Untitled Texas Attorney General Opinion

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DAN MORALES

ATTORNEY

GENERAL

December 28, 1998

Ms. Delores L. Alspaugh Opinion No. DM-499

Interim Executive Director

Texas Cosmetology Commission Re: Whether an applicant for a new or renewed

5717 Balcones Drive cosmetologist’s license must submit a health

P.O. Box 26700 certificate signifying that the applicant is free of

Austin, Texas 78755-0700 hepatitis (RQ-998)

Dear Ms. Alspaugh:

Section 3 l(a) ofthe Cosmetology Regulatory Act’ (the “act”) requires an individual applicant

for a new or renewed cosmetologist’s license (“applicant”) to submit a health certificate verifying

that the applicant is tree from “tuberculosis, hepatitis, or a contagious disease for which the applicant

is not entitled to protection under the Americans with Disabilities Act”’ (“ADA”). Presumably, an

applicant who fails to produce a health certificate or who produces a health certificate that indicates

the applicant has tuberculosis, hepatitis, or a contagious disease may not be licensed and may not,

consequently, practice cosmetology. You ask only about the requirement that an applicant be

certified free of hepatitis. You first ask “exactly what types of hepatitis need to be tested for and

what kinds of tests are necessary in determining if an individual has hepatitis.” Because your agency

is authorized to construe an ambiguous statute by rule, we will not presume to tell you exactly what

rules you should enact. We believe, however, that the commission may enact a rule that reasonably

interprets the statute and that is consistent with the legislative intent. Second, we understand you

to ask what protections the ADA affords individuals with hepatitis in the context of state licensing,

suggesting by your question that section 3 1 of the act may be inconsistent with the dictates of federal

law. We conclude that, under the ADA, the commission may not refuse to license an applicant with

hepatitis if the applicant is an otherwise qualified individual with disability.

We begin by discussing the act. The act generally prohibits an unlicensed individual from

performing or attempting to practice cosmetology3 and imposes criminal penalties for the

‘V.T.C.S. art. 8451~1.

*42 U.S.C. ch. 126 (footnote added)

‘See V.T.C.S. art. 8451a. § 9(a).

Ms. Delores L. Alspaugh - Page 2 (DM-499)

unauthorized practice of cosmetology.4 An individual who desires to practice cosmetology may

obtain from the Cosmetology Commission an operator, manicurist, instructor, specialty, or facialist

specialty license,5 and the license must be renewed bietially.6 With every application for a new

or renewed application, the applicant must submit a health certificate stating that the applicant does

not have hepatitis, as well as tuberculosis or a contagious disease, and the statute criminalizes a

physician’s’ certification if the physician has not examined the applicant:

(a) Every applicant for an original or renewal operator license, instructor

license, reciprocal license, or speciality certificate must submit a certificate

of health signed by a licensed physician or licensed physician assistant,

showing that the applicant is free, as determined by the examination, from

tuberculosis, hepatitis, or a contagious disease for which the applicant is not

entitled to protection under the Americans with Disabilities Act

(b) Any physician or physician assistant who signs a health certificate

required by Subsection (a) of this section showing the applicant to be free

from a disease covered by that subsection without having made the physical

examination is guilty of a misdemeanor, and on conviction may be fined not

less than $50 or more than $200.*

‘See id. 4 40(a). An unlicensed person who violates the act, except for section 31 of the act, commits a

misdemeanor and may be fined $100 to $300. See id.

‘See id. $5 10 (operator license), 11 (manicurist license), 12 (instructor), 13 (specialty), 13A (facialist

specialty). A licensee may perform only those practices that are within the scope of his OI her license. See id. $5 10(a),

11(a), 12, 13(a), 13A(a); see also id. 9 26.

‘See id. 5 33(a).

‘We use the term “physician” in this opinion to include a physician assistant as well as a physician. See

V.T.C.S. art. 8451~1,4 31.

