Marijuana has been listed
as an illegal Schedule I drug under federal law since Congress passed the
Controlled Substances Act in 1970 (CSA). However, in recent years, a number of
states such as Pennsylvania and West Virginia have passed bills that
decriminalize or legalize medical marijuana use. As of the writing of this
article, nine states and the District of Columbia have adopted measures
legalizing marijuana for recreational and medicinal use, and 30 states have
legalized medical marijuana use. According to a Gallup poll, support for the
drug reached new highs in 2017, with the poll showing that 64 percent of
Americans favor legalization. When asked specifically about the legalization of
medical marijuana, that number grew to 83 percent, according to a recent Marist
College survey.
Last month, Attorney
General Jeff Sessions issued a new memo rescinding the prior Obama administration’s
directives to withhold prosecution and to allow federal prosecutors more leeway to
decide how to prioritize enforcement of federal marijuana laws.
It is unclear what impact
this new policy will have on state efforts to legalize marijuana, but the
immediate results suggest that there will be no real change. In fact, recently
the Vermont House of Representatives voted in favor of the full legalization of
recreational marijuana use. In addition, at least 10 more states are poised to
consider additional measures that would legalize marijuana, at least
medicinally, including New Jersey, Michigan, Delaware, Ohio, Oklahoma,
Kentucky, South Dakota, Utah, Missouri, and Tennessee
Medical
marijuana and the ADA
With a growing number of
jurisdictions tolerating marijuana use, and particularly medical use, it has
become difficult for employers to reconcile traditional zero-tolerance drug
policies with the new state laws permitting marijuana use. Some have expressed
concern about reconciling the use of medically prescribed marijuana use with
disability discrimination laws.
The Americans with
Disabilities Act (ADA), for example, prohibits covered employers from
discriminating against qualified individuals on the basis of a disability and
requires such employers to provide reasonable accommodations to employees with
disabilities so that they can perform the essential functions of their job
(provided that such accommodations do not impose an undue hardship on the
employer).
Medical marijuana is
often prescribed to individuals whose disabilities are typically recognized by
courts under the ADA, including seizure disorders, Anxiety, Crohn’s disease and
permanent nerve-related disorders, and in some cases, the use of medical
marijuana has had significantly positive effects on an individuals’ ability to
perform major life activities. In other words, the use of medical marijuana can
be essential to an employee’s ability to perform his or her job and may be an
accommodation for the employee.
However, Section 12114(a)
of the ADA, states that “a qualified individual with a disability shall not
include any employee or applicant who is currently engaging in the illegal use
of drugs.” The ADA defines the phrase “illegal use of drugs” as the use of
drugs that are unlawful under the CSA, excluding the use of drugs taken under
supervision by a licensed healthcare professional or other uses authorized by
the CSA or other provisions of federal law (42 U.S.C. § 12210(d)). Because
marijuana remains a prohibited Schedule I substance, courts have generally
found that employers are not required to accommodate the use of medical
marijuana under the ADA or state statutes modeled after the ADA.
For example, in James
v. City of Costa Mesa, 700 F.3d 394 (9th Cir. 2012), medical marijuana
users sued their municipality for taking steps to close marijuana dispensing
facilities, alleging that such actions amounted to disability discrimination by
preventing them from accessing public services in violation of Title II of the
ADA. Although the Ninth Circuit Court of Appeals recognized that the plaintiffs
were “gravely ill” and that California has embraced marijuana as an effective
treatment for individuals with debilitating pain, the court held that the ADA
does not protect the use of medical marijuana. Notably, the court refused to
find that Section 12210(d) creates an exception for medical marijuana use when
it is supervised by a licensed healthcare professional. The court explained
that the plain language of the statute authorizes only drugs prescribed by
healthcare professionals when those drugs are not explicitly banned by the CSA.
Accommodating
medical marijuana use under state laws
While doctor-prescribed
marijuana use is still considered an illegal use of drugs that is not covered
by the ADA that may not be the case under all state discrimination statutes.
Indeed, some states have enacted laws which may require employers to provide an
accommodation that would not impose an undue burden on the employer or
otherwise pose a direct threat to the health and safety of other individuals.
This appears to be the case in West Virginia where employers may not
discriminate.
Court
rulings upholding state accommodations
Courts have also begun to
recognize an employer’s duty to accommodate under such state laws. For example,
in Barbuto v. Advantage Sales & Marketing, LLC, 78 N.E.3d 37
(Mass. 2017), the Massachusetts Supreme Judicial Court held that the employer
should have least engaged in the interactive process to determine whether an
employee’s use of marijuana could potentially have been accommodated. The
employee had Crohn’s disease and told her employer about her need to use
medicinal marijuana to treat her condition. However, when she subsequently
tested positive for marijuana, the company fired her under its zero-tolerance
policy, stating that it followed federal law and that it had no duty to
accommodate. The court explained that the employer was not at risk of violating
any law by accommodating the employee and that an employee should not have to
choose between treating a health condition and keeping a job.
Similarly, in Callaghan
v. Darlington Fabrics Co., 2017 WL 2321181 (R.I. Super. May 23, 2017), a
Rhode Island court held that the state’s medical marijuana statute is violated
when an employer refuses to hire an applicant because of his or her medical
marijuana use, explicitly rejecting an employer’s argument that the applicant
was not a qualified individual because her use of marijuana was illegal under
federal law. A United States district court held likewise in Noffsinger
v. SSC Niantic Operating Company, LLC, 2017 WL 3401260 (D. Conn. Aug. 8,
2017) while applying Connecticut law.
What
it means for Employees and Employers
These decisions represent
a tremendous shift from past precedent. Courts in California, Oregon and
Colorado — some of the forerunners in the movement to legalize marijuana — have
previously held that employers do not have a duty to accommodate medical
marijuana use, even under state law. That no longer appears to be the
prevailing view, particularly as newer statutes are drafted that explicitly
contemplate the need to accommodate medicinal marijuana use.
Employees should be
cautious with the use of Medical Marijuana to ensure they are not in conflict
with either federal law or employment policies. If you are experiencing issues
in the workplace due to your use of medical marijuana you should contact Donham
Law www.donhamlaw.com for more information on how to preserve your rights. If you have been
terminated, call us immediately at 717.676.7749 for a free case review.
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