42 U.S.C. § 12116 — Regulations

Page 8245 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 12116 such entity holds other employees, even if any unsatisfactory performance or behavior is re- lated to the drug use or alcoholism of such employee; and (5) may, with respect to Federal regulations regarding alcohol and the illegal use of drugs, require that— (A) employees comply with the standards established in such regulations of the De- partment of Defense, if the employees of the covered entity are employed in an industry subject to such regulations, including com- plying with regulations (if any) that apply to employment in sensitive positions in such an industry, in the case of employees of the covered entity who are employed in such po- sitions (as defined in the regulations of the Department of Defense); (B) employees comply with the standards established in such regulations of the Nu- clear Regulatory Commission, if the employ- ees of the covered entity are employed in an industry subject to such regulations, includ- ing complying with regulations (if any) that apply to employment in sensitive positions in such an industry, in the case of employees of the covered entity who are employed in such positions (as defined in the regulations of the Nuclear Regulatory Commission); and (C) employees comply with the standards established in such regulations of the De- partment of Transportation, if the employ- ees of the covered entity are employed in a transportation industry subject to such reg- ulations, including complying with such reg- ulations (if any) that apply to employment in sensitive positions in such an industry, in the case of employees of the covered entity who are employed in such positions (as de- fined in the regulations of the Department of Transportation). (d) Drug testing (1) In general For purposes of this subchapter, a test to de- termine the illegal use of drugs shall not be considered a medical examination. (2) Construction Nothing in this subchapter shall be con- strued to encourage, prohibit, or authorize the conducting of drug testing for the illegal use of drugs by job applicants or employees or making employment decisions based on such test results. (e) Transportation employees Nothing in this subchapter shall be construed to encourage, prohibit, restrict, or authorize the otherwise lawful exercise by entities subject to the jurisdiction of the Department of Transpor- tation of authority to— (1) test employees of such entities in, and applicants for, positions involving safety-sen- sitive duties for the illegal use of drugs and for on-duty impairment by alcohol; and (2) remove such persons who test positive for illegal use of drugs and on-duty impairment by alcohol pursuant to paragraph (1) from safety-sensitive duties in implementing sub- section (c). (Pub. L. 101–336, title I, § 104, July 26, 1990, 104 Stat. 334; Pub. L. 110–325, § 5(c)(2), Sept. 25, 2008, 122 Stat. 3557.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in subsec. (b), was in the original ‘‘this Act’’, meaning Pub. L. 101–336, July 26, 1990, 104 Stat. 327, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 12101 of this title and Tables. CODIFICATION In subsec. (c)(3), ‘‘chapter 81 of title 41’’ substituted for ‘‘the Drug-Free Workplace Act of 1988 (41 U.S.C. 701 et seq.)’’ on authority of Pub. L. 111–350, § 6(c), Jan. 4, 2011, 124 Stat. 3854, which Act enacted Title 41, Public Contracts. AMENDMENTS 2008—Subsec. (a). Pub. L. 110–325 substituted ‘‘a quali- fied individual with a disability shall’’ for ‘‘the term ‘qualified individual with a disability’ shall’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2008 AMENDMENT Amendment by Pub. L. 110–325 effective Jan. 1, 2009, see section 8 of Pub. L. 110–325, set out as a note under section 705 of Title 29, Labor. EFFECTIVE DATE Section effective 24 months after July 26, 1990, see section 108 of Pub. L. 101–336, set out as a note under section 12111 of this title. § 12115. Posting notices Every employer, employment agency, labor organization, or joint labor-management com- mittee covered under this subchapter shall post notices in an accessible format to applicants, employees, and members describing the applica- ble provisions of this chapter, in the manner prescribed by section 2000e–10 of this title. (Pub. L. 101–336, title I, § 105, July 26, 1990, 104 Stat. 336.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in text, was in the original ‘‘this Act’’, meaning Pub. L. 101–336, July 26, 1990, 104 Stat. 327, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 12101 of this title and Tables. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective 24 months after July 26, 1990, see section 108 of Pub. L. 101–336, set out as a note under section 12111 of this title. § 12116. Regulations Not later than 1 year after July 26, 1990, the Commission shall issue regulations in an acces- sible format to carry out this subchapter in ac- cordance with subchapter II of chapter 5 of title 5. (Pub. L. 101–336, title I, § 106, July 26, 1990, 104 Stat. 336.) Page 8246 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 12117 1 See References in Text note below. