 Review of 1988 Opinion Concerning the Applicability of Section
  504 of the Rehabilitation Act to Individuals Infected with HIV


T h e 19 8 8 O ffice o f Legal C o u n se l o p in io n a c c u ra te ly d e sc rib e s the d u tie s im p o se d b y s e c tio n 5 0 4 o f the
     R e h a b ilita tio n A ct w ith re sp ec t to in d iv id u a ls in fe c te d w ith the H u m a n Im m u n o d e fic ie n c y V irus


T h e s u b se q u e n t p a ssa g e o f th e A m e ric a n s w ith D isab ilitie s A ct d id n o t a lte r the a n aly sis o f c a se s a ris ­
     in g u n d e r th e R eh a b ilitatio n A ct, a lth o u g h an a m e n d m e n t to s e c tio n 5 0 4 n o w re q u ire s re fe re n c e to
     sta n d a rd s set fo rth in th e A D A


A p p lic a tio n o f th e s tan d a rd s s e t forth u n d e r sec tio n 5 0 4 in an y p a rtic u la r c ase re q u ire s c o n sid e ra tio n o f
     cu rre n t scie n tific u n d e rsta n d in g o f H IV in fe c tio n . A d v a n ce s in the s c ie n tific u n d e rs ta n d in g o f H IV
     in fe c tio n s in c e 1988 m a y u n d e rm in e so m e o f th e d is c u s s io n in the 1988 o p in io n a b o u t th e a p p lic a ­
     tio n o f th e se s tan d a rd s to in d iv id u a l c ase s


                                                                                                                               July 8, 1994


                                                M e m o r a n d u m O p in io n f o r t h e
                               A s s is t a n t A t t o r n e y G e n e r a l f o r A d m in is t r a t io n


   You have asked us whether an Office o f Legal Counsel M emorandum of Sep­
tember 27, 1988, 12 Op. O.L.C. 209 (1988), entitled “A pplication of Section 504
of the Rehabilitation Act to HIV-Infected Individuals,” (“ 1988 O.L.C. M em oran­
dum ”) accurately reflects the state of the law on this issue. That memorandum
concluded that section 504 of the Rehabilitation Act, 29 U.S.C. § 794, bars dis­
crimination against individuals infected with the Human Im munodeficiency Virus
(“H IV ”), whether or not the infection has resulted in illness. Cf. S ch ool Bd. o f
N assau County v. Arline, 480 U.S. 273 (1987) (holding that section 504 bars dis­
crimination on the basis of infection with tuberculosis, but reserving the question
whether the Act applies to asymptomatic carriers of infectious diseases).
   W e have reviewed the 1988 O.L.C. M emorandum, and have concluded that it
accurately describes the duties imposed by section 504 of the Rehabilitation Act
with respect to individuals infected with HIV. We do, however, have a few com­
ments to update the analysis o f that M emorandum.

                     A. Im pact o f the A m erican s with D isa b ilities A c t o f 1990

    First of all, we note that section 504 of the Rehabilitation Act has been amended
to indicate that

             [t]he standards used to determine whether this section has been
             violated in a complaint alleging em ployment discrimination under

                                                                      141
                                      Opinions o f the O ffice o f L eg a l Counsel


           this section shall be the standards applied under title I of the Ameri­
           cans with D isabilities Act o f 1990 (42 U.S.C. 12111 et seq.) and the
           provisions o f sections 501 through 504, and 510, of the Americans
           with D isabilities Act of 1990 (42 U.S.C. 12201-12204 and 12210),
           as such sections relate to employment.

