b'Application of Section 504 of the Rehabilitation Act To HIVInfected Individuals\nIn the non-employment context, section 504 o f the Rehabilitation Act protects symptomatic and\nasymptomatic HIV-infected individuals against discrimination in any covered program or activ\xc2\xad\nity on the basis of any actual, past or perceived effect of HIV that substantially limits any major\nlife activity\xe2\x80\x94 so long as the HIV-infected individual is \xe2\x80\x9cotherwise qualified\xe2\x80\x9d to participate in the\nprogram or activity.\nSection 504 applies in substance in the same way in the employment context. Subject to an employer\nm aking reasonable accommodation within the terms of its existing personnel policies, the symp\xc2\xad\ntomatic or asymptomatic HIV-infected individual is protected against discrimination if he or she\nis able to perform the duties of the job and does not constitute a direct threat to the health or safety\nof others.\n\nSeptember 27, 1988\nM e m o r a n d u m O p in io n fo r t h e C o u n s e l t o t h e P r e s id e n t\n\nIntroduction and Summary\nThis memorandum responds to your request for an opinion on the application\nof section 504 of the Rehabilitation Act of 1973 (\xe2\x80\x9cAct\xe2\x80\x9d), 29 U.S.C. \xc2\xa7 794, to in\xc2\xad\ndividuals who are infected with the Human Immunodeficiency Virus (\xe2\x80\x9cHIV\xe2\x80\x9d or\n\xe2\x80\x9cAIDS virus\xe2\x80\x9d). You specifically asked us to consider this subject in light of School\nBoard of Nassau County v. Arline, 480 U.S. 273 (1987). Congress has also sought\nto clarify the law in this area by amending the Rehabilitation Act to address di\xc2\xad\nrectly the situation of contagious diseases and infections in the employment con\xc2\xad\ntext. See Civil Rights Restoration Act of 1987, Pub. L. No. 100-259, \xc2\xa7 9, 102\nStat. 28, 31 (1988) (\xe2\x80\x9cCivil Rights Restoration Act\xe2\x80\x9d). Although your opinion re\xc2\xad\nquest was limited to the application of section 504 in the employment context,\nwe have also considered the non-employment context because the President has\ndirected the Department of Justice to review all existing federal anti-discrimination law applicable in the HIV infection context and to make recommendations\nwith respect to possible new legislation.1See Memorandum for the Attorney Gen\xc2\xad\neral from President Ronald Reagan, 24 Weekly Comp. Pres. Doc. 1007 (Aug. 5,\n1988).\n1 We defer to others in the Department to make the policy determinations necessary, to recommend legislation,\nand, in keeping with the tradition of this Office, confine our analysis to matters of legal interpretation.\n\n209\n\n\x0cFor the reasons stated below, we have concluded, with respect to the non-employment context, that section 504 protects symptomatic and asymptomatic HIVinfected individuals2 against discrimination in any covered program or activity\non the basis of any actual, past or perceived effect of HIV infection that sub\xc2\xad\nstantially limits any major life activity3\xe2\x80\x94so long as the HIV-infected individual\nis \xe2\x80\x9cotherwise qualified\xe2\x80\x9d to participate in the program or activity, as determined\nunder the \xe2\x80\x9cotherwise qualified\xe2\x80\x9d standard set forth in Arline. We have further con\xc2\xad\ncluded that section 504 is similarly applicable in the employment context, except\nfor the fact that the Civil Rights Restoration Act replaced the Arline \xe2\x80\x9cotherwise\nqualified\xe2\x80\x9d standard with a slightly different statutory formulation. We believe\nthis formulation leads to a result substantively identical to that reached in the non\xc2\xad\nemployment context: namely, that an HIV-infected individual is only protected\nagainst discrimination if he or she is able to perform the duties of the job and\ndoes not constitute a direct threat to the health or safety of others.4\nI. Statutory Framework Under Section 504\n\nSection 504 was intended to proscribe discrimination against the handicapped\nin programs or activities that are conducted by federal agencies or that receive\nfederal funds. In relevant part, the statute provides:\nNo otherwise qualified individual with handicaps in the United\nStates, as defined in section 706(8) of this title, shall, solely by\nreason of his handicap, be excluded from the participation in, be\n2 In this opinion, individuals who are infected with the AIDS virus and have developed the clinical symptoms\nknown as Acquired Immune Deficiency Syndrome (\xe2\x80\x9cAIDS\xe2\x80\x9d) or AIDS-Related Complex (\xe2\x80\x9cARC\xe2\x80\x9d) will sometimes\nbe referred to as \xe2\x80\x9csymptomatic HIV-infected individuals.\xe2\x80\x9d Individuals who are infected with the AIDS virus but do\nnot have AIDS or ARC will sometimes be referred to as \xe2\x80\x9casymptomatic HIV-infected individuals.\xe2\x80\x9d References to\nAIDS should be understood to include ARC, except where a distinction between the two is expressly drawn. Fi\xc2\xad\nnally, where we intend to refer to all HIV-infected individuals, whether symptomatic or not, we either refer to \xe2\x80\x9cHIVmfected individuals\xe2\x80\x9d or to \xe2\x80\x9cHIV infection\xe2\x80\x9d (without any \xe2\x80\x9csymptomatic\xe2\x80\x9d or \xe2\x80\x9casymptomatic\xe2\x80\x9d modifier) or clearly in\xc2\xad\ndicate in the text that the discussion refers to both categories.\n3 The medical information available to us indicates that HIV infection is a physical impairment which in a given\ncase may substantially limit a person\xe2\x80\x99s major life activities. See infra pp. 213-17. In addition, others may regard\nan HIV-infected person as being so impaired. See infra pp 217-18. Either element in a given case, we believe,\nwould be sufficient for a court to conclude that an HIV-infected person is an \xe2\x80\x9cindividual with handicaps\xe2\x80\x9d within\nthe terms of the Act. By virtue of the fact that the handicap here, HIV infection, gives rise both to disabling phys\xc2\xad\nical symptoms and to contagiousness, it is unnecessary to resolve with respect to any other infection or condition\nwhich gives nse to contagiousness alone whether that singular fact could render a person handicapped. In other\nwords, the medical information available to us undermines the accuracy of the assumption or contention referenced\nin Arline that carriers of the AIDS virus are without physical impairment. 480 U.S. at 282 n.7.\n4 These conclusions differ from, and supersede to the extent of the difference, a June 20, 1986 opinion from\nCharles J. Cooper, Assistant Attorney General, Office of Legal Counsel, for Ronald E. Robertson, General Coun\xc2\xad\nsel, Department of Health and Human Services (\xe2\x80\x9cCooper Opinion\xe2\x80\x9d). The conclusions herein incorporate subse\xc2\xad\nquent legal developments (the Supreme Court\xe2\x80\x99s decision in Arline and Congress\xe2\x80\x99 passage of the Civil Rights Restora\xc2\xad\ntion Act) and subsequent medical clarification (see July 29, 1988 letter from C Everett Koop, M.D., Surgeon\nGeneral, to Douglas W. Kmiec, Acting Assistant Attorney General, Office of Legal Counsel (\xe2\x80\x9cKoop Letter\xe2\x80\x9d) (at\xc2\xad\ntached).\n\n210\n\n\x0cdenied the benefits of, or be subjected to discrimination under any\nprogram or activity receiving Federal financial assistance or un\xc2\xad\nder any program or activity conducted by any Executive agency\nor by the United States Postal Service.\n29 U.S.C. \xc2\xa7 794.5\nThere are two definitions of \xe2\x80\x9cindividual with handicaps,\xe2\x80\x9d one or both of which\nmay be applicable to HIV-infected individuals depending upon the context in\nwhich the discrimination occurs. The generally-applicable definition is \xe2\x80\x9cany per\xc2\xad\nson who (i) has a physical or mental impairment which substantially limits one\nor more of such person\xe2\x80\x99s major life activities, (ii) has a record of such an im\xc2\xad\npairment, or (iii) is regarded as having such an impairment.\xe2\x80\x9d 29 U.S.C.\n\xc2\xa7 706(8)(B). Thus, an individual can qualify as handicapped under the general\ndefinition if he actually suffers from a disabling impairment, has recovered from\na previous such condition, was previously misclassified as having such a condi\xc2\xad\ntion, or is regarded as having such a condition, whether or not he actually has it.\nThe Civil Rights Restoration Act amended the definitions section of the Reha\xc2\xad\nbilitation Act to provide, in the employment context, a qualification of the defi\xc2\xad\nnition of an \xe2\x80\x9cindividual with handicaps\xe2\x80\x9d with respect to contagious diseases and\ninfections. This provision qualifies rather than supplants the general definition\nof \xe2\x80\x9cindividual with handicaps\xe2\x80\x9d.6 The amendment provides as follows:\nFor the purpose of sections 503 and 504, as such sections relate\nto employment, [the term \xe2\x80\x9cindividual with handicaps\xe2\x80\x9d] does not\ninclude an individual who has a currently contagious disease or\n\xe2\x80\x9e infection and who, by reason of such disease or infection, would\nconstitute a direct threat to the health or safety of other individu-\n\n5 Section 504 thus has five elements First, an individual claiming discriminatory treatment must be an \xe2\x80\x9cindi\xc2\xad\nvidual with handicaps,\xe2\x80\x9d as defined in the Act. Second, the individual must be \xe2\x80\x9cotherwise qualified" for the benefit\nor program participation being sought Third, the individual must be excluded from participation in, be denied the\nbenefits of, or otherwise be subjected to discrimination under a covered program or activity. Fourth, the contested\ntreatment must be \xe2\x80\x9csolely by reason of .. handicap." And fifth, the discnmination must occur in a program or ac\xc2\xad\ntivity conducted or funded by the federal government.\nThe definition of \xe2\x80\x9cprogram or activity\xe2\x80\x9d is set forth in a new section 504(b), which was added by section 4 of\nthe Civil Rights Restoration Act. In general, the term is to be given an institution-wide scope rather than the pro\xc2\xad\ngram- or activity-specific scope called for by Grove City College v Bell, 465 U.S. 555 (1984). Grove City was su\xc2\xad\nperseded by the Civil Rights Restoration Act See Pub L. No 100-259, \xc2\xa7 2, 102 Stat. 28.\n6 The Civil Rights Restoration Act amended 29 U.S.C. \xc2\xa7 706(8) to add the qualification as a new subparagraph\n(C), to follow subparagraph (B), which contains the generally-applicable definition of \xe2\x80\x9cindividual with handicaps."