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One commenter observed that many disabled people stay in special education after a period of time and wondered whether the regulation would exclude that portion of the population after appropriate training and experience. The Department rejects the premise that an individual who is covered by the regulation cannot be cured of his or her disability. An employer that is unable to perform essential duty of employment, because a person cannot perform the essential function of the position despite the availability of training, is subject to the prohibition on discrimination with respect to employment. Similarly, if an individual cannot take a test because of a disability even after an appropriate period of time and appropriate training, the individual should be treated as unable to pass the test and should be considered incapable of performing the essential functions of the position.
(5) The rule does not require an individualized medical examination or inquiry. This is a sensible approach in light of the fact that public accommodation employers are usually not medical experts; instead, they rely on the health care providers of their employees.
The public accommodation must respond by making a decision whether to continue the medical information or any other pertinent work-related information that it has maintained about the individual. This requires an individualized, case-by-case determination that the information is relevant. See 42 C.F.R. Sec. 122.10(b)(2). The requirement for individualized decisions is consistent with the law. The decision whether to provide a reasonable accommodation for the employment or educational purposes of an individual should be governed by the same law used to evaluate the individual’s claim of discrimination.
At the same time, the rule recognizes that in many cases, particularly where an accommodation is related to a medical condition, different employers may have different information about an individual. The Department has therefore adopted a general requirement that public accommodation employers make available a written statement of their medical information about an individual that is relevant to the individual’s claim that it has engaged in unlawful discrimination. This requirement is included in paragraph (b)(7)(i) of the final regulation. d2c66b5586