Excluding Drug Users Without Committing Disability Discrimination

Tenants who abuse drugs and alcohol may be endangering not only themselves but also their neighbors. Tenant substance abuse can result in criminal activity, violence, fires, disturbances, and other threats to apartment community health, safety, and tranquility. But, from a legal standpoint, cracking down on substance abuse isn’t so simple. For one thing, drug and alcohol dependency and addiction aren’t just social problems but diseases. As such, they may qualify as “disabilities” protected by fair housing laws. Bottom line: While landlords are not only allowed but required to police their communities, they must also ensure that their anti-drug policies and practices don’t cross the line into disability discrimination.

This month’s lesson is dedicated to helping you walk this fine line. First, we’ll explain the confusing and frequently misunderstood rules governing how fair housing protections for the disabled apply to substance abusers. Then, we’ll show you how to apply the analysis to real-life operations by outlining eight rules to ensure that the things you do to keep drug users out of your community don’t expose you to liability for disability discrimination. When the lesson ends, you can take the Coach’s Quiz to see how much you’ve learned.  

WHAT DOES THE LAW SAY?

The federal Fair Housing Act (FHA) bans discrimination based on “handicap” (in accordance with current practice, we’ll use the term “disability” instead of “handicap”), which is defined as:

• A “physical or mental impairment which substantially limits one or more of such person’s major life activities”;
• A record of having such an impairment; or
• Being regarded as having such an impairment, even if the perception is false.   

Notice that the definition doesn’t mention anything about controlled substances. That omission is significant because in actual cases, persons suing for disability discrimination have the burden of proving that they have a disability under the law. The good news for these plaintiffs is that guidance from the U.S. Department of Housing and Urban Development (HUD), the Department of Justice (DOJ), and the Congress that enacted the FHA, as well as rulings from the courts that interpret it, have made it very clear that drug and alcohol use and addiction are deemed to be “physical or mental impairments” under the law. However, two important caveats apply.  

Current vs. Former Illegal Drug Use

FHA protection extends only to former users of controlled substances and illegal drugs; current drug use is legitimate grounds for rejecting a rental applicant or evicting a tenant. Unfortunately, there’s no universally recognized definition of current drug use for purposes of applying the FHA rule.

The regulations implementing the Americans with Disabilities Act (ADA) define current illegal drug use as “illegal use of drugs that occurred recently enough to justify a reasonable person’s belief that a person’s drug use is current or that continuing use is a real and ongoing problem” [28 CFR 36.104].

The closest thing we have to a definitive definition is a set of guidelines contained in HUD Handbook 4350.3 to help providers of federally assisted (Section 202, Section 811, Section 221, and Section 236) housing communities distinguish between current and former drug users. According to the Handbook, former drug users protected by the FHA ban on disability discrimination include an individual who:

• Has successfully completed a supervised drug rehabilitation program or has otherwise been successfully rehabilitated and is no longer engaging in illegal drug use;
• Is currently participating in a supervised drug rehabilitation program and is no longer engaging in such use; or
• Is erroneously regarded as engaging in current illegal drug use.

Strategic Pointer: Fair housing laws don’t distinguish between current and former alcohol use the way they do with drug use. Because alcohol use is perfectly legal under federal law, alcoholism is just like any other disability that the FHA protects from discrimination. In other words, the protection applies even to applicants or tenants who are currently addicted to alcohol and have no desire to get sober.

The Direct Threat Exception

Even if a drug or alcohol user is considered disabled, you may still be able to reject or evict the person to the extent he or she poses a “direct threat” to the health and safety of other tenants. According to a 2015 joint statement from HUD and the DOJ, “the [FHA] affords no protections to individuals with or without disabilities who present a direct threat to the persons or property of others.” We’ll show you how to apply the “direct threat” rule when laying out the practical lessons below.

