Foley & Lardner LLP

04 June 2012
Labor & Employment Law Perspectives

ADA Protection for Medical Marijuana Use Goes Up in Smoke

The ADA does not protect an employee using medical marijuana, even if the individual is using medical marijuana under the supervision of a doctor and in compliance with state law. The Ninth Circuit Court of Appeals issued its opinion on May 22, 2012 in James v. City of Costa Mesa. Four severely disabled individuals who were using medical marijuana under the supervision of their doctors and pursuant to California law filed suit against the cities of Costa Mesa and Lake Forest to stop them from shutting down the collectives that dispense medical marijuana.

The court emphasized that the ADA specifically provides that an “individual with a disability” does not include an individual who is currently engaging in illegal drug use. The court rejected the disabled individuals’ claims that their doctor-supervised use that is legal underCalifornialaw should not be considered illegal drug use. Because federal law prohibits the use of marijuana (medicinal or recreational), use of medical marijuana still qualifies as illegal drug use for purposes of the ADA.

While the facts in the case did not specifically involve an employment relationship, the same reasoning would apply under theADAprovisions dealing with employment discrimination. In both contexts, individuals currently engaging in illegal drug use are not protected under the ADA.

The decision is consistent with a line of state and federal court opinions that have refused to prohibit discrimination against medical marijuana users based solely on their use of medical marijuana. (See previous Legal News: Employment Law Updates for June 13, 2011; October 25, 2010 and April 27, 2010 related to medical marijuana). While discrimination based on the use of medical marijuana may not be prohibited, discrimination based on the underlying disability is prohibited. Thus, employment decisions should be focused on the medical marijuana use itself and not the underlying condition.