Chapter § 3-3 § 1630.3. Exceptions to the Definitions of "Disability" and "Qualified Individual With a Disability"

• Jurisdiction: United States

3-3 § 1630.3. Exceptions to the Definitions of "Disability" and "Qualified Individual With a Disability"

(a) The terms disability and qualified individual with a disability do not include individuals currently engaging in the illegal use of drugs, when the covered entity acts on the basis of such use.

(1) Drug means a controlled substance, as defined in schedules I through V of Section 202 of the Controlled Substances Act. (21 U.S.C. 812).
(2) Illegal use of drugs means the use of drugs the possession or distribution of which is unlawful under the Controlled Substances Act, as periodically updated by the Food and Drug Administration. This term does not include the use of a drug taken under the supervision of a licensed health care professional, or other uses authorized by the Controlled Substances Act or other provisions of Federal law.

(b) However, the terms disability and qualified individual with a disability may not exclude an individual who:

(1) Has successfully completed a supervised drug rehabilitation program and is no longer engaging in the illegal use of drugs, or has otherwise been rehabilitated successfully and is no longer engaging in the illegal use of drugs; or
(2) Is participating in a supervised rehabilitation program and is no longer engaging in such use; or
(3) Is erroneously regarded as engaging in such use, but is not engaging in such use.

(c) It shall not be a violation of this part for a covered entity to adopt or administer reasonable policies or procedures, including but not limited to drug testing, designed to ensure that an individual described in paragraph (b)(1) or (2) of this section is no longer engaging in the illegal use of drugs. (See § 1630.16(c) Drug testing).

(d) Disability does not include:

(1) Transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders;
(2) Compulsive gambling, kleptomania, or pyromania; or
(3) Psychoactive substance use disorders resulting from current illegal use of drugs.

(e) Homosexuality and bisexuality are not impairments and so are not disabilities as defined in this part.

3-3.1 Commentary

3-3:1.1 ADA Treatment of "Current" Drug Users and the "Safe Harbor"

One of the knottier issues under the ADA is the treatment of employees who are alcoholics or use illegal drugs. The tension arises from the law itself which provides, on the one hand, that the ADA does not protect "current" drug users, and on the other, that a drug user has a "safe harbor" and is ADA protected if the individual has successfully completed a drug rehabilitation program (or otherwise rehabilitated successfully) and is not currently engaging in use of illegal drugs.

The question then becomes what does "current" mean? The Fifth Circuit has an answer, the same one relied upon by other circuits.

• Mauerhan v. Wagner Corp., 649 F.3d 1180 (10th Cir. 2011) (in affirming summary judgment, court holds that meaning of "current" does not depend on the temporal considerations of the days or weeks that have passed

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