8 RULES FOR AVOIDING DISCRIMINATION

WHEN SEEKING TO KEEP YOUR COMMUNITY DRUG-FREE

Rule #1: It’s Okay to Have Reasonable Anti-Drug & Alcohol Policies

Nobody would ever deny the imperative of landlords to police their communities and protect their tenants against the dangers posed by substance abusers. The challenge is to ensure that your anti-drug policies, practices, and procedures are not only necessary to accomplish that purpose but also reasonable and nondiscriminatory. Rules generally recognized as legitimate include banning tenants from:

• Dealing, manufacturing, or distributing drugs or engaging in illegal drug-related activity;
• Keeping large quantities illegal drugs in their apartment;
• Using drugs or being intoxicated in the common areas; and/or
• Allowing their families, visitors, or guests to commit any such violations.

Rule #2: Don’t Ask Applicants About Past Drug Use

“Do you use, or have you ever previously used, illegal drugs?”

If there’s a question like this on your rental application forms, you’re asking for trouble. That’s because former drug use is a disability and you’re generally not allowed to ask rental applicants if they have any disabilities, unless such questions are directly relevant to their qualifications for housing reserved for persons who have that particular disability. For example, a question about past drug use would be okay when screening applicants for housing reserved for recovering or recovered drug addicts.

However, the FHA Regulations (24 CFR §§100-202) say that you’re allowed to ask questions to determine whether an applicant:

• Is a current illegal abuser or addict of a controlled substance; and/or
• Has ever been convicted of (but not simply arrested for) the illegal manufacture or distribution of a controlled substance.

Caveat: Be consistent. If you ask an applicant about former drug use or convictions, you must ask all applicants the same questions. What you can’t do is pose these questions selectively, such as to applicants you suspect of having an addiction and/or to minority applicants. Thus, for example, asking Black applicants about current illegal drug use would constitute racial discrimination if you don’t ask white applicants the same questions.

DEEP DIVE:

Pre-Admission Drug Testing

Another method you can use to ensure that applicants aren’t currently using illegal drugs is to require them to submit to pre-admission drug testing. The way it typically works: Once your normal screening process determines that an applicant is qualified, you can grant them a conditional acceptance, provided that they pass a drug test. Although HUD hasn’t issued guidance specifically addressing the issue, pre-admission testing is probably legal since it detects current, rather than previous drug use.

But just because you’re allowed to do it doesn’t necessarily mean you should. The costs of testing may significantly outweigh the benefits. First of all, if you go down the testing path, you must require all provisionally accepted applicants to pass a drug test as a condition of tenancy, not just applicants you suspect may be using illegal drugs. All of that drives up costs. In addition, while generally accurate, drug testing is far from infallible. Moreover, rejecting an applicant on the basis of a positive drug test may result in lawsuits over privacy issues and how the tests were administered, a headache you don’t need.

Rule #3: Make Exception for Current Use of Legally Prescribed Medical Marijuana

Thirty-seven states and the District of Columbia have adopted laws allowing for the use of marijuana prescribed by a physician for certain medical uses. Use of non-medical marijuana for recreational purposes has also been legalized in 18 states, including D.C.

Question: Can you still exclude a current user if the drug she uses is legal in your state?

Answer: Yes, but only if the person is a recreational and not a medical marijuana user.  

Explanation: Although the FHA doesn’t specifically address the question, the legislative history that HUD, courts, and tribunals rely on to interpret it makes it clear that the exclusion of current illegal drug users doesn’t apply to individuals who use otherwise controlled substances that are legally prescribed by a physician. According to the official House Report, “the exclusion does not eliminate protection for individuals who take drugs defined in the Controlled Substances Act for a medical condition under the care of, or by prescription from, a physician.” The Report adds that “use of a medically prescribed drug clearly does not constitute illegal use of a controlled substance.”

However, limits apply. For a tenant’s medical marijuana use to be protected:

• The marijuana must be legally prescribed by a physician for a medical condition authorized by the law;
• The tenant must use the marijuana only for the prescribed condition;
• The tenant must use the marijuana within his or her own apartment and not in common areas;
• The tenant may not possess (or cultivate) more than the maximum amount the law permits; and
• The tenant must not sell or distribute the marijuana to anybody else.

Recreational marijuana isn’t protected the way medical marijuana is. So, you may be able to exclude a person who uses legal marijuana for purely recreational purposes. But the laws are still not perfectly clear on this. That’s why you need to talk to an attorney about how to apply your community drug rules if you live in a state where recreational marijuana has been legalized.  

