By David Macaulay, Veritas Legal Media
Recently voters in Colorado and Washington State voted to legalize marijuana for recreational use. The two states are also among 18 that allow the use of the drug for medical use, as well as Washington DC.
But if you are a federal or any other employee you may not be entitled to protections under the Americans with Disabilities Act, even if you live in a state that allows marijuana use, a recent court case has ruled.
While Colorado and Washington passed referendums legalizing marijuana for recreational use on November 6, 2012, the drug is still banned under federal law where it is presently classified as an illegal schedule 1 drug.
The 9th U.S. Circuit Court of Appeals recently considered the issue of protections under the ADA in November, 2012 and found that California residents using medical marijuana permitted by state law but prohibited by federal law, constituted an illegal use of drugs under the ADA of 1990.
In the case of James, et al. v. City of Costa Mesa, residents of two California cities were recommended the use of medical marijuana to ease their pain. The drug is permitted to be used for medical purposes in California.
However, the cities in which they obtained marijuana sought to close marijuana dispensing facilities. The residents sued the cities under the ADA Title II. They claimed that by interfering with their access to medical marijuana, the cities were preventing them from accessing public services.
They sued but were ultimately unsuccessful. The 9th U.S. Circuit Court of Appeals affirmed the denial of preliminary injunctive relief, stating the ADA defines “illegal drug use” by referring to federal, not state, law. The court ruled federal law does not authorize the residents’ use of medical marijuana.
The judges said it was “unlikely that Congress would have wished to legitimize state-authorized, federally proscribed medical marijuana use” in what it said was an ambiguous ADA provision.
The issue of medical marijuana use did not arise in the employment context in this case but the terms analyzed by the court are the same ones as used in ASA’s employment provisions. It’s, therefore, reasonable to believe the same provisions apply if an employee with an illness seeks ADA protection to use medical marijuana. An experienced employment attorney can advise you on your rights.
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