[Code of Federal Regulations] [Title 29, Volume 4] [Revised as of July 1, 2001] From the U.S. Government Printing Office via GPO Access [CITE: 29CFR1614.203] [Page 266-269] TITLE 29--LABOR CHAPTER XIV--EQUAL EMPLOYMENT OPPORTUNITY COMMISSION PART 1614--FEDERAL SECTOR EQUAL EMPLOYMENT OPPORTUNITY--Table of Contents Subpart B--Provisions Applicable to Particular Complaints Sec. 1614.203 Rehabilitation Act. (a) Definitions--(1) Individual with handicap(s) is defined for this section as one who: (i) Has a physical or mental impairment which substantially limits one or more of such person's major life activities; (ii) Has a record of such an impairment; or (iii) Is regarded as having such an impairment. (2) Physical or mental impairment means: (i) Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: Neurological, musculoskeletal, special sense organs, cardiovascular, reproductive, digestive, respiratory, genitourinary, hemic and lymphatic, skin, and endocrine; or (ii) Any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. (3) Major life activities means functions, such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. (4) Has a record of such an impairment means has a history of, or has been classified (or misclassified) as having, a mental or physical impairment that substantially limits one or more major life activities. (5) Is regarded as having such an impairment means has a physical or mental impairment that does not substantially limit major life activities but is treated by an employer as constituting such a limitation; has a physical or mental impairment that substantially limits major life activities only as a result of the attitude of an employer toward such impairment; or has none of the impairments defined in paragraph (a)(2) of this section but is treated by an employer as having such an impairment. (6) Qualified individual with handicaps means with respect to employment, an individual with handicaps who, with or without reasonable accommodation, can perform the essential functions of the position in question without endangering the health and safety of the individual or others and who, depending upon the type of appointing authority being used: (i) Meets the experience or education requirements (which may include passing a written test) of the position in question; or (ii) Meets the criteria for appointment under one of the special appointing authorities for individuals with handicaps. (b) The Federal Government shall become a model employer of individuals with handicaps. Agencies shall give full consideration to the hiring, placement, and advancement of qualified individuals with mental and physical handicaps. An agency shall not discriminate against a qualified individual with physical or mental handicaps. (c) Reasonable accommodation. (1) An agency shall make reasonable accommodation to the known physical or mental limitations of an applicant or employee who is a qualified individual with handicaps unless the agency can demonstrate that the accommodation would impose an undue hardship on the operations of its program. (2) Reasonable accommmodation may include, but shall not be limited to: (i) Making facilities readily accessible to and usable by individuals with handicaps; and (ii) Job restructuring, part-time or modified work schedules, acquisition or modification of equipment or devices, appropriate adjustment or modification of examinations, the provision of readers and interpreters, and other similar actions. (3) In determining whether, pursuant to paragraph (c)(1) of this section, an accommodation would impose an undue [[Page 267]] hardship on the operation of the agency in question, factors to be considered include: (i) The overall size of the agency's program with respect to the number of employees, number and type of facilities and size of budget; (ii) The type of agency operation, including the composition and structure of the agency's work force; and (iii) The nature and the cost of the accommodation. (d) Employment criteria. (1) An agency may not make use of any employment test or other selection criterion that screens out or tends to screen out qualified individuals with handicaps or any class of individuals with handicaps unless: (i) The agency demonstrates that the test score or other selection criterion is job-related for the position in question and consistent with business necessity; and (ii) OPM or other examining authority shows that job-related alternative tests, or the agency shows that job-related alternative criteria, that do not screen out or tend to screen out as many individuals with handicaps are unavailable. (2) An agency shall select and administer tests concerning employment so as to insure that, when administered to an applicant or employee who has a handicap that impairs sensory, manual, or speaking skills, the test results accurately reflect the applicant's or employee's ability to perform the position or type of positions in question rather than reflecting the applicant's or employee's impaired sensory, manual, or speaking skill (except where those skills are the factors that the test purports to measure). (e) Preemployment inquiries. (1) Except as provided in paragraphs (e)(2) and (e)(3) of this section, an agency may not conduct a preemployment medical examination and may not make preemployment inquiry of an applicant as to whether the applicant is an individual with handicaps or as to the nature or severity of a handicap. An agency may, however, make preemployment inquiry into an applicant's ability to meet the essential functions of the job, or the medical qualification requirements if applicable, with or without reasonable accommodation, of the position in question, i.e., the minimum abilities necessary for safe and efficient performance of the duties of the position in question. The Office of Personnel Management may also make an inquiry as to the nature and extent of a handicap for the purpose of special testing. (2) Nothing in this section shall prohibit an agency from conditioning an offer of employment on the