Wednesday, June 17, 2015

Medical Marijuana as a Reasonable Accommodation?

Yesterday, I blogged about the Colorado Supreme Court's decision that an employer could terminate an employee for medical marijuana use despite a state statute forbidding employment termination for "lawful" off-duty conduct. The decision did not specifically address whether off-duty medical marijuana use could constitute a "reasonable accommodation" for a disability (in the CO case, the employee clearly has a disability).

So, how about it? Can allowing medical marijuana be a "reasonable accommodation" for a disability? No. At least not under the federal Americans with Disabilities Act (ADA). The ADA generally requires employers to provide a reasonable accommodation (unless it imposes an undue hardship or poses a direct threat) to a "qualified individual with a disability."

The problem with medical marijuana is that marijuana is still illegal under the federal Controlled Substances Act. The ADA provides that:
[A] qualified individual with a disability shall not include any employee or applicant who is currently engaging in the illegal use of drugs, when the covered entity acts on the basis of such use.
42 U.S.C.A. § 12114. I think that pretty much resolves the issue, doesn't it? Chime in with a comment if you see it differently.