29 U.S.C. § 7 94(d).1 Because the anti-discrim ination in employment provisions of
the Am ericans with Disabilities A ct (“A D A ”) were in large part modeled on those
established in the Rehabilitation Act, and because the legislative history of the
ADA reaches the sam e conclusions as to the reach of the Rehabilitation Act as did
the 1988 O.L.C. M emorandum and indicates an intent to codify those conclusions
as the standards for evaluating cases brought under the ADA, this amendment to
section 504 o f the Rehabilitation A ct for the most part reinforces rather than sup­
plants our earlier analysis.2 Furtherm ore, the ADA specifically states that,
“[e]xcept as otherw ise provided in this chapter, nothing in this chapter shall be
construed to apply a lesser standard than the standards applied under title V of the
Rehabilitation Act o f 1973 or the regulations issued by Federal agencies pursuant
to such title.” 42 U.S.C. § 12201 (citation om itted).3 As a general matter, there­
fore, the passage o f the ADA requires reference to the standards set forth in that
statute in litigation involving the Rehabilitation Act, but it does not alter the analy­
sis of cases arising under the Rehabilitation Act, and indeed indicates that the in­
terpretation o f the Rehabilitation A ct set forth in the 1988 O.L.C. M emorandum
was correct.
    Specifically, the text and legislative history of the ADA confirm that:
    1.     HIV infection, w hether or not an individual has developed any overt symp­
toms as a result o f that infection, is a disability under the Rehabilitation Act and
under the A m ericans with Disabilities Act. See S. Rep. No. 101-1 16, at 22-24
(listing “infection with the Human Im m unodeficiency Virus” as a disability; citing


    1 In a d d itio n , the term ’‘d isab ility ” has been su b stitu ted for the term “handicap” in section 504(a) of the
R ehabilitatio n A ct, 29 U S.C § 7 9 4 (a)
    2 See, e g , H R R ep N o 101-485, pt 2, at 5 2 -5 7 , 67-70, 76, 149 (1990), rep rin ted in 1990 U S.C C A N .
303, 334-39, 34 9 -5 2 , 358, 4 3 2 , id. pt 3, at 29, 33 -3 5 , 40, 42, 4 5 -4 6, reprinted in 1990 U S C C A .N 451,
455-57, 462, 4 6 4 , 4 6 8 -6 9 , S R ep N o 101-116, at 22, 25-26, 31, 36, 40 (1989) (all stating that the basic
anti-d iscrim in atio n p ro v isio n s in title I o f the A D A are m odeled on those set forth in section 504, and m
som e instan ces e x p licitly en d o rsin g the interpretations o f section 504 set forth in A r h n e , 480 U S 273, and
in the 1988 O .L C. M em o ran d u m ), se e also H .R . C onf. Rep. N o 101-596 (1990); Equal Em ploym ent O p­
portunity for Individuals W ith D isabilities, 5 6 Fed R eg 35,7 2 6 (1991) (S upplem entary Inform ation to
regulatio n s c o d ified at 29 C F R pt 1630) (‘‘T h e form at o f part 1630 reflects congressional m tent, as ex ­
pressed in the leg islativ e histo ry , that the regulations im plem enting the em ploym ent provisions of the ADA
be m odeled on the reg u latio n s im plem enting sectio n 504 o f the R ehabilitation A ct o f 1973 *’)
      T he leg islativ e history notes, fo r exam ple, th a t the provisions o f the ADA setting forth requirem ents for
the provision o f access to p u b lic accom m odations by providers w ho do not receive federal funding are less
strin g en t than the co rresp o n d in g provisions o f the R ehabilitation A ct addressing the provision of access to
publicly funded a cco m m o d atio n s           E .g . H R Rep. N o 101-485, pt 3, at 69-70, reprinted m 1990
U S C C A N. at 4 9 2 -9 3 N o su ch explicit d ifferen ces ex ist with respect to the em ploym ent provisions o f the
tw o Acts.