*V.T.C.S. at. 8451a, $ 31 (emphasis and footnotes added); see also id. $ 33. We do not fmd in the act a

criminal penalty for a physician who certifies an applicant to be free of a contagious disease knowing from his OI her

examination of the applicant that the applicant is, in fact, not free of disease. See id. 5 3 l(b).

In addition to prohibiting the commission from licensing an applicant who has a contagious disease, the act

forbids a licensee who knows that he 01 she is suffering from an infectious OI contagious disease to practice

cosmetology, see V.T.C.S. art. 8451~1,§ 32( a ), and forbids an employer to hiie a licensee to perform cosmetology

services knowing that the licensee is suffering from an infectious or contagious disease, see id. 4 32(b). You do not ask,

and we do not therefore consider, whether these prohibitions are valid given the 1990 enactment of the ADA. But see

42 U.S.C. $ 12112 (prohibiting certain employers from discriminating against qualified individuals with disability

because of disability); 28 C.F.R. $35.130 (same). Likewise, we do not consider the validity of 22 T.A.C. 5 83.22(c),

which, to the extent permitted by federal law, provides that no cosmetology student or licensee shall be required

“knowingly to work upon a person infected with an infectious disease .” Cf: 42 U.S.C. $ 12182(a) (prohibiting

generally discrimination against individual on basis of disability in “full and equal enjoyment of. services” by any

operator of public accommodation); 28 C.F.R. 5 36.301(a) (same).

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Ms. Delores L. Alspaugh - Page 3 (DM-499)

A licensee who violates section 3 1, which we have just quoted, commits a misdemeanor and

may be fined $100 to $300; the licensee also may be subject to an administrative penalty.’

In 1997, the Seventy-fifth Legislature amended section 3 1 to explicitly require an applicant

to be certified free of hepatitis,“’ as well as to limit the term “contagious disease” by excluding

disabilities covered by the ADA.” The legislature also amended various sections of the act to permit

the Cosmetology Commission to increase the fees it is authorized to collect so that the commission

could afford to hire more inspectors. In general, the 1997 amendments were in response to television

news reports in Houston, Dallas, San Antonio, El Paso, Beaumont, and Austin detailing, we assume,

unsanitary conditions in certain cosmetologists’ shops.‘* The legislature apparently was motivated,

at least in part, by a desire to protect the public from the spread of contagious diseases.

We turn to the questions you raise. Preliminarily, we recognize that the State of Texas, to

protect the public health, reasonably may regulate a person’s right to pursue a lawml occupation.13

We assume for purposes of this opinion that prohibiting an individual with hepatitis from practicing

cosmetology is reasonable, despite prophylactic measures that an infected individual may take to

minimize, if not eliminate, the chance of spreading the disease.14

‘See V.T.C.S. art. 845 la, @35A, 40(b). We fmd in the act no criminal penalty for an applicant for an original

license who violates section 3 1, see id. 5 40(a), although presumably the applicant would be unable to obtain a license.

Compare id. art. 8407a, 5 21(b) (listing as ground for refusing barber’s license applicant’s failure to present health

certificate showing applicant is free “from infectious OI contagious diseases”) with id. art. 845 la, $5 10(d), 1l(d),

12(d), 13(d), 13A(d), 15(b), 36 (declaring applicant entitled to license without listing health-certificate requirement; not

listing health-certificate requirement as grounds for denial, suspension, or revocation of license).

‘@Theact does not defme the term “contagious disease.” As a medical term of art, “contagious” means

“communicable; ; transmissible by contact with the sick or their fresh secretions or excretions.” STEDMAN’S

MEDICAL DICTIONARY 3 15 (5th unabr. lawyers’ ed. 1982). Various courts have interpreted the term consistently with

the medical defmition, see, e.g., Davis v. Rodman, 227 SW. 612,613 (Ark. 1921); Pierce v. Dillingham, 67 N.E. 846,

849 (Ill. 1903); Shyker v. Crane, 50 N.W. 1132, 1133 (Neb. 1892).

