Dealing with Drug Use Without Violating Fair Housing Law

Drug users are not a protected class under either federal or state fair housing laws. Drug abuse may result in criminal activity, violence, and property destruction. However, drug and alcohol dependency are also considered diseases and may be considered "disabilities" under fair housing laws. While all properties should have anti-drug policies, it is important that those policies be developed and administered in a way that does not violate fair housing law.

This article is intended to assist housing operators in walking the line between the protection of residents and property from illegal drug use and violating the rights of the disabled.

Background

Fair housing law prohibits discrimination based on disability, which is defined as "a physical or mental impairment that substantially limits one or more major life activities." The law also protects persons with a record of having such an impairment, or who are ‘regarded’ as having such an impairment.

Individuals who sue housing operators for disability discrimination have the burden of proving that they are disabled under the law. However, both HUD and the courts have made it clear that drug and alcohol use and addiction are "physical or mental impairments" under the law. There are two caveats to this determination: (1) Fair Housing Act (FHA) protection extends only to former users of controlled substances and illegal drugs. Current use of drugs is legitimate grounds for rejection of a rental applicant or eviction of a current resident. The Americans with Disabilities Act (ADA) defines "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). According to HUD Handbook 4350.3, former drug users protected by the FHA ban on disability discrimination include an individual who (i) has successfully completed a supervised drug rehabilitation program or has otherwise been successfully rehabilitated and is no longer engaging in illegal drug use; (ii) is currently participating in a supervised drug rehabilitation program and is no longer engaging in such use; or (iii) is erroneously regarded as engaging current illegal drug use.

Note regarding alcohol use: FH law does not distinguish between former and current alcohol use the way it does with drug use. This is because, under federal law, alcohol use is legal. Alcoholism is just like any other disability that is protected by fair housing law and applies to applicants or residents who are currently addicted to alcohol and have no desire to stop drinking.

(2) The second caveat is "the Direct Threat Exception." The FHA provides no protection to individuals with or without disabilities who present a direct threat to the persons or property of others.

Thoughts on Pre-Admission Drug Testing

A requirement that all applicants submit to drug testing prior to admission is probably legal since it detects current, rather than past drug use. With that being said, I do not recommend such a requirement.

The costs of drug testing will almost certainly outweigh the benefits. You will also have to be consistent in requiring that all provisionally accepted applicants pass a drug test as a condition of occupancy - not just applicants you suspect may be using illegal drugs. Also, while usually accurate, drug testing is not foolproof. Finally, rejecting an applicant on the basis of a drug test may result in lawsuits over privacy issues and how the tests were administered. Keep in mind that it is likely that your competitors will not be doing drug testing, putting you at a competitive disadvantage. It’s just not worth it!

Reasonable Anti-Drug & Alcohol Policies are Acceptable

Rules relating to drug and alcohol use that are generally acceptable include banning residents from:

Don’t Ask About Past Drug Use

Former drug use is a disability, and you are generally not permitted to ask applicants if they are disabled (the exception to this is housing specifically for the disabled).

The FHA regulations (24 CFR §§100-202) permit the asking of questions to determine whether an applicant:

While these questions are permitted, they must be asked of all applicants.

What About Current Use of Legally Prescribed Medical Marijuana?

37 states and the District of Columbia allow for the use of medically prescribed marijuana. Owners can certainly ban the use of recreational marijuana on a property, but what about marijuana that is legally prescribed by a physician? While not specifically addressed in the FHA, the legislative history that HUD, courts, and tribunals rely on to interpret the Act makes it clear that the exclusion of current illegal drug users does not apply to individuals who use otherwise controlled substances that are legally prescribed by a doctor. In the report of the House of Representatives, it states, "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 goes on to say, "use of a medically prescribed drug clearly does not constitute illegal use of a controlled substance."

However, for a tenant’s medical marijuana use to be protected:

So, how can marijuana be legal in some states and illegal under federal law? The fact is, there is no such thing as "legal marijuana." The use of marijuana, both medical and recreational, is illegal under federal law, and federal law supersedes state law. Many states have passed laws legalizing marijuana within their own boundaries, but people who use, manufacture, and distribute marijuana in those states are breaking federal law.

The reason these folks are not being prosecuted is that the federal government has an enforcement policy that has instructed U.S. attorneys not to enforce marijuana prohibitions against states with legalization statutes as long as the state program follows certain criteria designed to prevent the financing of terrorism and organized crime, diversion of marijuana to minors and states where the use is not legal, and other activities harmful to national health and security.