\nThe new subparagraph thus constitutes a specific qualification of the preceding general definition. The qualifica\xc2\xad\ntion operates in the same way as the qualification Congress enacted in 1978 with respect to alcohol and drug abuse,\non which the contagious disease provision was modeled. See infra note 19 and accompanying text. Both provisions\nare structured as exclusions from the general definition. The natural implicauon of both statutory exclusions is that\npersons who do not fall within the specified grounds for exclusion are covered by section 504 to the extent that they\nmeet the general requirements of that section.\n\n211\n\n\x0cals or who, by reason of the currently contagious disease or in\xc2\xad\nfection, is unable to perform the duties of the job.\nPub. L. No. 100-259, \xc2\xa7 9, 102 Stat. 28, 31-32 (1988).\nII. Application of Section 504 in Contexts Other Than Employment\n\nSection 504, as interpreted by the Supreme Court in Arline, has two primary\nelements: the definition of \xe2\x80\x9cindividual with handicaps\xe2\x80\x9d and the \xe2\x80\x9cotherwise qual\xc2\xad\nified\xe2\x80\x9d requirement. We will first determine whether in the non-employment con\xc2\xad\ntext an HIV-infected individual, whether symptomatic or asymptomatic, is an\n\xe2\x80\x9cindividual with handicaps,\xe2\x80\x9d and then discuss the application of the \xe2\x80\x9cotherwise\nqualified\xe2\x80\x9d requirement to such an individual.7\nA . Symptomatic HTV-Infected Individuals\n\nAs discussed below, Arline requires the conclusion that persons with AIDS\n(i.e., symptomatic HIV-infected individuals) are within the section 504 defini\xc2\xad\n\ntion of handicapped individual notwithstanding their contagiousness. Conta\xc2\xad\ngiousness, by itself, does not obviate the existence of a handicap for purposes of\nsection 504. Arline, 480 U.S. at 282.\nArline involved an elementary school teacher who had been discharged after\nsuffering a third relapse of tuberculosis within two years. All parties conceded,\nand the Court found, that the plaintiff was handicapped because her tuberculosis\nhad adversely affected her respiratory system, requiring hospitalization. Id. at\n281. Plaintiff\xe2\x80\x99s respiratory ailment thus was a physical impairment that substan\xc2\xad\ntially limited one of her major life activities. Id. The Court concluded that the de\xc2\xad\nfendant\xe2\x80\x99s action came within the coverage of section 504, notwithstanding the\nfact that Ms. Arline was dismissed not because of any disabling effects of her tu\xc2\xad\nberculosis but because of her employer\xe2\x80\x99s fear that her contagiousness threatened\nthe health of her students. The Court concluded that \xe2\x80\x9cthe fact that a person with\na record of physical impairment is also contagious does not suffice to remove that\nperson from coverage under \xc2\xa7 504.\xe2\x80\x9d Id. at 285-86 (emphasis added).\nWe believe that symptomatic HIV-infected individuals are handicapped under\nsection 504. For these individuals, the disease has progressed to the point where\nthe immune system has been sufficiently weakened that a disease such as cancer\n7 Arline was also concerned with a third element: namely, whether the contagiousness of a handicapped indi\xc2\xad\nvidual covered by the Act could be used as a justification for discrimination against that individual Subject to the\n\xe2\x80\x9cotherwise qualified\xe2\x80\x9d limitation, the Court held that contagiousness cannot be used for this purpose. The Court\nstated: \xe2\x80\x9cWe do not agree with petitioners that, in defining a handicapped individual under \xc2\xa7 504, the contagious ef\xc2\xad\nfects of a disease can be meaningfully distinguished from the disease\'s physical effects on a claimant.. . . It would\nbe unfair to allow an employer to seize upon the distinction between the effects of a disease on others and the ef\xc2\xad\nfects of a disease on a patient and use that distinction to justify discriminatory treatment.\xe2\x80\x9d Arline, 480 U.S. at 282.\nIn light of the Court\xe2\x80\x99s holding, we conclude that the contagiousness of an HIV-infected individual cannot be relied\nupon to remove that individual from the coverage of the Act. Contra Cooper Opinion at 27 & n.70.\n\n212\n\n\x0cor pneumonia has developed, and as a result, the individual is diagnosed as hav\xc2\xad\ning clinical AIDS. Because of the substantial limiting effects these clinical symp\xc2\xad\ntoms have on major life activities, such a person is an \xe2\x80\x9cindividual with handi\xc2\xad\ncaps\xe2\x80\x9d for purposes of section 504. This same conclusion should also apply to a\nperson with ARC, who also has serious disabling physical effects caused by HIV\ninfection, although the physical symptoms are not the particular diseases that the\nCenters for Disease Control have included in its list of the clinical symptoms that\nconstitute AIDS. As with the tuberculosis that afflicted Ms. Arline, AIDS (or\nARC) is often \xe2\x80\x9cserious enough to require hospitalization, a fact more than suffi\xc2\xad\ncient [in itself] to establish that one or more . . . major life activities [are] sub\xc2\xad\nstantially limited.\xe2\x80\x9d Id. at 281. Therefore, assuming they are otherwise qualified,\ncontagiousness does not excuse or justify discrimination against individuals\nhandicapped by symptomatic HIV infection. As will be seen, the consideration\nof the \xe2\x80\x9cotherwise qualified\xe2\x80\x9d standard allows for a reasonable determination of\nwhether contagiousness threatens the health or safety of others or job perfor\xc2\xad\nmance, and in those events, permits the exclusion of the individual from the cov\xc2\xad\nered program or activity.\nB. Asymptomatic HIV-Infected Individuals\nArline did not resolve the application of section 504 to asymptomatic HlV-infected individuals.8 The Court left open the question of whether such individu\xc2\xad\nals are \xe2\x80\x9cindividuals with handicaps\xe2\x80\x9d under section 504, a question which turns\non whether an asymptomatic HIV-infected individual \xe2\x80\x9c(i) has a physical or men\xc2\xad\ntal impairment which substantially limits one or more of such person\xe2\x80\x99s major life\nactivities, (ii) has a record of such impairment, or (iii) is regarded as having such\nan impairment.\xe2\x80\x9d 29 U.S.C. \xc2\xa7 706(8)(B). These determinations primarily focus\nupon: (1) whether HIV infection by itself is a physical or mental impairment; and\n(2) whether the impairment substantially limits a major life activity (i.e., whether\nit has a disabling effect); or (3) whether someone with HIV infection could be\nregarded as having an impairment which substantially limits a major life activ\xc2\xad\nity.\n\n8 Since the plaintiff had disabling physical symptoms and thus was clearly a handicapped individual under sec\xc2\xad\ntion 504, the Court declined to reach the question of whether a person without such an impairment could be con\xc2\xad\nsidered handicapped by virtue of a communicable disease alone As the Court stated, \xe2\x80\x9c[t]his case does not present,\nand we therefore do not reach, the questions whether a earner of a contagious disease such as AIDS [who suffers\nno physical impairment] could be considered to have a physical impairment, or whether such a person could be\nconsidered, solely on the basis of contagiousness, a handicapped person as defined by the Act \xe2\x80\x9d Id. at 282 n.7 Sub\xc2\xad\nsequent to Arline, the Surgeon General informed this Office that even an asymptomatic HIV-infected individual is\nphysically impaired, stating that \xe2\x80\x9cfrom a purely scientific perspective, persons with HIV infection are clearly im\xc2\xad\npaired. They are not comparable to an immune earner of a contagious disease such as Hepatitis B.\xe2\x80\x9d Koop Letter at\n2. In light of Dr Koop\xe2\x80\x99s letter, this Office has no occasion to determine whether a contagious, but not impaired in\xc2\xad\ndividual, such as a Hepatitis B carrier, would be protected by the Act. See supra note 3. Cf Kohl by Kohl v. Woodhaven Learning Cir., 672 F Supp. 1226, 1236 (W.D Mo 1987) (finding a Hepatitis B earner to be within the Act).\n\n213\n\n\x0c1. Asymptomatic HIV-Infected Individuals Are Physically Impaired\nThe Department of Health and Human Services regulations implementing sec\xc2\xad\ntion 504 define \xe2\x80\x9cphysical impairment\xe2\x80\x9d as:\n[A]ny physiological disorder or condition, cosmetic disfigure\xc2\xad\nment, or anatomical loss affecting one or more of the following\nbody systems: neurological; musculoskeletal; special sense or\xc2\xad\ngans; respiratory, including speech organs; cardiovascular; re\xc2\xad\nproductive, digestive, genito-urinary; hemic and lymphatic; skin;\nand endocrine.\n45 C.F.R. \xc2\xa7 84.3(j)(2)(i) (1987). In addition, an appendix to the regulations pro\xc2\xad\nvides an illustrative (but not exhaustive) list of diseases and conditions that are\n\xe2\x80\x9cphysical impairments\xe2\x80\x9d for purposes of section 504: \xe2\x80\x9csuch diseases and condi\xc2\xad\ntions as orthopedic, visual, speech, and hearing impairments, cerebral palsy,\nepilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes,\nmental retardation, [and] emotional illness, and . . . drug addiction and alco\xc2\xad\nholism.\xe2\x80\x9d 45 C.F.R. pt. 84, app. A, p. 344 (1987).\nThe first question is whether an asymptomatic HIV-infected individual is phys\xc2\xad\nically impaired for purposes of section 504. For this factual determination we\nnecessarily must rely heavily on the views of the Public Health Service of the\nUnited States. In this respect, Dr. C. Everett Koop, the Surgeon General of the\nPublic Health Service, has indicated that it is\ninappropriate to think of [HIV infection] as composed of discrete\nconditions such as ARC or \xe2\x80\x9cfull blown\xe2\x80\x9d AIDS. HIV infection is\nthe starting point of a single disease which progresses through a\nvariable range of stages. In addition to an acute flu-like illness,\nearly stages of the disease may involve subclinical manifestations\ni.e., impairments and no visible signs of illness. The overwhelm\xc2\xad\ning majority of infected persons exhibit detectable abnormalities\nof the immune system.\nKoop Letter at 1-2. On the basis of these facts, the Surgeon General concluded\nthat\nfrom a purely scientific perspective, persons with HIV infection\nare clearly impaired. They are not comparable to an immune car\xc2\xad\nrier of a contagious disease such as Hepatitis B. Like a person in\nthe early stages of cancer, they may appear outwardly healthy but\nare in fact seriously ill.