“SeeAct ofMay 10,1997,75tbLeg., R.S., ch. 267,$18,1997 Tex. Gen. Laws 1226,1229. In OUTopinion,

the clause “for which the applicant is not entitled to protection under the [ADA]” in section 31 does not modify the

terms “tuberculosis” and “hepatitis.” Rather, we construe the “for which” clause in section 31(a) to modify only the

term “contagious disease.”

“See House Comm. on Public Health, Bill Analysis, C.S.S.B. 113 1,75th Leg., R.S. (1997).

“See Driggs v. Den&n, 420 S.W.2d 446, 448 (Tex. Civ. App:-Dallas 1967, no writ); 10 TEX. JUR.30

Business and Occupation Licenses 5 5 (1997).

‘me Centers for Disease Contiol states that individuals may be vaccinated againstviral hepatitis A and B (and

incidentally D). Fact sheets from the Centers for Disease Control also suggest that spread of viral hepatitis may be

prevented by requiring cosmetologists to wear gloves (to prevent the transmission of the bloodborne strains) and by

requiring a cosmetologist to wash his or her hands after going to the bathroom, particularly if the cosmetologist is,

by chance, serving food. See Centers for Disease Control & Prevention, Hepatitis Branch, Hepatitis A (visited

(continued...)

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Ms. Delores L. Alspaugh - Page 4 (DM-499)

You first ask what kinds of hepatitis a physician must test for to comply with section 3 1 and

what kinds of tests section 3 1 requires a physician to run. We note, initially, that, as a medical term

of art, “hepatitis” refers generally to an inflammation of the liver, which inflammation may be

caused by a virus or by toxic agents. Is You appear to interpret the term to refer to viral hepatitis

only, and we agree that your construction is consistent with the apparent legislative desire to reduce

the spread of contagious diseases. But even with this common-sense restriction on the term’s

breadth, the term “viral hepatitis” refers to numerous, immunologically unrelated strains of the

disease.16 Your first question appears motivated by this complexity.

The term “viral hepatitis” denotes at least six strains of disease. Hepatitis A, B, and C are,

we understand, the most common strains found in this c~untry.‘~ Hepatitis A is transmitted generally

when a susceptible person ingests the virus, shed in the feces of an infected person.‘* This may

happen when, for example, an infected person fails to wash his or her hands after going to the

bathroom and then touches food a susceptible person eats. Hepatitis A also may be transmitted by

contaminated food or water.” Hepatitis B is transmitted by blood, through sexual contact, and from

a mother to her newborn child.*” Hepatitis B may be transmitted, for example, when an infected

person injures him- or herself with a sharp instrument and bleeds on a susceptible person’s open

“(...continued)

Oct. 28, 1997) <http://www.cdc.gov/ncidod/diseasesmepati; id., Hepatitis 5 (modified Aug. 7, 1996)

<http://www.cdc.gov/ncidod/diseasesmepatitis~~bfact.h~~ id., Hepatitis C (last modified Mar. 6, 1997)

<http://www.cdc.gov/ncidod/diseasesmepatitis~epcfact.h~>; id., Hepatitis G (visited Oct. 28, 1997)

<hnp://www.cdc.govlncidod/diseasesmepatitis~epgfact.h~>.

“See STEDMAN’SMEDICALDICTIONARY

639 (5th unabr. lawyers’ ed. 1982).

“See id. at 640. Viral hepatitis differs from tuberculosis, the other disease expressly listed in section 3 1, in

two respects that are significant to your question. First, tuberculosis is a specific disease, caused by bacteria called

Mycobncterium tuberculosis. SeeDivisionofTuberculosis Elimination, UnitedStates Dep’t ofHealth&HumanServs.,

Questions and Answers about TB (last modified Nov. 5. 1996) <http://www.cdc.gov/nchstp/tb/faq.htm~, STEDMAN'S

MEDICALDICTIONARY 1498 (5th unabr. lawyers’ ed. 1982). Second, only one test is used to ascertain whether a patient

has tuberculosis, and we understand this test is relatively easy to obtain and inexpensive. See Division of Tuberculosis

Elimination, United States Dep’t of Health & Human Servs., Questions and Answers about TB (last modified

Nov. 5, 1996) <http:llwww.cdc.govlnchstp/tblfaq.htm~.

