28 CFR Part 35 · Subpart B — General Requirements
§ 35.131 Illegal use of drugs
Last updated June 11, 2026
Clarifies that Title II does not protect current illegal drug use but protects people in recovery.
In Plain Language
Title II does not prohibit entities from denying services to individuals who are currently illegally using drugs. However, this exception is narrow. It does not apply to people who are in recovery, have completed drug rehabilitation, or are mistakenly regarded as using drugs. People with a history of drug addiction who are no longer using are protected by the ADA. Drug testing is permitted to determine current use.
This summary is educational, not legal advice. The official text below controls.
Official Regulatory Text — 28 CFR § 35.131
Verbatim from 28 CFR Part 35, current through June 9, 2026.
(a) General. (1) Except as provided in paragraph (b) of this section, this part does not prohibit discrimination against an individual based on that individual's current illegal use of drugs.
(2) A public entity shall not discriminate on the basis of illegal use of drugs against an individual who is not engaging in current illegal use of drugs and who—
(i) Has successfully completed a supervised drug rehabilitation program or has otherwise been rehabilitated successfully;
(ii) Is participating in a supervised rehabilitation program; or
(iii) Is erroneously regarded as engaging in such use.
(b) Health and drug rehabilitation services. (1) A public entity shall not deny health services, or services provided in connection with drug rehabilitation, to an individual on the basis of that individual's current illegal use of drugs, if the individual is otherwise entitled to such services.
(2) A drug rehabilitation or treatment program may deny participation to individuals who engage in illegal use of drugs while they are in the program.
(c) Drug testing. (1) This part does not prohibit a public entity from adopting or administering reasonable policies or procedures, including but not limited to drug testing, designed to ensure that an individual who formerly engaged in the illegal use of drugs is not now engaging in current illegal use of drugs.
(2) Nothing in paragraph (c) of this section shall be construed to encourage, prohibit, restrict, or authorize the conduct of testing for the illegal use of drugs.
What § 35.131 Means in Practice
- Current illegal drug use is not protected under Title II
- People in recovery from addiction are fully protected. You cannot discriminate against them based on their history
- Drug rehabilitation programs must be accessible to people with disabilities
- The 'current use' standard means active, ongoing use, not past use or occasional prior use
- Alcoholism is treated differently. It is considered a disability under the ADA
Common Questions
Can we deny services to someone who is visibly intoxicated?
You may deny services based on current behavior that poses a direct threat, but not based on disability status alone. Apply your policies consistently.
Is alcohol addiction covered by the ADA?
Yes. Alcoholism is considered a disability. However, you may enforce policies against alcohol use in programs where such policies apply to everyone.
Does § 35.131 apply to your entity?
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