MAR 17 1994 The Honorable Howard P. "Buck" McKeon U.S.

House of Representatives 307 Cannon House Office Building Washington, D.C. 20515 Dear Congressman McKeon: This letter is in response to your inquiry on behalf of your constituent, XX , concerning the applicability of the Americans with Disabilities Act ("ADA") to funeral homes and persons who died from the AIDS virus. Title III of the ADA prohibits discrimination by "public accommodations" on the basis of disability. See 28 C.F.R. ​ 36.201(a). A funeral home is specifically defined as a "place of public accommodation" by the title III implementing regulation, 28 C.F.R. 36.104 (copy enclosed), and is, therefore, subject to the non-discrimination provisions of the ADA. Title III prohibits discrimination against persons with disabilities, as well as those individuals who have a "relationship or association" with a person with a disability. 28 C.F.R. 36.205. The AIDS virus (HIV) specifically meets the definition of "disability" within the meaning of title III, as it is a physical impairment that substantially limits one or more major life activities. 42 U.S.C. 12102(2) (definition of disability); see also 28 C.F.R. 36.104 ("HIV disease (whether symptomatic or asymptomatic)" is a physical impairment). Accordingly, the ADA requires funeral homes to provide their services on a non-discriminatory basis to persons who have AIDS and seek to make funeral arrangements prior to their death, as well as to family members and loved ones who have "an association" or "relationship" with persons infected with the AIDS virus and who seek funeral home services after the individual with AIDS has died. It is the Department's position that the death of the person with the disability in no way affects the reach of the association provision when the discrimination is based on the known disability of the decedent. Refusal to provide funeral services for and/or to embalm the body

cc: Records, Chrono, Wodatch, Magagna, Perley, McDowney, MAF, FOIA udd\perley\congress\ XX (b)(6)

01-02966 -2of a person who died from AIDS is, therefore, a violation of the ADA. Your constituent's position appears to be that handling bodies that once harbored the AIDS virus would put him at great risk of contracting the virus, and that he should not be required to do so under the ADA. The ADA does not require a public accommodation to engage in any activity that would pose a "direct threat" to the health or safety of others. 28 C.F.R. ​ 36.208(a). Under title III, the term "direct threat" is defined as "a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices, or procedures . . . " 42 U.S.C. 12182(b)(3) (emphasis added); see also 28 C.F.R. 36.208. The title III regulation clarifies the direct threat exception: In determining whether an individual poses a direct threat to the health or safety of others, a public accommodation must make an individualized assessment, based on reasonable judgment that relies on current medical knowledge or on the best available objective evidence, to ascertain: the nature, duration, and severity of the risk; the probability that the potential injury will actually occur; and whether reasonable modifications of policies, practices, and procedures will mitigate the risk. 28 C.F.R. 36.208(c). According to the Federal Centers for Disease Control and Prevention ("CDC"), the risk of transmitting viruses like HIV in the health-care setting and similar settings is minimal, and can

be severely lessened by the use of infection control procedures, often described as "universal precautions.'' These protective measures -- which include the use of gloves, surgical masks, and protective eyewear, the sterilization of instruments, the disinfection of exposed environmental surfaces, and proper waste disposal methods -- prevent the spread of almost all bloodborne diseases, including HIV. Indeed, the CDC specifically recommends the use of universal precautions 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, as does the National Funeral Directors Association. National Funeral Directors Association Policy on Contagious, Communicable and Infectious Disease, at 1. Moreover, the Occupational Safety and Health Administration ("OSHA") has adopted most of the protective measures outlined by the CDC in 01-02967 -3its Bloodborne Pathogen Rule. See 29 C.F.R. Ch. XVIII 1910.1030. The theory underlying these requirements is that funeral home workers often do not know whether the bodies they are handling once harbored an infectious disease. Persons who are HIV-positive or have other infectious diseases, such as Hepatitis B, often die from other causes, such as car accidents and heart attacks. Accordingly, universal precautions should be utilized when handling all human remains. To date, there is not one documented case of occupational HIV transmission to either an embalmer or a morgue technician. HIV/AIDS Surveillance Report, Centers for Disease Control, October 1993, at 13. Indeed, in the approximately 10 years that the CDC has been monitoring occupationally acquired AIDS/HIV infection, only 3 possible cases of occupational transmission to embalmers or morgue technicians have even been identified. In light of the fact that funeral home workers may be routinely exposed to the AIDS virus, whether or not they know it, and that the scientific evidence has strongly demonstrated the efficacy of universal precautions, we believe that the use of universal precautions make the direct threat defense inapposite in the funeral home setting. The outright refusal to handle an AIDS case is, therefore, discriminatory and thus violates the ADA.

I hope this information is useful to you in addressing your constituent's concerns. Please inform him that if he has any further questions, he may contact our information line at (202) 514-0301. Sincerely, James P. Turner Acting Assistant Attorney General Civil Rights Division Enclosure 1 These workers were without identifiable behavioral or transfusion risks. However, HIV seroconversion specifically resulting from an occupational exposure to the virus was not documented.