“Letter from Jean Brender, R.N., Ph.D., Epidemiologist, Infectious Disease Epidemiology and Surveillance

Div., Texas Dep’t of Health, to Delores L. Alspaugh, Interim Executive Director, Texas Cosmetology Comm’n

(Sept. 4, 1997) [hereinafter Letter].

‘*See Centers for Disease Control & Prevention, Hepatitis Branch, Epidemiology & Prevenfion ofViral

Hepatitis A fo E: An Overview (visited Oct. 28, 1997) <http:Nwww.cdc.govlncidod/diseasesmepatis/slidese~.

“See id.

“See id.

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Ms. Delores L. Alspaugh - Page 5 (DM-499)

sore.*’ Hepatitis C and D are transmitted just as hepatitis B is: by blood, through sexual contact, or

perinatally?* Hepatitis D infects only individuals already infected with hepatitis B.” Hepatitis E

is transmitted primarily through the fecal-oral route, just as hepatitis A.*4 No outbreaks of hepatitis

E have yet occurred in this country. *5 Hepatitis G is transmitted through blood, and therefore, like

hepatitis B, C, and D, can be passed when an injury with a sharp instrument occur~.*~

Not all strains of hepatitis may be tested for outside of a research laboratory; the tests may,

therefore, be difficult to obtain and expensive. Active infections ofviral hepatitis are associated with

elevated liver function tests, and we understand there is one test, the alanine aminotransferase test

(“ALT”), that can be used to determine generally whether a patient has some kid of hepatitis; the

ALT is, as we understand it, relatively easy to obtain and relatively inexpensive?’ As we understand

it, if the ALT is within normal limits, it is highly unlikely that the patient has viral hepatitis.** If, on

the other hand, the test is elevated, then tiuther tests may be run to isolate the particular strain of

hepatitis present.29 No readily available laboratories test for the hepatitis E virus3 Finally, testing

for hepatitis G is available only in research laboratories?’

“See id.

*See id.

=see Letter, supra note 17.

?See Centers for Disease Control & Prevention, Hepatitis Branch, Epidemiology & Prevention ofViral

Hepatitis A to E: An Overview (visited Oct. 28, 1997) <http//www.cdc.gov/ncidod/diseases/hepatitis/slidese~.

“‘See id.

26See Centers for Disease Control & Prevention, Hepatitis Branch, Hepatitis G (visited Oct. 28, 1997)

<http://www.cdc.govlncidod/diseases/hepatitis~epgfact.h~>.

2’See Letter, supra note 17

“Id.

-Id.

“Id

“Id.

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Your agency is statutorily authorized to adopt rules consistent with the a# and to enforce

the actr3 Moreover, a court will seriously consider an agency rule construing an ambiguous statute

if the agency is charged with executing the statute, the agency interpretation is reasonable, and the

agency interpretation does not contradict the statute’s plain language.‘4 This is particularly true

where the statute’s ambiguity is due to the complexity of the subject matter.” And a court will

accept a reasonable agency interpretation of an ambiguous statute even if other reasonable

interpretations exist.36

We conclude, therefore, that the commission may determine by rule what strains of viral

hepatitis a physician must test for under section 3 1. This office will not presume to instruct the

commission what the rule should say. The commission’s construction of section 3 1 must, of course,

be reasonable, and it must be consistent with the language of the statute. The commission should

be guided in its rulemaking by the legislature’s apparent desire to reduce the spread of contagious

diseases from cosmetologists to their clients. But we believe this intent permits the commission to

arrive at multiple “reasonable interpretations” of this statute. The commission may find it

reasonable, for example, to require a physician to include in his or her examination of the applicant

the ALT, i.e., the general test that will indicate whether hepatitis of some type is present, and if the

test shows that the applicant is infected, the commission may find it reasonable to consider further

testing to determine the particular virus. Or, the commission may find it reasonable to require

applicants to be tested only for those strains of viral hepatitis that cosmetologists are most likely to

transmit in the normal course of business. These two possible interpretations that the commission

may find reasonable are examples only; other reasonable interpretations may exist.”

