Minnesota's Olmstead Plan

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I. Introduction

People with disabilities frequently are confronted with barriers to full participation in the community and employment caused by unfounded myths, fears and stereotypes concerning disease and disability. Exclusion of persons with HIV/AIDS and persons with chronic mental illness are common. Avoiding discrimination due to irrational fear while excluding persons whose disability or disease actually poses potential harm to others has required the creation of a health and safety standard in disability rights law which attempts to strike a balance between these two legitimate concerns . Persons with disabilities who would pose a “direct threat to others” may be excluded from many public and private entities without violating the law. As will be described more fully below, the term “direct threat” means proof that a person, because of their disability, would pose a significant risk of substantial harm to others which cannot be acceptably ameliorated by some form of reasonable accommodation which does not cause undue hardship. Proof that a “direct threat” actually exists requires an individualized inquiry based upon the most current medical information or objective facts and must take into account the nature and severity of the harm and the probability that the harm will occur, among other factors. The “direct threat”, health and safety defense is found in the employment, public entity and public accommodations sections of the ADA and its implementing regulations. It also is in the Fair Housing Amendments Act of 1988 which prohibits disability discrimination in multi-family housing and in the regulations implementing the air Carriers Access Act, which prohibits disability discrimination against qualified air travelers with disabilities. Because of its appearance in all of the major federal disability rights laws, It is fair to conclude that both the concept and requirements of the “direct threat” standard form one of the cornerstones of disability rights protections for persons with disabilities.

Section II will provide the primary statutory and regulatory authority for the “direct threat” standard under various federal rights laws. Section III will explain the many elements of direct threat based upon the foregoing law and will discuss some of the conflicting case law in this area.

Should the “direct threat” health and safety limitations be incorporated into Minnesota’s Olmstead Plan?What about our state law’s protections for “vulnerable adults? Restrictions on a disabled person’s activities and living arrangements based upon state health and safety law might, in some circumstances, violate the federal direct threat standard. Federal law trumps conflicting state law. There may be reluctance among members of the Olmstead Planning Committee that “direct threat” limitations may not adequately protect “vulnerable adults” as required by state licensing laws, for example. Nothing in either the recommended Olmstead Plan or in the final Plan adopted by DHS will affect in any way existing rights and obligations under federal or state law. Nonetheless, the Olmstead Plan should apply the ADA’s “direct threat” standard as established by the provisions applicable to state and local governments and private social service agencies because the Plan we are called upon to create is mandated by the ADA and the Olmstead Supreme Court decision interpreting Title II the ADA and its regulations which expressly contain the “direct threat” provision for health and safety risks.

II. Primary statutory, Regulatory and Case Law Authorities for Direct Threat

Section 504 of the Rehabilitation Act of 1973

Section 504, in part prohibits discrimination against an otherwise qualified individual with a disability in any program or activity (such as state and local governments, hospitals, schools, etc.) that receives federal financial assistance. 29 U.S.C. § 794. Congress modeled many of the ADA’s concepts and requirements upon § 504, its implementing regulations and case law. For example, the ADA expressly prohibits federal implementing regulations to impose a “lesser standard” than the standard contained under the Rehabilitation Act and its regulations. 42 U.S.C. § 12201(a). With regard to ADA provisions expressly applicable to public entities, moreover, the Attorney general was to issue regulations consistent with the disability rights provisions of the Rehabilitation Act. 42 U.S.C. § 12134(b). Ultimately, the definitions section of the Rehabilitation Act was amended to apply the “direct threat standard. 29 U.S.C. § 705(20)(d).

The concept of “direct threat” was introduced into § 504 through the U.S. Supreme Court decision in School board of Nassau County, Florida v. Arline,480 U.S. 273 (1987. Arline was a public school teacher who was dismissed from her job because she had tuberculosis. The Supreme Court noted in reviewing her termination under § 504, that “Congress acknowledged that society's accumulated myths and fears about disability and disease are as handicapping as are the physical limitations that flow from actual impairment.” Arline, 480 U.S. at 284. The Court also concluded that § 504 “carefully structured to replace such reflexive reactions to actual or perceived handicaps with actions based on reasoned and medically sound judgment.” Arline, 480 U.S. at 284-285. The Court concluded that Arline would not be qualified to be a teacher if she posed a “significant risk” of transmitting tuberculosis to others and the risk could not be eliminated by a reasonable accommodation. Arline, 480 U.S. at 287 & n. 17. The Court required that there be an “individualized inquiry” Arline, 480 U.S. at287. The Court adopted a four factor test recommended by the American Medical Association for determining whether a significant risk was presented by a person with a contagious disease. The individualized inquiry, therefore, should 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."

