[Code of Federal Regulations]
[Title 29, Volume 4]
[Revised as of July 1, 2008]
From the U.S. Government Printing Office via GPO Access
[CITE: 29CFR1630.16]

[Page 365-367]
 
                             TITLE 29--LABOR
 
          CHAPTER XIV--EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
 
PART 1630_REGULATIONS TO IMPLEMENT THE EQUAL EMPLOYMENT PROVISIONS OF THE AMERICANS WITH DISABILITIES ACT--Table of Contents
 
Sec. 1630.16  Specific activities permitted.

    (a) Religious entities. A religious corporation, association, 
educational institution, or society is permitted to give preference in 
employment to individuals of a particular religion to perform work 
connected with the carrying on by that corporation, association, 
educational institution, or society of its activities. A religious 
entity may require that all applicants and employees conform to the 
religious tenets of such organization. However, a religious entity may 
not discriminate against a qualified individual, who satisfies the 
permitted religious criteria, because of his or her disability.
    (b) Regulation of alcohol and drugs. A covered entity:
    (1) May prohibit the illegal use of drugs and the use of alcohol at 
the workplace by all employees;
    (2) May require that employees not be under the influence of alcohol 
or be engaging in the illegal use of drugs at the workplace;
    (3) May require that all employees behave in conformance with the 
requirements established under the Drug-Free Workplace Act of 1988 (41 
U.S.C. 701 et seq.);
    (4) May hold an employee who engages in the illegal use of drugs or 
who

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is an alcoholic to the same qualification standards for employment or 
job performance and behavior to which the entity holds its other 
employees, even if any unsatisfactory performance or behavior is related 
to the employee's drug use or alcoholism;
    (5) May require that its employees employed in an industry subject 
to such regulations comply with the standards established in the 
regulations (if any) of the Departments of Defense and Transportation, 
and of the Nuclear Regulatory Commission, regarding alcohol and the 
illegal use of drugs; and
    (6) May require that employees employed in sensitive positions 
comply with the regulations (if any) of the Departments of Defense and 
Transportation and of the Nuclear Regulatory Commission that apply to 
employment in sensitive positions subject to such regulations.
    (c) Drug testing--(1) General policy. For purposes of this part, a 
test to determine the illegal use of drugs is not considered a medical 
examination. Thus, the administration of such drug tests by a covered 
entity to its job applicants or employees is not a violation of Sec. 
1630.13 of this part. However, this part does not encourage, prohibit, 
or authorize a covered entity to conduct drug tests of job applicants or 
employees to determine the illegal use of drugs or to make employment 
decisions based on such test results.
    (2) Transportation employees. This part does not encourage, 
prohibit, or authorize the otherwise lawful exercise by entities subject 
to the jurisdiction of the Department of Transportation of authority to:
    (i) Test employees of entities in, and applicants for, positions 
involving safety sensitive duties for the illegal use of drugs or for 
on-duty impairment by alcohol; and
    (ii) Remove from safety-sensitive positions persons who test 
positive for illegal use of drugs or on-duty impairment by alcohol 
pursuant to paragraph (c)(2)(i) of this section.
    (3) Confidentiality. Any information regarding the medical condition 
or history of any employee or applicant obtained from a test to 
determine the illegal use of drugs, except information regarding the 
illegal use of drugs, is subject to the requirements of Sec. 1630.14(b) 
(2) and (3) of this part.
    (d) Regulation of smoking. A covered entity may prohibit or impose 
restrictions on smoking in places of employment. Such restrictions do 
not violate any provision of this part.
    (e) Infectious and communicable diseases; food handling jobs--(1) In 
general. Under title I of the ADA, section 103(d)(1), the Secretary of 
Health and Human Services is to prepare a list, to be updated annually, 
of infectious and communicable diseases which are transmitted through 
the handling of food. (Copies may be obtained from Center for Infectious 
Diseases, Centers for Disease Control, 1600 Clifton Road, NE., Mailstop 
C09, Atlanta, GA 30333.) If an individual with a disability is disabled 
by one of the infectious or communicable diseases included on this list, 
and if the risk of transmitting the disease associated with the handling 
of food cannot be eliminated by reasonable accommodation, a covered 
entity may refuse to assign or continue to assign such individual to a 
job involving food handling. However, if the individual with a 
disability is a current employee, the employer must consider whether he 
or she can be accommodated by reassignment to a vacant position not 
involving food handling.
    (2) Effect on State or other laws. This part does not preempt, 
modify, or amend any State, county, or local law, ordinance or 
regulation applicable to food handling which:
    (i) Is in accordance with the list, referred to in paragraph (e)(1) 
of this section, of infectious or communicable diseases and the modes of 
transmissibility published by the Secretary of Health and Human 
Services; and
    (ii) Is designed to protect the public health from individuals who 
pose a significant risk to the health or safety of others, where that 
risk cannot be eliminated by reasonable accommodation.
    (f) Health insurance, life insurance, and other benefit plans--(1) 
An insurer, hospital, or medical service company, health maintenance 
organization, or any agent or entity that administers benefit plans, or 
similar organizations may underwrite risks, classify risks, or

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administer such risks that are based on or not inconsistent with State 
law.
    (2) A covered entity may establish, sponsor, observe or administer 
the terms of a bona fide benefit plan that are based on underwriting 
risks, classifying risks, or administering such risks that are based on 
or not inconsistent with State law.
    (3) A covered entity may establish, sponsor, observe, or administer 
the terms of a bona fide benefit plan that is not subject to State laws 
that regulate insurance.
    (4) The activities described in paragraphs (f) (1), (2), and (3) of 
this section are permitted unless these activities are being used as a 
subterfuge to evade the purposes of this part.