Public Health Law Map - Beta 5 - Medical and Public Health Law Site

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 1130–1131.]
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.
4. Additional Requirements of the ADA
The ADA and its administrative regulations (29 C.F.R. 1630, July 16, 1991)
introduced the concepts of direct threat and significant risk of substantial harm.
These narrow the traditional right of an employer to exclude workers who might be
injured or injure others. The following regulations must be combined with the
requirements of Arline to determine the proper balance between employee rights and
the duty to protect the employee and the public when developing a communicable
disease policy:
Direct Threat means a significant risk of substantial harm to the health or safety of
the individual or others that cannot be eliminated or reduced by reasonable
accommodation. The determination that an individual poses a “direct threat” shall be
based on an individualized assessment of the individual’s present ability to safely
perform the essential functions of the job. This assessment shall be based on a
reasonable medical judgment that relies on the most current medical knowledge and/
or on the best available objective evidence. In determining whether an individual
would pose a direct threat, the factors to be considered include
(1) The duration of the risk;
(2) The nature and severity of the potential harm;
(3) The likelihood that the potential harm will occur; and
(4) The imminence of the potential harm.
Determining whether an individual poses a significant risk of substantial harm to
others must be made on a case by case basis. The employer should identify the
specific risk posed by the individual. For individuals with mental or emotional
disabilities, the employer must identify the specific behavior on the part of the
individual that would pose the direct threat. For individuals with physical disabilities,
the employer must identify the aspect of the disability that would pose the direct
threat. The employer should then consider the four factors listed in part 1630:
(1) The duration of the risk;
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