763

June 23, 1998

The Honorable David L. Hobson

U.S. House of Representatives

Washington, D.C. 20515

Dear Representative Hobson:

This letter is in response to your inquiry on behalf of your constituent, Hugh W. Payton, M.D. Dr. Payton inquired about enforcement of the "Respiratory Section" of the Americans with Disabilities Act (ADA), particularity in the service sector, to protect individuals with a sensitivity to house dust mites and mold spores. We apologize for delay in responding.

There is no separate section of the ADA devoted to respiratory illness in particular. The definition of "disability" encompasses individuals who have a physical or mental impairment, which may include a physiological disorder or condition affecting the respiratory system. To be legally recognized as a disability, however, a physical or mental impairment must substantially limit a major life activity (such as breathing) of an affected individual. Thus, the determination as to whether sensitivity to house dust mites and mold spores is a covered disability must be made using the same case-by-case analysis that is applied to all other physical or mental impairments.

In some cases, an individual's respiratory or neurological functioning may be so severely affected by sensitivity to house dust mites and mold spores that he or she will be considered disabled. Such an individual would be entitled to all of the protections afforded by the ADA. These protections may include the provision of an area treated to control dust mites or mold

spores, if such treatment would not fundamentally alter the nature of the business or program. In other cases, however, an individual's sensitivity to dust mites and mold spores will not constitute a disability because the individual's major life activity of breathing is affected, but not substantially impaired. In this situation, an individual would not be entitled to claim ADA protection.

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The ADA prohibits discrimination on the basis of disability, but it only requires covered entities to make reasonable modifications in their policies and practices that are necessary to enable individuals with disabilities to partake of their goods, services or facilities. After a determination is made that a person is an individual with a disability who is entitled to claim the protection of the ADA, it is necessary to determine if a requested modification, such as the treatment of an area within the place of public accommodation to control dust mites or mold spores, is "reasonable." This determination involves a fact-specific, case-by-case inquiry that considers, among other factors, the effectiveness of the modification in light of the

nature of the disability in question, and its effect on the

entity that would implement it.

Because of the case-by-case nature of these determinations, the ADA regulations do not require the treatment of areas in a place of public accommodation to control dust mites and mold spores.

I hope this information is helpful to you in responding to your constituent.

Sincerely,

Bill Lann Lee

Acting Assistant Attorney General

Civil Rights Division