Coach’s Tip: The states that have legalized recreational marijuana are: Alaska, Arizona, California, Colorado, Connecticut, District of Columbia, Illinois, Maine, Massachusetts, Michigan, Montana, Nevada, New Jersey, New Mexico, Oregon, Vermont, Virginia, and Washington.  

DEEP DIVE:

The Myth of Legal Marijuana

Truth be told, there is no such thing as “legal marijuana.” Use of marijuana, both medical and recreational, is illegal under federal law. And federal law trumps state law. Thus, while many states have passed laws purporting to legalize marijuana within their own boundaries, people who use, manufacture, and distribute marijuana in those states are still breaking federal law.

The reason they’re not getting busted by the federal Drug Enforcement Agency and DOJ is based not on law but enforcement policy. Specifically, the DOJ has instructed U.S. attorneys not to enforce federal marijuana prohibitions against states with legalization statutes as long as the state program follows certain criteria designed to prevent financing of terrorism and organized crime, diversion of marijuana to minors and non-legalization states, and other activities harmful to national health and security. The federal government has the authority to revoke this policy and enforce federal rules against people who engage in marijuana activity that’s purportedly legal in their state any time it wants.   

At least one court has noted this in the context of an FHA disability discrimination case. In 2014, a Michigan federal court ruled that a state law legalizing medical marijuana didn’t bar a federally assisted housing community from evicting a tenant for using medical marijuana prescribed by her doctor for multiple sclerosis. While the use might have been legal under Michigan laws, it was still illegal under federal law. As a result, the community didn’t have to allow her medical marijuana use as a reasonable accommodation under the FHA. To rule otherwise would require the community to violate federal law, the court reasoned—although it left the question of whether this tenant deserved to be evicted for the state courts to decide [Forest City Residential Management Inc. v. Beasley, Dec. 3, 2014].

Rule #4: Don’t Ask Applicants About Alcohol Use

The need to guard against asking direct questions about disabilities also comes into play in the context of alcohol use, only more so to the extent that former and current alcohol dependency are both considered disabilities under the FHA. Thus, while questions about current drug use may be allowed, questions about current alcohol use are not.

Questions You Can & Can’t Ask Rental Applicants

Illegal Questions	Legal Questions
Have you ever used illegal drugs?   Have you ever been arrested for manufacturing or distributing illegal drugs?   Have you ever had a drinking problem?   Do you currently have a drinking problem?	Do you currently use illegal drugs?   Have you ever been convicted of manufacturing or distributing illegal drugs?   --   --

 

Rule #5: Asking for Verification of No Current Drug Use May Be Okay

As noted above, protection against disability discrimination applies to individuals who’ve recovered from previous illegal drug use as long as they’re not using the stuff now. You may be entitled to ask applicants/tenants who claim they’ve recovered to provide evidence from a third party that they’re not a current user of illegal drugs. Such evidence could include verification from a:

• Reliable drug treatment counselor or program administrator that the applicant/tenant is or has been in treatment, complied with the terms of that treatment, and has a reasonable prospect of success in refraining from illegal drug use; and/or
• Probation or parole officer that the applicant/resident has met or is meeting the terms of probation or parole and isn’t currently a user of illegal drugs, and how long he/she has been clean.

Because rules may differ by geography and type of housing provided, you should check with your attorney before requesting such evidence.

Rule #6: Don’t Reject Applicants Because They’re Alcoholics or Former Drug Users

Given their druthers, many if not most landlords would want to exclude any alcoholics and former drug addicts from their tenant mix for health and security reasons. While this outlook may be somewhat understandable, it’s also illegal because it’s based on generalized stereotypes related to a disability.

The HUD/DOJ joint statement uses the example of a rental applicant who indicates that she currently resides at Cambridge House, a group home for women receiving treatment for alcoholism. Figuring that alcoholics are more likely to create disturbances and damage property, the landlord rejects her application. The rejection would be discriminatory because it’s based on the landlord’s subjective beliefs about people with alcohol issues, rather than an individualized assessment of the particular applicant and the actual threat, if any, that she may pose to the community.

