Cannabis and the Americans With Disabilities Act

Under the Americans With Disabilities Act, commonly known as the ADA, people cannot be fired from their jobs or discriminated against in any way, because of their disability. This is now a Constitutionally protected right, just like people can’t be discriminated against due to age or race.

Medical marijuana patients, however, are not protected by the ADA. To establish a prima facie claim of discrimination under the ADA, a discharged employee must prove that:

  1. He has a disability;
  2. He was qualified for the job from which he was discharged; and
  3. His discharge was the result of his disability.

In cases involving medical marijuana use, the question arises as to whether an employee has a disability under the ADA. Certainly, afflictions like cancer and glaucoma would likely be considered disabilities by the ADA.

But the analysis in these cases generally centers on specific language in the ADA that excludes users of illegal drugs. Pursuant to the ADA, a person currently using illegal drugs is not a “qualified individual with a disability” and thus is not protected by the ADA.

Therefore under federal law, despite state legalization in Colorado and other states, cannabis remains an illegal drug and technically disqualifies users protection under the ADA.

This means that legally registered medical marijuana patients—in states where cannabis is legal and who have been legally prescribed cannabis as a medicine by a registered physician—can still be discriminated against because of their cannabis use.

MMJ patients who have no protection under ADA can be fired from their job if they test positive of marijuana, even if they don’t operate heavy machinery or work in a high-risk profession, simply because their employer wants to implement a “drug-free workplace” policy.

Hotels can exclude guests who are legal MMJ patients, and prevent them from ingesting their legally prescribed medication because they promote a “smoke-free premises.”

Shouldn’t there be concessions and protections for employees and hotel guests who are regular, ordinary people who are also MMJ patients?

The time is NOW for the cannabis industry to push hard for major changes in federal cannabis legislation—to deschedule and legalize cannabis federally, as well as obtain federal protection for MMJ patients under the ADA.

One provision of the ADA provides that illegal drug use does NOT include use of drugs “taken under supervision by a licensed health care professional, or other uses authorized by the Controlled Substances Act or other provision of Federal law.”

This suggests that if a doctor prescribes cannabis to a patient, it would then be excluded from the definition of illegal drug use under the ADA.

It’s time to change the ADA and we can use this provision in our favor.

Why is it that a person who uses cannabis medically for PTSD, glaucoma or any other illness should be afraid of losing their job simply because they are taking their medicine in the privacy of their own home?

This is why we must work hard to change these federal laws now. We can’t wait. The lives of people actually depend on it.

There is a lot of momentum behind the cannabis legalization movement now as more states than ever before have passed referendums legalizing the medical and recreational use of cannabis.

We need to use this amazing momentum in our behalf to push forward with federal changes.

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