Text: HSB00216 Text: HSB00218 Text: HSB00200 - HSB00299 Text: HSB Index Bills and Amendments: General Index Bill History: General Index
PAG LIN 1 1 Section 1. Section 216.2, subsection 5, Code 1995, is 1 2 amended to read as follows: 1 3 5. "Disability" means,the physical or mental condition of1 4a person which constitutes a substantial handicap, andwith 1 5 respect to an individual, a physical or mental impairment that 1 6 substantially limits one or more of the major life activities 1 7 of the individual, a record of such an impairment, or being 1 8 regarded as having such an impairment. "Disability" includes 1 9 the condition ofa personan individual with a positive human 1 10 immunodeficiency virus test result, a diagnosis of acquired 1 11 immune deficiency syndrome, a diagnosis of acquired immune 1 12 deficiency syndrome-related complex, or any other condition 1 13 related to acquired immune deficiency syndrome. The inclusion 1 14 of a condition related to a positive human immunodeficiency 1 15 virus test result in the meaning of "disability" underthe1 16provisions ofthis chapter does not preclude the application 1 17 of the provisions of this chapter to conditions resulting from 1 18 other contagious or infectious diseases. 1 19 Sec. 2. Section 216.2, subsection 13, Code 1995, is 1 20 amended to read as follows: 1 21 13. "Unfair practice" or "discriminatory practice" means 1 22 those practices specified as unfair or discriminatory in 1 23 sections 216.6, 216.7, 216.8, 216.8A, 216.9, 216.10, 216.11, 1 24and216.11A, and 216E.3. 1 25 Sec. 3. Section 216.6, subsection 1, paragraphs a through 1 26 d, Code 1995, are amended to read as follows: 1 27 a. Person to refuse to hire, accept, register, classify, 1 28 or refer for employment, to discharge any employee, or to 1 29 otherwise discriminate in employment against any applicant for 1 30 employment or any employee because of the age, race, creed, 1 31 color, sex, national origin, or religionor disabilityofsuch1 32 the applicant or employee, unless based upon the nature of the 1 33 occupation.If a disabled person is qualified to perform a1 34particular occupation, by reason of training or experience,1 35the nature of that occupation shall not be the basis for2 1exception to the unfair or discriminating practices prohibited2 2by this subsection.2 3 b. Labor organization ortheits employees, agents, or 2 4 membersthereofto refuse to admit to membership any 2 5 applicant, to expel any member, or to otherwise discriminate 2 6 against any applicant for membership or any member in the 2 7 privileges, rights, or benefits of such membership because of 2 8 the age, race, creed, color, sex, national origin, or religion 2 9or disabilityofsuchthe applicant or member. 2 10 c. Employer, employment agency, or labor organization, or 2 11theits employees, agents, or membersthereofto directly or 2 12 indirectly advertise or in any other manner indicate or 2 13 publicize that individuals of any particular age, race, creed, 2 14 color, sex, national origin, or religionor disabilityare 2 15 unwelcome, objectionable, not acceptable, or not solicited for 2 16 employment or membership unless based on the nature of the 2 17 occupation.If a disabled person is qualified to perform a2 18particular occupation by reason of training or experience, the2 19nature of that occupation shall not be the basis for exception2 20to the unfair or discriminating practices prohibited by this2 21subsection.2 22An employer, employment agency, or their employees,2 23servants or agents may offer employment or advertise for2 24employment to only the disabled, when other applicants have2 25available to them, other employment compatible with their2 26ability which would not be available to the disabled because2 27of their handicap. Any such employment or offer of employment2 28shall not discriminate among the disabled on the basis of2 29race, color, creed, sex or national origin.2 30d. Person to solicit or require as a condition of2 31employment of any employee or prospective employee a test for2 32the presence of the antibody to the human immunodeficiency2 33virus or to affect the terms, conditions, or privileges of2 34employment or terminate the employment of any employee solely2 35as a result of the employee obtaining a test for the presence3 1of the antibody to the human immunodeficiency virus. An3 2agreement between an employer, employment agency, labor3 3organization, or their employees, agents, or members and an3 4employee or prospective employee concerning employment, pay,3 5or benefits to an employee or prospective employee in return3 6for taking a test for the presence of the antibody to the3 7human immunodeficiency virus, is prohibited. The prohibitions3 8of this paragraph do not apply if the state epidemiologist3 9determines and the director of public health declares through3 10the utilization of guidelines established by the center for3 11disease control of the United States department of health and3 12human services, that a person with a condition related to3 13acquired immune deficiency syndrome poses a significant risk3 14of transmission of the human immunodeficiency virus to other3 15persons in a specific occupation.3 16 Sec. 4. NEW SECTION. 