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The Federal Position Still Does Not Protect Marijuana Users


Historically, courts have determined that the Americans with Disabilities Act (ADA) does not protect individuals with disabilities with valid medical marijuana prescriptions who lose their jobs for testing positive.

Marijuana Cultivation
Marijuana Cultivation

By 2024, most states have recognized the medical benefits of cannabis and have legalized it for medical use by their residents. Will this translate into viable ADA discrimination claims?

Not likely — at least not until the federal government removes marijuana from the list of Schedule 1 drugs, which continues to include marijuana (cannabis) as one of the "drugs with no currently accepted medical use and a high potential for abuse."

Consider this Feb. 14, 2024, decision out of Vermont (Skoric v. Marble Valley Regional Transit District). The plaintiff claimed that he "was wrongfully terminated for using a legally prescribed medication that helps [him] manage [his] disabling medical conditions and engage in productive work, despite a positive performance review." He further argued that he should be protected as a medical cannabis patient in a state that has legalized medical cannabis.

In 2024, that claim still fails under the ADA. That is because the ADA does not protect individuals engaging in "the illegal use of drugs" within the meaning of the statute. The "illegal use of drugs" means "the use of drugs, the possession or distribution of which is unlawful under the Controlled Substances Act," such as marijuana (cannabis).

There is an exception for "the use of a drug taken under supervision by a licensed health care professional." Unfortunately for the plaintiffs, courts have determined that physician-supervised medical marijuana use does not fit within the supervised-use exception identified in the ADA.

Remember, the ADA was enacted long before states began legalizing the use of medical marijuana.

But, there are situations in which the ADA will protect people who have used illegal drugs. For example:

  • The ADA protects an individual with a disability who is in recovery and no longer currently engaging in the illegal use of drugs.
  • Employers cannot discriminate against an individual with a disability who becomes addicted to the medication they take in a prescribed manner and in prescribed amounts.
  • Employers often cannot terminate or refuse to hire individuals receiving treatments like Suboxone and methadone to treat opioid addiction.
  • Employers cannot discriminate against someone because of the underlying disabling condition.

Finally, depending on the state, a plaintiff asserting a state law claim in connection with a termination of employment for using medical cannabis may have a viable claim based on state law.

Posted In: Americans with Disabilities Act (ADA); Drugs/Alcohol, Abuse and Testing

Want to know more? Read the full article by at The Employer Handbook

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