\nId. at 2.\nIn our view, the type of impairment described in the Surgeon General\xe2\x80\x99s letter\nfits the HHS definition of \xe2\x80\x9cphysical impairment\xe2\x80\x9d because it is a \xe2\x80\x9cphysiological\n214\n\n\x0cdisorder or condition\xe2\x80\x9d affecting the \xe2\x80\x9chemic and lymphatic\xe2\x80\x9d systems.9 We there\xc2\xad\nfore believe that, in light of the Surgeon General\xe2\x80\x99s medical assessment, asympto\xc2\xad\nmatic HIV-infected individuals, like their symptomatic counterparts, have a\nphysical impairment.\n2. Asymptomatic HIV-Infected Individuals and Limits on Major Life Activities\nThe second question, therefore, is whether the physical impairment of HIV in\xc2\xad\nfection substantially limits any major life activities.\nUnder the HHS regulations implementing section 504, \xe2\x80\x98\xe2\x80\x9cmajor life activities\xe2\x80\x99\nmeans functions such as caring for one\xe2\x80\x99s self, performing manual tasks, walk\xc2\xad\ning, seeing, hearing, speaking, breathing, learning, and working.\xe2\x80\x9d 45 C.F.R.\n\xc2\xa7 84.3(j)(2)(ii) (1987) (emphasis added). Although the definition is illustrative\nand not exhaustive, it does provide a helpful starting point for our analysis. We\nwould expect that courts will resolve the factual question of whether the impair\xc2\xad\nment of HIV infection limits a major life activity by reviewing this list for guid\xc2\xad\nance in ascertaining whether a particular activity constitutes a basic function of\nlife comparable to those on the list.\nAs indicated earlier, the disabling effects of HIV infection are readily appar\xc2\xad\nent in the case of symptomatic HIV infection. The salient point with respect to\nsymptomatic HIV-infected individuals is not that they have AIDS or ARC but\nrather that their impairment has manifest disabling effects. Again, as noted above,\nwe believe that the courts will find that such individuals are limited in a number\nof major activities. Due to the weakness of their immune system and depending\non the nature of the particular disease afflicting symptomatic HIV-infected indi\xc2\xad\nviduals, any and perhaps all of the life activities listed in the HHS regulations\ncould be substantially limited.\nThe question with respect to asymptomatic HIV-infected individuals is more\ndifficult because such individuals would not appear at first glance to have dis\xc2\xad\nabling physical effects from their infection that substantially affect the type of\nlife activities listed in the HHS regulations. Their ability, for example, to work,\n9 Moreover, it would also appear that the impairment affects the brain and central nervous system as well Med\xc2\xad\nical evidence indicates that the AIDS virus, apart from any effect it has on the immune system, also attacks the cen\xc2\xad\ntral nervous system and may result in some form of mental deficiency or brain dysfunction in a significant per\xc2\xad\ncentage of persons infected with the virus. \xe2\x80\x9cMental disease (dementia) will occur m some patients who have the\nAIDS virus before they have any other manifestation such as ARC or classic AIDS.\xe2\x80\x9d U.S. Department of Health\nServices, Surgeon General\xe2\x80\x99s Report on Acquired Immune Deficiency Syndrome 32 (1986) (\xe2\x80\x9cSurgeon General\xe2\x80\x99s Re\xc2\xad\nport") See also id. at 12 (\xe2\x80\x9cThe AIDS virus may also attack the nervous system and cause delayed damage to the\nbrain. This damage may take years to develop and the symptoms may show up as memory loss, indifference, loss\nof coordination, partial paralysis, or mental disorder. These symptoms may occur alone, or with other symptoms\nmenuoned earlier.\xe2\x80\x9d).\nIn addition, as discussed below with respect to the effects of HIV infection on major life activities, infection\nwith the virus affects the reproductive system because of the significant danger that the virus will be transmitted to\na baby during pregnancy. Also bearing on whether HIV infection is a physical impairment under the HHS regula\xc2\xad\ntions is the Surgeon General\xe2\x80\x99s statement in his letter that HIV infection in its early stages is comparable to cancer\xe2\x80\x94\na disease that is listed m the HHS regulations as a physical impairment\xe2\x80\x94 in that infected individuals \xe2\x80\x9cmay appear\noutwardly healthy but are in fact seriously ill.\xe2\x80\x9d Koop Letter at 2.\n\n215\n\n\x0cto care for themselves, to perform manual tasks, or to use their senses are usu\xc2\xad\nally not directly affected.\nNevertheless, we believe it is likely that the courts will conclude that asymp\xc2\xad\ntomatic HIV-infected individuals have an impairment that substantially limits\ncertain major life activities. While the Supreme Court explicitly refrained from\nanswering this precise question in Arline, because HIV infection was not before\nit and perhaps in the mistaken understanding that asymptomatic HIV infection\nwas not accompanied by an impairment,10 the logic of the decision cannot fairly\nbe said to lead to a different conclusion. This conclusion, we believe, may be\nbased either on the effect that the knowledge of infection will have on the indi\xc2\xad\nvidual or the effect that knowledge of the infection will have on others. With re\xc2\xad\nspect to the latter basis, the Court observed, \xe2\x80\x9c[i]t would be unfair to allow an em\xc2\xad\nployer to seize upon the distinction between the effects of a disease on others and\nthe effects of a disease on a patient and use that distinction to justify discrimina\xc2\xad\ntory treatment.\xe2\x80\x9d Arline, 480 U.S. at 282.\na. Limitation of Life Activities Traceable to Knowledge of Infection by\nAsymptomatic HIV-Infected Individual\n\nTurning first to the effect knowledge of infection may have on the asympto\xc2\xad\nmatic individual, it can certainly be argued that asymptomatic HIV infection does\nnot directly affect any major life activity listed in the HHS regulations. 45 C.F.R.\n\xc2\xa7 84.3(j)(2)(ii) (1987). However, since the regulatory list was not intended as an\nexhaustive one, we believe at least some courts would find a number of other\nequally important matters to be directly affected. Perhaps the most important such\nactivities are procreation and intimate personal relations.\nBased on the medical knowledge available to us, we believe that it is reason\xc2\xad\nable to conclude that the life activity of procreation\xe2\x80\x94the fulfillment of the de\xc2\xad\nsire to conceive and bear healthy children\xe2\x80\x94is substantially limited for an asymp\xc2\xad\ntomatic HIV-infected individual. In light of the significant risk that the AIDS\nvirus may be transmitted to a baby during pregnancy,11 HIV-infected individu\xc2\xad\nals cannot, whether they are male or female, engage in the act of procreation with\nthe normal expectation of bringing forth a healthy child. Because of the infection\nin their system, they will be unable to fulfill this basic human desire. There is lit\xc2\xad\ntle doubt that procreation is a major life activity and that the physical ability to\nengage in normal procreation\xe2\x80\x94 procreation free from the fear of what the infec\xc2\xad\ntion will do to one\xe2\x80\x99s child\xe2\x80\x94is substantially limited once an individual is infected\nwith the AIDS virus.\nThis limitation\xe2\x80\x94the physical inability to bear healthy children\xe2\x80\x94is separate\nand apart from the fact that asymptomatic HIV-infected individuals will choose\nnot to attempt procreation. The secondary decision to forego having children is\n10 Compare Arline, 480 U S. at 282 n.7 (suggesting that HIV infection is a disease without physical impairment)\nwith Koop Letter at 2 (HIV infection is a physical impairment)\n11 Surgeon General\'s Report at 20-21 (\xe2\x80\x9cApproximately one third of the babies bom to AIDS-infected mothers\nwill also be infected with the AIDS virus.\xe2\x80\x9d).\n\n216\n\n\x0cjust one of many major life decisions that we assume infected individuals will\nmake differently as a result of their awareness of their infection. Similarly, some\ncourts can be expected to find a limitation of a major life activity in the fact that\nan asymptomatic HIV-infected individual\xe2\x80\x99s intimate relations are also likely to\nbe affected by HIV infection. The life activity of engaging in sexual relations is\nthreatened and probably substantially limited by the contagiousness of the virus.12\nFinding limitations of life activities on the basis of the asymptomatic individ\xc2\xad\nual\xe2\x80\x99s responses to the knowledge of infection might be assailed as not fully per\xc2\xad\nsuasive since it depends upon the conscience and good sense of the person in\xc2\xad\nfected. The causal nexus, it would be argued, is not between the physical effect\nof the infection (as specified in the Koop Letter) and life activities, but between\nthe conscience or normative judgment of the particular infected person and life\nactivities. Thus, it might be asserted that there is nothing inherent in the infec\xc2\xad\ntion which actually prevents either procreation or intimate relations.13\nIt is undoubtedly true that some HIV-infected individuals have not or will not\nchange their behavior after learning they are infected, thereby exhibiting disre\xc2\xad\ngard for the health of their offspring or sexual partners. Nonetheless, in any case\nwhere the evidence indicates that the plaintiff HIV-infected individual has in fact\nchanged his or her behavior\xe2\x80\x94as, for example, where the plaintiff represents that\nprocreation has been foregone\xe2\x80\x94the court might well find a limitation of major\nlife activity. Moreover, courts may choose to pass over such factual questions\nsince the Supreme Court has stated an alternative rationale for finding a life ac\xc2\xad\ntivity limitation based on the reaction of others to the infection. We turn to that\nrationale next.\nb.\n\nLimitation of Life Activities Traceable to Reaction of Others to\nAsymptomatic HIV Infection\n\nThe Arline Court relied on the express terms of the statute for the proposition\nthat a handicapped individual includes someone who is regarded by others as\nhaving a limitation of major life activities whether they do or not. 29 U.S.C.\n\xc2\xa7 706(8)(B)(iii). This provision was added by Congress in 1974. The Court cited\nthe legislative history accompanying this textual expansion to show that an im\xc2\xad\npaired person could be protected even if the impairment \xe2\x80\x9cin fact does not sub\xc2\xad\nstantially limit that person\xe2\x80\x99s functioning,\xe2\x80\x9d S. Rep. No. 1297,93d Cong., 2d Sess.