                                                           142
                R eview oj 1988 Opinion Concerning the A pplicability o f Section 504 o f the
                            R ehabilitation Act to Individuals Infected with H IV


the 1988 O.L.C. M emorandum for the proposition that those infected with HIV
have “ [a] physical or mental impairment that substantially limits one or more of the
major life activities of such individual” within the meaning of both Acts; and d e­
scribing disability definition generally); H.R. Rep. No. 101-485, pt. 2, at 51-54
(same), reprin ted in 1990 U.S.C.C.A.N. at 333-36; id. pt. 3, at 28-30 (same), r e ­
prin ted in 1990 U.S.C.C.A.N. at 450-52; see also 29 C.F.R. pt. 1630 app. at 403-
OS (1993) (Interpretive Guidance to § 1630.2(j)) (stating that HIV infection is in­
herently “substantially limiting” within the meaning of both Acts). Indeed, the
need to protect those infected with HIV from discrimination in employment was
frequently cited by those supporting the bill. See, e.g., S. Rep. No. 101-116, at 8,
 19 (citing views of the President’s Commission on the Human Im munodeficiency
Virus Epidemic); 136 Cong. Rec. 10,872-73 (1990) (remarks of Rep. W eiss); id. at
 10,912-13 (remarks of Reps. McCloskey and W axman); id. at 17,292-93 (rem arks
of Rep. W axman).4 Furthermore, both the ADA and the Rehabilitation Act include
within the definition of an individual with a disability an individual who, even
though he or she has no actual physical or mental impairment or history of such
impairment, is regarded as having an impairment. 42 U.S.C. § 12102(2)(C)
(ADA); 29 U.S.C. § 706(8)(B) (Rehabilitation Act). This definition often will
provide an additional basis for concluding that those infected with HIV are pro­
tected by section 504.
    2. The definitions of “discrim ination” and of “qualified individual” under the
ADA are drawn from the definitions o f these terms set forth in the section 504
regulations. See 42 U.S.C. §§ 12111(8) (definition of “qualified individual with a
disability”) and 12112 (definition of “discrimination”); H.R. Rep. No. 101-485, pt.
3, at 32-33 (“qualified individual”), reprinted in 1990 U.S.C.C.A.N. at 454-55; id.
at 35 (“discrim ination”), reprin ted in 1990 U.S.C.C.A.N. at 457.
    3. The legislative history indicates that the use of the term “direct threat” in the
ADA is designed to “codify” the ruling of the A rline case discussed *in the 1988
O.L.C. M em orandum .5 The ADA indicates that an employer may raise as a de­


    4 In addition, recent cases construing the R ehabilitation Act have held that HIV infection is a disability
w ithin ihe m eaning o f the Act E.g , Buckingham v U nited S ta te s, 998 F 2 d 735 (9th C ir. 1993), C halk v
U nited States D ist C ourt, 840 F 2 d 701 (9th C ir 1988), R oe v D istrict oj C olum bia, 842 F Supp 563
(D .D C 1993), vacated a s m o o t, 25 F.3d 1115 (D C . C ir 1994); D oe v D istrict oj C olum bia, 796 F Supp
559 (D .D C . 1992); R ay v. S chool D ist., 666 F Supp 1524 ( M D Fla 1987); Thom as v A ta sc a d e ro U nified
S chool D ist ,6 6 2 F Supp 376 (C D C al. 1987).
    5 In addressing the issue o f the effect o f the risk posed by an infectious disease on an in d iv id u a l's q u alifi­
cations for a jo b , A rlin e indicated that "[a} person w ho poses a sig n ijicant risk o f com m unicating an in fe c ­
tious disease to others in the w orkplace will not be otherw ise qualified for his or her jo b if reasonable
accom m odation will not elim inate that risk “ 480 U S. at 287 n. 16 (em phasis added) T he C ourt stated that
in m aking a ju d g m en t as to w hether a person is qualified for a jo b , the em ployer should take into account
       [findings of] facts, based on reasonable m edical ju d g m en ts given the state o f m edical know ledge,
       about (a) the nature o f the risk (how the disease is transm itted), (b) the duration o f the risk (how
       long is the carrier infectious); (c) the sev en ty o f the risk (w h at is the potential harm to third p a r­
       ties) and (d) the probabilities the disease will be transm itted and will cause varying degrees of
       harm.

