Do Disability Laws Cover Medical Marijuana Use?

By Yvette Farnsworth Baker October 22, 2018

The legal status of marijuana in the United States is constantly changing, and one of the biggest questions for the workplace is whether medical marijuana use is protected under disability-discrimination laws.

When issues arise, the intersection of federal and state laws comes into play, as does the role of courts that interpret the laws. While federal law still bans all marijuana use, states are handling the use of medical marijuana by workers with disabilities in diverse ways, and, recently, some state courts have ruled that state disability-discrimination laws protect registered medical marijuana users.

Federal Law

The Americans with Disabilities Act (ADA) requires employers to make reasonable accommodations for qualified workers with disabilities. The act does not protect illegal drug use, though it does afford some protections for recovering addicts. Marijuana is an illegal drug under federal law, with no exceptions for medicinal use, so its use is not protected under the ADA.

Federal courts have ruled that the ADA does not require a medical marijuana accommodation. In 2012, the 9th U.S. Circuit Court of Appeals held in James v. City of Costa Mesa that although the plaintiffs were "gravely ill," and California legalized medical marijuana use, the ADA did not protect the plaintiffs' use of the drug. The court said that the plain language of the ADA only protects drug treatments prescribed by health care professionals when those drugs are not explicitly banned by the federal Controlled Substances Act, like marijuana is.

State Law

Many states have laws that are similar to the ADA and require employers to provide reasonable accommodations for qualified workers with disabilities. However, while the ADA does not protect illegal drug use nor medical marijuana use, this is not always the case under state laws.

Employers never have to accommodate on-the-job drug or alcohol use or intoxication, but some state disability laws may provide more protections for illegal drug users than the ADA. Other states consider medical marijuana use to be legal. Most state disability laws were written before medical marijuana use became pervasive and do not directly address the subject. In these instances, it has been left to courts to interpret how such laws apply to medical marijuana use.

[SHRM members-only HR Q&A: What laws should companies be aware of when implementing a drug testing program?]

Some state judges have decided that medical marijuana use does not require workplace accommodations under state disability laws. In August, a New Jersey court ruled against medical marijuana protection in Cotto v. Ardagh Glass. The court held that an employee who used medical marijuana was not entitled to a workplace drug-test waiver under the state's disability laws.

In 2008, the California Supreme Court ruled in Ross v. Ragingwire Telecomm Inc. that medical marijuana is not protected under the state's disability-discrimination law. The court found that no state law could completely legalize medical marijuana use, because the drug remains illegal under federal law. In 1996, California voters approved a ballot initiative to legalize medical marijuana use. "California's voters merely exempted medical users and their primary caregivers from criminal liability under two specifically designated state statutes," the court said.

However, in 2017, the Massachusetts Supreme Court held in Barbuto v. Advantage Sales & Marketing that a worker could bring suit against her employer for disability discrimination after she was fired for a positive marijuana drug test. The Massachusetts medical marijuana law states that patients cannot be denied any right or privilege because of their medical marijuana use, and the state's disability law gives employees the right to a reasonable accommodation.

The Massachusetts Supreme Court was not swayed by the argument that marijuana does not hold the same status as prescription drugs and should not be treated equally.

In 2017, a Rhode Island court also ruled that state disability laws protect medical marijuana use. In Callaghan v. Darlington Fabrics, an employer rejected a job applicant who was a registered medical marijuana user because she failed a pre-employment drug test. The court held that the employer illegally discriminated against her by refusing to accommodate her medical marijuana use.

Circumventing the Issue 

Some states have passed laws that explicitly prohibit workplace discrimination against registered medical marijuana patients. Alaska, Arizona, Delaware and Minnesota forbid an employer from firing or disciplining such workers for testing positive for the drug.

Under these laws, employers can still fire employees for working under the influence or using marijuana at work. However, an employer cannot fire or discipline qualified medical marijuana users just because they test positive for the drug.

Workplace Policies

Employers may be confused about how to approach medical marijuana use in the workplace. There is currently no easy solution because of the conflicting interpretations of state marijuana and disability laws. Employers should have clearly written workplace policies that address medical marijuana use and should always stay abreast of changing laws in the states where they operate.

Yvette Farnsworth Baker, Esq., is a legal consultant with South Florida-based Current Consulting Group, which offers expertise in the drug-testing industry. 



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