In 2014, a Michigan federal court ruled that a state law legalizing medical marijuana did not bar a federally assisted housing community from evicting a tenant for use of medical marijuana. The marijuana was prescribed by the resident’s doctor for multiple sclerosis. The court indicated that while the use may have been legal under state law, it was still illegal under federal law. The court did say that whether the resident should actually be evicted was for state courts to determine [Forest City Residential Management, Inc. v. Beasley, December 3, 2014].

Current Alcohol Use is not an Issue

Management should never ask applicants or residents about current alcohol use. Both former and current alcohol dependency are considered disabilities under the FHA. While questions about current drug use are permitted, questions about current alcohol use are not.

Verification of No Current Drug Use

You may be entitled to ask applicants or tenants who claim they have recovered from drug use to provide evidence from a third party that they are not current users of illegal drugs. Such evidence could include verification from a:

There are four questions that should never be asked of applicants:

However, you may ask if someone is a current user of illegal drugs or if they have been convicted of manufacturing or distributing illegal drugs.

Applicants Should Not be Rejected Because They are Alcoholics or Former Drug Users

Assuming that an alcoholic or former drug user will be bad for your property is a generalized stereotype based on a disability - and, is illegal.

Each applicant is entitled to an individual assessment relating to eligibility, and assumptions based on preconceived notions should be avoided. In other words, simply being a current or former alcoholic and/or former drug user is not grounds to exclude or evict.

A Direct Threat Allows for the Exclusion of Substance Abusers

Persons who are a direct threat to the property or other people are not protected by the FHA. But, how do you know if a person poses a direct threat? Subjective beliefs, generalized stereotypes, and speculation about substance abusers are not enough. According to a HUD/DOJ statement on the subject, the assessment must be based on "reliable objective evidence," such as current conduct or a recent history of overt acts.

In Wirtz Realty Corporation v. Freund, 721 N.E. 2d 589 (ILL. App. 1999), an Illinois court found that a landlord was justified in evicting a tenant under the "direct threat" defense. The landlord evicted the tenant for engaging in erratic and dangerous behavior. The tenant urinated in the elevator, threatened to kill a neighbor, and threw a lit cigarette and coke can at the doorman, as well as other incidents. He said it was due to mental disorders and sued the landlord under the FHA.

Guidance from HUD and DOJ indicates that landlords should perform a direct threat assessment, and consider:

When looking at a recent history of overt acts (such as those outlined in the Wirtz case above), the landlord must take into account whether the individual has received intervening treatment or medication that has eliminated the direct threat. The landlord may ask the individual to document how the circumstances have changed and why he or she no longer poses a direct threat.

Based on court cases, it is clear that the mere potential or threat of harm may be enough to constitute a direct threat, even if no actual harm is done. As long as the threat to other people is objective, severe, and real, landlords don’t have to wait until the tenant actually hurts someone to use the "direct threat" exception. This point is well made in Foster v. Tinnea, So.2d 782. In this case, a Louisiana court ruled that a tenant with severe brain damage due to an auto accident was a direct threat to other tenants based on his potential for harm rather than any harm he had actually inflicted. He had had altercations with other tenants, chased kids with a knife, listened to loud and vulgar music, and made inappropriate sexual comments to tenants.

The "Direct Threat" Defense Does not Eliminate the Possibility of a Reasonable Accommodation

Individuals who pose direct threats are still entitled to reasonable accommodations to the point of undue hardship. So, before deciding to reject an applicant or evict a resident, management must consider whether there are any reasonable accommodations that may be made to eliminate the direct threat. Of course, this assumes that a request for such accommodation has been made, either by the resident/applicant or someone acting on their behalf.

If such requests are made, landlords are entitled to request verification from a healthcare provider, social worker, or other reliable third parties that the treatment plan will be effective in eliminating the direct threat, as well as assurances that the tenant will comply with its terms.

Bottom Line - while current drug users are not protected under fair housing laws, former drug users who have successfully completed or are currently in a rehab program and are no longer engaging in the illegal use of drugs are protected. Requests for reasonable accommodations from former drug users should always be considered and except in the case of a demonstrable direct threat, reasonable accommodations that will allow former drug users to live at a property should generally be granted.