                                                           143
                                    Opinions o f ih e O ffice o f L egal C ounsel


fense to a claim o f discrimination under the Act the argument that the employee
was not otherw ise qualified for the jo b because he or she posed a “direct threat to
the health or safety o f other individuals in the workplace.” 42 U.S.C. § 12113(b).
The statute defines “direct threat” as a “significant risk to the health or safety of
others that cannot be eliminated by reasonable accom m odation,” 42 U.S.C.
§ 12111(3), apparently drawing on the “significant risk” language used by the A r­
line Court. 480 U.S. at 287 n.16. A s noted above, the legislative history indicates
that this language is intended to “codify” the standard set forth in Arline. H.R.
Rep. No. 101-485, pt. 3, at 34,45-46, reprin ted in 1990 U.S.C.C.A.N. at 456, 468-
69; see a lso id., pt. 2, at 56-57, 150, reprin ted in 1990 U.S.C.C.A.N. at 338-39,
433; H.R. Conf. Rep. No. 101-596, at 60, reprin ted in 1990 U.S.C.C.A.N. at 568;
S. Rep. No. 101-116, at 27-28, 40. In addition, the Equal Employment Opportu­
nity Com m ission has issued regulations implementing the Act that use the test set
forth in A rlin e for evaluating the risk posed by an employee with disabilities. 29
C.F.R. § 1630.2(r) (1993) (defining “direct threat” and requiring that employer
consider “(1) [t]he duration of the risk; (2) [t]he nature and severity of the potential
harm; (3) [t]he likelihood that the potential harm will occur; and (4) [t]he immi­
nence of the potential harm”);6 29 C.F.R. pt. 1630 app. at 410-11 (Interpretive
G uidance to 29 C.F.R. § 1630.2(r)) (employer must consider “objective, factual
evidence,” rather than “subjective perceptions, irrational fears, patronizing atti­
tudes, or stereotypes,” and must determ ine that there is a “high probability o f sub­
stantial harm ,” rather than merely a “speculative or remote risk”). While the point
is not free from doubt, the Interpretive Guidance also indicates that an employer
may consider whether the individual would pose a direct threat to his or her own
safety. Id.
   4.      The text and legislative history of the ADA indicate that the definition of
reasonable accom m odation is to include the possibility of reassignment, a question
that was unsettled under the Rehabilitation Act before the recent amendment. 42
U.S.C. § 12111(9) (ADA definition of “reasonable accom m odation”); S. Rep. No.
101-116, at 31-32 (indicating that “reasonable accom m odation” under the ADA
includes the possibility o f reassignment); see a lso Barbara A. Lee, Reasonable
A ccom m odation U nder the Am ericans with D isabilities Act: The Lim itations o f
R ehabilitation A ct P recedent, 14 Berkeley J. Empl. & Lab. L. 201, 206, 235-43
(1993) (arguing that for this reason, case law interpreting the Rehabilitation Act
that indicates that em ployers need not consider reassignment to meet their duties to

Id at 288 (q u o tin g B rief fo r American M ed ical A ssociation as A m icus C u n ae 19, brackets in original).
Furtherm o re, the C o u rt stated lhat “ fi]n m ak in g these findings, courts norm ally should defer to the reason­
able m edical ju d g m e n ts o f public health o fficials.” Id
   6 T h e reg u latio n fu rth er p rovides that the d eterm in atio n w h eth er an individual poses a direct threat
       sh all b e b ased on an individualized assessm en t o f the individual s present ability to safely p er­
       form the essential functions o f the job. T his assessm ent shall be based on a reasonable m edical
      ju d g m e n t that relies on the most current m edical k n o w led g e and/or on the b est available o bjec­
       tive ev id en ce.
29 C .F .R § 1630.2(r).

