I got a question from a client concerning use of illegal substances and if use of an illegal substance qualified as a disability under applicable fair housing law.  The short answer is that individuals who currently use illegal drugs are specifically excluded from protection pursuant to the Fair Housing Act (FHA), Section 504 of the Rehabilitation Act of 1973 (Section 504), and the Americans with Disabilities Act (ADA).   That being said, both federal and state law distinguish between individuals who currently use illegal drugs as contrasted with individuals who are not currently using drugs, but who have a history of addiction. 

On a related note, individuals with alcoholism are treated differently under Section 504 as contrasted with the FHA or ADA.  HUD’s regulations concerning Section 504 are clear that current alcohol abuse prevents that person from being considered an individual with a disability and prevents those individuals from participating in federally funded housing programs.  The analysis is the same with respect to an individual whose current alcohol abuse would constitute a direct threat to the property or to the safety of other residents or members of the leasing office team.

While the FHA’s definition of an individual with a disability can be read to alcoholism as a covered disability, the law also provides for a general exclusion for any individual who residency would pose a direct threat to the safety/health of others or which could damage the property, provided that a reasonable accommodation could not eliminate the threat.

Please remember these comments present general guidelines.  Each leasing office must engage in the interactive process with your residents and applicants in an effort to appropriately evaluate the circumstances presented by each individual.  Sometimes, you end up speaking with a lawyer like me in an effort to try to get it right.

Just A Thought.