Swine flu and hotel liability

It can get tricky when 1) having swine flu may itself count as a protected disability under laws like California’s; 2) innkeepers are required to report communicable disease to authorities; 3) they must nonetheless avoid infringing customers’ privacy; and 4) they can face liability for not taking steps to protect fellow guests and their own workers. And don’t even think of noticing that a new guest is arriving from Mexico… (via Childs; more on hotels and the ADA)


  • As to (1), according to that link, the ADA “allows a business to refuse to accommodate a person with a disability if to do so would pose a ‘direct threat’ to the health and safety of others.” And (3) is not a constraint upon (2); the hotel appears to be free to report whatever it observes, and just may not make further inquiries to the guest. The Mexico point is trivial; the link is simply saying that one should not act as if every guest coming from Mexico is diseased. This is particularly sensible given that the swine flu is now manifesting nationwide in the US. And finally, it seems worth pointing out that the hotel’s legal requirement to accept all comers, apart from those endangering others, appears to be a doctrine stretching back to early English common law, and not a recent creation.

  • It still seems to me like a legal Catch-22 here: While the innkeeper is responsible for his guests’ safety–as always, as the article pointed out–what they CAN do heads toward the slope of ADA, HIPAA, (among others), and/or racial stereotyping (short of asking a Latino if he/she is from Mexico). All it would take is one judge in one lawsuit to find in favor of, say, a Mexican national denied lodging . . . and then what?

  • Well, Tom, you should be advised that the “direct threat” defense has been interpreted in some surprisingly narrow ways over the years, so that it is not nearly as useful to employers or service providers as it might sound. One example among many is here (EEOC takes position that train dispatcher at medical risk of losing consciousness, whose duties include taking emergency action to prevent crashes, is not a “direct threat” to others).

  • You’re aware that the district court and the 3d Circuit ruled against the train dispatcher in that case, right?

    Infectious disease is different, anyway. Even Justice Brennan held that the ADA would not apply to an infected person in danger of transmission. Moreover, the ADA deems infectious disease a direct threat as a matter of law in the food service context, which would likely weigh heavily in other contexts as well.