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COMMUNICABLE DISEASES AS A HANDICAP OR DISABILITY

The ADA incorporates and expands existing protections provided in section 504 of the Rehabilitation Act. In cases decided under this predecessor act, the U.S. Supreme Court held that a person with a communicable disease (tuberculosis) was handicapped under the definitions of the law.[154] This case involved a school teacher with a history of recurrent activation of her tuberculosis who was fired after becoming sputum positive. While acknowledging that Arline was covered under the provisions of the act, the Court was left with the question of whether she was otherwise qualified to be school teacher: (See Chapter 30.)

The remaining question is whether Arline is otherwise qualified for the job of elementary school teacher. To answer this question in most cases, the District Court will need to conduct an individualized inquiry and make appropriate findings of fact. Such an inquiry is essential if sec. 504 is to achieve its goal of protecting handicapped individuals from deprivations based on prejudice, stereotypes, or unfounded fear, while giving appropriate weight to such legitimate concerns of grantees as avoiding exposing others to significant health and safety risks. The basic factors to be considered in conducting this inquiry are well established. In the context of the employment of a person handicapped with a contagious disease, we agree with amicus American Medical Association that this inquiry 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."

In making these findings, courts normally should defer to the reasonable medical judgments of public health officials. The next step in the "otherwise-qualified" inquiry is for the court to evaluate, in light of these medical findings, whether the employer could reasonably accommodate the employee under the established standards for that inquiry. (Arline at 1130-31)

The Supreme Court did not decide if Arline was otherwise qualified. The case was remanded to allow the trial court to obtain evidence on whether, after appropriate accommodations, Arline posed a threat of infection to the students. The evidence presented to the trial court established that Arline's tuberculosis was under control to the satisfaction of the public health authorities. Since she did not pose a threat of infection, she was reinstated and given back pay.

[154]School Board of Nassua County v. Arline. 107 S Ct 1123 (1987).

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