As used in this title:
(1)
Commission.--The term "Commission" means the Equal Employment
Opportunity Commission established by section 705 of the Civil Rights
Act of
1964
(42
U.S.C. 2000e-4).
(2)
Covered entity.--The term "covered entity" means an employer,
employment agency, labor organization, or joint labor-management
committee.
(3)
Direct threat.--The term "direct threat" means a significant risk to
the health or safety of others that cannot be eliminated by reasonable
accommodation.
(4)
Employee.--The term "employee" means an individual employed by an
employer.
(5)
Employer.--
(A)
In
general.--The term "employer" means a person engaged in an industry
affecting commerce who has 15 or more employees for each working day in
each of
20 or more calendar weeks in the current or preceding calendar year,
and any
agent of such person, except that, for two years following the
effective date
of this title, an employer means a person engaged in an industry
affecting
commerce who has 25 or more employees for each working day in each of
20 or
more calendar weeks in the current or preceding year, and any agent of
such
person.
(B)
Exceptions.--The term "employer" does not include--
(i)
the
United States, a corporation wholly owned by the government of the
United
States, or an Indian tribe; or
(ii)
a
bona fide private membership club (other than a labor organization)
that is
exempt from taxation under section 501(c) of the Internal Revenue Code
of 1986.
(6)
Illegal use of drugs.--
(A)
In
general.--The term "illegal use of drugs" means the use of drugs, the
possession or distribution of which is unlawful under the Controlled
Substances
Act (21 U.S.C. 812). Such term 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.
(B)
Drugs.--The term "drug" means a controlled substance, as defined in
schedules
I through V of section 202 of the Controlled Substances Act.
(7)
Person, etc.--The terms "person", "labor organization",
"employment agency", "commerce", and "industry
affecting commerce", shall have the same meaning given such terms in
section 701 of the Civil Rights Act of 1964 (42 U.S.C. 2000e).
(8)
Qualified individual with a disability.--The term "qualified individual
with a disability" means an individual with a disability who, with or
without reasonable accommodation, can perform the essential functions
of the
employment position that such individual holds or desires. For the
purposes of
this title, consideration shall be given to the employer's judgment as
to what
functions of a job are essential, and if an employer has prepared a
written description
before advertising or interviewing applicants for the job, this
description
shall be considered evidence of the essential functions of the job.
(9)
Reasonable accommodation.--The term "reasonable accommodation" may
include--
(A)
making existing facilities used by employees readily accessible to and
usable
by individuals with disabilities; and
(B)
job
restructuring, part-time or modified work schedules, reassignment to a
vacant
position, acquisition or modification of equipment or devices,
appropriate
adjustment or modifications of examinations, training materials or
policies,
the provision of qualified readers or interpreters, and other similar
accommodations for individuals with disabilities.
(10)
Undue hardship.--
(A)
In
general.--The term "undue hardship" means an action requiring
significant difficulty or expense, when considered in light of the
factors set
forth in subparagraph (B).
(B)
Factors to be considered.--In determining whether an accommodation
would impose
an undue hardship on a covered entity, factors to be considered
include--
(i)
the
nature and cost of the accommodation needed under this Act;
(ii)
the overall financial resources of the facility or facilities involved
in the
provision of the reasonable accommodation; the number of persons
employed at
such facility; the effect on expenses and resources, or the impact
otherwise of
such accommodation upon the operation of the facility;
(iii)
the overall financial resources of the covered entity; the overall size
of the
business of a covered entity with respect to the number of its
employees; the
number, type, and location of its facilities; and
(iv)
the type of operation or operations of the covered entity, including
the
composition, structure, and functions of the workforce of such entity;
the
geographic separateness, administrative, or fiscal relationship of the
facility
or facilities in question to the covered entity.
(a)
General Rule.--No covered entity shall discriminate against a
qualified
individual with a disability because of the disability of such
individual in
regard to job application procedures, the hiring, advancement, or
discharge of
employees, employee compensation, job training, and other terms,
conditions,
and privileges of employment.