216.15B DISABILITY DISCRIMINATION 3 17 IN EMPLOYMENT &endash; ADDITIONAL PROVISIONS. 3 18 1. a. For the purposes of this section, "mediator" means 3 19 the person designated in writing by the commission to conduct 3 20 the mandatory mediation conference. The written designation 3 21 shall refer to this section. 3 22 b. The commission, during the period beginning with the 3 23 filing of a complaint and ending with the issuance of a 3 24 finding regarding probable cause by an administrative law 3 25 judge, may require the parties to engage in a mandatory 3 26 mediation conference with respect to the complaint if the 3 27 commission determines that the complaint alleges disability 3 28 discrimination in employment and involves an issue of 3 29 reasonable accommodation. 3 30 c. If mediation is ordered by the commission, failure of 3 31 the complainant to engage in mandatory mediation shall result 3 32 in an administrative closure of the complaint while failure of 3 33 the respondent to engage in mandatory mediation shall bar the 3 34 respondent from asserting a defense to an award of actual 3 35 damages as provided by section 216E.4, subsection 2. 4 1 Participation in mandatory mediation under this section need 4 2 not be in person. 4 3 d. Further action on the complaint shall not be taken for 4 4 at least twenty days following the commission's order to 4 5 engage in mandatory mediation. After the twenty days, the 4 6 commission may in its discretion continue mediation or resume 4 7 its investigation of the complaint as provided by section 4 8 216.15. 4 9 e. An agreement reached pursuant to mandatory mediation 4 10 under this section shall be enforced as provided for 4 11 conciliation agreements under section 216.15. 4 12 2. All verbal or written information relating to the 4 13 subject matter of a mediation agreement and transmitted 4 14 between either the complainant or the respondent and a 4 15 mediator to resolve a dispute pursuant to this section, 4 16 whether reflected in notes, memoranda, or other work products, 4 17 is a confidential communication except as otherwise expressly 4 18 provided in this chapter. Mediators involved in a mediation 4 19 under this section shall not be examined in any judicial or 4 20 administrative proceeding regarding confidential 4 21 communications and are not subject to judicial or 4 22 administrative process requiring the disclosure of 4 23 confidential communications. If a written confidential 4 24 communication as defined in this subsection is kept by the 4 25 mediator, it must be kept in a mediation file which is 4 26 maintained separately from the case file. Confidential 4 27 communications shall not be included in the commission's case 4 28 file unless the person providing the information consents to 4 29 its inclusion in the case file. The mediation file is not 4 30 part of the file made available to the parties upon the 4 31 commission's receipt of a right to sue letter. Information 4 32 maintained in the mediation file and not included in the case 4 33 file shall not be considered when making a recommendation or 4 34 decision regarding screening, probable cause, or any issue in 4 35 a contested case. 5 1 A mediator who has reason to believe that a complainant or 5 2 respondent has given perjured evidence concerning a 5 3 confidential communication is not barred by this section from 5 4 disclosing the basis for this belief to any party to a case in 5 5 which the alleged perjury occurs or to the appropriate 5 6 authorities including testifying concerning the relevant 5 7 confidential communications. If a dispute exists regarding 5 8 the existence or terms of a mediation agreement, or the 5 9 conduct of the mediation process itself, the mediator, in 5 10 resolving the dispute, may be examined regarding relevant 5 11 confidential communications. 5 12 Sec. 5. NEW SECTION. 216E.1 SHORT TITLE. 5 13 This chapter may be cited as the "Iowans with Disabilities 5 14 Act of 1995". 5 15 Sec. 6. NEW SECTION. 216E.2 DEFINITIONS. 5 16 As used in this chapter, unless the context otherwise 5 17 requires: 5 18 1. "Commission" means the Iowa state civil rights 5 19 commission. 5 20 2. "Covered entity" means an employer, employment agency, 5 21 labor organization, or joint labor-management committee. 5 22 3. "Direct threat" means a significant risk to the health 5 23 or safety of individuals that cannot be eliminated by 5 24 reasonable accommodation. 5 25 4. "Disability" means, with respect to an individual, a 5 26 physical or mental impairment that substantially limits one or 5 27 more of the major life activities of the individual, a record 5 28 of such an impairment, or being regarded as having such an 5 29 impairment. "Disability" includes the condition of an 5 30 individual with a positive human immunodeficiency virus test 5 31 result, a diagnosis of acquired immune deficiency syndrome, a 5 32 diagnosis of acquired immune deficiency syndrome-related 5 33 complex, or any other condition related to acquired immune 5 34 deficiency syndrome. The inclusion of a condition related to 5 35 a positive human immunodeficiency virus test resulting in the 6 1 meaning of "disability" under this chapter does not preclude 6 2 the application of the provisions of this chapter to 6 3 conditions resulting from other contagious or infectious 6 4 diseases. 