                                                        144
               R eview o f 1988 Opinion C oncerning the A pplicability o f Section 504 o f the
                            Rehabilitation A ct to Individuals Infected with H IV


provide reasonable accommodation should not be relied upon as precedent in suits
brought under the ADA). Because neither statute purports to list all conceivable
reasonable accommodations, see 42 U.S.C. § 12111(9) (ADA); 29 U.S.C. § 794
(Rehabilitation Act), and because the Rehabilitation Act indicates that the stan­
dards of the ADA are to be used to determine whether the Rehabilitation Act has
been violated, 29 U.S.C. § 794(d), reassignment must be considered a possible
reasonable accommodation under the Rehabilitation Act as well. See a lso Buck­
ingham v. U nited S tates , 998 F.2d 735 (9th Cir. 1993) (Postal Service must con­
sider, as a possible accommodation, relocating HIV-infected employee to area of
country with better health care services for those infected with the virus).
   5. The legislative history of the ADA clearly states that the term “undue hard­
ship” for purposes of the ADA, and by implication section 504, see 29 U.S.C. §
794(d), is not to be construed as referring to the standard set forth in Trans W orld
Airlines, Inc. v. Hardison, 432 U.S. 63 (1977) (construing Title VII as requiring an
employer to accommodate religious beliefs only if it could be done with no more
than a “de minimis” cost to the em ployer).7 Rather, the ADA defines “undue hard­
ship” as “an action requiring significant difficulty or expense.” 42 U.S.C.
§ 12111(10)(A). Among the factors to be considered in determining whether the
difficulty or expense involved would be “significant” are the “overall financial
resources” o f the entity that must take the action. 42 U.S.C. § 1211 l(10)(B )(ii)
and (iii).

                            B. Changes in Scientific Understanding

   Finally, we would note that advances in the scientific understanding of HIV in­
fection since 1988 may undermine som e o f the discussion in our earlier opinion
about the application of these standards to individual cases. See, e.g., 12 Op.
O.L.C. at 219-20, 229-30 (citing exam ples of situations in which it was thought
that an individual infected with HIV might pose a direct threat to the health or
safety of others).
   Thus, for example, recent studies suggest that the risk of transmission from a
health care worker to a patient is actually quite low. See, e.g., Centers for Disease
Control and Prevention, Update: Investigations o f P ersons T reated b y HIV-
Infected Health Care Workers — U nited States, 41 Morb. & Mort. W kly. Rep. 329
(1993) (No. 17); National Commission on AIDS, P reventing HIV Transm ission in




    7     See S. R ep No 101-116, at 36 (discussing H ardison)', 29 U S.C § 7 9 4 (d ) (slating that standards o f
A D A apply in R ehabilitation Act cases), H R. Rep No 101-485, pt 2, at 87 (provision is derived from
R ehabilitation Act and should be applied consistently with pro v isio ns construing that A ct), rep rin te d in 1990
U S.C C A N. at 369; Lee, supra, at 206-07, R obert L B urgdorf, Jr., The A m erica n s w ith D isabilities A ct-
A na lvsts a n d Im plications oj a Second-G eneration C ivil R ig h ts Statute, 2 6 H arv C.R - C L L Rev. 413,
462-63 (1991)

                                                      145
                                      Opinions o f th e O ffice o f L eg a l C ounsel


H ealth C are S ettings 7, 1 1-12, 15-18 (1992).8 The Centers for Disease Control
have suggested guidelines for control of transmission of the virus that reflect this
information. Centers for Disease Control and Prevention, R ecom m endations f o r
P reven tin g Transm ission o f Hitman Im m unodeficiency Virus an d H epatitis B Virus
to P atients D uring Exposure-Prone In vasive P roced u res , 40 Morb. & Mori. Wkly.
Rep. 1 (1991) (No. RR-8); see a ls o National Commission on AIDS, supra
(discussing CD C G uidelines and other publications addressing techniques for pre­
venting transm ission o f HIV in health care settings).9
   W e do not attem pt to review the scientific data here, but we would emphasize
that a determ ination under the ADA, and thus by implication under section 504,
that an individual poses a “direct threat to the health or safety of other individuals
in the w orkplace,” 42 U.S.C. § 12113(b), which is to say “a significant risk to the
health or safety o f others that cannot be eliminated by reasonable accommodation,”
42 U.S.C. § 12111(3) (emphasis added), must be made on an individualized basis,
using the four-prong test set forth in A rlin e , 480 U.S. at 287-88, and adopted by the
statute and regulations. See 42 U.S.C. § 12111(3); 29 C.F.R. § 1630.2(r) (restating


