The Ninth Circuit Court of Appeals has ruled in James v. City of Costa Mesa that an individual who is discriminated against because of his use of medical marijuana – even if lawful in his home state – has no claim under the federal Americans with Disabilities Act (ADA). The Court reasoned that the ADA excludes disabilities related to illegal drug use, and that illegality is judged by federal – not state – law. Because marijuana is illegal under federal law, medical marijuana use is not covered under the ADA, even if states such as California have legalized the medical use of marijuana.
The Court’s opinion is available here.
Note – While James v. City of Costa Mesa now makes clear that it is not unlawful to discriminate against an applicant or employee on the basis of his/her medically-prescribed marijuana use, it could still be unlawful to discriminate against an applicant or employee for the underlying disability itself (for which the individual may be using the medical marijuana). It would depend on whether the underlying condition met the legal test for a protected disability. Accordingly, California employers should use caution in handling these situations.
The California Supreme Court addressed a related issue in 2008 in Ross v. Ragingwire Telecommunications, Inc., 42 Cal. 4th 420. In that case, the California Supreme Court ruled that it is not a violation of California law for an employer to terminate an employee who tests positive for marijuana, even though the employee was prescribed the marijuana for medical purposes under California’ Compassionate Use Act of 1996.
