Individual with a disability

Individual with a disability means a person who has a disability as previously defined in this section.
(1) The term “individual with a disability” does not include an individual on the basis of:
(i) Transvestism, transsexualism, or gender identity disorders not resulting from physical impairments;
(ii) Pedophilia, exhibitionism, voyeurism, or other sexual behavior disorders;
(iii) Compulsive gambling, kleptomania, or pyromania; or
(iv) Psychoactive substance use disorders resulting from current illegal use of drugs.
(2) The term “individual with a disability” does not include an individual who is currently engaging in the illegal use of drugs, when a recipient acts on the basis of such use. This limitation does not exclude as an individual with a disability an individual who:
(i) Has successfully completed a supervised drug rehabilitation program and is no longer engaging in the illegal use of drugs, or has otherwise been rehabilitated successfully and is no longer engaging in the illegal use of drugs;
(ii) Is participating in a supervised rehabilitation program and is no longer engaging in such use; or
(iii) Is erroneously regarded as engaging in such use, but is not engaging in such use, except that it is not a violation of the nondiscrimination and equal opportunity provisions of WIOA or this part for a recipient to adopt or administer reasonable policies or procedures, including but not limited to drug testing, designed to ensure that an individual described in paragraph (ff)(2)(i) or (ii) of this section is no longer engaging in the illegal use of drugs.
(3) With regard to employment, the term “individual with a disability” does not include any individual who:
(i) Is an alcoholic if:
(A) The individual's current use of alcohol prevents such individual from performing the duties of the job in question; or
(B) The individual's employment, by reason of such current alcohol abuse, would constitute a direct threat to the individual or the safety of others; or
(ii) Has a currently contagious disease or infection, if:
(A) That disease or infection prevents the individual from performing the essential functions of the job in question; or
(B) The individual's employment, because of that disease or infection, would constitute a direct threat to the health or safety of the individual or others.

Source

29 CFR § 38.4


Scoping language

For the purpose of this part:

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