\n64 (1974), and observed that such an impairment \xe2\x80\x9ccould nevertheless substan\xc2\xad\ntially limit that person\xe2\x80\x99s ability to work as a result of the negative reactions of\nothers to the impairment.\xe2\x80\x9d 480 U.S. at 283.\nThis construction by the Court of the statutory definition of the term \xe2\x80\x9chandi\xc2\xad\ncapped individual\xe2\x80\x9d has particular significance for the application of section 504\nto asymptomatic HIV-infected individuals. The Court found that in order \xe2\x80\x9c[t]o\ncombat the effects of erroneous but nevertheless prevalent perceptions about the\n12 Id at 14-18.\n13 As indicated in the text, we think this argument is disingenuous at least insofar as infection physically pre\xc2\xad\ncludes the normal procreation of healthy children.\n\n217\n\n\x0chandicapped,\xe2\x80\x9d Congress intended by its 1974 amendment to expand the section\xe2\x80\x99s\nscope to include persons who are regarded as handicapped, but who \xe2\x80\x98\xe2\x80\x9cmay at pre\xc2\xad\nsent have no actual incapacity at all.\xe2\x80\x99\xe2\x80\x9d Id. at 279 (quoting Southeastern Commu\xc2\xad\nnity College v. Davis, 442 U.S. 397,405-06 n.6 (1979)). Stressing this point, the\nCourt repeated later in the opinion that the amended definition covers persons\n\xe2\x80\x9cwho, as a result [of being incorrectly regarded as handicapped], are substantially\nlimited in a major life activity.\xe2\x80\x9d Id. at 284. The effect of this interpretation is that\nthe perceived impairment need not directly result in a limitation of a major life\nactivity, so long as it has the indirect effect, due to the misperceptions of others,\nof limiting a life activity (in Arline, the activity of working).14 Thus, at least one\ndistrict court following Arline has held that if an individual or organization lim\xc2\xad\nits an HIV-infected individual\xe2\x80\x99s participation in a section 504 covered activity\nbecause of fear of contagion, a major life activity of the individual is substan\xc2\xad\ntially limited.15\nC. Application of the \xe2\x80\x9cOtherwise Qualified" Requirement\n\nThe Supreme Court\xe2\x80\x99s opinion in Arline concluded by remanding the case for\nconsideration by the district court of whether the plaintiff was \xe2\x80\x9cotherwise quali\xc2\xad\nfied.\xe2\x80\x9d The Court indicated more generally that section 504 cases involving per\xc2\xad\nsons with contagious diseases should turn on the \xe2\x80\x9cotherwise qualified\xe2\x80\x9d issue, that\nsuch individuals must \xe2\x80\x9chave the opportunity to have their condition evaluated in\nlight of medical evidence and a determination made as to whether they were \xe2\x80\x98oth\xc2\xad\nerwise qualified.\xe2\x80\x99\xe2\x80\x9d 480 U.S. at 285. The Court stressed that before making this\ndetermination the trial court must\n14 The Arline Court appears not to accept the distinction between being perceived as having an impairment that\nitself limits a major life activity (the literal meaning of the statutory language) and having a condition the misper\xc2\xad\nception of which results in limitation of a life activity. This may have been the distinction the Solicitor General was\nattempting to draw by suggesting there was a difference between being perceived as having a handicap that pre\xc2\xad\ncludes work and being perceived as contagious, which does not physically preclude work, except that because of\nthe perception, no work is offered. As recited by the Court, the Solicitor General stated at oral argument \xe2\x80\x9cthat to\nargue that a condition that impaired only the ability to work was a handicapping condition was to make \xe2\x80\x98a totally\ncircular argument which lifts itself by its bootstraps \xe2\x80\x99 The argument is not circular, however, but direct. Congress\nplainly intended the Act to cover persons with a physical or mental impairment (whether actual, past, or perceived)\nthat substantially limited one\xe2\x80\x99s ability to work.\xe2\x80\x9d Id at 283 n.10 (citation omitted). This last statement, of course,\nreturned the Court to the statute\xe2\x80\x99s literal meaning. The only justification for departing from that meaning occurs\nnot in footnote 10 of Arline, but in footnote 9, where the Court relied on legislative history which does indicate that\nat least some members of Congress believed that the perception of a physical disability by others does not have to\ninclude the belief that the perceived condition results in a limitation of major life activities, but simply that the per\xc2\xad\nception of the condition by others in itself has that effect. Id. at 282-83 n.9 (physically repulsive aspects of cere\xc2\xad\nbral palsy, arthritis, and facial deformities).\n15 Doe v Ceniinela Hosp., Civ 87-2514 (C.D. Cal. June 30, 1988) (holding HIV-infected individual to be \xe2\x80\x9cin\xc2\xad\ndividual with handicaps\xe2\x80\x9d because he was perceived as such by the defendant). The district court wrote that a per\xc2\xad\nson is an individual with handicaps if he \xe2\x80\x9chas a physiological disorder or condition affecting a body system that\nsubstantially limits a \xe2\x80\x98function\xe2\x80\x99 only as a result of the attitudes of others toward the disorder or condition.\xe2\x80\x9d Slip op\nat 12 The HHS regulations are in accord with this view 45 C.F R. \xc2\xa7 84.3(j)(2)(iv)(B) (1987). Although as indi\xc2\xad\ncated in the previous footnote we think this aspect of the Supreme Court\xe2\x80\x99s reasoning departs from the literal mean\xc2\xad\ning of the statutory text in favor of legislative history, we do not question that the district court in Centinela Hos\xc2\xad\npital fairly reads Arline to support a finding that the reaction of others to the contagiousness of an HIV-infected\nindividual in itself may constitute a limitation on a major life activity.\n\n218\n\n\x0cconduct an individualized inquiry and make appropriate findings\nof fact. Such an inquiry is essential if \xc2\xa7 504 is to achieve its goal\nof protecting handicapped individuals from deprivations based on\nprejudice, stereotypes, or unfounded fear, while giving appropri\xc2\xad\nate weight to such legitimate concerns of grantees as avoiding ex\xc2\xad\nposing others to significant health and safety risks .... In the con\xc2\xad\ntext of the employment of a person handicapped with a contagious\ndisease ... this inquiry should include \xe2\x80\x9c[findings of] facts, based\non reasonable medical judgments given the state of medical\nknowledge, about (a) the nature of the risk (how the disease is\ntransmitted), (b) the duration of the risk (how long is the carrier\ninfectious), (c) the severity of the risk (what is the potential harm\nto third parties) and (d) the probabilities the disease will be trans\xc2\xad\nmitted and will cause varying degrees of harm.\xe2\x80\x9d Brief for Amer\xc2\xad\nican Medical Association as Amicus Curiae 19. In making these\nfindings, courts normally should defer to the reasonable medical\njudgments of public health officials. The next step in the \xe2\x80\x9cotherwise-qualified\xe2\x80\x9d inquiry is for the court to evaluate, in light of these\nmedical findings, whether the employer could reasonably ac\xc2\xad\ncommodate the employee under the established standards for that\ninquiry.\nId. at 287-88 (footnotes omitted).\n\nIt is important to emphasize that the Court recognized that \xe2\x80\x9c[a] person who\nposes a significant risk of communicating an infectious disease to others in the\nworkplace will not be otherwise qualified for his or her job if reasonable ac\xc2\xad\ncommodation will not eliminate that risk.\xe2\x80\x9d Id. at 288 n.16. The Court has thus\nmade it clear that persons infected with the AIDS virus will not be \xe2\x80\x9cotherwise\nqualified\xe2\x80\x9d to perform jobs that involve a significant risk of transmitting the virus\nto others. In addition, an \xe2\x80\x9cotherwise qualified person is one who is able to meet\nall of a program\xe2\x80\x99s requirements in spite of his handicap.\xe2\x80\x9d Southeastern Commu\xc2\xad\nnity College v. Davis, 442 U.S. 397, 406 (1979).16\nBased on current medical knowledge, it would seem that in most situations the\nprobability that the AIDS virus will be transmitted is slight, and therefore as a\nmatter of health and safety there will often be,little, if any, justification for treat\xc2\xad\ning infected individuals differently from others.17 Similarly, mere HIV infection\ninvolving only \xe2\x80\x9csubclinical manifestations\xe2\x80\x9d will generally also not render an in\xc2\xad\ndividual unqualified to participate in a covered program or activity on the basis\nof inability to perform. As the disease progresses, however, and conditions such\nas ARC or \xe2\x80\x9cfull blown\xe2\x80\x9d AIDS affect the physical or mental capacity of the indi\xc2\xad\n16 In ascertaining whether a person is otherwise qualified, the court considers \xe2\x80\x9cwhether any \xe2\x80\x98reasonable ac\xc2\xad\ncommodation\xe2\x80\x99 by the employer would enable the handicapped person to perform those functions. Accommodation\nis not reasonable if it either imposes \xe2\x80\x98undue financial and administrative burdens\xe2\x80\x99 on a grantee, . . , or requires \xe2\x80\x98a\nfundamental alteration in the nature of [the] program. \xe2\x80\x99\xe2\x80\x9d 480 U.S. at 287 n 17 (citations omitted).\n17 See Surgeon General\xe2\x80\x99s Report at 13 (\xe2\x80\x9cNo Risk from Casual Contact\xe2\x80\x9d).\n\n219\n\n\x0cvidual, it may well be that an \xe2\x80\x9cindividualized inquiry\xe2\x80\x9d will reveal that such per\xc2\xad\nson is not otherwise qualified to participate.\nIn addition, current medical knowledge does suggest the possibility of spe\xc2\xad\ncialized contexts where, even with respect to a person in the early stages of the\ndisease, a court might find an individual to be not otherwise qualified. These\nsituations are very likely to involve individuals who have responsibility for\nhealth or safety, such as health care professionals or air traffic controllers. In\nthese and similar situations where there is a greater possibility that the AIDS\nvirus could be transmitted see generally Surgeon General\xe2\x80\x99s Report, or the con\xc2\xad\nsequences of a dementia attack could be especially dangerous, see supra note\n9, we believe a court could find, within the scope of \xe2\x80\x9cotherwise qualified\xe2\x80\x9d stan\xc2\xad\ndard, a justification for treating HIV-infected individuals differently from un\xc2\xad\ninfected individuals.