Does the Term Individual With a Disability Include a Person Indulging In Illegal Use of Drugs ?
In Blatch ex. rel. Clay v. Hernandez (360 F Supp 2d 595 [SD NY 2005]), a class action on behalf of NYCHA tenants, some with mental disabilities and others subject to eviction proceedings, the Court rejected the argument that a tenant who is an illegal drug user is shielded from NYCHA's efforts to terminate his or her tenancy on the basis of drug use.
The Court held, at 633-634:
Plaintiffs' arguments regarding failure to "accommodate" drug use-related tenancy issues must fail to the extent they suggest that waiver or modification of drug use prohibitions would be a reasonable modification.
An individual who is a current illegal drug user is exempted from the definition of "qualified individual with a disability" if action is being taken on account of the illegal drug use. 28 CFR 35.104 (2005); 29 CFR 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 for a claim that NYCHA is required to accommodate the disabled person by changing its generally-applicable rules relating to such activity.
Moreover, the Federal Rehabilitation Act of 1973 "provides that the term individual with a disability' does not include an individual who is currently engaging in the illegal use of drugs, when a covered entity acts on the basis of such use. 29 U.S.C. 705 (20) (C) (i)." (Gilmore v. University of Rochester Strong Memorial Hosp. Div., 384 F.Supp.2d 602, 611 [WD NY 2005]).