California Labor &
Employment Law Blog

May. 24 2012

Ninth Circuit:  Medical Marijuana Use Not Protected by ADA

Topics: Court Decisions, Discrimination, Harassment & Retaliation

In Ross v. Ragingwire, the California Supreme Court held that an employer may lawully terminate an employe (or refuse to hire an applicant) who tests positive for marijuana, even if the marijuana use if for lawful medical purposes under California law.  This week the Ninth Circuit held that the ADA similarly does not protect medical marijuana use.  In James v. City of Costa Mesa, the Ninth Circuit held that the ADA does not protect individuals who claim discrimination against them because of medical marijuana use.  The court reasoned that the ADA excludes from coverage disabilities based on illegal drug use, and that "illegality" is tied to federal, not state, law.  Because marijuana is illegal under federal law, medical marijuana use is not covered under the ADA, even if states such as California have legalized the medical use of marijuana.  Employers should note that while it is not unlawful to discriminate against an applicant or employee on the basis of their marijuana use (even if for medical reasons), it is still unlawful to discriminate against an applicant or employee for an underlying disability (for which the individual may be using the medical marijuana).  As such, employers should use caution in handling these situations to minimize risk and ensure they can demonstrate that any adverse employment decisions were based on knowledge of illegal marijuana use and not on knowledge of an underlying disability.  The James v. City of Costa Mesa opinion is here

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About the Editor

Robin Largent represents employers, including major food and retail companies, in all types of employment litigation: wrongful termination, retaliation, breach of contract, wage and hour (California Labor Code) and unfair competition. She also regularly counsels and advises California employers on issues of compliance with California and federal employment laws.
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