\nIn brief, whether HIV-infected individuals will be found after the individual\xc2\xad\nized inquiry required by Arline to be otherwise qualified will often depend on\nhow far the disease has progressed. At the early stages of the disease, it is likely\nthat neither health and safety nor performance will provide a justification for ex\xc2\xad\ncluding an HIV-infected person. Moreover, while current medical knowledge\nsuggests that safety should not be a concern in most contexts even as the disease\nprogresses, an individualized assessment of performance may result in those with\nAIDS or ARC being found not otherwise qualified. Finally, courts may find in\ncertain specialized contexts that an HIV-infected individual is not otherwise qual\xc2\xad\nified at any stage of the disease because infection in itself presents an especially\nserious health or safety risk to others because of the nature of the position. The\ninquiry in each case will be a factual one, and because of that, we are unable to\nspeculate further.\nIII. Application of Section 504 in the Employment Context\nA. Introduction and Summary\n\nThe Civil Rights Restoration Act included a provision, the Harkin-Humphrey\namendment,18 which amended the definitions section of the Rehabilitation Act\nto provide, with respect to employment, a specific qualification of the definition\nof an \xe2\x80\x9cindividual with handicaps\xe2\x80\x9d in the context of contagious diseases and in\xc2\xad\nfections:\nFor the purpose of sections 503 and 504, as such sections relate\nto employment, [the term \xe2\x80\x9cindividual with handicaps\xe2\x80\x9d] does not\ninclude an individual who has a currently contagious disease or\ninfection and who, by reason of such disease or infection, would\nconstitute a direct threat to the health or safety of other individu\xc2\xad\n18 Pub. L. No. 100-259, \xc2\xa7 9, 102 Stat. 28, 31\xe2\x80\x9432 (1988). Since this amendment to section 504 was jointly spon\xc2\xad\nsored by Senators Harlan and Humphrey, we will refer to the amendment in this opinion as \xe2\x80\x9cHarkin-Humphrey.\xe2\x80\x9d\n\n220\n\n\x0cals or who, by reason of the currently contagious disease or in\xc2\xad\nfection, is unable to perform the duties of the job.\nAs discussed below, application of the Harkin-Humphrey amendment in the\nemployment context should result in substantially the same conclusions as result\nfrom application in the non-employment context of section 504 as interpreted in\nArline. Specifically, we conclude that Harkin-Humphrey provides that HIV-in\xc2\xad\nfected individuals (regardless of whether or not they are symptomatic) are pro\xc2\xad\ntected against discrimination in the employment context so long as they fall within\nthe general section 504 requirements defining an \xe2\x80\x9cindividual with handicaps\xe2\x80\x9d and\ndo not contravene the specific qualification to the general requirements that the\namendment provides: namely, that they do not \xe2\x80\x9cconstitute a direct threat to the\nhealth or safety of other individuals\xe2\x80\x9d and they can \xe2\x80\x9cperform the duties of the job.\xe2\x80\x9d\nIn our judgment, this qualification merely codifies the \xe2\x80\x9cotherwise qualified\xe2\x80\x9d stan\xc2\xad\ndard discussed by the Court in Arline and discussed above in this memorandum,\nincluding the provision of a means of reasonable accommodation that can elim\xc2\xad\ninate the health or safety threat or enable the employee to perform the duties of\nthe job, if it is provided for under the employer\xe2\x80\x99s existing personnel policies and\ndoes not impose an undue financial or administrative burden.\nBecause Harkin-Humphrey was a floor amendment that was not developed by\na committee, there is no committee report explaining it. The only explanatory\nstatement that accompanied its introduction was a one-sentence statement of pur\xc2\xad\npose\xe2\x80\x94\xe2\x80\x99\xe2\x80\x99Purpose: To provide a clarification for otherwise qualified individuals\nwith handicaps in the employment context\xe2\x80\x9d, 134 Cong. Rec. 383 (1988)\xe2\x80\x94and a\nbrief colloquy between the two sponsors. Id. at 383-84.\nThe sponsors\xe2\x80\x99 colloquy made three basic points. First, the amendment was de\xc2\xad\nsigned to do in the contagious disease and infection context what the compara\xc2\xad\nbly phrased 1978 amendment to section 504 did in the context of alcohol and\ndrug abuse19\xe2\x80\x94\xe2\x80\x9cassure employers that they are not required to retain or hire in\xc2\xad\ndividuals with a contagious disease or infection when such individuals pose a di\xc2\xad\nrect threat to the health or safety of other individuals, or cannot perform the es\xc2\xad\nsential duties of a job. \xe2\x80\x9d Id. at 384. Second, the amendment \xe2\x80\x9cdoes nothing to change\nthe current laws regarding reasonable accommodation as it applies to individu\xc2\xad\nals with handicaps.\xe2\x80\x9d Id. Finally, \xe2\x80\x9cas we stated in 1978 with respect to alcohol and\ndrug abusers,... the two-step process in section 504 applies in the situation un\xc2\xad\nder which it was first determined that a person was handicapped and then it is de\xc2\xad\ntermined that a person is otherwise qualified.\xe2\x80\x9d/^. With that description of HarkinHumphrey\xe2\x80\x99s principal legislative history as background, we now discuss the\namendment\xe2\x80\x99s impact on two aspects of the application of section 504 to HIV in\xc2\xad\nfection cases in the employment context: (1) whether section 504 applies to both\n19 \xe2\x80\x9cFor purposes of sections 503 and 504 as such sections relate to employment, [the term \xe2\x80\x9chandicapped indi\xc2\xad\nvidual\xe2\x80\x9d] does not include any individual who is an alcoholic or drug abuser whose current use of alcohol or drugs\nprevents such individual from performing the duties of the job in question or whose employment, by reason of such\ncurrent alcohol or drug abuse, would constitute a direct threat to property or the safety of others.\xe2\x80\x9d Pub. L. No.\n95-602, \xc2\xa7 122(a), 92 Stat. 2955, 2985 (1978) (codified at 29 U.S.C. \xc2\xa7 706(8)(B)).\n\n221\n\n\x0casymptomatic and symptomatic HIV-infected individuals; and (2) the manner in\nwhich the section\xe2\x80\x99s \xe2\x80\x9cotherwise qualified\xe2\x80\x9d requirement is to be applied, including\nwhether employers must provide \xe2\x80\x9creasonable accommodation\xe2\x80\x9d to infected indi\xc2\xad\nviduals.\nB. Coverage of All HIV-Infected Individuals (Subject to the Stated Limitations)\n\nWe have no difficulty concluding that the Harkin-Humphrey amendment, and\nthus section 504 in the employment context, includes within its coverage both\nasymptomatic and symptomatic HIV-infected individuals. The amendment\xe2\x80\x99s lan\xc2\xad\nguage draws no distinction between asymptomatic and symptomatic individuals\nand, notably, applies to a \xe2\x80\x9ccontagious disease or infection.\xe2\x80\x9d It therefore applies\nto all HIV-infected individuals, whether or not they are symptomatic. It is true\nthat the amendment is phrased in the negative in that it says who is not handi\xc2\xad\ncapped, rather than defining who is handicapped. Nevertheless, we believe the\nnatural implication of this statutory exclusion is that persons who do not fall\nwithin the specified grounds for exclusion are covered by section 504 to the ex\xc2\xad\ntent that they meet the general requirements of that section. Accordingly, in light\nof our previous discussion of the application of the general provisions of section\n504 to HIV-infected persons, we conclude that all HIV-infected individuals who\nare not a direct threat to the health or safety of others and are able to perform the\nduties of their job are covered by section 504.\nHarkin-Humphrey\xe2\x80\x99s legislative history reinforces this reading of the amend\xc2\xad\nment.20 There was no disagreement expressed concerning the amendment\xe2\x80\x99s ap\xc2\xad\nplicability to asymptomatic HIV-infected individuals, and a number of legisla\xc2\xad\ntors expressly stated that such persons were covered. Senator Harkin described\nthe purpose of the amendment in a letter, dated February 26, 1988, to Represen\xc2\xad\ntatives Hawkins and Edwards. Senator Harkin explained:\nThe objective of the amendment is to expressly state in the statute\nthe current standards of section 504 so as to reassure employers\nthat they are not required to hire or retain individuals with conta\xc2\xad\ngious diseases or infections who pose a direct threat to the health\nor safety of others or who cannot perform the duties of a job.\nThe basic manner in which an individual with a contagious dis\xc2\xad\nease or infection can present a direct threat to the health or safety\nof others is when the individual poses a significant risk of trans\xc2\xad\nmitting the contagious disease or infection to other individuals.\n20 Moreover, the model for the Harkin-Humphrey amendment\xe2\x80\x94the 1978 amendment to section 504 concern\xc2\xad\ning drug addicts and alcoholics\xe2\x80\x94 was intended to include within section 504 those covered persons not possessing\nthe deficiencies identified in the statute. See generally 124 Cong Rec. 30,322-25 (1978) (statements of Senators\nCannon, Williams, and Hathaway).\n\n222\n\n\x0cThe Supreme Court in Arline explicitly recognized this necessary\nlimitation in the protections of section 504. The amendment is\nconsistent with this standard.\n134 Cong. Rec. 4781 (1988).2\'\nDuring the subsequent debate in the House of Representatives, the Represen\xc2\xad\ntatives who commented on the amendment indicated their understanding that per\xc2\xad\nsons with contagious diseases or infections were covered. For example, referring\nto the dissenting opinion in Arline, see 480 U.S. at 289-93, Representative Weiss\nobserved:\n[Chief] Justice Rehnquist stated that Congress should have stated\nexplicitly that individuals with contagious diseases were intended\nto be covered under section 504. Congress has done so now with\nthis amendment, stating clearly that individuals with contagious\ndiseases or infections are protected under the statute as long as\nthey meet the \xe2\x80\x9cotherwise qualified\xe2\x80\x9d standard. This clarity is par\xc2\xad\nticularly important with regard to infections because individuals\nwho are suffering from a contagious infection\xe2\x80\x94such as carriers\nof the AIDS virus or carriers of the hepatitis B virus\xe2\x80\x94can also be\ndiscriminated against on the basis of their infection and are also\nindividuals with handicaps under the statute.