Medical Marijuana and the Americans With Disabilities Act

Marvin L. Longabaugh^1a

Medical Marijuana vs. ADA in the Workplace

Since 1950, the federal government has steadfastly refused to consider marijuana as anything other than a Schedule I drug. The Controlled Substances Act (“CSA”)¹ categorizes drugs into five schedules.² This division depends in part on whether a particular drug has a currently accepted medical use.³

Prior to 1987, the phrase “currently accepted medical use” was usually defined as meaning that the FDA had evaluated the substance for safety and approved it for interstate marketing in the United States pursuant to the Federal Food, Drug, and Cosmetic Act of 1938 ("FDCA")⁴ . This definition was broadened, however, when the First Circuit held in Grinspoon v. Drug Enforcement Admin. that there is no linkage between FDA approval and “currently accepted medical use” under the CSA.⁵ Instead, the Grinspoon court held that Congress had intended that a determination of “currently accepted medical use” be left to the discretion of DEA administrators and subject to administrative appeals by parties wishing to dispute such determinations.⁶

This definition of “currently accepted medical use” is a key component in the scheduling of drugs under the CSA. The CSA regulates the manufacture and distribution of the substance on the basis of the schedule in which it has been categorized.⁷ Schedule I is the most restrictive classification.⁸ A drug can be classified as a Schedule I drug by the United States Attorney General only if three conditions are met.⁹ A Schedule I drug must (1) have no currently accepted medical use in treatment in the United States, (2) have a high potential for abuse, and (3) have a lack of accepted safety for use under medical supervision.¹⁰

There is only one exception permitting use of a Schedule I drug. A Schedule I drug may be legally used only in connection with Government-approved research projects.¹¹ Other drugs included in lesser schedules can be dispensed and prescribed for medical use.¹² The federal government uses three different mechanisms to regulate the use of Schedule I drugs like marijuana: (1) federal statutes, (2) cases heard in the federal courts, and (3) administrative regulations of various federal agencies.

The United States has not always considered marijuana an illegal substance.¹³ Marijuana, as well as the hemp plant from which it is derived, have been used in both medical and industrial applications for centuries.¹⁴ In fact, several historical documents, including the Declaration of Independence, were written on hemp.¹⁵ In the nineteenth century, marijuana was considered by the United States Dispensatory as a “drug that has special value in some morbid conditions and the intrinsic merit and safety of which entitles it to a place once held in therapeutics.”¹⁶ As incredible as it may seem today, in 1937 marijuana could be found in drug stores along with common medications like aspirin and Epsom salts.¹⁷

In 1937, however, the pressure to restrict the availability of hemp and marijuana originated with the cotton, timber, and chemical industries.¹⁸ These pressures resulted in the implementation of a stamp tax ¹⁹ which severely restricted, through tariffs, the possession or sale of marijuana.²⁰ In addition to this tax, Congress also passed the Narcotic Drugs Import and Export Act²¹ which assessed penalties for the illegal importation and smuggling of drugs and which made the unexplained possession of marijuana presumptive of guilt under the act unless the accused could express a sufficient justification to the jury.²² The simultaneous existence of these two statutes created a paradox for marijuana users that was addressed by the United States Supreme Court in Leary v. United States in 1969.²³

In 1965, Dr. Timothy Leary was indicted and convicted for the illegal smuggling of marijuana into the U.S. and for failure to pay the marijuana transfer tax.²⁴ He argued that had he paid the tax, he would have incriminated himself under the federal smuggling statute and state narcotics laws.²⁵ The Supreme Court agreed with Leary and held the Marijuana Tax Act unconstitutional.²⁶ Additionally, the Court held that the Narcotic Drugs Import and Export Act was invalid under the Due Process Clause.²⁷

In response to Leary, Congress enacted the Controlled Substances Act of 1970²⁸ , which categorized all controlled substances into five schedules of various restrictions.²⁹ Marijuana was placed in Schedule I, which barred the use or distribution of any substance with the limited exception of use for government-approved research and, even then, only under strict storage and record keeping restrictions.³⁰

As mentioned earlier,³¹ the three conditions for Schedule I classification are (1) no currently accepted medical use, (2) high potential for abuse, and (3) lack of accepted safety for use under medical supervision.³² The quandary that has enveloped marijuana’s classification as a Schedule I drug involves whether or not marijuana has a currently accepted medical use.

Federal statute dictates that "except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally ... to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance."³³ Correspondingly, all states have adopted measures criminalizing the manufacture, distribution, and possession of marijuana.³⁴ Recently, however, numerous states have enacted legislation permitting medical use of marijuana and a few states have even legalized possession of small amounts of marijuana for recreational use.

