Should You Test Applicants and Residents for Drugs?
by John M. Fredericks
In May, the Chicago Housing Authority (CHA) proposed two changes to its lease and Admissions and Continued Occupancy Policy. The first change was to require all adults who apply for, or live in, public housing to take a drug test. The requirement, which would apply to senior citizens and live-in aides, would mean that a family could face eviction or disqualification if any eligible household member failed the mandatory drug test. The second proposal was to eliminate CHA's so-called “innocent tenant defense,” in which the lease-holding resident of a unit is protected from eviction when a relative or guest commits a drug-related or violent crime without the leaseholder's knowledge.
The two proposals met considerable opposition, and at the end of June, CHA Chairman Jim Reynolds announced the board's decision to drop both proposals.
The widely unpopular drug-testing policy drew reactions from the American Civil Liberties Union (ACLU), which threatened legal action, and from angry residents, who saw the proposed policy as another way to unfairly target poverty-stricken minorities.
Throughout the public debate, CHA officials asserted that the proposals were simply in response to many residents' requests to work toward cleaner and safer housing communities. Officials also pointed out that 18 of the 45 mixed-income communities in Chicago already have a drug-testing mandate in place.
The Trouble with Testing
From a HUD compliance standpoint, you may be able to get away with drug testing, says Mark Chrzanowski, compliance support administrator of Gene B. Glick Co. Inc., in Indianapolis. The HUD Handbook states that you can't require applicants to undergo medical testing or physical exams for AIDS or tuberculosis as a condition of admission to the site, but Chrzanowski believes that this language could be interpreted in one of two ways:
You could argue that HUD is only restricting medical testing of contagious diseases (AIDS and tuberculosis), and therefore testing for illegal drug use does not fall under this rule; or
You could reason that HUD is restricting all medical testing and physical exams of any kind and simply using AIDS and tuberculosis as two examples.
If you favor the first interpretation of the rule and begin administering drug tests, you may face other problems, however. The first problem that Chrzanowski foresees is the sheer financial burden that drug testing would put on a site. A thorough drug test may cost upwards of $30 per person. That means, for example, that 50 applicants would cost you over $1,500—and that's just for the initial testing; periodic testing would mean another $1,500 every time you test.
Johrita Solari, president of Solari Enterprises in Orange, Calif., believes that most of the applicants who may cause any serious drug-related issues are weeded out during the required criminal background checks. With background screening already costing a pretty penny, Solari sees very little need for more pricey tests and procedures.
Chrzanowski also anticipates that by drug testing, you may violate HUD rules if you don't make an exception for pregnant applicants. The Handbook explicitly states that under no circumstances are you to require that a pregnant woman undergo any medical testing or physical examination. This poses a problem because under a blanket drug-testing policy you should administer a drug test to every applicant—posting an exception is likely to encourage even those who don't qualify for it to claim it. And if you allow pregnant applicants to forgo the testing, other applicants are likely to challenge the mandated testing—and that will consume even more time and resources.
Adopting a blanket drug-testing policy may also trigger complaints under fair housing law. As the Chicago residents argued, the policy may be interpreted as targeting minority groups as a tool to rid them—or steer them away—from certain sites. You could also be accused of discrimination by applicants who claim that testing would violate their religious or cultural beliefs. In addition, elderly applicants who fail drug tests may challenge the results, claiming that their legally prescribed medication kept them from passing. This could give rise to claims of discrimination on the basis of disability or age, and require expensive retesting or extra administrative time.
Based on these HUD-related issues, high overhead costs, and fair housing concerns, both Chrzanowski and Solari don't see many advantages of a blanket drug-testing policy. What's more, in adopting a policy similar to CHA's proposal, you run the risk of evicting a large percentage of good residents who pay rent on time and cause no major problems, says Solari.
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Should You Defend the 'Innocent Tenant Defense'?
Assisted housing sites may evict a resident for the drug-related activity of his household members or guests—even if the resident had no knowledge of that activity. Under the Anti-Drug Abuse Act, HUD requires PHAs to include a clause in every resident's lease that states, “any criminal activity that threatens the health, safety, or right to peaceful enjoyment of the premises by other tenants or any drug-related criminal activity on or off such premises, engaged in by a public housing tenant, any member of the tenant's household, or any guest or other person under the tenant's control, shall be cause for termination of tenancy.”
In 2002, citing the Anti-Drug Abuse Act, the U.S. Supreme Court upheld evictions on these grounds.
Chrzanowski confirms that HUD regulations hold the resident responsible if a family member or guest is charged with drug possession or any other drug-related crime, and that the household can face eviction. Solari adds that, if you don't try to evict the resident after the first instance of a drug-related incident in his unit, the next time police are called to that unit regarding drug-related activity, local law enforcement might try to hold site management accountable.
Despite its ability to pursue evictions in these cases, CHA has continued to implement the “innocent tenant defense” policy. This means that CHA must determine, on a case-by-case basis, whether the resident had prior knowledge of the drug use or criminal activity, before pursuing an eviction.
Much like a drug-testing policy, an “innocent tenant defense” policy may not be worth your while. The policy is time consuming and costly, and Solari asserts, once again, that proper criminal background checks should be enough to screen out applicants who might cause any major drug-related issues.
Mark Chrzanowski: Compliance Support Administrator, Gene B. Glick Co. Inc., Indianapolis, IN; firstname.lastname@example.org.
Johrita Solari, SHCM, NAHPe: President, Solari Enterprises, Orange, CA; www.solari-ent.com.