\n134 Cong. Rec. 2937 (1988). Representative Coelho stated that the amendment\nprovides that individuals with contagious diseases or infections\nare protected under the statute unless they pose a direct threat to\nthe health or safety of others or cannot perform the duties of the\njob.\nPeople with contagious diseases and infections, such as people\nwith AIDS or people infected with the AIDS virus, can be subject\nto intense and irrational discrimination. I am pleased that this\namendment makes clear that such individuals are covered under\nthe protections of the Rehabilitation Act.\nId. at 2924. Representative Owens commented:\nI am glad to see that [the amendment] refers to individuals with\ncontagious infections, thus clarifying that such infections can con\xc2\xad\nstitute a handicapping condition under the Act.\n21 See also 134 Cong. Rec. 2860 (1988) (\xe2\x80\x9cThe purpose of the amendment was to clarify for employers the ap\xc2\xad\nplicability of section 504 of the Rehabilitation Act of 1973 to persons who have a currently contagious disease or\ninfection.\xe2\x80\x9d) (statement of Sen. Harkin).\n\n223\n\n\x0cId. at 2937. The record is replete with similar comments.22\n\nIn summary, we believe that under the Harkin-Humphrey amendment, section\n504 applies in the employment context to all HIV-infected individuals, which\nnecessarily includes both asymptomatic and symptomatic HIV-infected individ\xc2\xad\nuals. This parallels our conclusions with respect to HIV-infected individuals, both\nsymptomatic and asymptomatic, outside the employment context. The difference\nbetween the employment and non-employment contexts because of the HarkinHumphrey amendment is thus more apparent than real. Specifically, it is our view\nthat the Harkin-Humphrey amendment merely collapses the \xe2\x80\x9cotherwise quali\xc2\xad\nfied\xe2\x80\x9d inquiry applicable outside the employment context into the definition of\n\xe2\x80\x9cindividual with handicaps\xe2\x80\x9d in the employment text. Thus, whether outside the\nemployment context a particular infected person is deemed to be handicapped but\nultimately receives no protection under the statute because that person poses a\ndanger to others and is thereby not \xe2\x80\x9cotherwise qualified\xe2\x80\x9d or whether that same\nperson is not deemed to be handicapped under the Harkin-Humphrey amendment\nin the employment context for the same reason is of only semantic significance.\nIn either case, if the infection is a direct threat to the health or safety of others or\nrenders the individual unable to perform the duties of the job, the grantee or em\xc2\xad\nployer is not required to include that person in the covered program or activity\nor retain or hire him in a job. Indeed, the legislative history suggests that the prin\xc2\xad\ncipal purpose of the Harkin-Humphrey amendment was the codification of the\n\xe2\x80\x9cotherwise qualified\xe2\x80\x9d limitation as discussed in Arline.22\nC. Is There a \xe2\x80\x9cReasonable Accommodation" Requirement Under HarkinHumphrey?\n\nThe Department of Health and Human Services (\xe2\x80\x9cHHS\xe2\x80\x9d) regulations imple\xc2\xad\nmenting section 504, first issued in 1977, reflect HHS\xe2\x80\x99 determination that a \xe2\x80\x9crea\xc2\xad\nsonable accommodation\xe2\x80\x9d requirement is implicit in the \xe2\x80\x9cotherwise qualified\xe2\x80\x9d el\xc2\xad\nement of section 504. 42 Fed. Reg. 22,676, 22,678 (1977). Then, as now, the\nregulations provided the following statement of the \xe2\x80\x9cotherwise qualified\xe2\x80\x9d re\xc2\xad\nquirement: \xe2\x80\x98\xe2\x80\x9cQualified handicapped person\xe2\x80\x99 means . . . [w]ith respect to em\xc2\xad\nployment, a handicapped person who, with reasonable accommodation , can per\xc2\xad\n22 See, eg., 134 Cong. Rec. 2948 (1988) (statement of Rep. Edwards) (\xe2\x80\x9cI commend the Members of the Senate\nfor fashioning this amendment in such a way that the courts will continue to adjudicate cases involving AIDS, HIV\ninfection and other communicable conditions on a case by case basis \xe2\x80\x9d); id at 3044 (statement of Rep. Hoyer) (re\xc2\xad\nferring to \xe2\x80\x9cpeople with AIDS and people infected with the AIDS virus\xe2\x80\x9d as equally subject to the amendment); id.\nat 2943 (statement of Rep Dannemeyer) (opposing amendment because it covers \xe2\x80\x9casymptomatic earners\xe2\x80\x9d).\n23 \xe2\x80\x9cPurpose. To provide a clanficauon for otherwise qualified individuals with handicaps in the employment\ncontext.\xe2\x80\x9d 134 Cong. Rec. 383 (1988). See also the sponsors\xe2\x80\x99 colloquy, discussed supra in the text, as well as the\ncomments of individual members E g , id at 2947 (statement of Rep Edwards) (\xe2\x80\x9cThis amendment. . . codif[ies]\nthe \xe2\x80\x98otherwise qualified\' framework for courts to utilize in these cases.\xe2\x80\x9d); id. at 2937 (statement of Rep. Weiss) (\xe2\x80\x9cIn\nsuch circumstances [significant nsk of communicating a contagious disease], the individual is not \xe2\x80\x98otherwise qual\xc2\xad\nified\xe2\x80\x99 to remain in that particular position. The Supreme Court in Arline explicitly recognized this necessary limi\xc2\xad\ntation in the protections of section 504. The Senate amendment places that standard in statutory language .. .\xe2\x80\x9d),\nid. at 3043 (statement of Rep. Hoyer) (\xe2\x80\x9c[T]his amendment essentially codifies the existing standard of otherwise\nqualified in section 504, as explicated by the Supreme Court in Arline \xe2\x80\x9d).\n\n224\n\n\x0cform the essential functions of the job in question.\xe2\x80\x9d24 In Arline, the Supreme\nCourt endorsed the \xe2\x80\x9creasonable accommodation\xe2\x80\x9d requirement of the regulations,\nexplaining that when a handicapped person is not able to perform the essential\nfunctions of the job, and is therefore not \xe2\x80\x9cotherwise qualified,\xe2\x80\x9d \xe2\x80\x9cthe court must\nalso consider whether any \xe2\x80\x98reasonable accommodation\xe2\x80\x99 by the employer would\nenable the handicapped person to perform those functions.\xe2\x80\x9d25\nAs noted above, the Harkin-Humphrey amendment includes within it the \xe2\x80\x9coth\xc2\xad\nerwise qualified\xe2\x80\x9d standard. We must determine whether a \xe2\x80\x9creasonable accom\xc2\xad\nmodation\xe2\x80\x9d requirement is implicit in Harkin-Humphrey\xe2\x80\x99s special section 504 for\xc2\xad\nmulation, just as HHS and the Supreme Court found such a requirement to be\nimplicit in section 504 prior to this amendment. More specifically, was HarkinHumphrey intended to require reasonable accommodation of a contagious indi\xc2\xad\nvidual who, absent such accommodation, poses a \xe2\x80\x9cdirect threat to the health or\nsafety of other individuals or ... is unable to perform the duties of the job?\xe2\x80\x9d The\namendment\xe2\x80\x99s legislative history convinces us that Congress intended that con\xc2\xad\nsideration of \xe2\x80\x9creasonable accommodation\xe2\x80\x9d should be factored into an employer\xe2\x80\x99s\ndetermination of whether an infected employee poses a direct threat or can per\xc2\xad\nform the job.\nThe legislative history of the Harkin-Humphrey amendment indicates that\nCongress was quite aware that administrative and judicial interpretation had\nadded the \xe2\x80\x9creasonable accommodation\xe2\x80\x9d gloss to section 504, and Congress un\xc2\xad\nderstood and intended that such a gloss would be put on Harkin-Humphrey. The\nfirst evidence of this is found in the colloquy between Senators Harkin and\nHumphrey upon the introduction of the amendment. The colloquy stressed that\nthe amendment \xe2\x80\x9cdoes nothing to change the current laws regarding reasonable\naccommodation as it applies to individuals with handicaps.\xe2\x80\x9d 134 Cong. Rec. 384\n(1988). More expansively, Senator Harkin subsequently stated:\n[T]he amendment does nothing to change the requirements in the\nregulations regarding providing reasonable accommodations for\npersons with handicaps, as such provisions apply to persons with\ncontagious diseases and infections. Thus, if a reasonable accom\xc2\xad\nmodation would eliminate the existence of a direct threat to the\nhealth or safety of others or eliminate the inability of an individ\xc2\xad\nual with a contagious disease or infection to perform the essential\nduties of a job, the individual is qualified to remain in his or her\nposition.\n24 45 C.F.R. \xc2\xa7 84.3(k)(l) (1987) (emphasis added). See also 45 C.F.R. \xc2\xa7 84.12 (1987) (setting forth the \xe2\x80\x9crea\xc2\xad\nsonable accommodation\xe2\x80\x9d requirements).\n25 Arline, 480 U.S. at 287 n. 17 The Court suggested that two factors, originally employed by the Court in Davis,\nshould be used to ascertain the reasonableness of an employer\xe2\x80\x99s refusal to accommodate a handicapped individual:\n\xe2\x80\x9cAccommodation is not reasonable if it either imposes \xe2\x80\x98undue financial and administrative burdens\xe2\x80\x99 on a grantee,\nSoutheastern Community College v. Davis, 442 U.S. at 412, or requires a \xe2\x80\x98fundamental alteration in the nature of\n[the] program\xe2\x80\x99 id. at 410. See 45 C.F.R. \xc2\xa7 84.12(c) (1985) (listing factors to consider in determining whether ac\xc2\xad\ncommodation would cause undue hardship).. \xe2\x80\x9d Id\n\n225\n\n\x0cId. at 2861-62.\n\nSenator Harkin\xe2\x80\x99s statement cannot be given dispositive weight because it was\nnot joined by his co-sponsor, Senator Humphrey, and it was not made before the\nSenate voted on the amendment. However, Senator Humphrey never directly\nchallenged this statement, or said that reasonable accommodation was not in\xc2\xad\ntended, and unchallenged statements to the same effect were made by members\nof the House speaking in favor of and against the amendment prior to the House\nvote on the amendment and by members of the Senate speaking in favor of and\nagainst the amendment prior to the vote to override the President\xe2\x80\x99s veto of the\nCivil Rights Restoration Act.\nPrior to the House vote, for example, Representative Weiss remarked:\nAs the Senate amendment now restates in statutory terms, [indi\xc2\xad\nviduals with contagious diseases or infections] are also not other\xc2\xad\nwise qualified if, without reasonable accommodation, they would\npose a direct threat to the health or safety of others or could not\nperform the essential functions of a job.