6 5 "Disability" does not include any of the following: 6 6 a. Homosexuality and bisexuality. 6 7 b. Transvestism, transsexualism, pedophilia, 6 8 exhibitionism, voyeurism, gender identity disorders not 6 9 resulting from physical impairments, or other sexual behavior 6 10 disorders. 6 11 c. Compulsive gambling, kleptomania, or pyromania. 6 12 d. Psychoactive substance use disorders resulting from 6 13 current illegal use of drugs. 6 14 5. "Drug" means a controlled substance, as defined in 6 15 section 124.101. 6 16 6. "Employee" means as defined in section 216.2. 6 17 7. "Employer" means as defined in section 216.2, except 6 18 that "employer" does not include a bona fide private 6 19 membership club, other than a labor organization, that is 6 20 exempt from taxation under section 501(c) of the Internal 6 21 Revenue Code. 6 22 8. "Employment agency" means as defined in section 216.2. 6 23 9. "Illegal use of drugs" means the use of drugs, the 6 24 possession or distribution of which is unlawful under state or 6 25 federal law. The term does not include the use of a drug 6 26 taken under supervision by a licensed health care 6 27 professional, or other uses authorized by the federal 6 28 Controlled Substances Act or other provisions of state or 6 29 federal law. 6 30 10. "Labor organization" means as defined in section 6 31 216.2. 6 32 11. "Person" means as defined in section 216.2. 6 33 12. "Qualified individual with a disability" means an 6 34 individual with a disability who, with or without reasonable 6 35 accommodation, can perform the essential functions of the 7 1 employment position that the individual holds or desires. In 7 2 determining the essential functions of an employment position, 7 3 consideration shall be given to the employer's judgment as to 7 4 what functions of a job are essential, and if an employer has 7 5 prepared a written description before advertising or 7 6 interviewing applicants for the job, this description shall be 7 7 considered evidence of the essential functions of the job. 7 8 13. "Reasonable accommodation" may include, but is not 7 9 limited to, any of the following: 7 10 a. Making existing facilities used by employees readily 7 11 accessible to and usable by individuals with disabilities. 7 12 b. Job restructuring, part-time or modified work 7 13 schedules, reassignment to a vacant position, acquisition or 7 14 modification of equipment or devices, appropriate adjustment 7 15 or modifications of examinations, training materials, or 7 16 policies, the provision of qualified readers or interpreters, 7 17 and other similar accommodations for individuals with 7 18 disabilities. 7 19 14. "Undue hardship" means, for covered entities, except 7 20 for employers who do not regularly employ more than fourteen 7 21 employees, an action requiring significant difficulty or 7 22 expense, when considered in light of the factors set forth in 7 23 this subsection. In determining whether an accommodation 7 24 would impose an undue hardship on a covered entity, the 7 25 factors to be considered include the following: 7 26 a. The nature and cost of the accommodation needed under 7 27 this chapter. 7 28 b. The overall financial resources of the facility or 7 29 facilities involved in the provision of the reasonable 7 30 accommodation; the number of persons employed at the facility; 7 31 and the effect on expenses and resources, or the impact 7 32 otherwise of such accommodation upon the operation of the 7 33 facility. 7 34 c. The overall financial resources of the covered entity; 7 35 the overall size of the business of a covered entity with 8 1 respect to the number of its employees; and the number, type, 8 2 and location of its facilities. 8 3 d. The type of operation or operations of the covered 8 4 entity, including the composition, structure, and functions of 8 5 the workforce of the covered entity; and the geographic 8 6 separateness, administrative, or fiscal relationship of the 8 7 facility or facilities in question to the covered entity. 8 8 For employers who do not regularly employ more than 8 9 fourteen employees, the term "undue hardship" means an action 8 10 which substantially infringes on the rights of other employees 8 11 or requires the employer to incur more than a de minimis cost. 8 12 15. "State" means the state of Iowa. 8 13 Sec. 7. NEW SECTION. 216E.3 DISCRIMINATION. 8 14 1. A covered entity shall not discriminate against a 8 15 qualified individual with a disability because of the 8 16 disability of such an individual in regard to job application 8 17 procedures, the hiring, advancement, or discharge of 8 18 employees, employee compensation, job training, and other 8 19 terms, conditions, and privileges of employment. 