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May 23, 1994
Ms. Meredyth P. Partridge Executive Director Virginia Department of Health Professions 6606 West Broad Street Fourth Floor Richmond, Virginia 23230-1717 Dear Ms. Partridge: This letter is in response to your inquiry of January 4, 1993, regarding whether the Americans with Disabilities Act ("ADA") prohibits funeral homes from imposing increased fees in cases involving bodies harboring infectious diseases. We regret the delay in responding to your letter. The ADA authorizes the Department of Justice to provide technical assistance to individuals and entities having rights or obligations under the Act. This letter provides informal guidance to assist you in understanding the ADA's requirements. However, it does not constitute a legal interpretation or legal advice, and it is not binding on the Department of Justice. Title III of the ADA prohibits discrimination on the basis of disability in the full and equal enjoyment of the goods and services of a place of public accommodation. See, e.g., 36.201(a), 36.202(a) and (b), and 36.205 of the title III regulation (copy enclosed). Under title III, funeral homes are considered to be places of public accommodation (28 C.F.R. 36.104), and are, therefore, subject to the non-discrimination provisions of the ADA. The first question you asked was whether a funeral home may charge an increased embalming fee for a body harboring an infectious disease. In light of the regulations promulgated by
the Occupational Safety and Health Administration of the Department of Labor (OSHA) and the guidelines promulgated by the federal Centers for Disease Control and Prevention (CDC), which apply to the handling of all human remains without regard to whether an infectious disease is known to be present, it would be discriminatory under the ADA to assess an extra charge only when a body is known to be harboring an infectious disease. OSHA's Bloodborne Pathogen Rule, 29 C.F.R. 1910.1030, applies to all occupational exposures to blood and other potentially infectious materials and specifically governs those employees who handle human remains. Id. at 1910.1030(a). The regulation requires that employers ensure that their employees follow the standards articulated in the rule at all times. Id. at 1910.1030(a) and (b). Specifically, all blood and certain other bodily fluids must be treated as if known to be infectious for the human immunodeficiency virus (HIV), the hepatitis B virus (HBV), and other bloodborne pathogens. Id. at 1910.1030(b). Engineering and work practice controls, which eliminate or minimize employee exposure to bloodborne pathogens, must be used at all times, as must personal protective equipment. Id. at 1910.1030(b)(2) and (3). In addition, the CDC has recommended the use of Universal Precautions -- infection control procedures that treat all human blood as if it is infectious, regardless of whether the person is known or suspected to be infected with HIV or HBV -- when handling the body of a deceased person. Guidelines for Prevention of Transmission of HIV and HBV in Health-Care and Public-Safety Workers, U.S. Department of Health and Human Services, Centers for Disease Control, February 1989, at 18. Similarly, the National Funeral Directors Association has adopted a policy recommending the use of the CDC's Universal Precautions by all personnel involved in the handling and preparation of human remains. National Funeral Directors Association Policy on Contagious, Communicable and Infectious Disease, at 1. Since the OSHA regulation and CDC guidelines require that all bodies be treated as if harboring an infectious disease, the imposition of an additional embalming fee only in cases where a body is known to be harboring such a disease would violate the ADA. Imposition of such an additional fee impermissibly treats persons with disabilities and/or persons known to have a relationship or association with persons with disabilities differently from others who seek the services of a funeral home.1
The second question you posed was whether a funeral home can charge a fee for protective gear used by funeral home staff when handling or preparing an infectious disease case. The same analysis applies. Since such protective gear must be worn when handling any body, in compliance with the OSHA Bloodborne Pathogen Rule and Universal Precautions, an additional fee for protective gear may not be imposed for handling or preparing a body known to be harboring an infectious disease. Again, both the OSHA Bloodborne Pathogen Rule and Universal Precautions require that all bodies be treated as if harboring an infectious disease and that appropriate protective gear be utilized when handling or preparing all human remains. Accordingly, imposition of an additional fee for handling those bodies known to be harboring an infectious disease would violate the ADA, as imposition of such a fee would impermissibly treat persons with disabilities and/or persons known to have a relationship or association with persons with disabilities differently from others who seek the services of a funeral home. I hope this information is useful to you in understanding the requirements of the ADA. If you have any further questions, feel free to contact our information line at (800) 514-0301. Sincerely,
John L. Wodatch Chief Public Access Section Enclosure Title III regulation 1 It has come to our attention that some trade embalmers impose a contagious disease surcharge. The funeral director may not pass the surcharge on to the family of the deceased. The funeral director must either (a) find a trade embalmer that does not impose an additional fee or (b) absorb the surcharge and/or spread the cost amongst all funeral home clients. See 28 C.F.R. 36.301(c) ("Charges")