results of a medical examination conducted prior to the employee's entrance on duty, provided that: all entering employees are subjected to such an examination regardless of handicap or when the preemployment medical questionnaire used for positions that do not routinely require medical examination indicates a condition for which further examination is required because of the job-related nature of the condition, and the results of such an examination are used only in accordance with the requirements of this part. Nothing in this section shall be construed to prohibit the gathering of preemployment medical information for the purposes of special appointing authorities for individuals with handicaps. (3) To enable and evaluate affirmative action to hire, place or advance individuals with handicaps, the agency may invite applicants for employment to indicate whether and to what extent they are handicapped, if: (i) The agency states clearly on any written questionnaire used for this purpose or makes clear orally if no written questionnaire is used, that the information requested is intended for use solely in conjunction with affirmative action; and (ii) The agency states clearly that the information is being requested on a voluntary basis, that refusal to provide it will not subject the applicant or employee to any adverse treatment, and that it will be used only in accordance with this part. (4) Information obtained in accordance with this section as to the medical condition or history of the applicant shall be kept confidential except that: (i) Managers, selecting officials, and others involved in the selection process or responsible for affirmative action [[Page 268]] may be informed that an applicant is eligible under special appointing authority for the disabled; (ii) Supervisors and managers may be informed regarding necessary accommodations; (iii) First aid and safety personnel may be informed, where appropriate, if the condition might require emergency treatment; (iv) Government officials investigating compliance with laws, regulations, and instructions relevant to equal employment opportunity and affirmative action for individuals with handicaps shall be provided information upon request; and (v) Statistics generated from information obtained may be used to manage, evaluate, and report on equal employment opportunity and affirmative action programs. (f) Physical access to buildings. (1) An agency shall not discriminate against applicants or employees who are qualified individuals with handicaps due to the inaccessibility of its facility. (2) For the purpose of this subpart, a facility shall be deemed accessible if it is in compliance with the Architectural Barriers Act of 1968 (42 U.S.C. 4151 et seq.) and the Americans with Disabilities Act of 1990 (42 U.S.C. 12183 and 12204). (g) Reassignment. When a nonprobationary employee becomes unable to perform the essential functions of his or her position even with reasonable accommodation due to a handicap, an agency shall offer to reassign the individual to a funded vacant position located in the same commuting area and serviced by the same appointing authority, and at the same grade or level, the essential functions of which the individual would be able to perform with reasonable accommodation if necessary unless the agency can demonstrate that the reassignment would impose an undue hardship on the operation of its program. In the absence of a position at the same grade or level, an offer of reassignment to a vacant position at the highest available grade or level below the employee's current grade or level shall be required, but availability of such a vacancy shall not affect the employee's entitlement, if any, to disability retirement pursuant to 5 U.S.C. 8337 or 5 U.S.C. 8451. If the agency has already posted a notice or announcement seeking applications for a specific vacant position at the time the agency has determined that the nonprobationary employee is unable to perform the essential functions of his or her position even with reasonable accommodation, then the agency does not have an obligation under this section to offer to reassign the individual to that position, but the agency must consider the individual on an equal basis with those who applied for the position. For the purpose of this paragraph, an employee of the United States Postal Service shall not be considered qualified for any offer of reassignment that would be inconsistent with the terms of any applicable collective bargaining agreement. (h) Exclusion from definition of ``individual(s) with handicap(s)''. (1) The term ``individual with handicap(s)'' shall not include an individual who is currently engaging in the illegal use of drugs, when an agency acts on the basis of such use. The term ``drug'' means a controlled substance, as defined in schedules I through V of section 202 of the Controlled Substances Act (21 U.S.C. 812). The term ``illegal use of drugs'' means the use of drugs, the possession or distribution of which is unlawful under the Controlled Substances Act, but does not include the use of a drug taken under supervision by a licensed health care professional, or other uses authorized by the Controlled Substances Act or other provisions of Federal law. This exclusion, however, does not exclude an individual with handicaps who: (i) Has successfully completed a supervised drug rehabilitation program and is no longer engaging in the illegal use of drugs, or has otherwise been rehabilitated successfully and is no longer engaging in such use; (ii) Is participating in a supervised rehabilitation program and is no longer engaging in such use; or (iii) Is erroneously regarded as engaging in such use, but is not engaging in such use. (2) Except that it shall not violate this section for an agency to adopt or administer reasonable policies or procedures, including but not limited to [[Page 269]] drug testing, designed to ensure that an individual described in paragraph (h)(1) (i) and (ii) of this section is no longer engaging in the illegal use of drugs.