8 20 2. For purposes of this section, "discriminate" includes: 8 21 a. Limiting, segregating, or classifying a job applicant 8 22 or employee in a way that adversely affects the opportunities 8 23 or status of such applicant or employee because of the 8 24 disability of such applicant or employee. 8 25 b. Participating in a contractual or other arrangement or 8 26 relationship that has the effect of subjecting a qualified 8 27 applicant or employee of a covered entity that has a 8 28 disability to the discrimination prohibited by this chapter. 8 29 This paragraph applies to a relationship with an employment or 8 30 referral agency, labor organization, an organization providing 8 31 fringe benefits to an employee of the covered entity, or an 8 32 organization providing training and apprenticeship programs. 8 33 c. Utilizing standards, criteria, or methods of 8 34 administration that have the effect of discrimination on the 8 35 basis of disability or that perpetuate the discrimination of 9 1 others who are subject to common administrative control. 9 2 d. Excluding or otherwise denying equal jobs or benefits 9 3 to a qualified individual because of the known disability of 9 4 an individual with whom the qualified individual is known to 9 5 have a relationship or association. 9 6 e. Failing to make reasonable accommodations to the known 9 7 physical or mental limitations of an otherwise qualified 9 8 individual with a disability who is an applicant or employee; 9 9 unless such covered entity can demonstrate that the 9 10 accommodation would impose an undue hardship on the operation 9 11 of the business of such covered entity. 9 12 f. Denying employment opportunities to a job applicant or 9 13 employee who is an otherwise qualified individual with a 9 14 disability, if such denial is based on the need of such 9 15 covered entity to make reasonable accommodation to the 9 16 physical or mental impairments of the employee or applicant. 9 17 g. Using qualification standards, employment tests, or 9 18 other selection criteria that screen out or tend to screen out 9 19 an individual with a disability or a class of individuals with 9 20 disabilities unless the standard, test, or other selection 9 21 criteria, as used by the covered entity, is shown to be job- 9 22 related for the position in question and is consistent with 9 23 business necessity. 9 24 h. Failing to select and administer tests concerning 9 25 employment in the most effective manner to ensure that, when 9 26 the test is administered to a job applicant or employee who 9 27 has a disability that impairs sensory, manual, or speaking 9 28 skills, the test results accurately reflect the skills, 9 29 aptitude, or other factor of such applicant or employee that 9 30 such test purports to measure, rather than reflecting the 9 31 impaired sensory, manual, or speaking skills of such employee 9 32 or applicant except where such skills are the factors that the 9 33 test purports to measure. 9 34 i. Soliciting or requiring as a condition of employment of 9 35 any employee or prospective employee a test for the presence 10 1 of the antibody to the human immunodeficiency virus or 10 2 affecting the terms, conditions, or privileges of employment 10 3 or terminating the employment of any employee solely as a 10 4 result of the employee obtaining a test for the presence of 10 5 the antibody to the human immunodeficiency virus. An 10 6 agreement between an employer, employment agency, or labor 10 7 organization, or its employees, agents, or members and an 10 8 employee or applicant concerning employment, pay, or benefits 10 9 to an employee or applicant in return for taking a test for 10 10 the presence of the antibody to the human immunodeficiency 10 11 virus, is prohibited. The prohibitions of this paragraph do 10 12 not apply if the state epidemiologist determines and the 10 13 director of public health declares through the utilization of 10 14 guidelines established by the centers for disease control of 10 15 the United States department of health and human services, 10 16 that a person with a condition related to acquired immune 10 17 deficiency syndrome poses a significant risk of transmission 10 18 of the human immunodeficiency virus to other persons in a 10 19 specific occupation. 10 20 3. Medical examinations and inquiries. 10 21 a. The prohibition against discrimination as referred to 10 22 in subsection 1 shall include medical examinations and 10 23 inquiries. 10 24 b. Except as provided in paragraph "c", a covered entity 10 25 shall not conduct a medical examination or make inquiries of a 10 26 job applicant as to whether such applicant is an individual 10 27 with a disability or as to the nature or severity of a 10 28 disability. However, a covered entity may make preemployment 10 29 inquiries into the ability of an applicant to perform job- 10 30 related functions. 