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On May 21, 2012, the Ninth Circuit Court of Appeals held in a split decision that the Americans with Disabilities Act (“ADA”) does not bar discrimination based on marijuana use unless that use is authorized under federal law.  In James v. City of Costa Mesa, No. 10–55769, the court held that even marijuana use under a doctor’s supervision in accordance with state law was not protected under the ADA.  The court held that the ADA excludes illegal drug users from its definition of qualified individuals with a disability.  Although generally-applicable California drug laws carve out an exception for uses of marijuana for medical purposes under doctor supervision, there are no such exceptions to the federal Controlled Substances Act.  Since the ADA defines “illegal drug use” by reference to federal law, and the federal law does not authorize marijuana use for medical purposes, the Ninth Circuit Court of Appeals decided that discrimination in the provision of public services based on marijuana use was not prohibited by the ADA.

This case was filed after two California cities shut down their marijuana dispensaries and plaintiffs brought suit alleging that the cities discriminated in the provision of public services in violation of the ADA.  Even though the facts of the case do not involve an employment decision, the same rationale likely applies to discrimination cases in the employment context. 

James v. City of Costa Mesa arguably reinforces a 2008 decision by the California Supreme Court, ruling that medical marijuana use is not covered by the state anti-discrimination statute.  In Ross v. Ragingwire Telecommunications, Inc., the court held that California’s Compassionate Use Act did not require the state anti-discrimination statue to prohibit discrimination on the basis of medical marijuana use.  Thus, an employer’s decision not to waive the drug testing requirement for an applicant with a medical marijuana prescription was not a violation of California state anti-discrimination laws.

For now, employers can rest assured that their prohibition of the use of marijuana will not subject them to liability under state or federal disability law.  In California, employers may still make decisions based upon an employee’s illegal drug usage, which includes the use of marijuana, so long as the employer is not discriminating on the basis of the disability for which the marijuana has been prescribed.  

Employers should, however, stay informed about this area of law because there appears to be a shift, not only in California, but also across the United States, in the public’s perception of recreational and medical use of marijuana.  Over time, changing public views may pressure Congress and state legislatures to alter policies and applicable drug laws to exempt medical marijuana use.