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The ADA protects people with contagious diseases.  HIV and tuberculosis deserve special attention because they are "scary" and often cause people to overreact in their fear.  These diseases, like most contagious diseases, can stir paranoia in a workplace even when the likelihood of transmission may be extremely low.  This is precisely the sort of discrimination that the ADA was intended to protect. 

The United States Supreme Court has declared HIV a disability because it substantially limits the major life activity of reproduction.  Bragdon v. Abbott, 524 U.S. 624 (1998).  The Court has ruled tuberculosis to be a protected disability as well.  School Board of Nassau County v. Arline, 480 U.S. 273 (1987).  Since these conditions are disabilities, employers need to take special care to avoid potential discrimination claims.  These extra precautions will be discussed in other chapters discussing the concepts of "qualified individuals with disabilities" and "reasonable accommodations."

Employers often feel they are in a catch-22 when it comes to employing persons with contagious diseases.  On one hand, they do not want to violate the ADA by wrongfully refusing to employ someone who might be disabled.  On the other hand, employers are obligated under the Occupational Safety and Health Act (OSHA) to provide a safe working environment. 

The law recognizes these competing pressures and excuses employers who refuse to hire or employ persons who pose a "direct threat" to the health and safety of other employees, customers, or other persons associated with the employer's business.  This exception does not give employers carte blanche to discriminate.  The direct threat exception is a narrow one that focuses on reasonable and professional medical judgments and the degree of real risk (not perceived risk) to third parties.  In this regard, courts look at the nature of the risk (how the disease is transmitted), the duration of the risk measured by how long a carrier may be infectious, the severity of the risk to third parties, and the probability that the disease will be transmitted and will cause harm.  The judgments of medical professionals and public health officials are given great weight.  A good rule of thumb for employers is to consult a medical professional before making an employment decision based on the "direct threat" exception.  Employers are well served to get a medical opinion in writing specifically stating that the particular employee poses a "direct threat" to others-and using those magic words "direct threat"-before making any such decision.