Arline, 480 U.S. at 288.Upon remand, the federal district court applied the Supreme Court’s “direct threat” analyitical framework and concluded that because Arline tuberculosis cultures had been negative and the possibility of infection was “extremely rare,” the school board could either reinstate her or pay her salary until she retired. Arline v. School board of Nassau County, Florida, 692 F.Supp. 1286 (M.D. Fla. 1988). The legislative history of the ADA made clear that the Arline decision and its discussion of significant risk was to be imported into the ADA.

Americans with Disabilities Act Direct Threat Provisions

Title I (Employment)

The EEOC’s “direct threat”regulations are unique among all of the other agencies “direct threat” regulatory provisions in that the EEOC permits risk to self as well as risk to others as a basis for exclusion. Only “Risk to others”is contained in title I’s statutory language. Inclusion of “risk to self” is a recognition of potential employer liability under the federal Occupational Safety and health Act if it took no action if a person’s disability would pose a significant risk of self harm in performing specific work to which the person was being assigned.

Statutory Definition:

Direct threat. The term "direct threat" means a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation. 42 USC §12111(3).(Employment Definitions)

Statutory Qualification standards. The term "qualification 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. 42 U.S.C. §12113(b) (Defenses)

U.S. Equal Employment Opportunity Commission Title I regulations:

Definition of “Direct Threat”:

Direct Threat means a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation. The determination that an individual poses a “direct threat” shall be based on an individualized assessment of the individual's present ability to safely perform the essential functions of the job. This assessment shall be based on a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence. In determining whether an individual would pose a direct threat, the factors to be considered include:(1) The duration of the risk;(2) The nature and severity of the potential harm;(3) The likelihood that the potential harm will occur; and(4) The imminence of the potential harm.

29 C.F.R. 1630.2(r).

Defenses to a Charge of Discrimination:

Required in this part.(2) Direct threat as a qualification standard. The term “qualification standard” may include a requirement that an individual shall not pose a direct threat to the health or safety of the individual or others in the workplace.

Explanatory Appendix.

The EEOC adopted Appendix A as part of its ADA rulemaking to provide additional interpretive guidance to its regulations. Its discussion of “direct threat” is particularly instructive:

Section 1630.2(r)Direct Threat

An employer may require, as a qualification standard, that an individual not pose a direct threat to the health or safety of himself/herself or others. Like any other qualification standard, such a standard must apply to all applicants or employees and not just to individuals with disabilities. If, however, an individual poses a direct threat as a result of a disability, the employer must determine whether a reasonable accommodation would either eliminate the risk or reduce it to an acceptable level. If no accommodation exists that would either eliminate or reduce the risk, the employer may refuse to hire an applicant or may discharge an employee who poses a direct threat. An employer, however, is not permitted to deny an employment opportunity to an individual with a disability merely because of a slightly increased risk. The risk can only be considered when it poses a significant risk, i.e., high probability, of substantial harm; a speculative or remote risk is insufficient. See Senate Report at 27; House Report Labor Report at 56-57; House Judiciary Report at 45. Determining whether an individual poses a significant risk of substantial harm to others must be made on a case by case basis. The employer should identify the specific risk posed by the individual. For individuals with mental or emotional disabilities, the employer must identify the specific behavior on the part of the individual that would pose the direct threat. For individuals with physical disabilities, the employer must identify the aspect of the disability that would pose the direct threat. The employer should then consider the four factors listed in part 1630:(1) The duration of the risk;(2) The nature and severity of the potential harm;(3) The likelihood that the potential harm will occur; and(4) The imminence of the potential harm. Such consideration must rely on objective, factual evidence—not on subjective perceptions, irrational fears, patronizing attitudes, or stereotypes—about the nature or effect of a particular disability, or of disability generally. See Senate Report at 27; House Labor Report at 56-57; House Judiciary Report at 45-46. See also Strathie v. Department of Transportation, 716 F.2d 227 (3d Cir. 1983). Relevant evidence may include input from the individual with a disability, the experience of the individual with a disability in previous similar positions, and opinions of medical doctors, rehabilitation counselors, or physical therapists who have expertise in the disability involved and/or direct knowledge of the individual with the disability. An employer is also permitted to require that an individual not pose a direct threat of harm to his or her own safety or health. If performing the particular functions of a job would result in a high probability of substantial harm to the individual, the employer could reject or discharge the individual unless a reasonable accommodation that would not cause an undue hardship would avert the harm. For example, an employer would not be required to hire an individual, disabled by narcolepsy, who frequently and unexpectedly loses consciousness for a carpentry job the essential functions of which require the use of power saws and other dangerous equipment, where no accommodation exists that will reduce or eliminate the risk. The assessment that there exists a high probability of substantial harm to the individual, like the assessment that there exists a high probability of substantial harm to others, must be strictly based on valid medical analyses and/or on other objective evidence. This determination must be based on individualized factual data, using the factors discussed above, rather than on stereotypic or patronizing assumptions and must consider potential reasonable accommodations. Generalized fears about risks from the employment environment, such as exacerbation of the disability caused by stress, cannot be used by an employer to disqualify an individual with a disability. For example, a law firm could not reject an applicant with a history of disabling mental illness based on a generalized fear that the stress of trying to make partner might trigger a relapse of the individual's mental illness. Nor can generalized fears about risks to individuals with disabilities in the event of an evacuation or other emergency be used by an employer to disqualify an individual with a disability. See Senate Report at 56; House Labor Report at 73-74; House Judiciary Report at 45. See also Mantolete v. Bolger, 767 F.2d 1416 (9th Cir. 1985); Bentivegna v. U.S. Department of Labor, 694 F.2d 619 (9th Cir.1982).

