For quite a while, I have wanted to tackle the issue of medical marijuana and how it should be handled under the American with Disabilities Act (ADA), but finding definitive information on the topic is hard. There are tons of questions, and very few clear answers. I’ve questioned many people and I have done a lot of reading. Now I think I have finally found some information worth sharing.
The analysis comes from the Southeast ADA Center, and before I share it, I have to warn that there are a lot of ‘maybes’ and ‘howevers,’ but I think it might help us start to get our heads around the twists in the law… at least until things change again!
Before we dive into this it is important to remember that the ADA is federal law and marijuana is still completely illegal on the national level, regardless of what individual states have done. According to the Center, the ADA says a person who is currently using illegal drugs is not a qualified individual with a disability and is not covered by the ADA. Drug screening, like that done by employers, is not considered a medical examination so the ADA doesn’t protect someone using drugs from these tests.
Here comes the first ‘however.’ The Center says a question does arise when you are talking about medical cannabis. Drugs “taken under supervision by a licensed health care professional, or other uses authorized by the Controlled Substances Act or other provision of law” are considered permissible and might be protected under the ADA.
Do the words “other uses” bring medical cannabis under the ADA umbrella? According to the Center, they generally do not because regardless of what the states decide, it is still illegal to prescribe marijuana under the Controlled Substances Act.With all of that said, the Center’s analysis says there is still a possibility that a medical marijuana user might be protected underthe ADA if they follow all of the state laws and are using the drug to treatan ADA covered disability. The conclusion is that it will just take one court to find thatthe ADA gives some protection and the floodgates will open.
For now, employers can almost always fall back on the fact that the drug is illegal under federal law, but that might change if Congress downgrades it from a Schedule 1 to a Schedule 2 drug. And if you are in a state that has legalized marijuana in some form, there might be local ADA type statues that differ just enough from the federal law to create gray areas.
While this is a horrible way to conclude a post… we have no firm answers or advice for you on this front other than move slowly, think carefully and lean on your legal counsel in all of these matters. At least until some of the smoke clears.
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