10 31 c. A covered entity may require a medical examination 10 32 after an offer of employment has been made to a job applicant 10 33 and prior to the commencement of the employment duties of such 10 34 applicant, and may condition an offer of employment on the 10 35 results of such examination, if the following requirements are 11 1 met: 11 2 (1) All new employees in the same job category are 11 3 subjected to an examination regardless of disability. 11 4 (2) Information obtained regarding the medical condition 11 5 or history of the applicant is collected and maintained on 11 6 separate forms and in separate medical files and is treated as 11 7 a confidential medical record, except for any of the following 11 8 reasons: 11 9 (a) Supervisors and managers may be informed regarding 11 10 necessary restrictions on the work or duties of the employee 11 11 and necessary accommodations. 11 12 (b) First aid and safety personnel may be informed, when 11 13 appropriate, if the disability might require emergency 11 14 treatment. 11 15 (c) Government officials investigating compliance with 11 16 this chapter shall be provided relevant information on 11 17 request. 11 18 (3) The results of the examination are used only in 11 19 accordance with this chapter. 11 20 d. A covered entity shall not require a medical 11 21 examination and shall not make inquiries of an employee as to 11 22 whether the employee is an individual with a disability or as 11 23 to the nature or severity of a disability, unless such 11 24 examination or inquiry is shown to be job-related and 11 25 consistent with business necessity. 11 26 e. A covered entity may conduct voluntary medical 11 27 examinations, including voluntary medical histories, which are 11 28 part of an employee health program available to employees at 11 29 that work site. A covered entity may make inquiries into the 11 30 ability of an employee to perform job-related functions. 11 31 f. Information obtained under paragraph "e" regarding the 11 32 medical condition or history of a person is subject to the 11 33 requirements of paragraph "c", subparagraphs (2) and (3). 11 34 g. A violation solely of this subsection shall not support 11 35 an award for compensatory damages or back pay against a 12 1 covered entity 12 2 Sec. 8. NEW SECTION. 216E.4 DEFENSES. 12 3 1. It may be a defense to a charge of discrimination under 12 4 this chapter that an alleged application of qualification 12 5 standards, tests, or selection criteria that screen out or 12 6 tend to screen out or otherwise deny a job or benefit to an 12 7 individual with a disability has been shown to be job-related 12 8 and consistent with business necessity, and the performance 12 9 cannot be accomplished by reasonable accommodation, as 12 10 required under this chapter. For purposes of this chapter, 12 11 the term "qualification standards" may include a requirement 12 12 that an individual shall not pose a direct threat to the 12 13 health or safety of other individuals in the workplace. 12 14 2. In cases where a discriminatory practice involves the 12 15 provision of a reasonable accommodation pursuant to section 12 16 216E.3, actual damages other than damages for back pay shall 12 17 not be awarded under this chapter where the covered entity 12 18 proves, by a preponderance of the evidence, good faith 12 19 efforts, in consultation with the individual with the 12 20 disability who has informed the covered entity that 12 21 accommodation is needed, to identify and make a reasonable 12 22 accommodation that would provide the individual with an 12 23 equally effective opportunity and would not cause an undue 12 24 hardship on the operation of the business. 12 25 3. This chapter shall not prohibit a religious 12 26 corporation, association, educational institution, or society 12 27 from giving preference in employment to individuals of a 12 28 particular religion to perform work connected with the 12 29 performance of the activities of the corporation, association, 12 30 educational institution, or society. In addition, a religious 12 31 corporation, association, educational institution, or society 12 32 may require that all applicants and employees conform to the 12 33 religious tenets of the corporation, association, educational 12 34 institution, or society. 12 35 4. In any case in which an individual has an infectious or 13 1 communicable disease that is transmitted to others through the 13 2 handling of food, that is included on the list developed by 13 3 the United States secretary of health and human services under 13 4 42 U.S.C. } 12113(d), and which cannot be eliminated by 13 5 reasonable accommodation, a covered entity may refuse to 13 6 assign or continue to assign the individual to a job involving 13 7 food handling. 13 8 5. This chapter shall not be construed to preempt, modify, 13 9 or amend a state, county, or local law, ordinance, or 13 10 regulation applicable to food handling which is designed to 13 11 protect the public health from individuals who pose a 13 12 significant risk to the health or safety of others, which 13 13 cannot be eliminated by reasonable accommodation, pursuant to 13 14 the list of infectious or communicable diseases and the modes 13 15 of transmissibility published by the United States secretary 13 16 of health and human services. 