Medical Marijuana Use Not Protected by ADA, 9th Circuit
Wage and Hour Defense
by Nicole Kamm
818.907.3235
In 2008, the California Supreme Court held in Ross v. Ragingwire that an employer may lawfully terminate an employee (or refuse to hire an applicant) who tests positive for marijuana, even if the marijuana use is for lawful medical purposes under California law. Recently, the Ninth Circuit (the federal court with jurisdiction over California) held the Americans with Disabilities Act (“ADA”) similarly does not protect medical marijuana use.
The plaintiffs in the case entitled James v. City of Costa Mesa, were severely disabled California residents, who claimed conventional medicine and treatments failed to alleviate the pain caused by their impairments, but medical marijuana helped.
Medical marijuana, as we know, is permissible under California law. The plaintiffs obtained their medical marijuana through collectives located in Lake Forest and Costa Mesa, California.
Concerned about the possible shut down of the collectives pursuant to various local ordinances excluding medical marijuana dispensaries, the plaintiffs brought suit in federal district court, alleging the cities’ actions violated Title II of the ADA.
The district court sympathized with the plaintiffs, but denied their application for a preliminary injunction on the grounds that the ADA does not protect against discrimination on the basis of marijuana use – even medical marijuana use prescribed by a doctor in accordance with state law – because such use violates federal law.
The Ninth Circuit affirmed the lower court’s decision, holding the ADA does not protect individuals who claim discrimination because of medical marijuana use. The court reasoned the ADA excludes from coverage disabilities based on illegal drug use, and “illegality” is tied to federal, not state, law. Because marijuana is still illegal under federal law, medical marijuana use is not covered under the ADA, even if states such as California have legalized the medical use of the drug.
Again sympathizing with the plaintiffs’ position, the Court held:
We recognize that the plaintiffs are gravely ill, and that their request for ADA relief implicates not only their right to live comfortably, but also their basic human dignity. We also acknowledge that California has embraced marijuana as an effective treatment for individuals like the plaintiffs…Congress has made clear, however, that the ADA defines ‘illegal drug use’ by reference to federal, rather than state, law, and federal law does not authorize the plaintiff’s medical marijuana use.
While the James v. City of Costa Mesa decision did not arise in the employment context, the court’s holding is still relevant for employers. Employers should note that while it is not unlawful to discriminate against an applicant or employee on the basis of their marijuana use (even if for medical reasons), it is still unlawful to discriminate based on an underlying disability, including those for which the individual may be using the medical marijuana.
Accordingly, employers should use caution in handling these situations to minimize risk and ensure they can demonstrate that any adverse employment action was based solely on knowledge of illegal marijuana use and not on any underlying disability.
Nicole Kamm is an Employment Defense Lawyer who provides counsel and training for employers to avoid discrimination, harassment and other worker claims. Contact her via e-mail: NKamm@lewitthackman.com