We continue to your second question, inquiring what protections the ADA affords

individuals with hepatitis in the state licensing context. Clearly, the ADA forbids a licensing agency,

such as yours, to deny or revoke a license to a qualified individual with a disability on the basis of

the disability. Whether a particular individual with hepatitis is a qualified individual with a

“See V.T.C.S. art. 845 la, 5 4(a). The commission is also authorized to adopt “sanitationrules” to prevent the

spread of infectious or contagious diseases. See id. $4(e).

“See id. 5s 35A (providing for administrative penalties), 36 (providing grounds for denying, suspending, or

revoking license), 38(a) (authorizing commission to sue to enjoin violation of act), 41 (authorizing commission to

receive and investigate complaints).

%e Simplex Eiec. Corp. v. Holcomb, 949 S.W.Zd 446,447 (Tex. App:-Austin 1997, wit requested); Texas

Ass ‘n ofLong Distance Tel. Cm. v. Public Util. Comm ‘n, 798 S.W.2d 875,884 (Tex. App.--Austin 1990, tit denied).

“See Teros Ass ‘n of Long Distance Tel. Cm., 798 S.W.Zd at 884

‘%‘ee Quorum Sales, Inc. v. Sharp, 910 S.W.2d 59, 64 (Tex. App.--Austin 1995, writ denied).

“We note that section 3 1 premises a physician’s certitication upon a “physical examination.” It is not clear

to us whether this phrase is a medical term of art that suggests certain procedures to a physician. If it is, we do not

believe section 31 can be read to require an applicant to submit to more than such an examination.

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Ms. Delores L. Alspaugh - Page 7 (DM-499)

disability is, however, a question that requires for its resolution the consideration of numerous fact

issues. It is not, consequently, amenable to the opinion process. 38 While we cannot decide the issue

for you, we can provide you with some guidance.

Under the ADA, a public entity, such as the State or a state licensing agency, may not

discriminate” against any “qualified individual with a disability . by reason of’ the disability.4”

With respect to your questions, a public entity may not establish (or, we believe, enforce) licensing

requirements that discriminate on the basis of disability against qualified individuals with

disabilities.4’ It is for the commission to consider in the first instance whether a proposed action

against an applicant suffering from viral hepatitis because ofthe hepatitis will contravene the ADA.

First, the commission must determine whether an applicant infected with viral hepatitis indeed is

disabled. To conclude that a particular applicant has a disability, the commission must find one of

three things:

1. ‘Ihe applicant has a physical or mental impairment that substantially

limits at least one major life activity;@

2. The applicant has a record of a physical or mental impairment that

substantially limits at least one major life activity; or

3. The applicant is regarded as having a physical or mental impairment

that substantially limits at least one major life activity.43

Viral hepatitis may constitute a physical or mental impairment if, in the particular

circumstance, it substantially limits at least one major life activity. The phrase “physical or mental

impairment” includes contagious diseases. 44 In addition, although the administrative rules do not

‘*See,e.g.,AttomeyGeneralOpinionsDM-98(1992)at3,H-56(1973)at3,M-187(1968)at3,0-2911 (1940)

at 2.

“%%Ymination is the unnecessary imposition of extra burdens on an individual. See Medical SOC$Jof New

Jersey v. Jacobs, 1993 WL 413016 *7 (D.N.J.).

‘?%e42 U.S.C. 5 12132.

“See 28 C.F.R. 5 35.130(b)(6); see also Ciurk v. Virginia Ed. ofBar Examiners, 880 F. Supp. 430,442 (E.D.

