[Code of Federal Regulations]
[Title 12, Volume 3]
[Revised as of January 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 12CFR268.203]

[Page 809-813]
 
                       TITLE 12--BANKS AND BANKING
 
                   CHAPTER II--FEDERAL RESERVE SYSTEM
 
PART 268--RULES REGARDING EQUAL OPPORTUNITY--Table of Contents
 
        Subpart C--Provisions Applicable to Particular Complaints
 
Sec. 268.203  Rehabilitation Act.

    (a) Definitions. For the purposes of this section:

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    (1) Individual with a disability is defined 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 the Board 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 the 
Board toward such impairment; or has none of the impairments defined in 
paragraph (a)(2) of this section but is treated by the Board as having 
such an impairment.
    (6) Qualified individual with a disability means with respect to 
employment, an individual with a disability 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:
    (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 a Board special 
program for hiring individuals with a disability.
    (b) The Board shall become a model employer of individuals with a 
disability. The Board shall give full consideration to the hiring, 
placement, and advancement of qualified individuals with a mental or 
physical disability. The Board shall not discriminate against a 
qualified individual with a physical or mental disability.
    (c) Reasonable accommodation. (1) The Board shall make reasonable 
accommodation to the known physical or mental limitations of an 
applicant or employee who is a qualified individual with a disability 
unless the Board can demonstrate that the accommodation would impose an 
undue hardship on the operations of its program.
    (2) Reasonable accommodation may include, but shall not be limited 
to:
    (i) Making facilities readily accessible to and usable by 
individuals with a disability; 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 hardship on the 
operation of the Board, factors to be considered include:
    (i) The overall size of the Board's program with respect to the 
number of employees, number and type of facilities and size of budget;
    (ii) The type of Board operation, including the composition and 
structure of the Board's work force; and
    (iii) The nature and the cost of the accommodation.
    (d) Employment criteria. (1) The Board shall not make use of any 
employment test or other selection criterion that screens out or tends 
to screen out qualified individuals with a disability

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or any class of individuals with a disability unless:
    (i) The Board demonstrates that the test score or other selection 
criterion is job-related for the position in question and consistent 
with business necessity; and
    (ii) The Board shows that job-related alternative tests or criteria 
that do not screen out or tend to screen out as many individuals with a 
disability are unavailable.
    (2) The Board shall select and administer tests concerning 
employment so as to insure that, when administered to an applicant or 
employee who has a disability 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, the Board 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 a 
disability or as to the nature or severity of a disability. The Board 
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.
    (2) Nothing in this section shall prohibit the Board 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 disability 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 purpose of hiring 
individuals with a disability under a special Board program.
    (3) To enable and evaluate affirmative action to hire, place or 
advance individuals with a disability, the Board may invite applicants 
for employment to indicate whether and to what extent they are disabled, 
if:
    (i) The Board 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 Board 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 employee or applicant shall be kept 
confidential except that:
    (i) Managers, selecting officials, and others involved in the 
selection process or responsible for affirmative action may be informed 
that the applicant is eligible under a special Board program for hiring 
individuals with a disability;
    (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 a disability 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.

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    (f) Physical access to buildings. (1) The Board shall not 
discriminate against applicants or employees who are qualified 
individuals with a disability due to the inaccessibility of its 
facility.
    (2) For the purposes 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 disability, the Board shall offer to 
reassign the individual to a funded vacant position located in the same 
commuting area 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 Board can demonstrate the 
reassignment would impose an undue hardship on the operation of the 
Board's 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 
any retirement plan in which the employee is enrolled. If the Board has 
already posted a notice or announcement seeking applications for a 
specific vacant position at the time the Board has determined that the 
nonprobationary employee is unable to perform the essential functions of 
his or her position even with reasonable accommodation, then the Board 
does not have an obligation under this section to offer to reassign the 
individual to that position, but the Board must consider the individual 
on an equal basis with those who applied for the position.
    (h) Exclusion from definition of ``individual(s) with a 
disability(ies)''. (1) The term ``individual with a disability'' shall 
not include an individual who is currently engaging in the illegal use 
of drugs, when the Board 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 a disability 
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 the Board to 
adopt or administer reasonable policies or procedures, including but not 
limited to drug testing, designed to ensure that an individual described 
in paragraphs (h)(1)(i) and (ii) of this section is no longer engaging 
in the illegal use of drugs.
    (3) Alcoholism. The term ``individual with a disability'' does not 
include an employee who is an alcoholic whose current use of alcohol 
prevents the employee from performing the duties of his or her job, or 
whose employment by reason of such current alcohol use, would constitute 
a direct threat to the property or safety of others. In this regard, 
alcoholics shall meet the same performance and conduct standards to 
which all other Board employees must satisfy, even if an unsatisfactory 
performance is related to the alcoholism of the employee.
    (4) Infectious and communicable diseases. If an individual with a 
disability has one of the listed diseases as determined by the Secretary 
of Health and Human Services under the Americans with Disabilities Act 
(42 U.S.C. 12113(d)(1)) and works in or applies for

[[Page 813]]

a position at the Board in food handling, the Board will seek reasonable 
accommodation under paragraph (c) of this section to eliminate the risk 
of transmitting the disease through the handling of food. If the 
individual with a disability is a nonprobationary employee and a 
reasonable accommodation cannot be made, the provisions contained in 
paragraph (g) of this section shall apply.