ADA Title II (State and Local Governments)

No express statutory Provision

DOJ Regulations: 28 CFR Part 35

28 CFR Part 35

Definitions

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 as provided in §35.139. 28 CFR 35.104
Regulatory Direct Threat Limitation §35.139  Direct threat

(a) This part does not require a public entity to permit an individual to participate in or benefit from the services, programs, or activities of that public entity when that individual poses a direct threat to the health or safety of others.

(b) In determining whether an individual poses a direct threat to the health or safety of others, a public entity 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, or procedures or the provision of auxiliary aids or services will mitigate the risk.

ADA Title III (Public Accommodations)

Statutory Provision Regarding Direct Threat:

Sec. 12182. Prohibition of discrimination by public accommodations

Specific construction. Nothing in this subchapter 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. 42 USC §12182(d)(3).

DOJ ADA Title III Public Accommodations Regulations: 28 CFR Part 36 § 36.208
(a) This part does not require a public accommodation to permit an individual to participate in or benefit from the goods, services, facilities, privileges, advantages and accommodations of that public accommodation when that individual poses a direct threat to the health or safety of others.

(b) 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.

(c) 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, or procedures will mitigate the risk.

Fair Housing Amendments Act of 1988

Statutory Direct Threat Provision:

[A]n individual whose tenancy would constitute a direct threat to the health or safety of other individuals or whose tenancy would result in substantial physical damage to the property of others.” 42 U.S.C. § 3604(f)(9)

Air carriers Access Act

The Air CarriersAccess Act prohibits discrimination against a qualified passenger with a disability by both domestic and foreign air carriers. 49 U.S. C. § 417055.

Although the Act itself makes no reference to “direct threat”, the U.S. Department of Transportation’s implementing regulations apply the familiar standard as a defense in circumstances where a passenger with a disability has a communicable contagious disease.:

§ 382.51 Communicable diseases.

(1) The carrier may take [certain] actions …with respect to an individual who has a communicable disease or infection only if the individual’s condition poses a direct threat to the health or safety of others.

(2) For purposes of this section, a 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.

(3) In determining whether an individual poses a direct threat to the health or safety of others, a carrier 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; that the potential harm to the health and safety of others will actually occur; and whether reasonable modifications of policies, practices, or procedures will mitigate the risk. 14 C.F.R. § 3812(b).

III. Elements of the Direct Threat Defense Explained.

The phrase “significant risk” makes clear that some degree of risk is acceptable or, put another way, that elimination of all risk is not an acceptable basis for excluding a person whose disability, in a specific context might pose an insignificant risk. In Bragdon v. Abbott, 524 U.S. 624 (1998), the U.S. Supreme Court noted: “Because few, if any, activities in life are risk free, Arline and the ADA do not ask whether a risk exists, but whether it is significant.” Bragdon,524 U.S.C. at649.

Probability of Occurrence and Nature and Severity of the risk

In order to determine whether the risk at issue is significant, two elements of the Arline formulation, the nature and severity of the risk and the probability that it will occur, appear most important. In Bragdon, the U.S. Supreme Court interpreted the direct threat provision in the public accommodations title of the ADA. A dentist, Dr. Bragdon, had refused to treat a patient, Ms. Abbott, when he learned she had asymptomatic HIV because he believed there was a significant risk that he might contract the blood-born fatal disease if he did so. The Court concluded that whether a significant risk exists must be determined from the perspective of the person who refuses to perform the treatment and that such refusal must be based upon objective facts or objective, scientific information available to him.Bragdon, 524 U.S. at649. medical information. The Court was willing to defer to public health authorities such as the U. S. Public Health Service, CDC, and the National Institutes of Health, unless Dr. Bragdon could offer evidence that such reliance was unwarranted in his case. Bragdon, 524 U.S. at 350. The Court remanded the case to the court of appeals because it perceived some uncertainty as to whether the medical evidence might be contradictory. On remand, the federal court of appeals, relying on the CDC’s mandate of “universal precautions” as a means of avoiding blood-born pathogens, concluded that Dr. Bragdon’s contrary evidence was too speculative or too tangential to warrant a trial. Abbott v. Bragdon, 163 F.3d 87 (1st Cir. 1998), cert. den., 526 U.S. 1131(1999).

