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significantly impair the ability of the fringe benefits to employees of the rerecipient or class of recipients to pro- cipient, and with organizations provide benefits or services.
viding training and apprenticeships.
(b) Specific activities. The provisions $ 104.10 Effect of state or local law or of this subpart apply to: other requirements and effect of
(1) Recruitment, advertising, and the employment opportunities.
processing of applications for employ(a) The obligation to comply with ment; this part is not obviated or alleviated (2) Hiring, upgrading, promotion, by the existence of any state or local award of tenure, demotion, transfer, law or other requirement that, on the layoff, termination, right of return basis of handicap, imposes prohibitions from layoff and rehiring; or limits upon the eligibility of quali (3) Rates of pay or any other form of fied handicapped persons to receive compensation and changes in comservices or to practice any occupation pensation; or profession.
(4) Job assignments, job classifica(b) The obligation to comply with tions, organizational structures, posithis part is not obviated or alleviated tion descriptions, lines of progression, because employment opportunities in and seniority lists; any occupation or profession are or (5) Leaves of absense, sick leave, or may be more limited for handicapped any other leave; persons than for nonhandicapped per (6) Fringe benefits available by virsons.
tue of employment, whether or not ad
ministered by the recipient; Subpart B-Employment Practices (7) Selection and financial support
for training, including apprenticeship, $ 104.11 Discrimination prohibited. professional meetings, conferences, and (a) General. (1) No qualified handi
other related activities, and selection capped person shall, on the basis of
for leaves of absence to pursue trainhandicap, be subjected to discrimina
ing; tion in employment under any program
(8) Employer sponsored activities, inor activity to which this part applies.
cluding those that are social or rec(2) A recipient that receives assist
reational; and ance under the Education of the Handi
(9) Any other term, condition, or capped Act shall take positive steps to privilege of employment. employ and advance in employment
(c) A recipient's obligation to comply qualified handicapped persons in pro
with this subpart is not affected by any grams or activities assisted under that
inconsistent term of any collective Act.
bargaining agreement to which it is a (3) A recipient shall make all deci party. sions concerning employment under [45 FR 30936, May 9, 1980, as amended at 65 any program or activity to which this FR 68055, Nov. 13, 2000) part applies in a manner which ensures that discrimination on the basis of
$ 104.12 Reasonable accommodation. handicap does not occur and may not (a) A recipient shall make reasonable limit, segregate, or classify applicants accommodation to the known physical or employees in any way that ad or mental limitations of an otherwise versely affects their opportunities or qualified handicapped applicant or emstatus because of handicap.
ployee unless the recipient can dem(4) A recipient may not participate in onstrate that the accommodation
contractual or other relationship would impose an undue hardship on the that has the effect of subjecting quali- operation of its program or activity. fied handicapped applicants or employ (b) Reasonable accommodation may res to discrimination prohibited by include: this subpart. The relationships referred (1) Making facilities used by employso in this paragraph include relation ees readily accessible to and usable by ships with employment and referral handicapped persons, and agencies, with labor unions, with orga (2) Job restructuring, part-time or nizations providing or administering modified work schedules, acquisition
or modification of equipment or de $104.14 Preemployment inquiries. vices, the provision of readers or inter
(a) Except as provided in paragraphs preters, and other similar actions.
(b) and (c) of this section, a recipient (c) In determining pursuant to paragraph (a) of this section whether an ac
may not conduct a preemployment
medical examination or may not make commodation would impose an undue
preemployment inquiry of an applicant hardship on the operation of a recipi
as to whether the applicant is a handient's program or activity, factors to be considered include:
capped person or as to the nature or se(1) The overall size of the recipient's however, make preemployment inquiry
verity of a handicap. A recipient may, program or activity with respect to number of employees, number and type job-related functions.
into an applicant's ability to perform of facilities, and size of budget; (2) The type of the recipient's oper
(b) When a recipient is taking reme
dial action to correct the effects of ation, including the composition and
past discrimination pursuant to $104.6 structure of the recipient's workforce;
(a), when a recipient is taking voland
untary action to overcome the effects (3) The nature and cost of the accom
of conditions that resulted in limited modation needed.
