Chapter 3: General Requirements
Italicized text was added to the original Title III Technical
Assistance
Manual through supplements issued in 1993 and 1994.
Regulatory references: 28 CFR 36.201-36.213.
III-3.8000 Direct threat.
A public accommodation may exclude an individual with a disability from
participation in an activity, if that individual's participation would
result in a direct threat to the health or safety of others. The public
accommodation must determine that there is a significant risk to others
that cannot be eliminated or reduced to an acceptable level by
reasonable modifications
to the public accommodation's policies, practices, or procedures or by
the
provision of appropriate auxiliary aids or services. The determination
that
a person poses a direct threat to the health or safety of others may
not
be based on generalizations or stereotypes about the effects of a
particular
disability; it must be based on an individual assessment that considers
the
particular activity and the actual abilities and disabilities of the
individual.
The individual assessment must be based on reasonable judgment that
relies on current medical evidence, or on the best available objective
evidence, to determine --
- The nature, duration, and severity of the risk;
- The probability that the potential injury will actually
occur; and
- Whether reasonable modifications of policies, practices,
or procedures will mitigate or eliminate the risk.
Such an inquiry is essential to protect individuals with
disabilities
from discrimination based on prejudice, stereotypes, or unfounded fear,
while
giving appropriate weight to legitimate concerns, such as the need to
avoid
exposing others to significant health and safety risks. Making this
assessment
will not usually require the services of a physician. Sources for
medical
knowledge include public health authorities, such as the U.S. Public
Health
Service, the Centers for Disease Control, and the National Institutes
of
Health, including the National Institute of Mental Health.
ILLUSTRATION: Refusal to admit an
individual to a restaurant because he or she is infected with HIV would
be a violation, because the HIV virus cannot be transmitted through
casual contact, such as that among restaurant patrons.
ILLUSTRATION 2: Denial of health
club
membership to an individual who is infected with HIV would be a
violation,
because current medical evidence indicates that the HIV virus cannot be
contracted through casual contact, perspiration, or urine in an
exercise room,
sauna room, or pool.
ILLUSTRATION 3:
Refusal to provide dental services to an individual who is infected
with HIV
because of the patient’s HIV-positive status would be a violation.
Current
medical evidence indicates that the risk of HIV transmission from a
patient to
other patients and/or the dental staff is infinitesimal, and can be
even
further reduced by the use of universal precautions (infection control
procedures that prevent the transmission of all infectious diseases,
including
HIV).
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