\n\nId. at 2937. Representative Waxman said the same thing:\n\n[T]he Court went on to say [in Arline] that if [persons with con\xc2\xad\ntagious diseases] pose a significant risk of transmitting their dis\xc2\xad\neases in the workplace, and if that risk cannot be eliminated by\nreasonable accommodation, then they cannot be considered to be\n\xe2\x80\x9cotherwise qualified\xe2\x80\x9d for the job. The amendment added by the\nSenate to this bill places that standard in law.\nId. at 2939 (emphasis added). Many other Representatives supporting the amend\xc2\xad\n\nment agreed.26 Opposing the amendment, Representative Dannemeyer stated that\n\xe2\x80\x9c[i]f this bill is passed as presently written, employers will be required to ac\xc2\xad\ncommodate victims of this fatal disease despite potential health threats to other\nemployees.\xe2\x80\x9d Id. at 2943.\nPrior to the Senate vote to override the President\xe2\x80\x99s veto of the Civil Rights\nRestoration Act, Senator Harkin reiterated his intent and understanding that rea\xc2\xad\nsonable accommodation was required:\n\n26 E.g., 134 Cong. Rec 3280 (1988) (statement of Rep. Miller) (\xe2\x80\x9c[T]he new language added by the Senate\nchanges nothing with respect to current law and is not intended to displace the . . . reasonable accommodations re\xc2\xad\nquirement under section 504.\xe2\x80\x9d); id at 2947 (statement of Rep Edwards) (\xe2\x80\x9cThe colloquy in the Senate between the\ntwo cosponsors of the amendment clarifies that it is the intent of Congress that the amendment result in no change\nin the substantive law with regard to assessing whether persons with this kind of handicapping condition are \xe2\x80\x98oth\xc2\xad\nerwise qualified\' for the job in question or whether employers must provide \xe2\x80\x98reasonable accommodations\xe2\x80\x99 for such\nindividuals.\xe2\x80\x9d), id. at 2924 (statement of Rep. Coehlo) (\xe2\x80\x9c[individuals with contagious diseases and infections are\nnot otherwise qualified\xe2\x80\x94 and thus are not protected m a particular position\xe2\x80\x94 if, without reasonable accommoda\xc2\xad\ntion, they would pose a direct threat to the health or safety of others or cannot perform the duties of the job.\xe2\x80\x9d), id\nat 3043\xe2\x80\x9444 (statement of Rep. Hoyer) (not \xe2\x80\x9cotherwise qualified\xe2\x80\x9d if risk of communicating contagious disease \xe2\x80\x9ccan\xc2\xad\nnot be eliminated by reasonable accommodation\xe2\x80\x9d); id at 3935 (statement of Rep. Jeffords) (same); id at 2937 (state\xc2\xad\nment of Rep. Owens) (same).\n\n226\n\n\x0cI say to this body this bill does not I repeat does not require an\nemployer to hire or retain in employment all persons with conta\xc2\xad\ngious diseases. An employer is free to refuse to hire or fire any\nemployee who poses a direct threat to the health or safety of oth\xc2\xad\ners who cannot perform the essential functions of the job if no rea\xc2\xad\n\nsonable accommodation can remove the threat to the safety of oth\xc2\xad\ners or enable the person to perform the essential functions of the\njob. This determination must be made on an individualized basis\n\nand be based on facts and sound medical judgment.\nId. at 4272 (emphasis added). Moreover, in arguing that the President\xe2\x80\x99s veto\nshould be sustained, a number of Senators stated their understanding that HarkinHumphrey would require reasonable accommodation. Senator Hatch included in\nhis list of objectionable features of the Civil Rights Restoration Act \xe2\x80\x9cthe re\xc2\xad\nquirement to attempt to accommodate persons with infectious diseases, such as\ntuberculosis and AIDS.\xe2\x80\x9d Id. at 4239. Senator Symms made the same point, ar\xc2\xad\nguing that \xe2\x80\x9c[t]he equality-of-result rather than equality-of-opportunity standards\n[in the Civil Rights Restoration Act] can lead to . . . the need to attempt to ac\xc2\xad\ncommodate infectious persons.\xe2\x80\x9d Id. at 4246.\nMoreover, in addition to this direct evidence of congressional intent concern\xc2\xad\ning the Harkin-Humphrey amendment, we also find illuminating the evidence\nthat the 1978 drug and alcohol abuse amendment, on which Harkin-Humphrey\nis modeled,27 was intended to require reasonable accommodation. During the\nSenate debate on Harkin-Humphrey, Senator Cranston observed that the drug and\nalcohol abuse amendment\ndid not result in any basic change in the process under section 504\nby which it is determined whether the individual claiming un\xc2\xad\nlawful discrimination is handicapped and whether that individual\nis \xe2\x80\x9cotherwise qualified,\xe2\x80\x9d taking into account\xe2\x80\x94as in the case of all\nother handicapped persons\xe2\x80\x94any reasonable accommodations\nthat should be made to enable him or her to perform the job sat\xc2\xad\nisfactorily.\n\nId. at 1174 (emphasis added).\n\nThe legislative history of the drug and alcohol abuse amendment supports Sen\xc2\xad\nator Cranston\xe2\x80\x99s assertion that \xe2\x80\x9creasonable accommodation\xe2\x80\x9d was required under\nthat amendment. That legislative history is clear that the amendment was de\xc2\xad\nsigned to codify the existing \xe2\x80\x9cotherwise qualified\xe2\x80\x9d standard, as interpreted by the\nAttorney General and the Secretary of HEW, which included the \xe2\x80\x9creasonable ac\xc2\xad\ncommodation\xe2\x80\x9d requirement.28 In explaining the amendment, one of its sponsors\nspecifically cited the \xe2\x80\x9creasonable accommodation\xe2\x80\x9d requirement:\n27 See sponsors\' colloquy, 134 Cong. Rec. 383-84 (1988).\n28 43 Op. Att\xe2\x80\x99y Gen. No 12, at 2 (1977) (section 504 does not \xe2\x80\x9crequire unrealistic accommodations\xe2\x80\x9d for drug\naddicts or alcoholics); 42 Fed. Reg. 22,676, 22,678 (1977) (promulgating \xe2\x80\x9cotherwise qualified\xe2\x80\x9d definition, which\nis identical to current definition and thus includes reasonable accommodation).\n\n227\n\n\x0cRegulations implementing sections 503 and 504 already address\n[the concerns of employers and others seeking the amendment].\nThey make clear that the protections of sections 503 and 504 only\napply to otherwise qualified individuals. That means ... that dis\xc2\xad\ntinction on the basis of qualification is perfectly justifiable. Reg\xc2\xad\nulations implementing section 503 define \xe2\x80\x9cqualified handicapped\nindividual\xe2\x80\x9d as a handicapped person who is capable of perform\xc2\xad\ning a particular job with reasonable accommodation to his or her\n\nhandicap.29\n\nOur final reason for believing that Congress intended the Harkin-Humphrey\namendment to preserve the \xe2\x80\x9creasonable accommodation\xe2\x80\x9d requirement of exist\xc2\xad\ning law is that a contrary conclusion would entail overruling a specific holding\nof Arline. After holding that the plaintiff in Arline was a \xe2\x80\x9chandicapped individ\xc2\xad\nual,\xe2\x80\x9d the Supreme Court remanded the case to the district court for the \xe2\x80\x9cother\xc2\xad\nwise qualified\xe2\x80\x9d determination, which the Court said should include \xe2\x80\x9cevaluat[ing],\nin light of [a series of medical findings], whether the employer could reasonably\naccommodate the employee under the established standards for that inquiry.\xe2\x80\x9d 480\nU.S. at 288.\nAny reading of the Harkin-Humphrey amendment that precluded reasonable ac\xc2\xad\ncommodation would be inconsistent with that Arline holding. Applying HarkinHumphrey without reasonable accommodation to an individual like the plaintiff\nin Arline would probably result in a finding that the individual is a direct threat to\nthe health and safety of her students without any meaningful consideration of nonburdensome ways to alleviate the danger. Thus, under that reading, an individual\n29 124 Cong. Rec. 30,324 (1978) (statement of Sen Hathaway) (emphasis added). The sponsors of the amend\xc2\xad\nment believed thal it \xe2\x80\x9csimply [made] explicit what prior interpretations] of the act\xe2\x80\x94including those of the Attor\xc2\xad\nney General and the Secretary of Health, Education, and Welfare\xe2\x80\x94 have found.\xe2\x80\x9d Id at 37,510 (statement of Sen.\nWilliams). They did not believe that a change in law was necessary, but they were willing to provide a clarifica\xc2\xad\ntion in order to \xe2\x80\x9creassure employers that it is not the intent of Congress to require any employer to hire a person\nwho is not qualified for the position or who cannot perform competently in his or her job.\xe2\x80\x9d Id. at 30,323. The amend\xc2\xad\nment used an \xe2\x80\x9cotherwise qualified\xe2\x80\x9d fonnulation to clarify how existmg law applied to drug and alcohol abusers. As\nexplained by Senator Williams, \xe2\x80\x9cwhile the legislative history of the 1973 act, as authoritatively interpreted by the\nAttorney General, made clear that qualified individuals with condiuons or histories of alcoholism or drug addic\xc2\xad\ntion were protected from discrimination by covered employers, this amendment codifies that intent.\xe2\x80\x9d Id. at 37,509.\nSenator Williams\xe2\x80\x99 reference to the Attorney General was to an opinion Attorney General Bell provided to HEW\nSecretary Califano a month before HEW\xe2\x80\x99s promulgation (on May 4, 1977) of its regulations implementing section\n504.43 Op. Att\xe2\x80\x99yGen. No. 12(Apr. 12,1977). While concluding that drug and alcohol abusers were \xe2\x80\x9chandicapped\nindividuals\xe2\x80\x9d subject to the same protections under section 504 as were all other handicapped individuals, the At\xc2\xad\ntorney General stressed the applicability of the \xe2\x80\x9cotherwise qualified\xe2\x80\x9d requirement:\n[OJur conclusion that alcoholics and drug addicts are \xe2\x80\x9chandicapped individuals\xe2\x80\x9d for purposes of sec\xc2\xad\ntion 504 does not mean that such a person must be hired or permitted to participate in a federally as\xc2\xad\nsisted program if the manifestations of his condition prevent him from effectively performing the job\nin question or from participating adequately in the program. A person\xe2\x80\x99s behavioral manifestations of\na disability may also be such that his employment or participation would be unduly disruptive to oth\xc2\xad\ners, and section 504 presumably would not require unrealistic accommodations in such a situation.\nId at 2 (emphasis added). As Senator Williams noted (124 Cong. Rec. 30,324 (1978)), Secretary Califano\xe2\x80\x99s state\xc2\xad\nment accompanying issuance of the regulations agreed with the Attorney General\xe2\x80\x99s interpretation and his empha\xc2\xad\nsis on the \xe2\x80\x9cotherwise qualified\xe2\x80\x9d requirement. 