Ninth Circuit Says Medical Marijuana Users Usually Not ‘Disabled,’ Not Covered by ADA

May 29, 2012 – In The News
Bloomberg BNA

The Americans with Disabilities Act typically does not provide coverage for medical marijuana use, even when authorized by state law and approved by a physician, a divided U.S. Court of Appeals for the Ninth Circuit held May 21 in a ruling that likely means employers do not have to accommodate a worker's medical marijuana use (James v. Costa Mesa, 9th Cir., No. 10-55769, 5/21/12).

As a result, a 2-1 appeals court ruled, a group of severely disabled medical marijuana users from California could not sustain their challenge to efforts by the cities of Costa Mesa, Calif., and Lake Forest, Calif., to shut down the marijuana dispensing facilities on which the group members rely for their supply of marijuana.

The group failed to show that their medical marijuana use, although approved by their doctors and authorized by California law, fell under the exception to the “illegal use of drugs” set forth in ADA § 12210(d)(1), Judge Raymond C. Fisher found. Accordingly, he said, the group members did not fit within the ADA's definition of an “individual with a disability,” which excludes individuals currently using drugs declared illegal under the federal Controlled Substances Act (CSA), and a lower court properly denied the group's request for injunctive relief.

Judge Harry Pregerson joined the opinion.

Judge Marsha S. Berzon dissented in part, arguing that there was no need for the court to “decide the case on the broad ground that medical marijuana users are not protected by the ADA in any circumstance.” The issue presented really was not marijuana “use,” so the appeals court should have remanded the case to the trial court for a merits determination on whether the plaintiffs stated a viable claim based on the “distribution” of drugs made illegal by the CSA, she contended.

Title II Case but Holding Broader

Although the lawsuit was brought under Title II of the ADA, which provides protections for disabled persons with regard to access to public services, Section 12210 is in Title V of the statute, which sets forth miscellaneous provisions applicable to the statute as a whole, including the employment provisions of Title I.

Jeffrey D. Polsky of Fox Rothschild in San Francisco told BNA May 28 that even though the decision was interpreting language from the public accommodations section of the ADA, the employment provisions contain the same definition.

“The case arose outside the employment context, but the ‘illegal use of drugs' language applies equally to employment cases,” Polsky said.

“In fact, the California Supreme Court reached the same conclusion (that the Compassionate Use Act did not prevent employers from terminating or refusing to hire people who tested positive for marijuana) in 2010” in Ross v. RagingWire Telecommunications Inc., 174 P.3d 200, 20 AD Cases 223 (Cal. 2008) (30 EDR 177, 2/6/08), Polsky said.

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