participation in its federally assisted (d) A recipient may not deny any employment opportunity to a qualified
program or activity pursuant to handicapped employee or applicant if $104.6(b), or when a recipient is taking the basis for the denial is the need to
affirmative action pursuant to section make reasonable accommodation to
503 of the Act, the recipient may invite the physical or mental limitations of
applicants for employment to indicate
whether and to what extent they are the employee or applicant.
handicapped, Provided, That: [45 FR 30936, May 9, 2000, as amended at 65 (1) The recipient states clearly on FR 68054, Nov. 13, 2000]
any written questionnaire used for this
purpose or makes clear orally if no $ 104.13 Employment criteria.
written questionnaire is used that the (a) A recipient may not make use of information requested is intended for any employment test or other selection use solely in connection with its remecriterion that screens out or tends to dial action obligations or its voluntary screen out handicapped persons or any or affirmative action efforts; and class of handicapped persons unless: (2) The recipient states clearly that
(1) The test score or other selection the information is being requested on a criterion, as used by the recipient, is voluntary basis, that it will be kept shown to be job-related for the position confidential as provided in paragraph in question, and
(d) of this section, that refusal to pro(2) Alternative job-related tests or vide it will not subject the applicant or criteria that do not screen out or tend employee to any adverse treatment, to screen out as many handicapped per and that it will be used only in accordsons are not shown by the Director to ance with this part. be available.
(c) Nothing in this section shall pro(b) A recipient shall select and ad hibit a recipient from conditioning an minister tests concerning employment offer of employment on the results of a so as best to ensure that, when admin medical examination conducted prior istered to an applicant or employee to the employee's entrance on duty, who has a handicap that impairs sen Provided, That: sory, manual, or speaking skills, the (1) All entering employees are subtest results accurately reflect the ap jected to such an examination regardplicant's or employee's job skills, apti less of handicap, and tude, or whatever other factor the test (2) The results of such an examinapurports to measure, rather than re tion are used only in accordance with flecting the applicant's or employee's the requirements of this part. impaired sensory, manual, or speaking (d) Information obtained in accordskills (except where those skills are ance with this section as to the medthe factors that the test purports to ical condition or history of the applimeasure).
cant shall be collected and maintained
on separate forms that shall be ac meeting the requirement of paragraph corded confidentiality as medical rec (a) of this section, a recipient shall ords, except that:
give priority to those methods that (1) Supervisors and managers may be serve handicapped persons in the most informed regarding restrictions on the integrated setting appropriate. work or duties of handicapped persons (c) Small health, welfare, or other social and regarding necessary accommoda- service providers. If a recipient with tions;
fewer than fifteen employees that pro(2) First aid and safety personnel vides health, welfare, or other social may be informed, where appropriate, if
services finds, after consultation with the condition might require emergency
a handicapped person seeking its servtreatment; and
ices, that there is no method of com(3) Government officials inves
plying with paragraph (a) of this sectigating compliance with the Act shall
tion other than making a significant be provided relevant information upon
alteration in its existing facilities, the request.
recipient may, as an alternative, refer Subpart C-Accessibility
the handicapped person to other providers of those services that are acces
sible. $ 104.21 Discrimination prohibited.
(d) Time period. A recipient shall comNo qualified handicapped person
ply with the requirement of paragraph shall, because a recipient's facilities
(a) of this section within sixty days of are inaccessible to or unusable by
the effective date of this part except handicapped persons, be denied the
that where structural changes in facilibenefits of, be excluded from participation in, or otherwise be subjected to
ties are necessary, such changes shall
be made within three years of the efdiscrimination under any program or activity to which this part applies.
fective date of this part, but in any
event as expeditiously as possible. $ 104.22 Existing facilities.
