Medical Marijuana

Since 1996, 33 states, the District of Columbia, Guam, Puerto Rico and U.S. Virgin Islands have enacted law making medical marijuana legal in so form. About half as many states have legalized recreational marijuana for adults. But, are employees who use and, in many cases, rely on medical marijuana to control or treat a medical condition protected from discrimination in the workplace.

In the workplace, there can be numerous forms of discrimination that can impact an employee. One such type of discrimination is against employees who are disabled. However, Congress has sought to eliminate this kind of discrimination through acts such as the American with Disabilities Act (“ADA”). A new question that has arisen, however, is how medical marijuana fits into the ADA and whether a blanket ban on medical marijuana use by an employer is a violation of the ADA.

Medical Marijuana

To begin with, the Equal Employment Opportunity Commission (“EEOC”) defines disability discrimination as “when an employer… treats a qualified individual with a disability who is an employee or applicant unfavorably because she has a disability.” This kind of discrimination can occur when an employer treats an employee differently because of a disability, a history of an impairment, or a perceived disability.  To prohibit this kind of treatment, the ADA “requires an employer to provide reasonable accommodation to an employee or job applicant with a disability, unless doing so would cause significant difficulty or expense for the employer (“undue hardship”).” As the EEOC explains, though: Undue hardship means that the accommodation would be too difficult or too expensive to provide, in light of the employer’s size, financial resources, and the needs of the business. An employer may not refuse to provide an accommodation just because it involves some cost. An employer does not have to provide the exact accommodation the employee or job applicant wants. If more than one accommodation works, the employer may choose which one to offer.

The ADA also regulates other practices, including how the employer may ask about medical conditions during the interview process and the process to have an employee take a medical exam.

Currently, the issue of how medical marijuana fits under the ADA is still up for debate. Previously, the Massachusetts Supreme Court ruled in favor of a plaintiff regarding an appeal after the defendant employer successfully moved for dismissal at the trial court of an action by the employee against the employer for terminating their employment because she used medical marijuana. The court ruled that “[i]t is a facially reasonable accommodation to make an exception to an employer’s drug policy where, in the opinion of the employee’s physician, medical marijuana is the most effective medication for that medical condition and where any alternative medication permitted by the employer’s drug policy would be less effective.” Despite the fact marijuana is still illegal on the federal level because state law recognized medical marijuana might effectively treat a handicap, it is not a per se undue hardship to grant the employee an exception to the blanket drug policy without at least investigating alternative medication for the employee. 

Contrast this with a case from the Ninth Circuit, where the court held that medical marijuana use is not protected under the ADA because the ADA does not protect illegal drug use, and marijuana remains illegal under federal law. See James v. City of Costa Mesa, 700 F.3d 394, 397-98 (9th Cir. 2012).  Given the holding in James and the cases that followed, it is unlikely that employees’ medical marijuana use will be protected under the ADA until federal laws on marijuana use change.   

Since Kentucky does not have a law allowing for medical marijuana, the kind of argument made in the Massachusetts case would likely not succeed here.  Depending on how laws change in the next few years, such an argument may become a valid one.  

The validity of Medical marijuana use as reasonable disability accommodation will continue to develop as attitudes and laws regarding both medical and recreational marijuana use change.  If, however, you think your rights have been violated under the ADA, you should immediately consult with legal counsel to discuss your possible courses of action.