Seyfarth Synopsis: A recently-filed lawsuit in the federal district court in Arizona alleges that an employee’s use of medical marijuana may be permissible under the federal Americans With Disabilities Act (ADA). Although the employee faces an uphill battle, the case presents a challenge to the commonly-held view that the ADA does not support such a claim.

In Terry v. United Parcel Services, Inc., No. 2:17-cv-04972-PHX-DJB (D. Ariz., filed Dec. 29, 2017), a former UPS sales director alleges, among other things, that UPS terminated his employment in violation of the ADA and the Arizona Medical Marijuana Act (AMMA). Terry alleges that he was a medical marijuana card holder under the AMMA, and that, at the direction of his doctor, he used medical marijuana during non-work hours to treat his nearly constant and extreme hip pain. He claims that he never possessed, used, or was impaired by marijuana, alcohol, or any other impairing substance while present on UPS’s premises or during working hours. According to the complaint, in April 2017, UPS required Terry to report immediately for a drug and alcohol screening test, and was informed that the reason for the test was “observable behavior.” At a meeting with UPS officials one week later, Terry claims that UPS terminated his employment due to his positive drug and alcohol screening results and violating the company’s drug and alcohol policy. Terry claims that he responded by notifying UPS that he has a valid medical marijuana card under the AMMA and a valid prescription for Adderall that he took to treat his ADD.

In his lawsuit, Terry alleges that he was a disabled individual within the meaning of the ADA, and that UPS failed to offer him any reasonable accommodation for his disabilities. Presumably the accommodation that he was seeking was exemption from UPS’s drug policy and the ability to use medical marijuana off-duty and outside the workplace. Terry also claims that his termination constituted unlawful discrimination under the AMMA because it was a result of the positive drug and alcohol screening test and the AMMA prohibits an employer from terminating an employee who is a valid card holder solely because of a positive drug test for marijuana.

Terry’s ADA claim faces an uphill battle. The ADA prohibits disability discrimination and requires reasonable employment accommodations for individuals with disabilities. 42 U.S.C. § 12112(a)-(b). The ADA does not consider individuals who currently use illegal drugs to be qualified disabled individuals entitled to reasonable accommodation. 42 U.S.C. § 12114(a). And marijuana is an illegal drug under the federal Controlled Substances Act, 21 U.S.C. § 812(c). Accordingly, these authors are not aware of any published case law holding that an employee’s use of medical marijuana is subject to the ADA’s protections. To the contrary, authority out of the Ninth Circuit (within which the District of Arizona resides) has held that medical marijuana use is not protected under the ADA, as the ADA does not protect illegal drug use and marijuana remains illegal under federal law. See James v. City of Costa Mesa, 700 F.3d 394, 397-98 (9th Cir. 2012).

Nevertheless, Terry is a case worth watching. Terry challenges the prevailing view and case law that the ADA does not protect medical marijuana users. It does so in the wake of a growing number of laws that legalize medical marijuana at the state level and decisions recognizing viable claims under state anti-discrimination laws.