MAR 17 1994

The Honorable Howard P. "Buck" McKeon

U.S. House of Representatives
307 Cannon House Office Building
Washington, D.C. 20515

Dear Congressman McKeon:

This letter is in response to your inquiry on behalf of your

constituent, XX , concerning the applicability of the
Americans with Disabilities Act ("ADA") to funeral homes and
persons who died from the AIDS virus.

Title III of the ADA prohibits discrimination by "public

accommodations" on the basis of disability. See 28 C.F.R.
​ 36.201(a). A funeral home is specifically defined as a "place
of public accommodation" by the title III implementing
regulation, 28 C.F.R. 36.104 (copy enclosed), and is,
therefore, subject to the non-discrimination provisions of the
ADA.

Title III prohibits discrimination against persons with

disabilities, as well as those individuals who have a
"relationship or association" with a person with a disability.
28 C.F.R. 36.205. The AIDS virus (HIV) specifically meets the
definition of "disability" within the meaning of title III, as it
is a physical impairment that substantially limits one or more
major life activities. 42 U.S.C. 12102(2) (definition of
disability); see also 28 C.F.R. 36.104 ("HIV disease (whether
symptomatic or asymptomatic)" is a physical impairment).

Accordingly, the ADA requires funeral homes to provide their

services on a non-discriminatory basis to persons who have AIDS
and seek to make funeral arrangements prior to their death, as
well as to family members and loved ones who have "an
association" or "relationship" with persons infected with the
AIDS virus and who seek funeral home services after the
individual with AIDS has died. It is the Department's position
that the death of the person with the disability in no way
affects the reach of the association provision when the
discrimination is based on the known disability of the decedent.
Refusal to provide funeral services for and/or to embalm the body
cc: Records, Chrono, Wodatch, Magagna, Perley, McDowney, MAF,
FOIA
udd\perley\congress\ XX
(b)(6)

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of a person who died from AIDS is, therefore, a violation of the
ADA.

Your constituent's position appears to be that handling

bodies that once harbored the AIDS virus would put him at great
risk of contracting the virus, and that he should not be required
to do so under the ADA. The ADA does not require a public
accommodation to engage in any activity that would pose a "direct
threat" to the health or safety of others. 28 C.F.R.
​ 36.208(a).

Under title III, the term "direct threat" is defined as "a

significant risk to the health or safety of others that cannot be
eliminated by a modification of policies, practices, or
procedures . . . " 42 U.S.C. 12182(b)(3) (emphasis added); see
also 28 C.F.R. 36.208. The title III regulation clarifies the
direct threat exception:

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, and
procedures will mitigate the risk.

28 C.F.R. 36.208(c).

According to the Federal Centers for Disease Control and

Prevention ("CDC"), the risk of transmitting viruses like HIV in
the health-care setting and similar settings is minimal, and can
be severely lessened by the use of infection control procedures,
often described as "universal precautions.'' These protective
measures -- which include the use of gloves, surgical masks, and
protective eyewear, the sterilization of instruments, the
disinfection of exposed environmental surfaces, and proper waste
disposal methods -- prevent the spread of almost all bloodborne
diseases, including HIV.

Indeed, the CDC specifically recommends the use of universal

precautions when handling the body of a deceased person,
Guidelines for Prevention of Transmission of HIV and HBV in
Health-Care and Public-Safety Workers, U.S. Department of Health
and Human Services, Centers for Disease Control, February 1989,
at 18, as does the National Funeral Directors Association.
National Funeral Directors Association Policy on Contagious,
Communicable and Infectious Disease, at 1. Moreover, the
Occupational Safety and Health Administration ("OSHA") has
adopted most of the protective measures outlined by the CDC in
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its Bloodborne Pathogen Rule. See 29 C.F.R. Ch. XVIII

1910.1030. The theory underlying these requirements is that
funeral home workers often do not know whether the bodies they
are handling once harbored an infectious disease. Persons who
are HIV-positive or have other infectious diseases, such as
Hepatitis B, often die from other causes, such as car accidents
and heart attacks. Accordingly, universal precautions should be
utilized when handling all human remains.

To date, there is not one documented case of occupational

HIV transmission to either an embalmer or a morgue technician.
HIV/AIDS Surveillance Report, Centers for Disease Control,
October 1993, at 13. Indeed, in the approximately 10 years that
the CDC has been monitoring occupationally acquired AIDS/HIV
infection, only 3 possible cases of occupational transmission to
embalmers or morgue technicians have even been identified. In
light of the fact that funeral home workers may be routinely
exposed to the AIDS virus, whether or not they know it, and that
the scientific evidence has strongly demonstrated the efficacy of
universal precautions, we believe that the use of universal
precautions make the direct threat defense inapposite in the
funeral home setting. The outright refusal to handle an AIDS
case is, therefore, discriminatory and thus violates the ADA.
 I hope this information is useful to you in addressing your
constituent's concerns. Please inform him that if he has any
further questions, he may contact our information line at (202)
514-0301.

Sincerely,

James P. Turner
Acting Assistant Attorney General
Civil Rights Division

Enclosure

1 These workers were without identifiable behavioral or

transfusion risks. However, HIV seroconversion specifically
resulting from an occupational exposure to the virus was not
documented.

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