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Last revision: April 10, 1992
§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 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 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 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.