MY EMPLOYEE JUST TESTED POSITIVE FOR MARIJUANA- I CAN FIRE HER, RIGHT?

FailedDrugTestThe ADA specifically excludes employees who currently use illegal drugs from ADA protection. See 42 U.S.C.§ 12114(A); 29 C.F.R. § 1630.3(a).  Therefore, an employee who illegally uses drugs, either because she is a casual user or because she is an addict, is not protected by the ADA if the employer terminates for that reason.  An employer does not violate the ADA by enforcing its rules and policies prohibiting employees from illegally using drugs.

Therefore, when an employer learns that an employee is illegally using marijuana, the employer may terminate the employee because of the drug use without violating the ADA.   The result would be the same even if the employee also had a covered disability (multiple sclerosis) as long as the employer is acting on the basis of the illegal drug use and not the underlying disability.

Of course, there is a wrinkle! If the employee is using marijuana for a disability under the supervision of a licensed healthcare provider in a state where such use is lawful, the employee will argue there was no “illegal use” of drugs.  So far, all Courts have rejected this this argument.

For instance, in James v. City of Costa Mesa, 700 F.3d 394 (9th Cir. 2012), the court held that marijuana use, even if authorized by state law, was not protected by federal law.  Specifically, the ADA definition of “illegal drug use” refers to federal, rather than state, law and federal law does not authorize even medical marijuana use.   The court held “doctor-recommended marijuana use permitted by a state law, but prohibited by federal law, is an illegal use of drugs for the purposes of the ADA.”

See also, Barber v. Gonzales, 2005 WL 1607189 (E.D. WA. July 1, 2005)

(“[T]he  Court finds [Plaintiff’s] use of marijuana was an ‘illegal use of drugs’ as defined by the ADA, and, thus, the Defendants did not violate the ADA when they took action against [Plaintiff] on the basis of his marijuana use, regardless of whether Washington law allowed such use.   . . .[T]he purpose of the ADA is not expand the scope of permissible drug use, but rather to eliminate the discrimination against individuals with disability who lawfully utilize prescription medicines in connection with their disability.”);

Assenberg v. Anacortes Housing Authority, 268 Fed. Appx. 643 (9th Cir. 2008) (holding housing authority had no duty under the ADA to accommodate tenant’s medical marijuana use); Forest City Residential Management, Inc. v. Beasley, 2014 WL 6861439 (E.D. MI Dec. 3, 2014) (holding no accommodation necessary for medical marijuana under the Fair Housing Act and the Rehabilitation Act, relying on a HUD memorandum).

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