Va. 1995); Stillweilv. Kansas C&Ed. ofPolice Comm’rs, 872 F. Supp. 682,684 (W.D. MO. 1995); Ellen S. v. Florida

Ed. of Bar Examiners, 859 F. Supp. 1489, 1493 (S.D. Fla. 1994).

‘*The phrase “major life activities” means, for purposes of the ADA, those that the average person in society

can perform with little or no difficulty, see Duffv. Lobdeli-Emery Mfg. Co., 926 F. Supp. 799,806 n.2 (N.D. Ind. 1996),

“such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and

working.” 28 C.F.R. $ 35.104.

“28 C.F.R. 5 35.104.

“See id. Although you do not ask about the requirement that a physician verify that an applicant is free of

(continued...)

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Ms. Delores L. Alspaugh - Page 8 (DM-499)

explicitly list viral hepatitis as a contagious disease that constitutes a physical or mental impairment

for purposes of the ADA, we do not believe the exclusion equates to a finding that viral hepatitis

may never be a physical or mental impairment. Commenting on its list of contagious diseases, the

United States Attorney General explained that the list cannot be exclusive “because of the difficulty

of ensuring the comprehensiveness of such a list, particularly in light of the fact that other conditions

or disorders may be identified in the future.“4S Courts have recognized that certain individuals

infected with hepatitis may bring a claim for discrimination under the ADA.46 Courts also have

found that individuals with hepatitis may bring a claim under the federal Rehabilitation Act:’ which

forbids a program receiving federal financial assistance to discriminate against an otherwise qualified

individual with handicaps. 48 Judicial interpretations of the Rehabilitation Act are considered

persuasive in interpreting the ADA.@

In our view, the fact that an individual suffers from chronic, as opposed to acute, viral

hepatitis is not the deciding factor in determining whether the individual is physically or mentally

impaired. Chronic viral hepatitis persists for more than six months?” We note that not all of the

cases we have just mentioned appeared to distinguish between acute and chronic viral hepatitis.

Furthermore, we do not find in the statute or applicable regulations language limiting a disability to

tuberculosis-and that an applicant who cannot provide that certification may not be licensed as a cosmetologist-we

note that tuberculosis is specifically listed as a disease that constitutes a physical or mental impairment for purposes of

the ADA. See id. If tuberculosis can be found to “substantially limit[] one or more of the major life activities” of a

qualified individual with the disease, we believe it constitutes a disability under the ADA. See 42 U.S.C. $ 12 102(2)(A)

(defining “disability”); 28 C.F.R. 5 35.104 (same). In the alternative, if a qualified individual who has suffered from

tuberculosis can show thaf because of the disease, he or she has “a record of. [a physical] impairment” or is

“regarded as having [a physical] impairment,” the individual may be disabled under the ADA. See 42 USC. 5

12102(2)(B), (C) (defining “disability”); 28 C.F.R. $ 35.104 (same). See genera& School Bd. ofNassau County Y.

Arline, 480 U.S. 273, 289 (1986) (concluding that individual suffering from tuberculosis can be handicapped within

meaning of Rehabilitation Act).

"EQUAL EMPLOYMENT~PPOR'IVNITY COMM'N & UNITED STATES DEP'T OF JUSTICE,AMERJCANS WITH

DISABILITIESHANDBOOK II-18(1991)[hereinafter HANDBOOK].

aSee Harrison v. State ofDelaware Dep’t ofSews. for Children. Youth, & their Families, 1996 WL 790101

*I (D. Del.) (hepatitis C);McNeelv. PublicServ. Co.,923 F. Supp. 1316,1319 (D. Cola. 1996) (hepatitis C), aff’d, 117

F.3d 1428 (10th Cir. 1997).

4729USC. ch. 16.

‘$See Roe Y. District of Columbia, 4 Nat’1 Disability L. Rep. 7 345 (D.D.C. 1993); Lussier Y. Dugger, 1 Nat’1

Disability L. Rep. (LRP Pubs.) 1 8 (1 lth Cir. 1990) (chronic active hepatitis); New York State Ass ‘n for Retarded

Children v. Carey, 612 F.2d 644,647, 649 (2d Cir. 1979) (hepatitis B carriers).

