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20 major life activity.” The City may counter that protection under the ADA and the RA does not extend to clients of SEPs, as current users of illegal drugs may not be “qualified individual\[s\] 21 with a disability.” Both statutes contain limited carve-outs exempting discrimination protections from those who are “currently engaging in the illegal use of drugs” when the “covered entity acts 22 on the basis of” the plaintiff's illegal use of drugs. These statutory exclusions are inapplicable in the present context. This is because both statutes limit their “current use” exceptions with safe harbor provisions guaranteeing the protection of health services to individuals who currently use illegal drugs. Both the ADA and RA 23 maintain that covered entities are prohibited from denying “health services, or services provided in connection with drug rehabilitation” to an individual on the basis of that individual’s 24 current illegal use of drugs, if they are otherwise entitled to such services. The SUD treatment cases outlined above have not considered the applicability of the safe harbor provision to the substance use disorder context because the patients in question were participating in 25 rehabilitation programs and no longer using illegal drugs. While courts have yet to litigate the applicability of the safe harbor provision to SEPs, ample reasoning supports the contention that patients of SEPs would fall under the protections of the safe harbor provision. An analysis of the legislative reasoning behind the adoption of the statutory carve-out supports the contention that the safe harbor provision should be applicable in the present context. The statutory exemption excluding ADA protection for individuals currently using illegal drugs was adopted to serve an employment function: The legislative purpose was focused on ensuring that employers could discharge employees who may have been under the influence or otherwise impaired while at work and that employers could not discharge employees who were 26 recovering from SUD. The fact that Congress, through the safe harbor provision, explicitly provided for an exception for patients seeking health services, even if those individuals are 27 currently using drugs, is important. As one Federal District Court judge reasons, “\[i\]f the \[ADA\] and \[RA\] were interpreted to exempt from its protections individuals with drug addictions 20 U.S. Dep’t of Health & Human Services Office for Civil Rights, Fact Sheet: Drug Addiction and Federal Disability Rights Laws (Oct. 25, 2018), https://www.hhs.gov/sites/default/files/drug-addiction-aand-federal-disability-rights-laws-fact-sheet.pdf. 21 42 U.S.C. § 12131; 29 U.S.C. § 794. 22 See 42 U.S.C. § 12210(a); 29 U.S.C. § 705(20)(C)(i). 23 “Covered entities may include, but are not limited to: Substance Use Disorder Treatment Programs, Hospitals and Health Clinics, Pharmacies, Contracted Service Providers, Medical and Dental Providers, Nursing Homes, Child Welfare Agencies, State Court Systems. In addition, state and local governments are prohibited from discriminating on the basis of disability.” (emphasis added). U.S. Dep’t of Health & Human Servs. Office for Civil Rights, Fact Sheet: Drug Addiction and Federal Disability Rights Laws (Oct. 25, 2018), https://www.hhs.gov/sites/default/files/drug-addiction-aand-federal-disability-rights-laws-fact-sheet.pdf. 24 42 U.S.C. § 12210(c); 29 U.S.C. § 705(20)(C)(iii). 25 See New Directions Treatment Servs. v. City of Reading, 490 F.3d 293, 309 (3d Cir. 2007) (“The ADA and Rehabilitation Act specifically provide that a person who has completed a supervised rehabilitation program or is currently participating in such a program and “is no longer engaging” in drug use shall be deemed a qualified individual”); MX Grp., Inc. v. City of Covington, 293 F.3d 326, 339 (6th Cir. 2002) (“Indeed, the statute itself contemplates that individuals participating in drug rehabilitation programs, who are no longer using drugs or presumably impaired by their effects, are covered by the Act”). 26 See New Directions Treatment Servs. v. City of Reading, 490 F.3d 293, 309 (3d Cir. 2007) (quoting Brown v. Lucky Stores, Inc., 246 F.3d 1182, 1188 (9th Cir. 2001) (quoting H.R. Rep. No. 101–596, at 62 (1990); H.R. Rep. No. 101–596, at 62 (1990); U.S. Code Cong. & Admin. News 1990, pp. 565, 570–571 (Conf. Rep.)). 27 The U.S. Department of Health and Human Services Center for Substance Abuse Treatment has provided guidance on this regulation, stating that as an example that “a hospital that specializes in treating burn victims could not refuse to treat a burn victim because he uses illegal drugs, nor could it impose a surcharge on him because of his addiction.” U.S. Dep’t of Health & Human Servs. Ctr. for Substance Abuse Treatment, Substance Abuse Treatment for Persons With HIV/AIDS, 37 Treatment Improvement Protocol (TIP) Series 1, 187 (2008), https://www.ncbi.nlm.nih.gov/books/NBK64923/pdf/Bookshelf_NBK64923.pdf.