     8 Indeed, the C en ters fo r D isease Control h a v e indicated that the only docum ented cases o f transm ission
from a h ealth care w o rk er lo a p atien t are those involving a Florida d e ntist w ho infected six o f his patients
through u n know n m eans 41 M orb & Mort W kly. Rep. at 331, see also N ational C om m ission o n AIDS,
supra, at 7 As o f 1993, the C en ters for D isease C ontrol had review ed the cases o f 19,036 patients treated by
57 H IV -in fected h ealth care w orkers 41 M orb. & Mort W kly. Rep at 329
     9 W hile co u rts typically h ave upheld restrictions on health care w orkers, see, e g , B radley v U niversity o f
T ex M .D . A n d e rso n C a n cer C tr , 3 F.3d 922 (5 th Cir. 1993), cert denied, 510 U S 1119 (1994), L eckelt v
B oa rd o f C o m m 'r s o f H osp. D ist N o /, 909 F 2d 820 (5ih C ir 1990); D oe v W ashington U niv., 780 F
Supp. 628 (E .D . M o 1991), ihe reasoning o f these cases o ften appears to be based on outdated medical
inform atio n o r w eak scientific analysis that g re a tly ov erstates the risks posed by such w orkers and thus may
not app ly the statu te app ro p riately C f In re W estch ester C o u n tv M ed. C tr , D epartm ent of Health & Human
S ervices, D ep artm en tal A pp eals B oard, D ocket N o 91-504-2, D ecision No. 191 (A pr 20, 1992) (restrictions
on d u tie s o f H IV -p o sitiv e p h arm acist violated R eh ab ilitatio n A ct; federal funding to hospital term inated).
     W e w o u ld e m p h asize that the standards set forth in 29 C F R. § 1630 2(r) for determ ining w hether an
individual p o ses a d irect th re a t m u st be applied to health care w orkers as well as to w orkers in other fields
A ccordingly, c u rren t m edical inform ation and con sid eratio n o f the risks posed by the essential functions of
the jo b m ust form ihe basis fo r a decision In light o f the cu rren t view s o f the C enters for D isease Control
that the risks p o sed by H IV -in fected health c a re w orkers are, in m ost health care settings, rem ote or nonex­
istent, w e th in k that p ro p er application o f 29 C .F R. § 1630 2(r) frequently will result in a finding that the
w orker does n o t pose a d ire c t threat.
     For m ore g en eral d iscu ssio n o f the risks p o sed by H IV infection in o th e r settings, see C halk v. U nited
S tates D ist C o u rt, 840 F 2d 701, 710 (9th C ir. 1988) (g ran tin g prelim inary injunction reinstating HIV-
m fected ju n io r high school, teach er to classro o m duties, reaso n ing that C halk had “strong probability of
success on the m erits" o f his R ehabilitation A c t claim b ecau se there w as no evidence to support a risk o f
tran sm issio n ), G lo v er v E a stern Nebraska C o m m u n ity O ffice o f R etardation, 6 86 F Supp 243 (D Neb
 1988) (m an d ato ry hepatitis B V irus 0 ‘HBV” ) and HIV testing o f em ployees o f agency assisting mentally
retarded c lie n ts not ju stifie d ; there was in su fficien t ev id en ce that infection w ould pose a danger to others),
a ff'd , 867 F 2d 461 (8th C i r ), cert, denied, 4 9 3 U S. 932 (1989).
     For d iscu ssio n o f the risk in public safety p rofessions, see R oe v. D istrict o j C olum bia, 842 F. S upp 563
(D D .C 1993) (lim itatio n s on activities o f firefig h ter infected w ith HBV unjustified, as firefighter w ould not
pose dire c t th re a t w hen perfo rm in g m outh-to-m outh re su scitatio n ; in reaching this conclusion, the court
noted that h o sp itals g en erally do not bar H B V -infected em p lo y ees from perform ing C PR ), vacated as m oot,
25 F 3d 1115 (D .C C ir 1994); D o e v D istrict o f C olum bia, 7 9 6 F Supp 559 (D .D .C . 1992) (refusal to hire
H IV -in fecied ap p lican t violates R ehabilitation Act, as ind iv id u al does not pose direct threat), cf. A nonym ous
Firem an v. C ity o f W illoughby, 779 F S u p p 402 (N .D O h io 1991) (firefighter and param edics may be
tested fo r H IV in lig h t o f risk)

