The U.S. Court of Appeals for the Ninth Circuit, which governs district courts in the region that includes Arizona, recently provided some relief that will likely be welcome to employers. In James v. City of Costa Mesa[1] the court held that the Americans with Disabilities Act ("ADA") does not protect medical marijuana users on the basis of such use, even when the medical marijuana use is specifically authorized under state law and under a doctor's supervision. Although the James case is not an employment case, the reasoning of the decision should apply under the ADA's employment provisions, as applied to the use of medical marijuana.
The Plaintiffs in James were licensed medical marijuana users under California law. They had obtained their medical marijuana from dispensaries located in two California municipalities, upon the recommendation of their physicians. One municipality adopted a city ordinance excluding medical marijuana dispensaries. The other brought a public nuisance action seeking to permanently close its dispensaries.
Plaintiffs asserted that the ADA gives disabled citizens a federally protected right to use medical marijuana if such use is legal under state law and done with appropriate medical supervision. They further contended that they were being discriminated against, in violation of Title II of the ADA, which prohibits public entities from denying the benefit of public services to any "qualified individual with a disability."[2] The municipalities violated Title II, the Plaintiffs claimed, by denying them the benefit of public services by restricting their ability to acquire medical marijuana from dispensaries located within the municipalities. The Ninth Circuit held that Title II of the ADA does not give persons a right to use medical marijuana, even when such use is authorized by state law.
The issue on appeal in James was whether the use of medical marijuana, consistent with state law, fell within the term "illegal use of drugs." The public services provisions of the ADA define "illegal use of drugs" as:
the use of drugs, the possession or distribution of which is unlawful under the Controlled Substances Act. Such term does not include the use of a drug taken under supervision by a licensed health care professional, or other uses authorized by the Controlled Substances Act or other provisions of Federal law.[3]
Plaintiffs argued that their medical use of marijuana fell within this exception because their use of the illegal drug was supervised by a licensed health care professional. The Court rejected this reading of Section 12210, and commented that the Plaintiffs' interpretation was a substantial departure from the federal policy that does not extend federal protections to the federally prohibited, but state-authorized, medical use of marijuana. The cities' contrary interpretation of the law "not only makes the best sense of the statute's text and the historical context of its passage, but also is the only interpretation that fully harmonizes the ADA and the CSA." Accordingly, doctor-supervised marijuana use is an illegal use of drugs not covered by the ADA's supervised use exception.
The reasoning behind the James decision undeniably applies to the ADA in an employment setting. Under the employment provisions of the ADA, an employee or applicant who is currently engaging in the illegal use of drugs is not within the definition of "a qualified individual with a disability."[4] The definition of "illegal use of drugs" in the employment law provisions of the ADA is identical to the definition of the term in the ADA's public services provisions[5]. Therefore, employees or applicants in the Ninth Circuit will not successfully assert claims under the ADA for discrimination based on their disability for using medical marijuana. While this holding is a victory for employers on the federal level, claims may still arise under various states' laws for discrimination based on medical marijuana use.
