42 U.S.C. § 12113 — Defenses

Page 8243 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 12113 (d) Medical examinations and inquiries (1) In general The prohibition against discrimination as referred to in subsection (a) shall include med- ical examinations and inquiries. (2) Preemployment (A) Prohibited examination or inquiry Except as provided in paragraph (3), a cov- ered entity shall not conduct a medical ex- amination or make inquiries of a job appli- cant as to whether such applicant is an indi- vidual with a disability or as to the nature or severity of such disability. (B) Acceptable inquiry A covered entity may make preemploy- ment inquiries into the ability of an appli- cant to perform job-related functions. (3) Employment entrance examination A covered entity may require a medical ex- amination after an offer of employment has been made to a job applicant and prior to the commencement of the employment duties of such applicant, and may condition an offer of employment on the results of such examina- tion, if— (A) all entering employees are subjected to such an examination regardless of disability; (B) information obtained regarding the medical condition or history of the applicant is collected and maintained on separate forms and in separate medical files and is treated as a confidential medical record, ex- cept that— (i) supervisors and managers may be in- formed regarding necessary restrictions on the work or duties of the employee and necessary accommodations; (ii) first aid and safety personnel may be informed, when appropriate, if the dis- ability might require emergency treat- ment; and (iii) government officials investigating compliance with this chapter shall be pro- vided relevant information on request; and (C) the results of such examination are used only in accordance with this sub- chapter. (4) Examination and inquiry (A) Prohibited examinations and inquiries A covered entity shall not require a med- ical examination and shall not make inquir- ies of an employee as to whether such em- ployee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with busi- ness necessity. (B) Acceptable examinations and inquiries A covered entity may conduct voluntary medical examinations, including voluntary medical histories, which are part of an em- ployee health program available to employ- ees at that work site. A covered entity may make inquiries into the ability of an em- ployee to perform job-related functions. (C) Requirement Information obtained under subparagraph (B) regarding the medical condition or his- tory of any employee are subject to the re- quirements of subparagraphs (B) and (C) of paragraph (3). (Pub. L. 101–336, title I, § 102, July 26, 1990, 104 Stat. 331; Pub. L. 102–166, title I, § 109(b)(2), Nov. 21, 1991, 105 Stat. 1077; Pub. L. 110–325, § 5(a), Sept. 25, 2008, 122 Stat. 3557.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in subsec. (d)(3)(B)(iii), was in the original ‘‘this Act’’, meaning Pub. L. 101–336, July 26, 1990, 104 Stat. 327, which is classified prin- cipally 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. CONSTITUTIONALITY For the constitutionality of certain provisions of this subchapter, see the Table of Laws Held Unconstitu- tional in Whole or in Part by the Supreme Court on the Constitution Annotated website, constitu- tion.congress.gov. AMENDMENTS 2008—Subsec. (a). Pub. L. 110–325, § 5(a)(1), substituted ‘‘on the basis of disability’’ for ‘‘with a disability be- cause of the disability of such individual’’. Subsec. (b). Pub. L. 110–325, § 5(a)(2), substituted ‘‘dis- criminate against a qualified individual on the basis of disability’’ for ‘‘discriminate’’ in introductory provi- sions. 1991—Subsecs. (c), (d). Pub. L. 102–166 added subsec. (c) and redesignated former subsec. (c) as (d). 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 OF 1991 AMENDMENT Amendment by Pub. L. 102–166 inapplicable to con- duct occurring before Nov. 21, 1991, see section 109(c) of Pub. L. 102–166, set out as a note under section 2000e of this title. 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. § 12113. Defenses (a) In general It may be a defense to a charge of discrimina- tion under this chapter that an alleged applica- tion of qualification standards, tests, or selec- tion criteria that screen out or tend to screen out or otherwise deny a job or benefit to an indi- vidual with a disability has been shown to be job-related and consistent with business neces- sity, and such performance cannot be accom- plished by reasonable accommodation, as re- quired under this subchapter. (b) Qualification standards The term ‘‘qualification standards’’ may in- clude a requirement that an individual shall not pose a direct threat to the health or safety of other individuals in the workplace. (c) Qualification standards and tests