The ADA does not require accommodating medical marijuana use. But, what about synthetic THC?

The Americans with Disabilities Act requires an employer to provide reasonable accommodation to qualified individuals with disabilities who are employees or applicants for employment, except when such accommodation would cause an undue hardship.

In the history of ADA, I don’t know of any court that has concluded that an employer must accommodate an employee’s use of medical marijuana. That’s because, federally, marijuana is still an illegal drug. (It’s on the Schedule One list). But, what about accommodating someone who uses medically-prescribed synthetic marijuana to treat the symptoms of an underlying disability?

Synthetic marijuana and the ADA

Earlier this month, a federal court in Tennessee explored this issue (here).

The plaintiff had a history of anxiety and depression. His doctor prescribed Marinol, a synthetic form of THC, to treat the anxiety. However, the plaintiff claimed that his employer refused to allow him to use it. So, he asserted an ADA claim.

To prove a failure-to-accommodate claim under the ADA, a plaintiff must show that (1) s/he was disabled within the meaning of the ADA; (2) s/he was otherwise qualified for her position, with or without reasonable accommodation; (3) the employer knew or had reason to know about her disability; (4) s/he requested an accommodation; and (5) the employer failed to provide the necessary accommodation.

Interestingly, the employer-defendant did not defend the failure-to-accommodate claim by arguing that the ADA precludes accommodations of underlying disabilities with THC synthetics, like Marinol. Indeed, the court noted that while the Department of Health and Human Services recognizes Marinol can have psychoactive effects that can present a safety issue in the workplace, the Food and Drug Administration has approved Marinol to stimulate appetite in patients with AIDS and cancer. The FDA has also approved Marinol to reduce chemotherapy-induced nausea and vomiting. Although the FDA has not approved Marinol to treat anxiety, the court mentioned some research that indicates that Marinol may help individuals who struggle with anxiety.

So, an employer may have a duty to accommodate an employee’s use of Marinol or other forms of synthetic marijuana. Except, the defendant here claimed that the plaintiff never requested a Marinol accommodation, and the court agreed. So, it dismissed the plaintiff’s failure-to-accommodate claim on that basis instead.

But, employers can still learn a thing or two (or three) about accommodating employees who use medical marijuana or synthetics

Takeaways for employers.

1. Don’t forget state law. Many states have laws that may require certain employers to allow an employee with a disability to use medical marijuana outside the workplace as long as the employee doesn’t report to work under the influence or otherwise create a direct threat to others.
2. Other accommodations. Just because the ADA may not require an employer to accommodate an employee’s use of medical marijuana doesn’t mean that the accommodation discussion ends there. Remember, a request for reasonable accommodation is the first step in an informal, interactive process between the individual and the employer. So, be prepared to explore other accommodation options besides employee use of medical marijuana.
3. Or maybe allow the employee to use medical marijiuana anyway. While the ADA does not require accommodating an employee with a disability by allowing him/her to use medical marijuana, there’s nothing in the ADA that forbids it either. Think of it as another prescription drug. If the employee isn’t going to report to work high and doesn’t work in a safety-sensitive position, consider allowing it.