13 17 6. This chapter shall not apply to persons described in 13 18 section 216.6, subsection 6, paragraphs "a", "b", and "c". 13 19 Sec. 9. NEW SECTION. 216E.5 CONSTRUCTION. 13 20 1. This chapter shall not be construed to invalidate or 13 21 limit the remedies, rights, and procedures of any state law or 13 22 law of any political subdivision of the state that provides 13 23 greater or equal protection for the rights of individuals with 13 24 disabilities than are afforded by this chapter. This chapter 13 25 shall also not be construed to preclude the prohibition of, or 13 26 the imposition of restrictions on, smoking in places of 13 27 employment. 13 28 2. This chapter shall not be construed to prohibit or 13 29 restrict any of the following: 13 30 a. An insurer, hospital or medical service company, health 13 31 maintenance organization, or any agent or entity that 13 32 administers benefit plans, or similar organizations from 13 33 underwriting risks, classifying risks, or administering such 13 34 risks that are based on or not inconsistent with other laws of 13 35 this state. 14 1 b. A person or organization covered by this chapter from 14 2 establishing, sponsoring, observing, or administering the 14 3 terms of a bona fide benefit plan that are based on 14 4 underwriting risks, classifying risks, or administering such 14 5 risks that are based on or not inconsistent with other laws of 14 6 this state. 14 7 c. A person or organization covered by this chapter from 14 8 establishing, sponsoring, observing, or administering the 14 9 terms of a bona fide benefit plan that is not subject to the 14 10 laws of this state that regulate insurance. 14 11 This subsection shall not be used as a subterfuge to evade 14 12 the purposes of this chapter. 14 13 3. This chapter shall not be construed to require an 14 14 individual with a disability to accept an accommodation, aid, 14 15 service, opportunity, or benefit which such individual chooses 14 16 not to accept. 14 17 Sec. 10. NEW SECTION. 216E.6 ILLEGAL USE OF DRUGS AND 14 18 ALCOHOL. 14 19 1. For purposes of this chapter, the term "qualified 14 20 individual with a disability" does not include any employee or 14 21 applicant who is currently engaging in the illegal use of 14 22 drugs, when the covered entity acts on the basis of such use. 14 23 2. Subsection 1 does not exclude as a qualified individual 14 24 with a disability an individual who does any of the following: 14 25 a. Has successfully completed a supervised drug 14 26 rehabilitation program and is no longer engaging in the 14 27 illegal use of drugs, or has otherwise been rehabilitated 14 28 successfully and is no longer engaging in the illegal use of 14 29 drugs. 14 30 b. Is participating in a supervised rehabilitation program 14 31 and is no longer engaging in the illegal use of drugs. 14 32 c. Is erroneously regarded as engaging in the illegal use 14 33 of drugs, but is not engaging in the illegal use of drugs. 14 34 However, it shall not be a violation of this chapter for a 14 35 covered entity to adopt or administer reasonable policies or 15 1 procedures, including but not limited to drug testing, 15 2 designed to ensure that an individual described in paragraph 15 3 "a" or "b" is no longer engaging in the illegal use of drugs. 15 4 This section shall not be construed to encourage, prohibit, 15 5 restrict, or authorize the conducting of testing for the 15 6 illegal use of drugs. 15 7 3. A covered entity may do any of the following: 15 8 a. Prohibit the illegal use of drugs and the use of 15 9 alcohol at the workplace by all employees. 15 10 b. Require that employees shall not be under the influence 15 11 of alcohol or be engaging in the illegal use of drugs at the 15 12 workplace. 15 13 c. Hold an employee who engages in the illegal use of 15 14 drugs or who is an alcoholic to the same qualification 15 15 standards for employment or job performance and behavior that 15 16 the entity holds other employees, even if any unsatisfactory 15 17 performance or behavior is related to the drug use or 15 18 alcoholism of the employee. 15 19 4. For purposes of this chapter, a test to determine the 15 20 illegal use of drugs shall not be considered a medical 15 21 examination. This chapter shall not be construed to 15 22 encourage, restrict, or authorize the conducting of drug 15 23 testing for the illegal use of drugs by job applicants or 15 24 employees or making employment decisions based on the test 15 25 results. 15 26 5. This chapter shall not be construed to encourage, 15 27 prohibit, restrict, or authorize the otherwise lawful exercise 15 28 of authority by entities subject to the jurisdiction of the 15 29 state department of transportation to do any of the following: 15 30 a. Test employees of the entities in, and applicants for, 15 31 positions involving safety-sensitive duties for the illegal 15 32 use of drugs and for on-duty impairment by alcohol. 15 33 b. Remove persons who test positive for illegal use of 15 34 drugs and on-duty impairment by alcohol pursuant to paragraph 15 35 "a" from safety-sensitive duties. 