(b)
Construction.--As used in subsection (a), the term
"discriminate"
includes--
(1)
limiting, segregating, or classifying a job applicant or employee in a
way that
adversely affects the opportunities or status of such applicant or
employee
because of the disability of such applicant or employee;
(2)
participating in a contractual or other arrangement or relationship
that has
the effect of subjecting a covered entity's qualified applicant or
employee
with a disability to the discrimination prohibited by this title (such
relationship includes a relationship with an employment or referral
agency,
labor union, an organization providing fringe benefits to an employee
of the
covered entity, or an organization providing training and
apprenticeship
programs);
(3)
utilizing standards, criteria, or methods of administration--
(A)
that have the effect of discrimination on the basis of disability; or
(B)
that perpetuate the discrimination of others who are subject to common
administrative control;
(4)
excluding or otherwise denying equal jobs or benefits to a qualified
individual
because of the known disability of an individual with whom the
qualified
individual is known to have a relationship or association;
(5)(A)
not making reasonable accommodations to the known physical or mental
limitations of an otherwise qualified individual with a disability who
is an
applicant or employee, unless such covered entity can demonstrate that
the
accommodation would impose an undue hardship on the operation of the
business
of such covered entity; or
(B)
denying employment opportunities to a job applicant or employee who is
an
otherwise qualified individual with a disability, if such denial is
based on
the need of such covered entity to make reasonable accommodation to the
physical or mental impairments of the employee or applicant;
(6)
using qualification standards, employment tests or other selection
criteria
that screen out or tend to screen out an individual with a disability
or a
class of individuals with disabilities 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 is consistent with business necessity;
and
(7)
failing to select and administer tests concerning employment in the
most
effective manner to ensure that, when such test is administered to a
job
applicant or employee who has a disability that impairs sensory,
manual, or
speaking skills, such test results accurately reflect the skills,
aptitude, or
whatever other factor of such applicant or employee that such test
purports to
measure, rather than reflecting the impaired sensory, manual, or
speaking
skills of such employee or applicant (except where such skills are the
factors
that the test purports to measure).
(c)
Medical Examinations and Inquiries.--
(1)
In
general.--The prohibition against discrimination as referred to in
subsection
(a) shall include medical examinations and inquiries.
(2)
Preemployment.--
(A)
Prohibited examination or inquiry.--Except as provided in paragraph
(3), a
covered entity shall not conduct a medical examination or make
inquiries of a
job applicant as to whether such applicant is an individual with a
disability
or as to the nature or severity of such disability.
(B)
Acceptable inquiry.--A covered entity may make preemployment inquiries
into the
ability of an applicant to perform job-related functions.
(3)
Employment entrance examination.--A covered entity may require a
medical
examination 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 examination,
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, except that--
(i)
supervisors and managers may be informed 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
disability might require emergency treatment; and
(iii)
government officials investigating compliance with this Act shall be
provided
relevant information on request; and
(C)
the
results of such examination are used only in accordance with this title.
(4)
Examination and inquiry.--
(A)
Prohibited examinations and inquiries.--A covered entity shall not
require a
medical examination and shall not make inquiries of an employee as to
whether
such employee 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 business necessity.
(B)
Acceptable examinations and inquiries.--A covered entity may conduct
voluntary
medical examinations, including voluntary medical histories, which are
part of
an employee health program available to employees at that work site. A
covered
entity may make inquiries into the ability of an employee to perform
job-related functions.
(C)
Requirement.--Information obtained under subparagraph (B) regarding the
medical
condition or history of any employee are subject to the requirements of
subparagraphs (B) and (C) of paragraph (3).
(a)
In
General.--It may be a defense to a charge of discrimination
under this Act that
an alleged application of qualification standards, tests, or selection
criteria
that screen out or tend to screen out or otherwise deny a job or
benefit to an
individual with a disability has been shown to be job- related and
consistent
with business necessity, and such performance cannot be accomplished by
reasonable accommodation, as required under this title.
(b)
Qualification Standards.--The term "qualification standards" may
include a requirement that an individual shall not pose a direct threat
to the
health or safety of other individuals in the workplace.
(c)
Religious Entities.--
(1)
In
general.--This title
shall not prohibit a religious corporation, association, educational
institution, or society from giving preference in employment to
individuals of
a particular religion to perform work connected with the carrying on by
such
corporation, association, educational institution, or society of its
activities.
(2)
Religious tenets requirement.--Under this title, a religious
organization may
require that all applicants and employees conform to the religious
tenets of
such organization.