Bragdon can be read to support the proposition a very low probability that a harm will occur will not support a finding of significant risk even if the nature and severity of the harm is very serious Conversely, if the likelihood of the harm occurring is high but the harm is minimal, a direct threat defense also should fail.

Nonetheless, when the issue is the possibility of contracting HIV/AIDS, many lower federal courts have found that a significant risk is present because the severity of the harm is so large even though the likelihood of transmission is small. Doe v. Wash. Univ., 780 F. Supp. 628, 634 (E.D. Mo.1991), and In re Application of Milton S. Hershey Med. Ctr., 595 A.2d 1290, 1296 (Pa. Super. Ct. 1991)); see also Bradley v. Univ. of Tex. M.D. Anderson Cancer Ctr., 3 F.3d 922, 924 (5th Cir. 1993) ("A cognizable risk of permanent duration with lethal consequences suffices to make a surgical technician with Bradley's responsibilities not 'otherwise qualified.'"); Estate of Behringer v. Med. Ctr., 592 A.2d 1251, 1283 (N.J. Super. Ct. Law Div. 1991) ("Where the ultimate harm is death, even the presence of a low risk of transmission justifies the adoption of a policy which precludes invasive procedures when there is 'any' risk of transmission."). For other examples, see Doe v. Univ. of Md. Med. Sys. Corp., 50 F.3d 1261, 1266 (4th Cir. 1995) ("We hold that Dr. Doe does pose a significant risk to the health and safety of his patients that cannot be eliminated by reasonable accommodation.

Persons with mental disabilities, likewise, have not fared well when an employer has claimed that a person’s mental illness or medications to treat it pose a significant risk. In Layser v. Morrison, 935 F. Supp. 562 (E.D. Pa. 1995), an armed campus security officer suffering from stress and depression, reported that he had dreamt of shooting his supervisor. Without mentioning the Arline probability factor, the court ruled in favor of the defendant-college on the ground that Layser’s dream along with statements from his psychologist and Layser’s own contemporaneous statements were “sufficient submissions to illustrate the potential harm [that] Layser posed was significant.” Id. At 569.in Shiplett v. National Railroad Passenger Corp., DOCKET NUMBER, 1999 U.S. App. LEXIS 14004 (6th Cir. 1999).  a railroad engineer taking the prescription drug Xanax to alleviate sleep disorders, anxiety, and panic attacks, posed a direct threat to others. Id. The court deferred to the findings of Amtrak and the National Transportation Safety Board and Federal Railway Administration that the use of Xanax posed “too significant of a risk to the safety of the operation of a train to justify its use.”Id. This conclusion was based on the potential side effects of Xanax which may include “drowsiness, memory impairment, light-headedness, and impaired coordination.” Id at * 4.

On the other hand, a day care center was found to have violated the ADA when it terminated a bus driver with a severe hearing loss based upon safety concerns without any empirical data in the record regarding her having any driving problems. Rizzo v. Children’s World Learning Centers, Inc., 173 F.3d 254, 257-58 (5th Cir. 1999). A retail store who fired a sales associate because of a stress-related fainting disorder causing her to faint while working also was found not to satisfy the direct threat defense. Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243 (9th Cir. 1999) And, a cruise ship entertainer with HIV won his ADA case because the court found the cruise ship owner did not prove the existence of a direct threat. EEOC v. Dolphin Cruise Line, 945 F. Supp. 1550 (S.D. Fla. 1996).

In sum, while statistical probability of harm is supposed to be a critical element of the “direct threat” test, many courts have ignored or downplayed this requirement where the ADA plaintiff has a mental illness, or a serious contagious disease such as HIV. Plaintiffs with other disabilities have found the “direct threat” defense to be an effective bar to discrimination based upon unfounded fears, myths and stereotypes.

Reasonable Accommodation

The terms “reasonable accommodation”, “reasonable modification to policies and procedures” and “provision of auxiliary aids and services”, are used conceptually to include the varying ways in which adjustments can be made in a particular situation to enable a person with a disability to work and gain access to public and private services and goods. The requirement to make such modifications is counter-balanced by a limitation variously referred to as “undue Hardship”, “undue financial and administrative burdens” or a “fundamental alteration in the nature of a program”, depending upon the legal context.