16 1 Sec. 11. NEW SECTION. 216E.7 ADOPTION OF RULES RELATING 16 2 TO DISABILITY DISCRIMINATION. 16 3 As soon as practicable following the effective date of this 16 4 Act, the commission shall adopt rules to implement this 16 5 chapter provided that the commission shall not adopt any rule 16 6 unless the same or similar rule has been adopted as a 16 7 permanent regulation by the United States equal employment 16 8 opportunity commission. If any such federal regulation is 16 9 subsequently amended, modified, or repealed, or replaced by a 16 10 new regulation, the commission shall, within one hundred 16 11 eighty days, review such amendment, modification, repeal, or 16 12 replacement, and adopt rules conforming the state rules to the 16 13 federal regulations in effect. The commission may adopt rules 16 14 which do not conform with the federal regulations if such 16 15 nonconformance is required by state or federal law, including 16 16 differences between the standards applied under this chapter 16 17 to employers of fifteen or more employees and employers with 16 18 fewer than fifteen employees. 16 19 This section does not affect the power of the commission to 16 20 adopt, rescind, or modify rules implementing chapter 216. 16 21 Sec. 12. NEW SECTION. 216E.8 ENFORCEMENT. 16 22 The remedies, procedures, powers, and rights set forth in 16 23 sections 216.5, 216.11, 216.15, 216.15B, 216.16, 216.17, and 16 24 216.19 shall be the remedies, procedures, powers, and rights 16 25 this chapter provides to the commission, an agency or 16 26 commission of local government, or to any person alleging 16 27 discrimination on the basis of disability in violation of this 16 28 chapter or rules adopted pursuant to this chapter. 16 29 Sec. 13. REPEAL. Section 216.14, Code 1995, is repealed. 16 30 Sec. 14. EFFECTIVE DATE. For employers who do not 16 31 regularly employ more than fourteen employees, new section 16 32 216E.3, subsection 3, takes effect on July 1, 1997. 16 33 EXPLANATION 16 34 This bill provides for mandatory mediation in cases where a 16 35 complaint alleges discrimination in employment due to a 17 1 disability and prohibits unfair or discriminatory practices in 17 2 the employment of persons with disabilities by employing a 17 3 statutory scheme similar to the federal Americans with 17 4 Disabilities Act (ADA). 17 5 The bill provides that the civil rights commission may 17 6 require mandatory mediation in cases where a complainant 17 7 alleges discrimination in employment due to a disability and 17 8 an issue exists of whether a reasonable accommodation has been 17 9 made. Failure to submit to mandatory mediation if required by 17 10 the commission can result in dismissal of a complainant's 17 11 complaint or a waiver of a respondent's defense to an award of 17 12 actual damages. The bill provides for the confidentiality of 17 13 information provided to a mediator and provides that a 17 14 mediation agreement be enforced in the same manner as a 17 15 conciliation agreement. 17 16 The bill also repeals the section of the Code providing 17 17 that an employer is not required to promote or transfer a 17 18 handicapped individual unless the individual is otherwise 17 19 qualified for such promotion or transfer. 17 20 The bill also establishes an Iowa disabilities Act similar 17 21 to the federal ADA. This portion of the bill redefines 17 22 disability, similar to the ADA, in terms of an impairment that 17 23 substantially limits a major life activity. This portion of 17 24 the bill also establishes a new section, similar to the 17 25 provisions in the ADA, about unfair or discriminatory 17 26 employment practices relating to individuals with 17 27 disabilities. The new section includes additional definitions 17 28 of terms specifically related to unfair or discriminatory 17 29 practices in the employment of individuals with disabilities. 17 30 Definitions are provided for "qualified individual with a 17 31 disability", "covered entity", "reasonable accommodation", and 17 32 "undue hardship". The use of medical examinations and related 17 33 inquiries are prohibited to determine if an individual has a 17 34 disability or the nature or severity of the disability. The 17 35 bill prohibits labor organizations and employers from 18 1 publicizing or advertising that individuals with a disability 18 2 cannot become members or employees. Labor unions or 18 3 organizations are prohibited from excluding or expelling 18 4 individuals with a disability from their organizations. 