‘PSee Tips v. Regents of Tex. Tech Univ., 921 F. Supp. 1515, 1517 (N.D. Tex. 1996); Stillwell, 872 F. Supp.

at 686.

%TEDMAN'S MEDICALDICTIONARY 639(5thunabr.lawyers’ ed. 1982).

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Ms. Delores L. Alspaugh - Page 9 (DM-499)

a permanent impairment. 5’ In its analysis of the rules implementing the ADA, the United States

Attorney General contends that the temporal nature of a particular affliction is only one factor that

a fact-tinder may consider in determining whether the afflicted individual is disabled for purposes

of the ADA:

[I]mpairments are not necessarily excluded from the definition of

“disability” simply because they are temporary, but the duration, or

expected duration, of an impairment is one factor that may properly be

considered in determining whether the impairment substantially limits a

major life activity. . .

The question of whether a temporary impairment is a disability must be

resolved on a case-by-case basis, taking into consideration both the duration

(or expected duration) of the impairment and the extent to which it actually

limits a major life activity of the affected individual.52

Some courts, on the other hand, have indicated that, in general, only a permanent or continuing

impairment is a disability for purposes of the ADA.53

If the commission determines that a particular applicant suffering from viral hepatitis is

disabled, the commission must determine whether the applicant is otherwise qualified to be licensed

as a cosmetologist. A “qualified individual with a disability” is “an individual with a disability who,

with or without reasonable modifications to rules, policies, or practices , meets the essential

eligibility requirements for the receipt of services or the participation in programs or activities

provided by a public entity.“54 This issue further devolves into two components: (1) whether the

statutory requirement that an applicant be certified free of hepatitis is an essential eligibility

requirement; and if it is, (2) whether rules, policies, or practices reasonably may be modified to

permit the applicant’s licensure.55

s’see also HANDBOOK, supra note 45, at 11-20.

‘21d. at II-20 through II-2 1. The United States Court of Appeals for the Fifth Circuit, however, has indicated

that a temporary ailment is not an impairment for purposes of the ADA.

“Cf: Evans v. City ofDalh, 861 F.2d 846, 852-53 (5th Cir. 1988) (concluding that transitory knee injury is

not impairment under Rehabilitation Act); de la Torres v. Bolger, 781 F.2d 1134, 1137 (5th Cir. 1986) (stating that

impairment under Rehabilitation Act does not include “‘transitory illnesses which have no permanent effect on the

person’s health”‘) (quoting Stevens Y.Stubbs, 576 F. Supp. 1409, 1414 (N.D. Ga. 1983)); cf: also Vande Zande Y.

Wisconsin Dep’t ofAdmin., 44 F.3d 538, 544 (7th Cit. 1994) (stating that intermittent, episodic impairment is not

disability for purposes of ADA) (citing, among other sources, Evans, 861 F.2d at 852-53).

5’42 USC. § 12131(2),

“Cf: Arline, 480 US. at 287 x17. The entire “otherwise qualified” inquiry hum on questions of fact. See

(continued...)

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Determining whether freedom from viral hepatitis is an essential eligibility requirement is

a fact question belonging, in the first instance, to the commission. 56 Being certifiably free of viral

hepatitis is an essential eligibility requirement if that quality is necessary to provide cosmetology

services.” An applicant poses a direct threat to the public health or safety if no reasonable

modifications to the commission’s policies, practices, or procedures will eliminate the health risk.58

Nevertheless, the commission’s determination that an individual poses a direct threat to the public

health or safety because of his or her disability must be based on an individualized assessment:

The determination that a person poses a direct threat to the health or

safety of others may not be based on generalizations or stereotypes about the

effects of a particular disability. It must be based on an individualized

assessment,59 based on reasonable judgment that relies on current medical

evidence or on the best available objective evidence, to determine: the

nature, duration, and severity of the risk, the probability that the potential

injury will actually occur; and whether reasonable modification of policies,

practices, procedures will mitigate the risk.60

Sandison v. Michigan High Sch. Afhlefic Ash, 64 F.3d 1026, 1034 (6th Cir. 1995)