related to uncorrected vision Notwithstanding section 12102(4)(E)(ii) of this title, a covered entity shall not use qualification Page 8244 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 12114 1 So in original. Probably should be ‘‘transmissibility’’. standards, employment tests, or other selection criteria based on an individual’s uncorrected vi- sion unless the standard, test, or other selection criteria, as used by the covered entity, is shown to be job-related for the position in question and consistent with business necessity. (d) Religious entities (1) In general This subchapter shall not prohibit a reli- gious corporation, association, educational in- stitution, or society from giving preference in employment to individuals of a particular reli- gion to perform work connected with the car- rying on by such corporation, association, edu- cational institution, or society of its activi- ties. (2) Religious tenets requirement Under this subchapter, a religious organiza- tion may require that all applicants and em- ployees conform to the religious tenets of such organization. (e) List of infectious and communicable diseases (1) In general The Secretary of Health and Human Serv- ices, not later than 6 months after July 26, 1990, shall— (A) review all infectious and commu- nicable diseases which may be transmitted through handling the food supply; (B) publish a list of infectious and commu- nicable diseases which are transmitted through handling the food supply; (C) publish the methods by which such dis- eases are transmitted; and (D) widely disseminate such information regarding the list of diseases and their modes of transmissability 1 to the general public. Such list shall be updated annually. (2) Applications In any case in which an individual has an in- fectious or communicable disease that is transmitted to others through the handling of food, that is included on the list developed by the Secretary of Health and Human Services under paragraph (1), and which cannot be eliminated by reasonable accommodation, a covered entity may refuse to assign or con- tinue to assign such individual to a job involv- ing food handling. (3) Construction Nothing in this chapter shall be construed to preempt, modify, or amend any State, county, or local law, ordinance, or regulation applica- ble to food handling which is designed to pro- tect the public health from individuals who pose a significant risk to the health or safety of others, which cannot be eliminated by rea- sonable accommodation, pursuant to the list of infectious or communicable diseases and the modes of transmissability 1 published by the Secretary of Health and Human Services. (Pub. L. 101–336, title I, § 103, July 26, 1990, 104 Stat. 333; Pub. L. 110–325, § 5(b), Sept. 25, 2008, 122 Stat. 3557.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in subsecs. (a) and (e)(3), was in the original ‘‘this Act’’, meaning Pub. L. 101–336, July 26, 1990, 104 Stat. 327, which is classified prin- cipally 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. AMENDMENTS 2008—Subsecs. (c) to (e). Pub. L. 110–325 added subsec. (c) and redesignated former subsecs. (c) and (d) as (d) and (e), respectively. 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. § 12114. Illegal use of drugs and alcohol (a) Qualified individual with a disability For purposes of this subchapter, a qualified in- dividual with a disability shall not include any employee or applicant who is currently engaging in the illegal use of drugs, when the covered en- tity acts on the basis of such use. (b) Rules of construction Nothing in subsection (a) shall be construed to exclude as a qualified individual with a dis- ability an individual who— (1) 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; (2) is participating in a supervised rehabili- tation program and is no longer engaging in such use; or (3) is erroneously regarded as engaging in such use, but is not engaging in such use; except that it shall not be a violation of this chapter for a covered entity to adopt or admin- ister reasonable policies or procedures, includ- ing but not limited to drug testing, designed to ensure that an individual described in paragraph (1) or (2) is no longer engaging in the illegal use of drugs. (c) Authority of covered entity A covered entity— (1) may prohibit the illegal use of drugs and the use of alcohol at the workplace by all em- ployees; (2) may require that employees shall not be under the influence of alcohol or be engaging in the illegal use of drugs at the workplace; (3) may require that employees behave in conformance with the requirements estab- lished under chapter 81 of title 41; (4) may hold an employee who engages in the illegal use of drugs or who is an alcoholic to the same qualification standards for employ- ment or job performance and behavior that