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective 24 months after July 26, 1990, see section 108 of Pub. L. 101–336, set out as a note under section 12111 of this title. § 12117. Enforcement (a) Powers, remedies, and procedures The powers, remedies, and procedures set forth in sections 2000e–4, 2000e–5, 2000e–6, 2000e–8, and 2000e–9 of this title shall be the powers, rem- edies, and procedures this subchapter provides to the Commission, to the Attorney General, or to any person alleging discrimination on the basis of disability in violation of any provision of this chapter, or regulations promulgated under section 12116 of this title, concerning em- ployment. (b) Coordination The agencies with enforcement authority for actions which allege employment discrimina- tion under this subchapter and under the Reha- bilitation Act of 1973 [29 U.S.C. 701 et seq.] shall develop procedures to ensure that administra- tive complaints filed under this subchapter and under the Rehabilitation Act of 1973 are dealt with in a manner that avoids duplication of ef- fort and prevents imposition of inconsistent or conflicting standards for the same requirements under this subchapter and the Rehabilitation Act of 1973. The Commission, the Attorney Gen- eral, and the Office of Federal Contract Compli- ance Programs shall establish such coordinating mechanisms (similar to provisions contained in the joint regulations promulgated by the Com- mission and the Attorney General at part 42 of title 28 and part 1691 of title 29, Code of Federal Regulations, and the Memorandum of Under- standing between the Commission and the Office of Federal Contract Compliance Programs dated January 16, 1981 (46 Fed. Reg. 7435, January 23, 1981)) in regulations implementing this sub- chapter and Rehabilitation Act of 1973 not later than 18 months after July 26, 1990. (Pub. L. 101–336, title I, § 107, July 26, 1990, 104 Stat. 336.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in subsec. (a), was in the original ‘‘this Act’’, meaning Pub. L. 101–336, July 26, 1990, 104 Stat. 327, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 12101 of this title and Tables. The Rehabilitation Act of 1973, referred to in subsec. (b), is Pub. L. 93–112, Sept. 26, 1973, 87 Stat. 355, which is classified generally to chapter 16 (§ 701 et seq.) of Title 29, Labor. For complete classification of this Act to the Code, see Short Title note set out under section 701 of Title 29 and Tables. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective 24 months after July 26, 1990, see section 108 of Pub. L. 101–336, set out as a note under section 12111 of this title. SUBCHAPTER II—PUBLIC SERVICES PART A—PROHIBITION AGAINST DISCRIMINATION AND OTHER GENERALLY APPLICABLE PROVISIONS § 12131. Definitions As used in this subchapter: (1) Public entity The term ‘‘public entity’’ means— (A) any State or local government; (B) any department, agency, special pur- pose district, or other instrumentality of a State or States or local government; and (C) the National Railroad Passenger Cor- poration, and any commuter authority (as defined in section 24102(4) 1 of title 49). (2) Qualified individual with a disability The term ‘‘qualified individual with a dis- ability’’ means an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transpor- tation barriers, or the provision of auxiliary aids and services, meets the essential eligi- bility requirements for the receipt of services or the participation in programs or activities provided by a public entity. (Pub. L. 101–336, title II, § 201, July 26, 1990, 104 Stat. 337.) Editorial Notes REFERENCES IN TEXT Section 24102 of title 49, referred to in par. (1)(C), was subsequently amended, and section 24102(4) no longer defines ‘‘commuter authority’’. However, such term is defined elsewhere in that section. CODIFICATION In par. (1)(C), ‘‘section 24102(4) of title 49’’ substituted for ‘‘section 103(8) of the Rail Passenger Service Act’’ on authority of Pub. L. 103–272, § 6(b), July 5, 1994, 108 Stat. 1378, the first section of which enacted subtitles II, III, and V to X of Title 49, Transportation. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Pub. L. 101–336, title II, § 205, July 26, 1990, 104 Stat. 338, provided that: ‘‘(a) GENERAL RULE.—Except as provided in sub- section (b), this subtitle [subtitle A (§§ 201–205) of title II of Pub. L. 101–336, enacting this part] shall become effective 18 months after the date of enactment of this Act [July 26, 1990]. ‘‘(b) EXCEPTION.—Section 204 [section 12134 of this title] shall become effective on the date of enactment of this Act.’’ Executive Documents EX. ORD. NO. 13217. COMMUNITY-BASED ALTERNATIVES FOR INDIVIDUALS WITH DISABILITIES Ex. Ord. No. 13217, June 18, 2001, 66 F.R. 33155, pro- vided: By the authority vested in me as President by the Constitution and the laws of the United States of America, and in order to place qualified individuals with disabilities in community settings whenever ap- propriate, it is hereby ordered as follows: