The Americans with Disabilities Act (ADA) Coverage of Contagious Diseases
The Americans with Disabilities Act (ADA)
Coverage of Contagious Diseases
Nancy Lee Jones
Legislative Attorney
American Law Division
Summary
The Americans with Disabilities Act (ADA), 42 U.S.C. §§12101 et seq., provides
broad nondiscrimination protection for individuals with disabilities in employment,
public services, public accommodations and services operated by private entities,
transportation, and telecommunications. As stated in the act, its purpose is “to provide
a clear and comprehensive national mandate for the elimination of discrimination
against individuals with disabilities.” Due to concern about the spread of highly
contagious diseases such as epidemic influenza1 and extensively drug-resistant2
tuberculosis (XDR-TB), questions have been raised about the application of the ADA
in such situations. This report briefly discusses the Americans with Disabilities Act’s
statutory provisions relating to contagious diseases and relevant judicial interpretations.
It will be updated as necessary.
1 See e.g., Michael T. Osterholm, “Preparing for the Next Pandemic,” Foreign Affairs
[ ht t p: / / www.f or e i gnaf f a i r s.or g/ 20050701f aessay84402/ mi chael -t -ost er hol m/ p r e p ar i ng-f or -t he-
next-pandemic.html] (July/August 2005). For a discussion of other legal issues relating to
epidemics see CRS Report RL33201, Federal and State Quarantine and Isolation Authority, by
Kathleen S. Swendiman and Jennifer K. Elsea; CRS Report RS21414, Mandatory Vaccinations:
Precedent and Current Laws, by Kathleen S. Swendiman; and CRS Report RL33609, Quarantine
and Isolation: Selected Legal Issues Relating to Employment, by Nancy Lee Jones and Jon O.
Shimabukuro. For a discussion of pandemic flu, preparedness and response, and other issues see
CRS Report RL33145, Pandemic Influenza: Domestic Preparedness Efforts, by Sarah A. Lister;
CRS Report RL34190, Pandemic Influenza: An Analysis of State Preparedness and Response
Plans, by Sarah A. Lister and Holly Stockdale; and CRS Report RS22602, Public Health andth
Medical Preparedness and Response: Issues in the 110 Congress, by Sarah A. Lister.
2 See CRS Report RL34144, Extensively Drug-Resistant Tuberculosis (XDR-TB): Emerging
Public Health Threats and Quarantine and Isolation, by Kathleen S. Swendiman and Nancy Lee
Jones.
Statutory Language and Legislative History
The Americans with Disabilities Act, often described as the most sweeping
nondiscrimination legislation since the Civil Rights Act of 1964, provides protections
against discrimination for individuals with disabilities.3 The threshold issue when
discussing the applicability of the ADA is whether the individual in question is a person
with a disability. Generally, individuals with serious contagious diseases would most
likely be considered individuals with disabilities.4 However, this does not mean that an
individual with a serious contagious disease would have to be hired or given access to a
place of public accommodation if such an action would place other individuals at a
significant risk. Such determinations are highly fact specific and the differences between
the contagious diseases discussed by the courts (e.g., HIV infection, tuberculosis, and
hepatitis) and potential pandemic flu may give rise to differing conclusions. Each
contagious disease has specific patterns of transmission that affect the magnitude and
duration of a potential threat to others.5
Title I of the ADA, which prohibits employment discrimination against otherwise
qualified individuals with disabilities, specifically states that “the term ‘qualifications
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.”6 In addition, the Secretary of
Health and Human Services (HHS) is required to publish, and update, a list of infectious
3 For a more detailed discussion of the ADA see CRS Report 98-921, The Americans with
Disabilities Act (ADA): Statutory Language and Recent Issues by Nancy Lee Jones. Other
federal statutes concerning the civil rights of individuals with disabilities also have interpreted
issues relating to individuals with contagious diseases in a manner similar to the ADA. See
School Board of Nassau County v. Arline, 480 U.S. 273 (1987), interpreting Section 504 of the
Rehabilitation Act, 29 U.S.C. §794, and 14 C.F.R. §382.51 interpreting the Air Carriers Access
Act. For a discussion of the Air Carriers Access Act, see CRS Report RL34047, Overview of the
Air Carrier Access Act, by Anna Henning.
4 See Bragdon v. Abbott, 524 U.S. 624 (1998). The issues involving the definition of disability
have been among the most controversial under the ADA. The ADA was recently amended to
expand the interpretation of the definition of disability. See CRS Report RL34691, The ADA
Amendments Act: P.L. 110-325, by Nancy Lee Jones.
5 See David L. Heymann, Control of Communicable Diseases Manual, 18th ed., an official report
of the American Public Health Association, 2004.
6 42 U.S.C. §12113(b).
and communicable diseases that may be transmitted through handling the food supply.7
Similarly, title III, which prohibits discrimination in public accommodations and services
operated by private entities, states: “Nothing in this title shall require an entity to permit
an individual to participate in or benefit from the goods, services, facilities, privileges,
advantages and accommodations of such entity where such individual poses a direct threat
to the health or safety of others. The term ‘direct threat’ means a significant risk to the
health or safety of others that cannot be eliminated by a modification of policies,
practices, or procedures or by the provision of auxiliary aids or services.”8 Although title
II, which prohibits discrimination by state and local government services, does not contain
such specific language, it does require an individual to be “qualified” and this is defined
in part as meeting “the essential eligibility requirements of the receipt of services or the
participation in programs or activities....”9 This language has been found by the
Department of Justice to require the same interpretation of direct threat as in title III.10
Contagious diseases were discussed in the ADA’s legislative history. The Senate
report noted that the qualification standards permitted with regard to employment under
title I may include a requirement that an individual with a currently contagious disease or
infection shall not pose a direct threat to the health or safety of other individuals in the
workplace and cited to School Board of Nassau County v. Arline, 480 U.S. 273, 287, note
16 (1987), a Supreme Court decision concerning contagious diseases and Section 504 of
the Rehabilitation Act of 1973.11 Similarly, the House report of the Committee on
Education and Labor reiterated the reference to Arline and added “[t]hus the term ‘direct
threat’ is meant to connote the full standard set forth in the Arline decision.”12
Supreme Court Decisions
School Board of Nassau County v. Arline. Section 504 of the Rehabilitation
Act of 1973, 29 U.S.C. §794, in part prohibits discrimination against an otherwise
qualified individual with a disability in any program or activity that receives federal
financial assistance. Many of the concepts used in the ADA originated in Section 504,
its regulations, and judicial interpretations. The legislative history of the ADA, as
discussed above, specifically cited to the Supreme Court’s interpretation of Section 504
in Arline which held that a person with active tuberculosis was an individual with a
7 42 U.S.C. §12113(d). This provision was added in an amendment by Senator Hatch after a long
debate over the Chapman Amendment which was not enacted. The Chapman Amendment would
have allowed employers in businesses involved in food handling to exclude individuals with
specific contagious diseases such as HIV infection. See 136 Cong. Rec. 10911 (1990).
8 42 U.S.C. §12182(3).
9 42 U.S.C. §12131(2).
10 28 C.F.R. Part 35, Appx A.
11 S.Rept. 101-116, 101st Cong., 1st Sess. reprinted in Vol. I, Committee Print Serial No. 102-A
Legislative History of Public Law 101-336 The Americans with Disabilities Act, prepared for the
House Committee on Education and Labor at 139 (Dec. 1990).
12 H.Rept. 101-485, 101st Cong., 2nd Sess., reprinted in Vol. I, Committee Print Serial No. 102-A
Legislative History of Public Law 101-336 The Americans with Disabilities Act, prepared for the
House Committee on Education and Labor at 349 (Dec. 1990). See also 136 Cong. Rec. 10858
(1990).
disability but may not be otherwise qualified to teach elementary school. Footnote 16,
which was referenced in the ADA’s legislative history, states in relevant part that “a
person who poses a significant risk of communicating an infectious disease to others in
the workplace will not be otherwise qualified for his or her job if reasonable
accommodation will not eliminate that risk.”13
The Court in Arline examined the standards to be used to determine if an individual
with a contagious disease is otherwise qualified. In most cases, the Court observed, an
individualized inquiry is necessary in order to protect individuals with disabilities from
“deprivation based on prejudice, stereotypes, or unfounded fear, while giving appropriate
weight to such legitimate concerns of grantees as avoiding exposing others to significant
health and safety risks.”14 The Court adopted the test enunciated by the American
Medical Association (AMA) amicus brief and held that the factors which must be
considered include “findings of facts, based on reasonable medical judgments given the
state of medical knowledge, about (a) the nature of the risk (how the disease is
transmitted), (b) the duration of the risk (how long is the carrier infectious), (c) the
severity of the risk (what is the potential harm to third parties) and (d) the probabilities
the disease will be transmitted and will cause varying degrees of harm.”15 The Court also
emphasized that courts “normally should defer to the reasonable medical judgments of
public health officials” and that courts must consider whether the employer could
reasonably accommodate the employee.16 Arline was remanded for consideration of the
facts using this standard and the district court held that since the teacher had had negative
cultures and the possibility of infection was “extremely rare,” the school board must
reinstate her or pay her salary until retirement eligibility.17
Bragdon v. Abbott. The Supreme Court in Bragdon v. Abbott,18 addressed the
ADA definition of individual with a disability and held that the respondent’s
asymptomatic HIV infection was a physical impairment impacting on the major life
activity of reproduction thus rendering the HIV infection a disability under the ADA. The
Court also addressed the question of what is a direct threat, finding that the ADA’s direct
threat language codified the Court’s decision in Arline. In Bragdon the plaintiff, an
individual with asymptomatic HIV infection, sought dental treatment from the defendant
and was told that she would be treated only in a hospital, not in the office. The plaintiff,
Ms. Abbott, filed an ADA complaint and prevailed at the district court, court of appeals
and the Supreme Court on the issue of whether she was an individual with a disability but
the case was remanded for further consideration regarding the issue of direct threat.
The Supreme Court provided some guidance regarding the direct threat issue in
Bragdon stating that “the existence, or nonexistence, of a significant risk must be
determined from the standpoint of the person who refuses the treatment or
13 480 U.S. 273, 287, footnote 16 (1987).
14 Id. at 287.
15 Id. at 288.
16 Id.
17 Arline v. School Bd. of Nassau County, 692 F.Supp. 1286 (M.D. Fla. 1988).
18 524 U.S. 624 (1998).
accommodation, and the risk assessment must be based on medical or other objective
evidence.” Dr. Bragdon had the duty to assess the risk of infection “based on the
objective, scientific information available to him and others in his profession. His belief
that a significant risk existed, even if maintained in good faith, would not relieve him
from liability.” On remand for consideration of the direct threat issue, the first circuit
court of appeals held that summary judgment was warranted, finding that Dr. Bragdon’s
evidence was too speculative or too tangential to create a genuine issue of fact.19
Chevron U.S.A. Inc., v. Echazabal. Both Arline and Bragdon dealt with the
issue of whether an individual was a direct threat to others. In Chevron U.S.A. Inc., v.20
Echazabal, the Supreme Court dealt with the issue of whether an individual was a threat
to himself and held unanimously that the ADA does not require an employer to hire an
individual with a disability if the job in question would endanger that individual’s health.
The ADA’s statutory language provides for a defense to an allegation of discrimination21
that a qualification standard is “job related and consistent with business necessity.” The
act also allows an employer to impose as a qualification standard that the individual shall22
not pose a direct threat to the health or safety of other individuals in the workplace but
does not discuss a threat to the individual’s health or safety. The ninth circuit in
Echazabal had determined that an employer violated the ADA by refusing to hire an
applicant with a serious liver condition whose illness would be aggravated through23
exposure to the chemicals in the workplace. The Supreme Court rejected the ninth
circuit decision and upheld a regulation by the EEOC that allows an employer to assert
a direct threat defense to an allegation of employment discrimination where the threat is
posed only to the health or safety of the individual making the allegation.24 Justice Souter
found that the EEOC regulations were not the kind of workplace paternalism that the
ADA seeks to outlaw. “The EEOC was certainly acting within the reasonable zone when
it saw a difference between rejecting workplace paternalism and ignoring specific and
documented risks to the employee himself, even if the employee would take his chances
for the sake of getting a job.” The Court emphasized that a direct threat defense must be
based on medical judgment that uses the most current medical knowledge.
Lower Court Decisions
The lower courts have dealt with a number of direct threat cases under the ADA.
Although a comprehensive survey of these cases is beyond the scope of this report, they
have involved a number of types of disabilities as well as varying occupations and
accommodations. The disabilities at issue have often involved AIDS or HIV infection25
19 Abbott v. Bragdon, 163 F.3d 87 (1st Cir. 1998), cert. den., 526 U.S. 1131(1999).
20 536 U.S. 73 (2002).
21 42 U.S.C. §12113(a).
22 42 U.S.C. §12113(b).
23 226 F.3d 1063 (9th Cir. 2000).
24 29 C.F.R. §1630.15(b)(2).
25 See e.g., Montalvo v. Radcliffe, 167 F.3d 873 (4th Cir. 1999), cert. denied, 528 U.S. 813 (1999),
where the fourth circuit held that excluding a child who has HIV from karate classes did not
(continued...)
or mental illness26 but have also included hepatitis,27 and other conditions. The various
occupations have included public health care workers, public safety officers,
transportation operators, food handlers, and industrial workers.28
25 (...continued)
violate the ADA because the child posed a significant risk to the health and safety of others
which could not be eliminated by reasonable modification.
26 See e.g., Lassiter v. Reno, 885 F.Supp. 869 (E.D.Va. 1995), aff’d 86 F.3d 1151 (4th Cir. 1996),
cert. denied, 519 U.S. 1091 (1997), where the court found that a deputy U.S. Marshal diagnosed
as suffering from delusional paranoid personality disorder presented a reasonable probability of
substantial harm if permitted to carry a firearm.
27 See e.g., Doe v. Woodford County Board of Education, 213 F.3d 921 (6th Cir. 2000), where the
court upheld the school’s decision to place a student who was a hemophiliac and a carrier of the
hepatitis B virus on hold status for the varsity basketball team pending a medical clearance.
28 For a discussion of several of these cases see Jeffrey A. Van Detta, “‘Typhoid Mary’ Meets
the ADA: A Case Study of the ‘Direct Threat’ Standard under the Americans with Disabilities
Act,” 22 Harv. J. of Law and Public Policy 849, 868-923 (1999); and Brian S. Prestes,
“Disciplining the Americans with Disabilities Act Direct Threat Defense,” 22 Berkeley J. Emp.
& Labor Law 409, 422-434 (2001).