(e) Transition plan. In the event that (a) Accessibility. A recipient shall op
structural changes to facilities are necerate its program or activity so that
essary to meet the requirement of when each part is viewed in its en
paragraph (a) of this section, a recipitirety, it is readily accessible to handi
ent shall develop, within six months of capped persons. This paragraph does
the effective date of this part, a transinot require a recipient to make each of
tion plan setting forth the steps necits existing facilities or every part of a
essary to complete such changes. The facility accessible to and usable by plan shall be developed with the assisthandicapped persons.
ance of interested persons, including (b) Methods. A recipient may comply handicapped persons or organizations with the requirements of paragraph (a) representing handicapped persons. A of this section through such means as
copy of the transition plan shall be redesign of equipment, reassignment of made available for public inspection. classes or other services to accessible The plan shall, at a minimum: buildings, assignment of aides to bene (1) Identify physical obstacles in the ficiaries, home visits, delivery of recipient's facilities that limit the achealth, welfare, or other social services cessibility of its program or activity to at alternate accessible sites, alteration handicappped persons; of existing facilities and construction (2) Describe in detail the methods of new facilities in conformance with that will be used to make the facilities the requirements of $ 104.23, or any accessible; other methods that result in making (3) Specify the schedule for taking its program or activity accessible to the steps necessary to achieve full achandicapped persons. A recipient is not cessibility in order to comply with required to make structural changes in paagraph (a) of this section and, if the existing facilities where other methods time period of the transition plan is are effective in achieving compliance longer than one year, identify the steps with paragraph (a) of this section. In of that will be taken during each year choosing among available methods for of the transition period; and
(4) Indicate the person responsible for therein of persons with phusical handiimplementation of the plan.
caps. (f) Notice. The recipient shall adopt (3) This section does not require reand implement procedures to ensure cipients to make building alterations that interested persons, including per that have little likelihood of being acsons with impaired vision or hearing, complished without removing or altercan obtain information as to the exist ing a load-bearing structural member. ence and location of services, activities, and facilities that are accessible
[45 FR 30936, May 9, 1980; 45 FR 37426, June 3, to and usuable by handicapped persons.
1980, as amended at 55 FR 52138, 52141, Dec.
19, 1990) [45 FR 30936, May 9, 1980, as amended at 65 FR 68055, Nov. 13, 2000]
Subpart D-Preschool, Elementary, $ 104.23 New construction.
and Secondary Education (a) Design and construction. Each fa
$ 104.31 Application of this subpart. cility or part of a facility constructed by, on behalf of, or for the use of a re
Subpart D applies to preschool, elecipient shall be designed and con
mentary, secondary, and adult edustructed in such manner that the facil
cation programs or activities that reity or part of the facility is readily ac
ceive Federal financial assistance and cessible to and usable by handicapped
to recipients that operate, or that repersons, if the construction was com
ceive Federal financial assistance for menced after the effective date of this
the operation of, such programs or acpart.
tivities. (b) Alteration. Each facility or part of (45 FR 30936, May 9, 1980, as amended at 65 a facility which is altered by, on behalf FR 68055, Nov. 13, 2000) of, or for the use of a recipient after the effective date of this part in a man $ 104.32 Location and notification. ner that affects or could affect the
A recipient that operates a public elusability of the facility or part of the
ementary or secondary education profacility shall, to the maximum extent
gram or activity shall annually: feasible, be altered in such manner
(a) Undertake to identify and locate that the altered portion of the facility
every qualified handicapped person reis readily accessible to and usable by
siding in the recipient's jurisdiction handicapped persons. (c) Conformance with Uniform Federal
who is not receiving a public eduAccessibility Standards. (1) Effective as
cation; and of January 18, 1991, design, construc
(b) Take appropriate steps to notify tion, or alteration of buildings in con
handicapped persons and their parents formance with sections 3-8 of the Uni
or guardians of the recipient's duty form Federal Accessibility Standards
under this subpart. (UFAS) (Appendix A to 41 CFR subpart (45 FR 30936, May 9, 2000, as amended at 65 101-19.6) shall be deemed to comply FR 68054, Nov. 13, 2000) with the requirements of this section with respect to those buildings. Depar
$104.33 Free appropriate public edu
cation. tures from particular technical and scoping requirements of UFAS by the (a) General. A recipient that operates use of other methods are permitted a public elementary or secondary eduwhere substantially equivalent or cation program or activity shall progreater access to and usability of the vide a free appropriate public edubuilding is provided.
