Ninth Circuit Court Finds That ADA Does Not Protect Medical Marijuana Users

Volume 11, Issue 6
June 21, 2012

On May 21, 2012, in James v. City of Costa Mesa, No. 10-55769 (9th Cir. 2012), the United States Court of Appeals for the Ninth Circuit held that because the use of medical marijuana remains illegal under federal law, the Americans with Disabilities Act of 1990 (ADA) does not protect against discrimination on the basis of medical marijuana use, even if that use is in accordance with state law explicitly authorizing such use.  The James case did not arise out of an employment dispute. Rather, it involved four gravely ill and severely disabled residents of California who use medical marijuana as permitted under California law to alleviate the pain caused by their impairments.  They sued the City of Costa Mesa and the City of Lake Forest over the cities' efforts to close medical marijuana dispensaries within their boundaries and alleged they had been discriminated against in the provision of public services in violation of Title II of the ADA.  The trial judge denied the plaintiffs' request for an injunction against the two cities on the ground that the ADA does not protect against discrimination on the basis of marijuana use as it is deemed illegal by federal law.  On appeal, the only question considered by Ninth Circuit Court was whether the plaintiffs' use of medical marijuana constituted "illegal use of drugs" under the ADA.  Finding that Congress made it clear that the ADA defines "illegal drug use" based strictly upon federal law, not state law, the Ninth Circuit Court ruled that the ADA's exclusion of illegal drug users from its protections includes medical marijuana users even where such marijuana usage is permitted by state law.  It is important to note the Ninth Circuit Court explained that even though the ADA does not protect medical marijuana users from discrimination on the basis of their marijuana use, such individuals may have other conditions that rise to the level of a disability and may therefore be entitled to protection under the ADA.  By way of example, the court referenced policy guidance issued by the Equal Employment Opportunity Commission (EEOC) concerning the definition of a disability under the ADA in which the EEOC discusses how a person may have one of a number of conditions that are expressly excluded from the ADA's protections (including transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, many gender identity disorders, other sexual behavioral disorders, compulsive gambling, kleptomania, pyromania and psychoactive substance use disorders resulting from current illegal drug use), as well as another non-excluded substantially limiting impairment, such as a heart condition, that renders the person an individual with a disability covered under the ADA. 42 U.S.C. § 12211; EEOC Policy Guidance, Section 902 Definition of the Term Disability, at § 902.6 (portions of this Guidance were superseded by the March 2011 ADAAA regulations).  The Ninth Circuit Court's ruling in James is also consistent with Nevada state law. While Nevada is one of seventeen (17) states that have medical marijuana laws, Nevada's medical marijuana law makes it expressly clear that it does not "require any employer to accommodate the medical use of marijuana in the workplace" and that the State of Nevada cannot be held responsible for any deleterious outcomes from the medical use of marijuana by any person. NRS 453A.800(2); NRS 453A.810.  Thus, Nevada employers can feel secure in the Ninth Circuit Court's clear message that they do not need to accommodate the use of medical marijuana in the workplace under the ADA and can take appropriate disciplinary action against employees on the basis of their use of medical marijuana, unless and until there is a change in federal law concerning the illegal nature of marijuana.  At the same time, Nevada employers must also make sure that any adverse actions they may take against such employees are not impermissibly based on their other substantially limiting impairments that are covered by the ADA.

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