A. The compromise bill expressly addresses this concern. First, as noted above, the "direct threat" provision has been removed from the compromise bill and, in its place, the bill explicitly excludes people who currently use illegal drugs from coverage. In addition, the bill includes a new section which specifically states that the ADA does not prohibit drug testing of either applicants or employees and does not prohibit making employment decisions on the basis of such test results. See S. 933, sec. 104 (c).

Q. #7.

A.

In your opinion, doesn't this legislation require employers to make difficult, if not impossible, determinations regarding the immediate dangers posed by an individual's drug use, in the face of overwhelming evidence that drug use in the workplace is inherently dangerous?··

The compromise bill ensures that employers will never have to make those determinations, because the bill excludes coverage for current illegal drug users. I would like to point out, however, that even under the original H.R.2273, employers were

significantly protected by being allowed to fire workers who were unqualified, in any fashion, for the job.

Q. #8.

Under Section 202(b) (3), the ADA places restrictions on
tests that "tend to identify" qualified individuals
with disabilities. Doesn't this language, taken
together with the language in Section 101(b), restrict
the practice of many employers to use drug screening of
employees or prospective employees? An individual
screened out by such testing could challenge the
exclusion unless the employer could prove that the
exclusion is necessary and substantially related the
ability of an individual to perform the essential
functions of a particular job.

...

or tend to In its place,

In

A. In the compromise bill, the phrase "identify identify" has been dropped from section 202(b) (3). the compromise bill tracks section 504 regulations, 42 C.F.R. §84.14, regarding medical examinations and inquiries. addition, the compromise bill specifically allows for drug testing of applicants and employees. A new section has been added regarding drug testing, which states that "a test to determine the use of illegal drugs shall not be considered a medical examination," and which further provides that nothing in the bill shall be construed to "prohibit ... the conducting of drug testing of job applicants or employees or making employment decisions based on such test results." S. 933, sec. 104 (c).

Q. #9.

Doesn't

I am concerned about the ability of the government to
end the demand for illegal drugs in the workplace, in
schools, in public housing, and elsewhere.
existing law--i.e., the Rehabilitation Act of 1973,
under Section 504, which outlaws discrimination by
‚federal grantees against "handicapped individuals"
pose a problem because the law has been interpreted to
include drug and alcohol abusers among the

"handicapped," so that it impairs the ability of local
school boards who try to expel drug-abusing students or
public housing authorities who try to evict tenants who
are drug offenders? Wouldn't the language of the ADA
make the problem even worse?

A. The compromise bill addresses this concern. On the Senate floor, an amendment was added which excluded current users of illegal drugs from Section 504 of the Rehabilitation Act of 1973. The concerns you raise are the ones which motivated that amendment. In addition, as noted above, current users of illegal drugs are excluded from coverage under the ADA.

Q. #10.

In Title I (a) (2) the bill states that "for purposes of
this Act, aides, benefits, and services to be equally
effective, must afford an individual with a disability
an equal opportunity to obtain the same result, to gain
the same benefit, or to reach the same level of
achievement, in the most integrated setting appropriate
to the individual's needs". Who decides what is
"appropriate to the individual's needs?" Who has the
burden of proof in this regard? How are the needs
determined?

A. In the compromise bill, Title I, including this provision, has been deleted from the bill. This particular provision has not been carried over into the employment section, because there are other provisions which deal more directly with the requirements of non-discrimination and reasonable accommodation. A version of the provision appears in the public accommodations section, which provides that: "Goods, facilities, privileges, advantages, accommodations and services shall be afforded to an individual with a disability in the most integrated setting appropriate to the needs of the individual." This requirement is straightforward. When a covered entity provides services and goods to the public, including people with disabilities, that entity may not provide the goods and services in a separate or different manner for people with disabilities. See S. 933, sec. 302 (b) (1) (A) (iii). At times, however, because of the particular disability of the individual, a modification of the provision may

be required. In those circumstances, the entity must provide the services or goods "in the most integrated setting" appropriate to the individual. In other words, to the extent that the goods or services can be provided in a more integrated setting with nondisabled individuals, that effort should be made. In addition, the policy behind this provision is that every effort should be made initially to provide goods and services to people with disabilities in the same setting in which non-disabled individuals receive their goods and services.

Q. #11.

A.

Section 101 (b) (1) "Defenses" is almost the most complicated sentence in the bill. Can you please break that sentence down and explain what it means?

You are certainly correct regarding the length of this sentence. The point, however, was to codify in law the "otherwise qualified" requirement that had been developed under section 504. In the compromise bill, the provision has been modified and shortened. It now reads as follows:

"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 jobrelated and consistent with business necessity, and such performance cannot be accomplished by reasonable accommodation." S. 933, sec. 103 (a).