(d)
List of Infectious and Communicable Diseases.--
(1)
In
general.--The Secretary of Health and Human Services, not later than 6
months
after the date of enactment of this Act, shall--
(A)
review all infectious and communicable diseases which may be
transmitted
through handling the food supply;
(B)
publish a list of infectious and communicable diseases which are
transmitted
through handling the food supply;
(C)
publish the methods by which such diseases are transmitted; and
(D)
widely disseminate such information regarding the list of diseases and
their
modes of transmissability to the general public. Such list shall be
updated
annually.
(2)
Applications.--In any case in which an individual has an infectious 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
continue to
assign such individual to a job involving food handling.
(3)
Construction.--Nothing in this Act shall be construed to preempt,
modify, or
amend any State, county, or local law, ordinance, or regulation
applicable to
food handling which is designed to protect the public health from
individuals
who pose a significant risk to the health or safety of others, which
cannot be
eliminated by reasonable accommodation, pursuant to the list of
infectious or
communicable diseases and the modes of transmissability published by
the
Secretary of Health and Human Services.
(a)
Qualified Individual With a Disability.--For purposes of this
title, the term
"qualified individual with a disability" shall not include any
employee or applicant who is currently engaging in the illegal use of
drugs,
when the covered entity 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 disability 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 rehabilitation 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 Act for a covered
entity to
adopt or administer reasonable policies or procedures, including 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 employees;
(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
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 is an
alcoholic
to the same qualification standards for employment or job performance
and
behavior that such entity holds other employees, even if any
unsatisfactory
performance or behavior is related 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
Department of Defense, if the employees of the covered entity are
employed in
an industry subject to such regulations, including 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 Department of Defense);
(B)
employees comply with the standards established in such regulations of
the
Nuclear Regulatory Commission, if the employees of the covered entity
are
employed in an industry subject to such regulations, including
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
Department of Transportation, if the employees of the covered entity
are
employed in a transportation industry subject to such regulations,
including
complying with such 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
Department of Transportation).
(d)
Drug Testing.--
(1)
In
general.--For purposes of this title, a test to determine the illegal
use of
drugs shall not be considered a medical examination.
(2)
Construction.--Nothing in this title shall be construed 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 title shall be
construed to
encourage, prohibit, restrict, or authorize the otherwise lawful
exercise by
entities subject to the jurisdiction of the Department of
Transportation of
authority to--
(1)
test employees of such entities in, and applicants for, positions
involving
safety-sensitive 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 subsection (c).
Every employer, employment
agency, labor organization, or
joint labor- management committee covered under this title shall post
notices
in an accessible format to applicants, employees, and members
describing the
applicable provisions of this Act, in the manner prescribed by section
711 of
the Civil Rights Act of 1964 (42
U.S.C. 2000e-10).
Not later than 1 year after the
date of enactment of this
Act, the Commission shall issue regulations in an accessible format to
carry
out this title in accordance with subchapter II of chapter 5 of title
5, United
States Code.
(a)
Powers, Remedies, and Procedures.--The powers, remedies, and
procedures set
forth in sections 705, 706, 707, 709, and 710 of the Civil Rights Act
of 1964
(42 U.S.C. 2000e-4, 2000e-5, 2000e-6, 2000e-8, and 2000e-9) shall be
the
powers, remedies, and procedures this title 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 Act, or regulations
promulgated
under section 106, concerning employment.
(b)
Coordination.--The agencies with enforcement authority for
actions which allege
employment discrimination under this title and under the Rehabilitation
Act of
1973 shall develop procedures to ensure that administrative complaints
filed
under this title and under the Rehabilitation Act of 1973 are dealt
with in a
manner that avoids duplication of effort and prevents imposition of
inconsistent or conflicting standards for the same requirements under
this
title and the Rehabilitation Act of 1973. The Commission, the Attorney
General,
and the Office of Federal Contract Compliance Programs shall establish
such
coordinating mechanisms (similar to provisions contained in the joint
regulations promulgated by the Commission and the Attorney General at
part 42
of title 28 and part 1691 of title 29, Code of Federal Regulations, and
the
Memorandum of Understanding between the Commission and the Office of
Federal
Contract Compliance Programs dated January 16, 2021 (46 Fed. Reg. 7435,
January
23, 1981)) in regulations implementing this title and Rehabilitation
Act of
1973 not later than 18 months after the date of enactment of this Act.
This title shall become
effective 24 months after the date
of enactment.