Bottom Line: Simply being a current or former alcoholic and/or former drug user isn’t grounds to exclude or evict.

Rule #7: You Can Exclude Substance Abusers If They Pose a Direct Threat

As noted above, the FHA ban on discriminating against persons with disabilities doesn’t cover individuals who pose a “direct threat.” How do you know if a person poses a direct threat? It’s up to the landlord to make that determination. Remember that subjective beliefs, generalized stereotypes, and speculation about substance abusers aren’t enough. According to the HUD/DOJ joint statement, a landlord’s determination that an individual poses a direct threat must be the product of an individualized assessment based on “reliable objective evidence,” for example, about the disabled person’s current conduct or a recent history of overt acts.

Example: A landlord evicted a tenant for engaging in erratic and dangerous behavior. The tenant admitted to urinating in the elevator, threatening to kill a neighbor, throwing a lit cigarette and coke can at the doorman, and a number of other incidents. But he contended that this was all caused by his mental disorders and sued the landlord for disability discrimination.

The Illinois state court granted the landlord summary judgment on the claim—essentially, tossed the discrimination complaint without a trial—finding that the landlord was justified in evicting the tenant for posing a direct threat. The appeals court concluded that the ruling was reasonable and refused to reverse it [Wirtz Realty Corporation v. Freund, 721 N.E.2d 589 (Ill. App. 1999)].

The HUD/DOJ joint statement explains how landlords should perform a direct threat assessment, instructing that it must consider:

• The nature, duration, and severity of the risk of injury; and
• The probability that injury will actually occur.

In evaluating a recent history of overt acts, the landlord must take into account whether the individual has received intervening treatment or medication that has eliminated the direct threat. In such a situation, HUD/DOJ continue, the landlord may ask the individual to document how the circumstances have changed and why he no longer poses a direct threat. The landlord may also obtain “satisfactory assurances” that the individual won’t pose a direct threat during the tenancy.

Based on court cases, we also know that the mere potential or threat of harm may be enough to constitute a direct threat, even if no actual harm is done. In other words, as long as the threat to other tenants is objective, severe, and real, landlords don’t have to wait until the tenant actually hurts somebody to invoke the “direct threat” exception.

Example: A Louisiana court ruled that a tenant with severe brain damage as a result of an automobile accident was a direct threat to other tenants based on his potential for harm rather than any harm he had previously inflicted, noting that the tenant engaged in altercations with other tenants, chased kids with a knife, listened to loud and vulgar music, and made inappropriate sexual comments [Foster v. Tinnea, So.2d 782].

Rule #8: Even Direct Threats Are Entitled to Reasonable Accommodations

Once you determine that an individual poses a direct threat to other tenants, you can go ahead and reject or evict him or her. Right?

Wrong.

To the extent their substance abuse issues constitute a disability under the FHA—that is, previous illegal drug use or previous or current alcohol addiction, individuals who pose direct threats are still entitled to reasonable accommodations to the point of undue hardship. Result: Before deciding to reject or evict, you must consider whether there are any reasonable accommodations you can make to eliminate that direct threat. In an actual case, you’d have the burden of showing that there were no reasonable accommodations you could have made to mitigate the direct threat.

One possibility to consider is separating the tenant in a location where he or she wouldn’t pose a threat to other tenants. Accommodations may also involve getting assurances that the tenant will receive treatment, medication, monitoring, or other management services. In these circumstances, you’re entitled to request verification from a healthcare provider, social worker, or other reliable third party that the treatment plan will be effective in eliminating the direct threat, as well as assurances that the tenant will comply with its terms.

Another possibility is to enter into a written accommodation agreement conditionally allowing a tenant to remain in the space, provided that he or she complies with all lease obligations and other specific requirements set out in the agreement and granting the landlord the right to terminate the agreement and evict the tenant immediately for failure to comply with those requirements.

Accommodation agreements may involve having the landlord grant a conditional extension of a legal notice that’s been served on the tenant, which can then be withdrawn if the tenant complies with the agreement. If the tenant doesn’t comply, the landlord can then make a strong case that further accommodation would be unreasonable and impose undue hardship, laying the legal groundwork for terminating the extension period and seeking immediate termination.