18 5 The bill specifies the allowable use of medical 18 6 examinations with regard to the employment of individuals with 18 7 a disability and outlines what qualification standards may be 18 8 applied to jobs. The bill also provides that a violation of 18 9 the provisions concerning medical examination and inquiries 18 10 shall not, by itself, give rise to an award for compensatory 18 11 changes or back pay. Undue hardship is defined to allow a 18 12 covered entity recourse if the cost and nature of an 18 13 accommodation for a disabled worker is too high. 18 14 Disabilities caused by the use of illegal drugs are not 18 15 covered by this bill unless the individual with a disability 18 16 has successfully completed a supervised rehabilitation program 18 17 and is no longer using the drugs or is currently under 18 18 treatment and no longer using the drugs. The bill also 18 19 authorizes a covered entity to require a drug-free and 18 20 alcohol-free environment for the workplace and declares it not 18 21 to be a violation of the bill to test employees and to remove 18 22 drug-impaired or alcohol-impaired employees from a job. 18 23 The bill does not prohibit or restrict insurers, nonprofit 18 24 health service corporations, health maintenance organizations, 18 25 or related agents from developing or assigning health or 18 26 benefit risks, or administering such risks within state law. 18 27 The effective date of provisions relating to discrimination 18 28 against individuals with disabilities concerning medical 18 29 examinations and inquiries as it applies to employers who do 18 30 not regularly employ more than 14 employees is July 1, 1997. 18 31 The new disability discrimination chapter is to be enforced 18 32 pursuant to chapter 216 which concerns the Iowa civil rights 18 33 commission. 18 34 BACKGROUND STATEMENT 18 35 SUBMITTED BY THE AGENCY 19 1 The federal Americans with Disabilities Act (ADA) is an 19 2 antidiscrimination statute designed to remove barriers which 19 3 prevent qualified individuals with disabilities from enjoying 19 4 the same employment opportunities that are available to 19 5 individuals without disabilities. 19 6 Like the federal Civil Rights Act of 1964 that prohibits 19 7 discrimination on the bases of race, color, religion, national 19 8 origin, and sex, the ADA seeks to ensure access to equal 19 9 employment opportunities based on merit. It does not 19 10 guarantee equal results, establish quotas, or require 19 11 preferences favoring individuals with disabilities over those 19 12 without disabilities. 19 13 However, while the federal Civil Rights Act of 1964 19 14 prohibits any consideration of personal characteristics such 19 15 as race or national origin, the ADA necessarily takes a 19 16 different approach. When an individual's disability creates a 19 17 barrier to employment opportunities, the ADA requires 19 18 employers to consider whether reasonable accommodation could 19 19 remove the barrier. 19 20 The ADA thus establishes a process in which the employer 19 21 must assess a disabled individual's ability to perform the 19 22 essential functions of the specific job held or desired. 19 23 While the ADA focuses on eradicating barriers, the ADA does 19 24 not relieve a disabled employee or applicant from the 19 25 obligation to perform the essential functions of the job. To 19 26 the contrary, the ADA is intended to enable disabled 19 27 individuals to compete in the workplace based on the same 19 28 performance standards and requirements that employers expect 19 29 of individuals who are not disabled. 19 30 However, where an individual's functional limitation 19 31 impedes such job performance, an employer must take steps to 19 32 reasonably accommodate, and thus help overcome the particular 19 33 impediment, unless to do so would impose an undue hardship. 19 34 Such accommodations may be adjustments to the way a job 19 35 customarily is performed or to the work environment itself. 20 1 This process of identifying whether, and to what extent, a 20 2 reasonable accommodation is required should be flexible, and 20 3 should involve both the employer and the individual with a 20 4 disability. Of course, the determination of whether an 20 5 individual is qualified for a particular position must 20 6 necessarily be made on a case-by-case basis. No specific form 20 7 of accommodation is guaranteed for all individuals with a 20 8 particular disability. Rather, an accommodation must be 20 9 tailored to match the needs of the disabled individual with 20 10 the requirements of the job's essential functions. 20 11 This case-by-case approach is essential if qualified 20 12 individuals of varying abilities are to receive equal 20 13 opportunities to compete for an infinitely diverse range of 20 14 jobs. For this reason, neither the ADA, EEOC's regulations, 20 15 nor this bill can supply the "correct" answer in advance for 20 16 each employment decision concerning an individual with a 20 17 disability. Instead, the ADA simply establishes parameters to 20 18 guide employers in how to consider, and take into account, the 20 19 disabling condition involved. 20 20 LSB 1236DP 76 20 21 ec/jj/8.1
Text: HSB00216 Text: HSB00218 Text: HSB00200 - HSB00299 Text: HSB Index Bills and Amendments: General Index Bill History: General Index
Iowa General Assembly
Search: House Bills and Amendments (76th General Assembly)
© 1996 Cornell College and League of Women Voters of Iowa
Comments? webmaster@legis.iowa.gov.
Last update: Thu Feb 8 16:38:58 CST 1996
URL: /DOCS/GA/76GA/Legislation/HSB/00200/HSB00217/950227.html
jhf