28 CFR Part 35 · Subpart B — General Requirements
§ 35.139 Direct threat
Last updated June 11, 2026
Permits exclusion only when a significant risk of substantial harm cannot be reduced through reasonable modifications.
In Plain Language
A public entity may exclude a person with a disability if their participation poses a direct threat, a significant risk of substantial harm to the health or safety of others that cannot be eliminated or reduced by reasonable modifications. This exception is narrow. The threat must be based on objective, individualized assessment, not assumptions, stereotypes, or generalizations about disability. If reasonable modifications can reduce the risk to acceptable levels, exclusion is not permitted.
This summary is educational, not legal advice. The official text below controls.
Official Regulatory Text — 28 CFR § 35.139
Verbatim from 28 CFR Part 35, current through June 9, 2026.
(a) This part does not require a public entity to permit an individual to participate in or benefit from the services, programs, or activities of that public entity when that individual poses a direct threat to the health or safety of others.
(b) In determining whether an individual poses a direct threat to the health or safety of others, a public entity must make an individualized assessment, based on reasonable judgment that relies on current medical knowledge or on the best available objective evidence, to ascertain: the nature, duration, and severity of the risk; the probability that the potential injury will actually occur; and whether reasonable modifications of policies, practices, or procedures or the provision of auxiliary aids or services will mitigate the risk.
[AG Order No. 3180-2010, 75 FR 56180, Sept. 15, 2010]
What § 35.139 Means in Practice
- "Direct threat" is a high bar. It requires significant, not speculative, risk of substantial harm
- The assessment must be individualized and based on current medical or objective evidence
- Stereotypes or generalizations about a type of disability do not satisfy the direct threat standard
- If a reasonable modification eliminates or reduces the threat to an acceptable level, the person must be admitted
- Entities that use direct threat as a pretext for discrimination face significant liability
Common Questions
Can we exclude someone with an infectious disease from a public program?
Only if there is an objective, individualized assessment showing a significant risk of substantial harm that cannot be reduced by reasonable modifications. Follow public health guidance.
Can we exclude someone because staff are uncomfortable around their disability?
No. Staff discomfort or unfounded concerns are not a direct threat. The standard requires objective evidence of actual risk.
Does § 35.139 apply to your entity?
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