ADA Does Not Protect Medical Marijuana Use

Under state law, an employee who currently uses medical marijuana is not protected under the Fair Employment and Housing Act (FEHA).

Now, the Ninth Circuit Court of Appeals reached a similar conclusion, holding that the Americans with Disabilities Act (ADA) does not protect current medical marijuana use. James v. City of Costa Mesa, 2012 WL 1815677 (9th Circuit May 21, 2012).

Doctor’s Prescription Doesn’t Matter

The ADA excludes individuals who are currently using illegal drugs from the definition of “disability.”

In James, the Ninth Circuit ruled that the definition of “illegality” is linked to federal, not state law. Though state law exempts users of prescription medical marijuana from criminal prosecutions, federal law classifies any marijuana use as “illegal” under the federal Controlled Substances Act.

The Ninth Circuit ruled that because federal law does not authorize marijuana use, current users are not entitled to the protection from discrimination under the ADA. “We hold that doctor-recommended marijuana use permitted by state law, but prohibited by federal law, is an illegal use of drugs for purposes of the ADA, and that the plaintiffs’ federally proscribed medical marijuana use therefore brings them within the ADA’s illegal drug exclusion.”

The case involved Title II of the ADA, which prohibits discrimination against the disabled in the provision of public services. The lawsuit alleged that attempts by two cities to interfere with access to medical marijuana facilities violated Title II of the ADA.

Though the case does not involve the employment discrimination provisions found in Title I of the ADA, the definition of disability is the same in both Title I and Title II of the ADA. Thus, the James ruling would also likely apply to employment discrimination cases.

Same Result Under the FEHA

In 2008, the California Supreme Court ruled that an employer may refuse to hire or may terminate an individual who tests positive for marijuana use, even if the individual has a physician’s prescription for the usage. Ross v. RagingWire Telecommunications Inc., 42 Cal. 4th 920 (2008).

Gary Ross applied for a position with RagingWire. Ross suffered from chronic back pain and had a prescription under the state Compassionate Use Act to use marijuana for his pain. During a routine, pre-employment drug test, marijuana was found in Ross’s system. He was terminated after eight days of employment.

The court ruled that Ross did not have a claim for wrongful termination or for violation of the FEHA. The court first noted that the state Compassionate Use Act did not give marijuana the same status as other legally prescribed drugs: “No state law could completely legalize marijuana for medical purposes because the drug remains illegal under federal law.”

Instead, the state law merely exempts medical marijuana users from criminal prosecution. The court found that nothing in the state law was intended to impact employer rights.

The court upheld the termination and found that the FEHA does not require employers to accommodate the use of marijuana by waiving their policy for testing for illegal drug use.

Can’t Discriminate Based on Underlying Disability

Employers can choose not to employ an individual based on current illegal drug use, but they cannot discriminate on the basis of an individual’s underlying disability. Employers will need to demonstrate that any actions taken against the applicant or employee were based on knowledge of the current use of illegal drugs, not on the person’s underlying disability.

For instance, an employee who used medical marijuana to relieve symptoms for his/her disability in the past, but who no longer uses medical marijuana would generally be entitled to protection. Individuals who are addicted to drugs, but who no longer use drugs illegally and receive treatment for drug addiction or who have been rehabilitated successfully, are entitled to protection by the ADA from discrimination on the basis of past drug addiction.

An employer should not discriminate against the disabled individual based on his or her past drug use. There may be limited exceptions.

Past illegal drug use may warrant exclusion from employment in specific occupations, such as police officers, or where the employer can demonstrate a direct threat to the health and safety of the individual or others. However, any decisions to take action based on prior illegal drug use should only be made after consulting an attorney.

Best Practices

• Testing applicants for illegal drug use is generally permitted. Provide notice and draft clear policies to minimize expectations of privacy.
• Make sure that any testing process you use is reliable and takes measures to safeguard privacy.
• Random drug testing of employees can constitute an invasion of privacy except in certain safety-sensitive positions. Consult legal counsel if you believe your work environment necessitates random drug testing.

Resources

• Check HRCalifornia's HR Library for information on background checks and testing of job applicants and current employees.

This HR Library page gives detailed guidance on drugs and alcohol and limitations on employer testing programs

Posted on 6/15/2012