cation to each qualified handicapped (2) For purposes of this section, sec person who is in the recipient's juristion 4.1.6(1)(g) of UFAS shall be inter diction, regardless of the nature or sepreted to exempt from the require verity of the person's handicap. ments of UFAS only mechanical rooms (b) Appropriate education. (1) For the and other spaces that, because of their purpose of this subpart, the provision intended use, will not require accessi of an appropriate education is the probility to the public or beneficiaries or vision of regular or special education result in the employment or residence and related aids and services that (i)
are designed to meet individual edu- guardian if the person were placed in cational needs of handicapped persons the aid, benefits, or services operated as adequately as the needs of nonhandi- by the recipient. capped persons are met and (ii) are (3) Residential placement. If a public or based upon adherence to procedures private residential placement is necthat satisfy the requirements of essary to provide a free appropriate $8 104.34, 104.35, and 104.36.
public education to a handicapped per(2) Implementation of an Individual son because of his or her handicap, the ized Education Program developed in placement, including non-medical care accordance with the Education of the and room and board, shall be provided Handicapped Act is one means of meet at no cost to the person or his or her ing the standard established in para parents or guardian. graph (b)(1)(i) of this section.
(4) Placement of handicapped persons (3) A recipient may place a handi- by parents. If a recipient has made capped person or refer such a person for available, in conformance with the reaid, benefits, or services other than quirements of this section and $104.34, those that it operates or provides as its a free appropriate public education to a means of carrying out the require- handicapped person and the person's ments of this subpart. If so, the recipi- parents or guardian choose to place the ent remains responsible for ensuring person in a private school, the recipithat the requirements of this subpart
ent is not required to pay for the perare met with respect to any handi- son's education in the private school. capped person so placed or referred.
Disagreements between a parent or (c) Free education—(1) General. For guardian and a recipient regarding the purpose of this section, the provi
whether the recipient has made a free sion of a free education is the provision appropriate public education available of educational and related services
or otherwise regarding the question of without cost to the handicapped person financial responsibility are subject to or to his or her parents or guardian, ex the due process procedures of $104.36. cept for those fees that are imposed on
(d) Compliance. A recipient may not non-handicapped persons or their par
exclude any qualified handicapped perents or guardian. It may consist either
son from a public elementary or secof the provision of free services or, if a
ondary education after the effective recipient places a handicapped person
date of this part. A recipient that is or refers such person for aid, benefits,
not, on the effective date of this reguor services not operated or provided by
lation, in full compliance with the the recipient as its means of carrying
other requirements of the preceding out the requirements of this subpart, of paragraphs of this section shall meet payment for the costs of the aid, bene
such requirements at the earliest pracfits, or services. Funds available from
ticable time and in no event later than any public or private agency may be
September 1, 1978. used to meet the requirements of this subpart. Nothing in this section shall [45 FR 30936, May 9, 1980, as amended at 65 be construed to relieve an insurer or
FR 68055, Nov. 13, 2000) similar third party from an otherwise valid obligation to provide or pay for
$ 104.34 Educational setting. services provided to a handicapped per (a) Academic setting. A recipient to son.
which this subpart applies shall edu(2) Transportation. If a recipient cate, or shall provide for the education places a handicapped person or refers of, each qualified handicapped person such person for aid, benefits, or serv in its jurisdiction with persons who are ices not operated or provided by the re not handicapped to the maximum excipient as its means of carrying out the tent appropriate to the needs of the requirements of this subpart, the re- handicapped person. A recipient shall cipient shall ensure that adequate place a handicapped person in the regtransportation to and from the aid, ular educational environment operated benefits, or services is provided at no by the recipient unless it is demgreater cost than would be incurred by onstrated by the recipient that the the person or his or her parents or education of the person in the regular