Although medical marijuana use is legal under California state law, it remains illegal under the federal Controlled Substances Act. Plus, even though medical marijuana use is legal in California, in 2008 the California Supreme Court, in Ross v. Ragingwire Telecommunications, ruled that an employer may discipline an employee who tested positive for medical marijuana. Recently, in James v. City of Costa Mesa, the Ninth Circuit Court of Appeals held that marijuana for medical purposes is not protected as a form of disability under the Americans with Disabilities Act (“ADA”).
In James, the plaintiffs were severely disabled individuals who had prescriptions for medical marijuana to alleviate chronic pain. The cities of Costa Mesa and Lake Forest enacted ordinances to close marijuana dispensing facilities operating within their boundaries. As a result, the plaintiffs brought suit against Costa Mesa and Lake Forest, alleging that the anticipated closures of the marijuana dispensaries would violate Title II of the Americans with Disabilities Act (“ADA” or “Title II”).
ADA prohibits public entities from denying the benefit of public services to any “qualified individual with a disability.” The plaintiffs alleged that, by interfering with their access to medical marijuana, Costa Mesa and Lake Forest had effectively prevented them from accessing public services in violation of Title II.
The Court looked to the ADA’s language to determine who is entitled to protection. Under the ADA, the term “individual with a disability” does not include an individual who is currently engaging in illegal use of drugs. The ADA defines “illegal use of drugs,” as “the use of drugs, the possession or distribution of which is unlawful under the Controlled Substances Act.”
Although medical marijuana use remains illegal under the federal Controlled Substances Act, the ADA has an exception that applies to “use of a drug taken under supervision of a licensed health care professional, or other uses authorized by the Controlled Substances Act or other provisions of federal law.” Plaintiffs argued that their medical marijuana use fell within the exception for drug use supervised by a licensed health care professional.
The Ninth Circuit disagreed and held that plaintiffs’ medical marijuana use was not protected by the ADA because the exception to the exclusion for illegal drugs use requires that the drug use must both be “under supervision” and “be authorized by . . . federal law.” The Court noted in its analysis that a contrary interpretation of the exception for “use of a drug taken under supervision by a licensed health care professional” would allow a doctor to recommend the use of any controlled substance – including cocaine or heroin – and thereby enable the drug user to avoid the ADA’s illegal drug exclusion. Because marijuana use is not authorized by federal law, the Court held that Costa Mesa and Lake Forest’s closure of marijuana dispensaries did not violate the ADA.
Although the James case is not an employment law case, it reinforces public employers’ ability to discipline employees who test positive for medical marijuana. The James case strengthens the holding in Ross, in which the California Supreme Court held that use of medical marijuana in violation of an employer’s policies can lead to disciplinary action even if the employee has a prescription for such use. If the James court had held that the plaintiffs were protected as individuals with disabilities under the ADA, this could have complicated the ability of employers to discipline those employees who test positive for medical marijuana because those employees would now be qualified as “disabled” under the ADA.