Questions and Answers: The ADA and Persons with HIV/AIDS

Can a public accommodation exclude a person with HIV or AIDS because that person allegedly poses a direct threat to the health and safety of others?

In almost every instance, the answer to this question is no. Persons with HIV or AIDS will rarely, if ever, pose a direct threat in the public accommodations context.

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. “Direct threat,” however, is defined as a “significant risk to the health or safety of 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. For example:

• A restaurant’s refusal to admit an individual with AIDS would violate the ADA, because HIV cannot be transmitted through the casual contact that occurs in a restaurant setting.

• A gynecologist’s refusal to treat a woman with HIV would be a violation of the ADA. Health care providers are required to treat all persons as if they have HIV or other blood-borne pathogens, and must use universal precautions (gloves, mask, and/or gown where appropriate, etc.) to protect themselves from the transmission of infectious diseases. Failure to treat a person who discloses that she has HIV out of a fear of contracting HIV would be a violation of the ADA, because so long as the physician utilizes universal precautions, it is generally safe to treat persons with HIV or AIDS.

• A day care center’s refusal to admit a child with HIV is also a violation. Day care centers cannot exclude a child solely because he has HIV or AIDS. HIV cannot be easily transmitted during the types of incidental contact that take place in child care centers. Children with HIV or AIDS generally can be safely integrated into all activities of a child care program. Universal precautions, such as wearing latex gloves, should be used whenever caregivers come into contact with children’s blood or bodily fluids, such as when they are cleansing and bandaging playground wounds. This applies to the care of all children, whether or not they are known to have disabilities.

• A health club’s revocation of the membership of a person with HIV, because of the fear that the person may transmit the virus through the sweat he leaves on the club’s weight machines, also violates the ADA. There is no evidence that HIV can be transmitted by sweat.