MEDICAL MARIJUANA USE: Though Permitted by California Doctors, Not Permitted in Workplace or Protected by ADA

California law allows physicians to prescribe marijuana for medicinal purposes; however, its general use and possession is still illegal under both federal and state law.  Recently, in response to a move by several California cities to close marijuana clinics within their boundaries, plaintiffs filed suit in federal court challenging the cities’ actions under the Americans with Disabilities Act (ADA).

The plaintiffs alleged that the defendant Cities had recently raided medical marijuana collectives and detained collective members.  Additionally, one of the cities had brought a public nuisance action in state court to close medical marijuana collectives within its boundaries.  The plaintiffs, who obtained medical marijuana through the collectives, alleged that the cities’ actions violated the ADA’s prohibition against discrimination in the provision of public services.   The district court denied the plaintiffs’ application for preliminary injunction on the grounds that the ADA does not protect against discrimination on the basis of medical marijuana use, even if such use is in accordance with state law, unless that use is authorized by federal law.  The plaintiffs appealed to the Ninth Circuit Court of Appeals, which affirmed the denial of the plaintiffs’ application for injunction.

Title II of the ADA prohibits public entities from denying the benefit of public services to any “qualified individual with a disability.”  Plaintiffs argued that by interfering with their access to medical marijuana that was used to treat their impairments, the cities prevented them from accessing public services.  However, the ADA’s definition of “qualified individual” specifically excluded an individual currently engaged in the use of an illegal drug.

The ADA has an exception to its definition of “illegal drugs use” that excludes drugs taken under supervision of a physician. Plaintiffs argued that such exception would apply to them.  However, the Ninth Circuit disagreed finding that there was no indication in the ADA that Congress sought to exclude from the definition of “illegal drugs use” the use of a controlled that was lawful under state law, but unlawful under federal law.  To hold otherwise would undermine the Controlled Substances Act’s clear statement that marijuana is an unlawful controlled substances that has no currently accepted medical use in treatment in the United States.

Previously, the California Supreme Court held that an employer can terminate an individual who tests positive for marijuana, even if such use is pursuant to a physician’s prescription that would be legal under California’s Compassionate Use Act.  While not specifically challenging an employment action, the case makes it extremely unlikely that a plaintiff suing under the ADA for an allegedly wrongful termination based on medical marijuana use would succeed.

Even with these rulings, we at Brown Law Group strongly advise employers implementing drug testing policies to seek legal review of those policies.  Further, employers should also be careful in terminating employees based on positive drug tests.  In general, drug testing is only permitted under the following circumstances: 1) During pre-employment screening, 2) as part of a physical examination, 3) under reasonable suspicion, 4) during post-accident testing, and 5) as part of a random testing program.  Random drug testing in California is only authorized under a very limited set of circumstances, such as in positions that are critical to public safety.

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