42 Fed. Reg 22,676, 22,686 (1977). The regulations issued by Sec\xc2\xad\nretary Califano included the \xe2\x80\x9cotherwise qualified\xe2\x80\x9d regulation requiring reasonable accommodation. Id. at 22,678.\n\n228\n\n\x0cwith tuberculosis (or an HIV-infected individual) would receive less individual\xc2\xad\nized scrutiny under the amendment than under Arline. However, it is clear that Con\xc2\xad\ngress did not intend to overrule Arline. Indeed, supporters of Harkin-Humphrey\nrepeatedly and unequivocally spoke of codifying Arline and acting consistently\nwith Arline, including specifically Arline\'%approach to \xe2\x80\x9cotherwise qualified\xe2\x80\x9d and\n\xe2\x80\x9creasonable accommodation.\xe2\x80\x9d30 Only a single statement by Senator Humphrey is\narguably somewhat to the contrary, and even this remark does not undermine our\nconclusion, or the overwhelming evidence of legislative intent on which it is\nbased.31Senator Humphrey merely stated that the amendment must result in some\nchange or it would have been \xe2\x80\x9cpointless.\xe2\x80\x9d However, codifying a Supreme Court\nholding in a manner designed to reassure those infected with a contagious disease\nof the law\xe2\x80\x99s protection and employers of the law\xe2\x80\x99s limits has a point.\nFor the foregoing reasons, we conclude that implicit in Harkin-Humphrey\xe2\x80\x99s\nstatement of the \xe2\x80\x9cotherwise qualified\xe2\x80\x9d standard for the contagious disease context\nis a \xe2\x80\x9creasonable accommodation\xe2\x80\x9d requirement.32 Accordingly, before determin\xc2\xad\ning that an HIV-infected employee is not an \xe2\x80\x9cindividual with handicaps,\xe2\x80\x9d an em\xc2\xad\nployer must first consider whether, consistent with the employer\xe2\x80\x99s existing per\xc2\xad\nsonnel policies for the job in question, a reasonable accommodation would\neliminate the health or safety threat or enable the employee to perform the duties\nof the job.\nArline\'s discussion of the HHS regulations\xe2\x80\x99 \xe2\x80\x9creasonable accommodation\xe2\x80\x9d re\xc2\xad\nquirement presents a useful point of reference for considering what \xe2\x80\x9creasonable\naccommodation\xe2\x80\x9d should be provided for HIV-infected individuals in the em\xc2\xad\nployment context. As noted by the Court, the HHS regulations provide that\n\xe2\x80\x9c[e]mployers have an affirmative obligation to make a reasonable accommoda\xc2\xad\ntion for a handicapped employee. Although they are not required to find another\njob for an employee who is not qualified for the job he or she was doing, they\ncannot deny an employee alternative employment opportunities reasonably avail\xc2\xad\nable under the employer\xe2\x80\x99s existing policies.\xe2\x80\x9d 480 U.S. at 288 n.19. However,\n\xe2\x80\x9cwhere reasonable accommodation does not overcome the effects of a person\xe2\x80\x99s\nhandicap, or where reasonable accommodation causes undue hardship to the em\xc2\xad\nployer, failure to hire or promote the handicapped person will not be considered\ndiscrimination.\xe2\x80\x9d 45 C.F.R., pt. 84, app. A, p. 350 (1987).\nWhile reasonable accommodation is part of the individualized factual inquiry\nand therefore difficult to discuss in the abstract, it clearly does not require al\xc2\xad\n30 E g.%134 Cong. Rec. 4272 (1988) (statement of Sen. Harkin), id at 2860 (statement of Sen. Harkin, concurred\nin by Sen Kennedy and Sen Weicker), id at 1174 (statement of Sen Cranston), id at 2924 (statement of Rep.\nCoelho), id at 2931 (statement of Rep. Hawkins); id. at 3935 (statement of Rep Jeffords), id at 2937 (statement\nof Rep. Owens), id at 2939 (statement of Rep. Waxman); id at 2947 (statement of Rep. Edwards).\n31 134 Cong Rec. 1794 (1988) (statement of Sen. Humphrey) (\xe2\x80\x9cIf the Humphrey-Harkin amendment had not\nresulted in some substantive change in the law, it would have been a pointless exercise. ... [The amendment was\nnot] intended merely to codify the status quo in this area The language of these measures is quite clear, and post\nfacto interpretations should not be construed to alter their actual intent or effect \xe2\x80\x9d)\xe2\x80\xa2\n32 The American Law Division of the Library of Congress\xe2\x80\x99 Congressional Research Service has reached the\nsame conclusion. CRS Report for Congress, Legal Implications of the Contagious Disease or Infections Amend\xc2\xad\nment to the Civil Rights Restoration Act, S 557 at 18-23 (March 14, 1988).\n\n229\n\n\x0clowing an HIV-infected individual to continue in a position where the infection\nposes a threat to others. This would appear to be the case with infected health\ncare workers who are involved in invasive surgical procedures, and it may also\nbe the case with respect to other infected health care workers or individuals em\xc2\xad\nployed in jobs that entail responsibility for the safety of others. Limited accom\xc2\xad\nmodations might be required if alternative employment is reasonably available\nunder the employer\xe2\x80\x99s existing policies. For example, a surgeon in a teaching hos\xc2\xad\npital might be restricted to teaching or other medical duties that do not involve\nparticipation in invasive surgical procedures, or a policeman might be reassigned\nto duties that do not involve a significant risk of a physical injury that would in\xc2\xad\nvolve bloodshed. In contrast, given the evolving and uncertain state of knowl\xc2\xad\nedge concerning the effects of the AIDS virus on the central nervous system, it\nmay not be possible, at least if the disease has sufficiently progressed, to make\nreasonable accommodation for positions, such as bus driver, airline pilot, or air\ntraffic controller, that may allow very little flexibility in possible job assignment\nand where the risk of injury is great if the employer guesses wrongly and the in\xc2\xad\nfected person is not able to perform the duties of the job.\n\nConclusion\nWe have concluded, with respect to the non-employment context, that section\n504 protects symptomatic and asymptomatic HIV-infected individuals against\ndiscrimination in any covered program or activity on the basis of any actual, past\nor perceived effect of HIV infection that substantially limits any major life ac\xc2\xad\ntivity\xe2\x80\x94so long as the HIV-infected individual is \xe2\x80\x9cotherwise qualified\xe2\x80\x9d to partic\xc2\xad\nipate in the program or activity, as determined under the \xe2\x80\x9cotherwise qualified\xe2\x80\x9d\nstandard set forth in Arline. We have further concluded that section 504 applies\nin substance in the same way in the employment context, since the statutory qual\xc2\xad\nification set forth in the Civil Rights Restoration Act merely incorporates the Ar\xc2\xad\nline \xe2\x80\x9cotherwise qualified\xe2\x80\x9d standard for those individuals who are handicapped\nunder the general provisions of section 504 by reason of a currently contagious\ndisease or infection. The result is the same: subject to an employer making rea\xc2\xad\nsonable accommodation within the terms of his existing personnel policies, the\nsymptomatic or asymptomatic HIV-infected individual is protected against dis\xc2\xad\ncrimination if he or she is able to perform the duties of the job and does not con\xc2\xad\nstitute a direct threat to the health or safety of others.\nD o u g l a s W . K m ie c\n\nActing Assistant Attorney General\nOffice of Legal Counsel\n\nAttachment\n\n230\n\n\x0cJuly 29, 1988\nDouglas Kmiec, Esq.\nActing Assistant Attorney General\nOffice of Legal Counsel\nDepartment of Justice\nWashington, D.C.\nDear Mr. Kmiec:\nI was pleased to be able to convey to you, at our meeting of July 20,1988, our\nmedical and public health concerns regarding discrimination and the current HIV\nepidemic. These concerns will be greatly affected by the extent to which HIV in\xc2\xad\nfected individuals understand themselves to be protected from discrimination on\naccount of their infection.\nProtection of persons with HIV infection from discrimination is an extremely\ncritical public health necessity because of our limited tools in the fight against\nAIDS. At this time, we have no vaccine to protect against HIV infection and only\none treatment which appears to extend the lives of some persons with AIDS but\ndoes not cure the disease. Consequently, the primary public health strategy is pre\xc2\xad\nvention of HIV transmission.\nThis strategy requires extensive counseling and testing for HIV infection. If\ncounseling and testing are to work most effectively, individuals must have con\xc2\xad\nfidence that they will be protected fully from HIV related discrimination.\nDuring our meeting you and members of your staff raised a number of per\xc2\xad\nceptive questions concerning the nature of HIV infection including the patho\xc2\xad\ngenesis of the virus and its modes of transmission. Your interest in the scientific\naspects of HIV infection is welcome, since it is our belief that any legal opinion\nregarding HIV infection should accurately reflect scientific reality. As I sought\nto emphasize during our meeting, much has been learned about HIV infection\nthat makes it inappropriate to think of it as composed of discrete conditions such\nas ARC or \xe2\x80\x9cfull blown\xe2\x80\x9d AIDS. HIV infection is the starting point of a single dis\xc2\xad\nease which progresses through a variable range of stages. In addition to an acute\nflu-like illness, early stages of the disease may involve subclinical manifestations\ni.e., impairments and no visible signs of illness. The overwhelming majority of\ninfected persons exhibit detectable abnormalities of the immune system. Almost\nall, HIV infected persons will go on to develop more serious manifestations of\nthe disease and our present knowledge suggests that all will die of HIV infection\nbarring premature death from other causes. Accordingly, from a purely scientific\nperspective, persons with HIV infection are clearly impaired. They are not com\xc2\xad\nparable to an immune carrier of a contagious disease such as Hepatitis B. Like a\n231\n\n\x0cperson in the early stages of cancer, they may appear outwardly healthy but are\nin fact seriously ill. Regrettably, given the absence of any curative therapy for\nAIDS, a person with cancer currently has a much better chance of survival than\nan HIV infected individual.\nPlease do not hesitate to contact me if I can be of any further assistance to you\nin this matter.\nSincerely,\nC. Everett Koop, M.D.\nSurgeon General\n\n232\n\n\x0c'