As I noted, the point was to codify the "otherwise qualified" requirement of Section 504, in order to assure businesses that they are not required to hire unqualified individuals with disabilities. The provision states, therefore, that a covered entity may have a qualification standard or a criterion that actually denies a job or benefit to an individual with a disability, or that simply tends to screen out such individuals, if the standard or criteria is "job-related and consistent with business necessity," and the performance of the individual on the job cannot be otherwise accomplished through some reasonable accommodation. The standard and terms in this provision come directly from the regulations under sections 503 and 504 and are intended to codify that approach.

Q. #12. In Section 101(a)(1)(B) what does the term "equal" mean when used in that context? Who determines what is "equal?" Again, under Section 101(a)(1)(C), who determines what is "less effective" than that provided to others? Who makes that determination? Is there some sort of notice requirement to employers or to public accommodations that what the disabled is

A.

receiving is "less effective" before an owner can be sued for punitive damages?

In the compromise bill, Title I, including the provisions you refer to, have been dropped. They have not been included in the employment title, because there are other provisions in that title which deal more directly with the requirements of nondiscrimination. One of the provisions has been carried over, in a modified form, to the public accommodations title. S. 933, sec. 302(b) (1) (A)ii) provides that:

"It shall be discriminatory to afford an individual or class
of individuals, on the basis of a disability or disabilities
of such individual or class, directly, or through
contractual, licensing or other arrangements with the
opportunity to participate in or benefit from a good,
service, facility, privilege, advantage or accommodation
that is not equal to that afforded to other individuals."

This is a basic provision in the sphere of public accommodations. It simply means that people with disabilities have to be offered goods and services that are equal to those offered to people without disabilities. For example, a restaurant owner could not decide to seat people with disabilities only in the less expensive or less attractive sections of the restaurant because he or she did not want people with disabilities seen by the better-paying customers.

Q. #13.

A.

What would you say to the private doctor who desires
not to hire as a nurse an individual who tests positive
for HIV AIDS virus? Must that doctor hire him or be
in violation of ADA? If that is true, what assistance
is provided for the loss of business which might then
occur to the doctor?

The ADA is patterned directly after Section 504 with regard to coverage of individuals with contagious diseases, including coverage of people with AIDS and HIV infection. Under Section 504, and under the ADA, a person must be qualified for a particular employment position. For a person with a contagious disease or infection, this means that the person cannot pose a significant risk of transmitting the infection to others in the workplace. This was the requirement enunciated by the Supreme Court in School Board of Nassau County v. Arline, 480 U.S. 273 (1987), and established clearly both in an amendment to Section 504 and in an explicit provision of the ADA.

In the context of your example, therefore, the question would be whether the nurse with HIV infection was otherwise qualified to do the functions required of the job. If the individual was not qualified--that is, if there was a significant

risk of the nurse transmitting the infection to others while performing the job--the doctor would not be in violation of the ADA by refusing to hire the person. Conversely, if the person was qualified, the doctor could not use the person's HIV infection as a reason for not hiring the person. The determination as to whether the person was qualified would be based on the particular functions of the job expected of the individual and an assessment as to whether there was a significant risk of transmission in having the person perform those functions. This is the same analysis that applies to all other disabilities under the Act.

With regard to possible loss of business, the ADA draws the proper line. If the applicant is not qualified--that is, if there are objective, rational reasons for rejecting the individual--the law allows the applicant to be rejected. By contrast, if the applicant is qualified and the only reasons for an adverse decision are fears and stereotypes, the law does not allow the applicant to be rejected. Fears and stereotypes on the part of others is precisely one type of discrimination that the law is designed to forbid. Indeed, the law in this area has long been settled in the sphere of race and sex discrimination. Courts have held that the prejudices of the public may not be allowed to define the acceptable limits of non-discrimination. See. e.g., Diaz v. Pan American World Airways, 442 F.2d 385 (5th Cir.), cert. denied, 404 U.S. 950 (1971) (fact that customers prefer women stewardesses cannot justify sex discrimination despite possible financial consequences). Any other approach would undermine the basic, underlining premise of antidiscrimination protection. Moreover, one should note that because a comprehensive anti-discrimination law covers all businesses, no one business can gain a competitive advantage by not hiring blacks, women, or people with certain disabilities.

Q. #14.

A.

Similarly, what if a child care center does not want to take a child who test positive for AIDS virus. Must that child be accepted? If so, what comperisation could be given to the business which finds itself bankrupt because of raised insurance rates?

A

The same analysis described above applies in this case. child with a contagious disease who posed a significant risk of transmitting the disease to others could be excluded under the standards of the child care center. Under current medical evidence, there is no reason to assume that a child who is HIVinfected would pose such a risk in a child care setting. All of the major medical, social service and child care organizations, including the American Medical Association, the American Nurses' Association, the American Association of Pediatrics and the Child Welfare League, agree that children with HIV infection can be safely cared for in child care settings. Thus, if a child meets