(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.
Notes of Decisions
Williams v. Fedex Corp. Servs., 849 F.3d 889 (10th Cir. 2017).
· cites it 2× “See 29 C.F.R. § 1630.3 (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.”
Nielsen v. Moroni Feed Co., 162 F.3d 604 (10th Cir. 1998).
· cites it 3× “§ 12114 (a) (excluding from definition of “individual with a disability” individuals currently engaged in illegal use of drugs); see also 29 C.F.R. § 1630.3 App. (“Employers ... may discharge or deny employment to persons who illegally use drugs, on the basis of such use,…”
Velma Bates v. Dura Auto. Sys., Inc., 767 F.3d 566 (6th Cir. 2014).
· cites it 2× “See 29 C.F.R. § 1630.3 (a)(2) (“Illegal use of drugs means the use of drugs the possession or distribution of which is unlawful under the Controlled Substances Act,” but “does not include the use of a drug taken under the supervision of a licensed health care professional, or…”
Loder v. City of Glendale, 927 P.2d 1200 (Cal. 1997).
· cites it 2× “) An administrative commentary, providing interpretive guidance on the administrative regulation implementing this provision ( 29 C.F.R. § 1630.3 (1996)), explains: "The term `currently engaging' is not intended to be limited to the use of drugs on the day of, or within a matter…”
Harrison v. Benchmark Elec. Huntsville, Inc., 593 F.3d 1206 (11th Cir. 2010).
“Employers may also ask follow-up questions in response to a positive drug test, see 29 C.F.R. § 1630.3 (a), as correctly noted by the district court.”
Blatch Ex Rel. Clay v. Hernandez, 360 F. Supp. 2d 595 (S.D.N.Y. 2005).
“104 (2005); 29 C.F.R. § 1630.3 (a) (2005). Thus, neither the mentally-disabled status of a current illegal drug user against whom action is taken based on that drug use, nor the mentally-disabled status of a person who depends on the drug user for assistance, is a viable basis…”
Collings v. Longview Fibre Co., 63 F.3d 828 (9th Cir. 1995).
· cites it 2× “” 29 C.F.R. § 1630.3 App. Courts have recognized a distinction between termination of employment because of misconduct and termination of employment because of a disability.”
E. Michael Salley v. Circuit City Stores, Inc, 160 F.3d 977 (3rd Cir. 1998).
“” 29 C.F.R. § 1630.3 App. (1996). Similarly, the Equal Employment Opportunity Commission’s Technical Assistance Manual on the ADA states: "Current” drug use means that the illegal use of drugs occurred recently enough to justify an employer’s reasonable belief that involvement…”
Soileau v. Guilford of Maine, Inc., 928 F. Supp. 37 (D. Me. 1996).
“29 C.F.R. § 1630.3 . These exceptions, however, do not significantly limit the expansive scope of the Act as interpreted by § 1630.”
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