                                 QlXficeof tip Bttornep @eneral
                                         &ate of PCexae
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).




                                                              P. 2853
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...)



                                                                 p.   2854
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.



                                                               p.   2855
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.



                                                            p.   2856
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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.



                                                             p. 2857
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...)



                                                             p.   2858
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).



                                                               p.   2859
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...)



                                                              p.   2860
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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



                                                             p.   2861
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).



                                                             p.   2862
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




                                                     p.   2863
