It’s been a minute since I’ve gotten to blog about the Americans with Disabilities Act and accommodating an individual with a disability and a marijuana card who uses doctor-prescribed marijuana off the clock.
Better dust off the cannabis scales of justice for this one.
The ADA prohibits employers from discriminating based on disability against a “qualified individual.” A “qualified individual is “an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position.” However, the ADA also provides that “a qualified individual with a disability shall not include any employee or applicant who is currently engaging in the illegal use of drugs, when the covered entity acts on the basis of such use.”
Marijuana may be legal in several states, but it remains an illegal Schedule One substance federally. Therefore, an individual with a disability who uses medical marijuana is not a qualified individual under the ADA. Thus, the ADA does not protect that person based on the use of medical marijuana. That’s basically what a CT federal court held recently (here).
But, here’s the thing (or things, as the case may be):
- While the ADA does not protect medical marijuana users who claim to face discrimination based on their marijuana use, an individual who uses medical marijuana may still have a viable ADA claim if s/he alleges that the employer discriminated based on the underlying disability.
- The ADA does not preclude a company from accommodating an employee’s use of medical marijuana. So, if your business wants to treat medical marijuana like other prescription drugs, the company won’t be violating the ADA.
- ADA notwithstanding, state law may require accommodating medical marijuana use outside of work. Indeed, Connecticut courts, for example, have already recognized as much.
So, be careful out there, ok?
But, if you come back later today at Noon ET for the next edition of The Employer Handbook Zoom Office Hour, my partner, Susan Warner, and I have got your six on another ADA minefield. Susan and I will discuss the most important ADA decision yet in 2021, as well as some proactive steps that your business can take to bulletproof itself against ADA Title III claims.
This has been a popular subject. So, space is limited. Hurry and register here.