying the historic significance of the building. Specific procedures and consultation with the appropriate "preservation officer(s)" at the State or Federal level are necessary to determine the exemptions.

The ADA final design guidelines, published by the U.S. Architectural and Transportation Barriers Compliance Board in the Federal Register on July 26, 1991, are the guidelines to which all new construction and alterations must be met. These design guidelines are DIFFERENT from the Uniform Federal Accessibility Standards and the local building codes. The guidelines give specific design and scoping requirements and also provide guidance on how to apply the design guidelines.

The ADA accessibility requirements do not supplant or replace State or local laws that impose higher accessibility standards. The governing principal to follow when Federal, State, or local codes differ is that the more stringent requirements apply.

The U.S. Attorney General, upon the filing of a complaint by an individual. Individuals may also file private law suits with the courts having jurisdiction.

Yes. Any private entity that offers examinations or courses related to applications, licensing, certification, or credentialing for secondary or postsecondary education, professional, or trade purposes shall offer such examinations or courses in a place and manner accessible to persons with disabilities or offer alternative accessible arrangements for such individuals.

Required modifications may include changes in the length of time permitted for the completion of the examination or course, substitution of specific requirements of a course, or an adaptation of the manner in which the course is conducted or examination is given.

EXAMPLE: An individual has a manual dexterity impairment that hinders their ability to write. It may be necessary for the examiner to provide this individual with more time to complete the examination and/or permit typing of the answers.

Yes. A private entity that offers a course or examination shall provide appropriate auxiliary aids and services for persons with impaired sensory, manual, or speaking skills, unless the entity can demonstrate that offering a particular aid or service would fundamentally alter the course or examination, would result in an undue burden, or, in the case of an examination, would fundamentally alter the measurement of the skills or knowledge the examination is intended to test.

Examples include taped texts, interpreters or other effective methods of making orally delivered materials available to individuals with hearing impairments, Braille or large print texts or qualified readers for individuals with visual impairments and learning disabilities, adapted classroom equipment or transcribers for use by individuals with manual impairments, and other similar services and actions.

Yes. Persons with disabilities may be required to provide advance notice of any modifications of aids that would be required, provided that they are not unreasonable and that the deadline for such notice is not earlier than the deadline for others applying to take the examination or course.

A sponsor may require evidence that an applicant is entitled to modifications or aids. Requests must be reasonable and must be limited to the need for the modification or aid requested. Appropriate documentation might include a letter from a physician or other professional, or evidence of a prior diagnosis or accommodation.

EXAMPLE: A college board testing service may be required to provide individuals with dyslexia, a learning disability, with more time to complete an examination. An individual who requests additional time may, however, be required to notify the testing service of the request at the time he or she applies to take the examination, and to furnish appropriate documentation to establish that the additional time is needed because of a disability.

Examinations or courses must be offered in accessible facilities or alternative accessible arrangements must be made.

EXAMPLE: A testing service is proctoring an examination for licensing real estate brokers. There is an obligation on the part of the testing service to offer the examination in an accessible facility or to provide the examination at an alternative site (i.e., an individual's home) with a proctor if accessible facilities or equipment are not available.