(A) Definitions. As used in this title:
(1) COMMISSION. The Fort Wayne Metropolitan Human Relations Commission.
(2) COVERED ENTITY. An employer, employment agency, labor organization, or joint labor-management committee.
(3) DIRECT THREAT. A significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation.
(4) EMPLOYEE. A person hired by a covered entity, a former employee, or an applicant for employment.
(5) ILLEGAL USE OF DRUGS.
(a) In general. 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. A controlled substance, as defined in schedules I through V of Section 202 of the Controlled Substances Act.
(6) QUALIFIED INDIVIDUAL WITH A DISABILITY. 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 employers 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.
(7) 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.
(8) UNDUE HARDSHIP.
(a) An action requiring significant difficulty or expense, when considered in light of the factors set forth in subdivision (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.
(B) Discrimination on the basis of disability prohibited.
(1) 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.
(2) Construction. As used in subdivision (1), the term discriminate includes:
(a) 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;
(b) 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);
(c) Utilizing standards, criteria, or methods of administration:
(i) That have the effect of discrimination on the basis of disability; or
(ii) That perpetuate the discrimination of others who are subject to common administrative control;
(d) 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;
(e) 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;
(f) 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;
(g) 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;
(h) 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); and,
(i) Retaliating against an employee for reporting a complaint to a governmental agency or otherwise engaging in a lawful exercise of the employees rights, regardless of whether or not the employee's complaint is determined by an agency of the government or court of law to be without sufficient merit or evidence.
(3) Medical examinations and inquiries.
(a) In general. The prohibition against discrimination as referred to in subdivision (a) shall include medical examinations and inquiries.
(b) Pre-employment.
(i) Prohibited examination or inquiry. Except as provided in subdivision (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.
(ii) Acceptable inquiry. A covered entity may make preemployment inquiries into the ability of an applicant to perform job-related functions.
(c) 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:
(i) All entering employees are subjected to such an examination regardless of disability;
(ii) 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 supervisors and managers may be informed regarding necessary restrictions on the work or duties of the employee and necessary accommodations; first aid and safety personnel may be informed, when appropriate, if the disability might require emergency treatment; and government officials investigating compliance with this Act shall be provided relevant information on request; and the results of such examination are used only in accordance with this title.
(d) Examination and inquiry.
(i) 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.
(ii) 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.
(iii) Requirement. Information obtained under subdivision (ii) regarding the medical condition or history of any employee are subject to the requirements of subdivisions (c)(ii) and (iii).
(C) Defenses.
(1) 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.
(2) 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.
(3) Religious entities.
(a) 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.
(b) Religious tenets requirement. Under this title, a religious organization may require that all applicants and employees conform to the religious tenets of such organization.
(4) Persons with infectious and communicable diseases.
(a) 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 United States Secretary of Health and Human Services pursuant to Section 103(d) of the Americans with Disabilities Act, 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.
(b) Construction. Nothing in this section 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 published pursuant to Section 103(d) of the Americans with Disabilities Act.
(D) Illegal use of drugs and alcohol.
(1) 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.
(2) Rules of construction. Nothing in subdivision (a) shall be construed to exclude as a qualified individual with a disability an individual who:
(a) 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;
(b) Is participating in a supervised rehabilitation program and is no longer engaging in such use; or
(c) 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 subdivision (a) or (b) is no longer engaging in the illegal use of drugs.
(3) Authority of covered entity. A covered entity:
(a) May prohibit the illegal use of drugs and the use of alcohol at the workplace by all employees;
(b) May require that employees shall not be under the influence of alcohol or be engaging in the illegal use of drugs at the workplace;
(c) 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.);
(d) 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.
(4) Drug testing.
(a) In general. For purposes of this title, a test to determine the illegal use of drugs shall not be considered a medical examination.
(b) 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.
(Ord. G-22-00, passed 8-8-00)