Legal E-Bulletin - February 2013

The ADA and Medicinal Marijuana

Catherine Zarate

With 18 states and Washington, D.C. legalizing medicinal marijuana,1 the issue of coverage under the Americans with Disabilities Act has become a hot topic. Several cases of employment discrimination as related to medical marijuana have been brought to the courts. Currently, federal law classifies marijuana as a Schedule I drug, which has no approved medical uses. In May 2012, the Ninth Circuit, serving nine western states, including California, and two Pacific Island jurisdictions,2 made a controversial ruling that indirectly applies to employment discrimination.  In James v. City of Costa Mesa3, the Court held that medical marijuana users cannot rely on the Americans with Disabilities Act (ADA) to keep their local marijuana dispensaries open.

In this case, Marla James and several other individuals were prescribed medical marijuana for debilitating conditions. The use of medical marijuana is permissible under California law but is prohibited under federal law by the Controlled Substances Act (CSA). The individuals obtained the medical marijuana through collectives in Costa Mesa and Lake Forest. Those cities passed ordinances that completely banned medical marijuana dispensaries from operating within the city limits. The individuals alleged that the cities’ efforts to close the dispensaries they purchased the marijuana from amounted to discrimination under Title II of the ADA, which provides that public entities shall not discriminate in the provision of public services.

The ADA prohibits a public entity “from denying the benefit of public services to any qualified individual with a disability.” The Court held that they did not receive the protection of the ADA because the ADA contains an exclusion for illegal drug use. Although California and other states have enacted laws legalizing medical marijuana, under federal law, the purchase and use of marijuana still remains illegal therefore there is no protection under the ADA. 

The reasoning behind this decision can be applied to the ADA in employment settings. Under the ADA, an applicant or employee who is currently engaging in the illegal use of drugs is not within the definition of a “qualified individual with a disability”4 and as a result receives no protection under the ADA when denied employment or employment in terminated because of medical marijuana use. The ruling of the Ninth Circuit further affirms that applicants or employees will most likely not be able to assert successful claims for discrimination based on their disability for using medical marijuana.

In a similar Michigan case, Casias v. Wal-Mart, Inc.,.5 the court found that Michigan’s medical marijuana law does not regulate private employment and simply provides a defense to criminal prosecution. In this case, a young man was fired from Wal-Mart for testing positive for marijuana after being treated for an on-the-job injury. His defense was based on the fact that his marijuana use was protected under Michigan law. The court ultimately disagreed with this defense holding there was no employee protection. This case transitions to the ADA and further affirms that even though people with disabilities are protected against possible criminal charges for medicinal marijuana use, they receive no protection under the ADA for their marijuana use. Both cases ultimately create a very pro-employer environment when it comes to addressing employees with disabilities who are using medical marijuana as part of their treatment.

Footnotes

3. James v. City of Costa Mesa, 700 F.3d 394 (9th Cir. 2012).

4. 42 U.S.C. § 12210 

5. Casias v. Wal-Mart, Inc., No. 11-1227 (6th Cir. September 19, 2012)  

The contents of this e-bulletin were developed by the Southwest ADA Center under a grant from the Department of Education, NIDRR grant number H133A110027.  However, those contents do not necessarily represent the policy of the Department of Education, and you should not assume endorsement by the Federal Government. The information provided is intended solely as guidance and is neither a determination of your legal rights or responsibilities under the ADA, nor binding on any agency with enforcement responsibility under the ADA.