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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.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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