56SeeSandison, 64 F.3d at 1034. The commission’s determination is subject to judicial scrutiny. See Jacobs,

1993 WL 4 13016 *6. We fmd little judicial guidance as to how to determine which ehglblhty requirements are essential

and which are not. See, e.g., Porfgen v. Missouri State High Sch. Activifies Ass ‘iz, 40 F.3d 926, 929 (8th Cir. 1994)

(finding that High School Activities Association proved that age limit in interscholastic sports is essential ehglblhty

requirement); Clark, 880 F. Supp. at 442 (finding no evidence that Board of Bar Examiners treats applicant’s mental

or emotional health disorders as essential eligibility requirement); Coleman v. Zafechka, 824 F. Supp. 1360, 1368 (D.

Neb. 1993) (fmding essential eligibility requirements for participating in roommate assignment). Moreover, in its

commentary on the ADA regulations, the attorney general declined to clarify the concept. See HANDBOOK,supra note

45, at 11-26. Instead, the attorney general stated that, given “the variety of situations in which an individual’s

qualifications will be at issue,” including more specific criteria would be impossible. See id. The question is

particularly complex, the attorney general noted, where the public safety is involved. See id. at 11.27.

“See 28 C.F.R. 5 35.130(b)(8); Tips, 921 F. Supp. at 1518; Clark, 880 F. Supp. at 442 (quoting 28 C.F.R.

5 35.130(b)(8)).

‘8See Arline, 480 U.S. at 287-88 11.16;Clark, 330 F. Supp. at 441; HANDBOOK, supronote 45, at II-27

“See also Stikvell, 872 F. Supp. at 686 (stating that individualized inquiry is essential if ADA is to protect

disabled individuals from discrimination based on prejudice, stereotypes, 01 unfounded fear) (citing Arline, 480 U.S.

at 287).

@Id. (footnote added); Mine, 480 US. at 287-88

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Ms. Delores L. Alspaugh - Page 11 (DM-499)

We emphasize, in this regard, the necessity of the individualized assessment. A federal court has

termed blanket exclusions on individuals suffering from a particular kind of impairment “highly

suspect,“6

If the commission concludes that freedom from viral hepatitis is an essential eligibility

requirement for cosmetologists, then, as we stated above, it must finally consider whether an

individual suffering from the disease reasonably may be accommodated. An accommodation is not

reasonable if it either unduly burdens the commission, financially or administratively, or requires

the commission to fundamentally alter the nature of the practice of cosmetology.62

6’See Sfilhvd, 872 F. Supp. at 686-87 (and cases cited therein).

6zSeeArhe, 480 US. at 287 11.17;cf also 45 C.F.R. 5 84.12(c).

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Ms. Delores L. Alspaugh - Page 12 (DM-499)

SUMMARY

The Texas Cosmetology Commission may, by rule, reasonably interpret

the requirement in V.T.C.S. art. 8451a, section 31(a) that an applicant for a

new or renewed cosmetologist’s license be certified free of hepatitis.

Whether, under the Americans with Disabilities Act, 42 U.S.C. ch. 126,

the Cosmetology Commission may refuse to license an applicant who has

viral hepatitis on the basis of the applicant’s disease is a question that the

commission must determine on a case-by-case basis. The commission must

consider whether the viral hepatitis constitutes or is perceived to constitute,

in that case, a physical or mental impairment that substantially limits at least

one of the applicant’s major life activities; whether freedom from viral

hepatitis is an essential eligibility requirement to be licensed as a

cosmetologist; and, if it is, whether the commission reasonably may

accommodate the applicant.

DAN MORALES

Attorney General of Texas

JORGE VEGA

First Assistant Attorney General

SARAH J. SHIRLEY

Chair, Opinion Committee

Prepared by Kymberly K. Oltrogge

Assistant Attorney General

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