                                                           146
           R eview o f 1988 O pinion C oncerning the A pplicability o f Section 504 o f the
                        R ehabilitation A ct to Individuals Infected with H IV


definition of “direct threat” set forth in Arline)', H.R. Conf. Rep. No. 101-596, at
60 (Section 12111(3) is intended to codify the test set forth in A rline), reprin ted in
1990 U.S.C.C.A.N. at 568; S. Rep. No. 101-116, at 27-28 (same). Furthermore, a
determination that an individual poses a direct threat must be based on information
about the essential functions of the particular jo b at stake and on current scientific
information about the nature of the risks involved; speculative concerns, including
unfounded and exaggerated fears of transmission risks, may not be relied upon to
defend a conclusion that an individual poses a direct threat. See, e.g., 29 C.F.R. pt.
1630 app. at 410-11 (Interpretive Guidance to 29 C.F.R. § 1630.2(r)).
    Similarly, while the 1988 O.L.C. M emorandum, 12 Op. O.L.C. at 220, sug­
gested that persons infected with HIV are subject to “dementia attack” and there­
fore may be unqualified for jobs in which a sudden loss of mental faculties could
pose a safety risk, this discussion may be subject to misinterpretation. The discus­
sion of hypothetical HIV-related problems in the 1988 O.L.C. M emorandum was
not intended to be relied upon for litigation purposes, and the reference to dem en­
tia attacks was intended to refer only to the risk that an individual suffering from
HIV-related dementia might occasionally be particularly severely affected. It is
certainly true that an individual with symptoms o f dementia, whether related to
HIV or not, may not be “otherwise qualified” for certain jobs. However, neither
the 1988 O.L.C. Memorandum nor any other source of which we are aware indi­
cates that HIV-induced dementia occurs suddenly and thus would pose certain of
the risks described in that memorandum. Furthermore, unpublished data com piled
by the Centers for Disease Control and Prevention on June 30, 1993 indicated that
less than 6% of adults known to the CDC to have AIDS were also known to have
HIV-related encephalopathy, the most common cause of HIV-related neurological
symptoms. See Centers for Disease Control and Prevention, A du lt Fem ale AIDS
C ases by D isease: C D C AIDS D ata as o f June 30, 1993 (indicating that 5.1077%
were affected); and Centers for Disease Control and Prevention, A dult M ale AIDS
Cases by D isease: C D C AIDS D ata as o f June 30, 1993 (indicating that 5.5688%
were affected). Other sources indicate that neurological problems are most com­
mon in individuals with advanced HIV disease. E.g., Richard W. Price, et. al., The
Brain in AIDS: Central N ervous System HIV-1 Infection an d AIDS D em entia
Complex, 239 Science 586 (Feb. 5, 1988). Accordingly, we would caution readers
that an argument that an individual is not otherwise qualified for a job because of
the risk of dementia, like arguments based on the risk of transmission, must be
grounded in scientific evidence that such a risk exists with respect to that individ­
ual, and is relevant to the determination whether the individual is otherwise quali­
fied for the job.

                                                            DAW N E. JOHNSEN
                                                   D eputy A ssistan t Attorney G eneral
                                                           Office o f L egal Counsel

                                                 147
