28 C.F.R. § 36.209

Illegal use of drugs

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(a) General. (1) Except as provided in paragraph (b) of this section, this part does not prohibit discrimination against an individual based on that individual's current illegal use of drugs.

(2) A public accommodation shall not discriminate on the basis of illegal use of drugs against an individual who is not engaging in current illegal use of drugs and who—

(i) Has successfully completed a supervised drug rehabilitation program or has otherwise been rehabilitated successfully;

(ii) Is participating in a supervised rehabilitation program; or

(iii) Is erroneously regarded as engaging in such use.

(b) Health and drug rehabilitation services. (1) A public accommodation shall not deny health services, or services provided in connection with drug rehabilitation, to an individual on the basis of that individual's current illegal use of drugs, if the individual is otherwise entitled to such services.

(2) A drug rehabilitation or treatment program may deny participation to individuals who engage in illegal use of drugs while they are in the program.

(c) Drug testing. (1) This part does not prohibit a public accommodation from adopting or administering reasonable policies or procedures, including but not limited to drug testing, designed to ensure that an individual who formerly engaged in the illegal use of drugs is not now engaging in current illegal use of drugs.

(2) Nothing in this paragraph (c) shall be construed to encourage, prohibit, restrict, or authorize the conducting of testing for the illegal use of drugs.

Notes of Decisions

Cited in 1 case, 2001–2001 · leading case: Boyer v. KRS Comput. & Bus. Sch., 171 F. Supp. 2d 950 (D. Minnesota 2001).

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Boyer v. KRS Comput. & Bus. Sch., 171 F. Supp. 2d 950 (D. Minnesota 2001). “Boyer cites 28 C.F.R. § 36.209 and commentary in the Appendix thereto as authority for the proposition that the EEOC has declared alcoholics to be "individuals with disabilities subject to the protection of the statute” and that "addiction is a disability, and addicts are…”

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