Since the adoption of the Controlled Substances Act, there have been numerous attempts to change marijuana’s Schedule I classification at the federal level. The first attempt occurred in 1972, when the National Organization for the Reform of Marijuana Laws (NORML) petitioned the Bureau of Narcotics and Dangerous drugs to either remove marijuana from the Controlled Substances Act altogether or, in the alternative, to reclassify marijuana as a Schedule V drug.³⁵ Courts have considered reclassification of marijuana six times.³⁶ Notable among these attempts was Alliance for Cannabis Therapeutics v. Drug Enforcement Admin.³⁷ , which attempted only to reduce marijuana’s classification from Schedule I to Schedule II.³⁸ The court used a five part test to determine whether reclassification was appropriate:

whether the drug has a known and reproducible chemistry,
whether adequate safety studies were performed,
if there were well-controlled and adequate studies showing marijuana’s efficacy,
whether marijuana was accepted by qualified experts, and
whether scientific evidence of marijuana’s efficacy was widely available.³⁹

As in previous attempts to reclassify marijuana, the court denied the request for a scheduling change because, according to the five criteria, marijuana had “no accepted medical use.”⁴⁰ The court based this determination on the

“testimony of numerous experts that marijuana's medicinal value ha[d] never been proven in sound scientific studies. The Administrator reasonably accorded more weight to the opinions of these experts than to the anecdotal testimony of laymen and doctors on which petitioners relied. The Administrator noted that with one exception, none of [these doctors] could identify under oath the scientific studies they swore they relied on. Only one had enough knowledge to discuss the scientific technicalities involved. Eventually, each one admitted he was basing his opinion on anecdotal evidence, on stories he heard from patients, and on his impressions about the drug.”⁴¹

Claims of medicinal value or medical necessity were simultaneously helped and hindered in 1985 when the Food and Drug Administration approved Marinol.⁴² Marinol, a synthetic form of THC (the active component in marijuana), was approved for use as a treatment for nausea and vomiting.⁴³ The effects of Marinol were purported to be identical to marijuana in proportionate amounts.⁴⁴

Proponents of medical marijuana use are not satisfied that Marinol is an effective substitute for marijuana, however. Many patients have countered that smoking marijuana, rather than ingesting THC in a pill form, provides significantly better relief for pain and nausea.⁴⁵ Others have cited difficulties in taking the pill orally⁴⁶ , while others have objected to the effects of a single immediately acting dose of Marinol as opposed to the gradual effects accomplished by smoking marijuana.⁴⁷ An additional obstacle to Marinol’s ability to serve as a marijuana replacement has been its high cost compared to marijuana.⁴⁸ Therefore, many patients eligible for a regimen including Marinol have resorted to the illegal use of marijuana, often with the approval of their doctors.⁴⁹ These benefits favoring marijuana over Marinol are important weapons in claims that marijuana use is medically necessary for patients qualifying under state medical marijuana programs.

Most recently, the United States Supreme Court ruled 8-0⁵⁰ that claims of medical necessity for marijuana use were not supported by the Controlled Substances Act, even though California had approved such use in a 1996 voter initiative.⁵¹ Moreover, Congress’ decision not to include such an exception could not be attributed to error.⁵²

In United States v. Oakland Cannabis Buyers’ Coop. & Jeffrey Jones⁵³ , a cooperative had been organized to distribute marijuana to qualified persons for medical reasons.⁵⁴ The federal government sued to enjoin the cooperative and its executive director, Jones, from this distribution, alleging that these activities were a violation of the Controlled Substances Act.⁵⁵ The United States District Court of Northern California enjoined the cooperative’s activities, rejecting the cooperative’s defense that its marijuana distributions were medically necessary.⁵⁶ The cooperative appealed, and the Ninth Circuit reversed the District Court. ⁵⁷ The Ninth Circuit held that medical necessity was a legally cognizable defense that was likely applicable under the circumstances.⁵⁸

The Supreme Court stopped short of holding that necessity could never be a defense.⁵⁹ Instead, the Court reasoned that necessity could not be employed as a defense when Congress had enacted clear and unambiguous legislation that precludes the use of a necessity exception.⁶⁰ The cooperative claimed that elimination of the necessity defense would require an explicit statement of exclusion in the statute.⁶¹ The Court disagreed, citing that the statute’s provisions left no doubt that the medical necessity defense was unavailable.⁶²

The language that the Court relied upon in eliminating the medical necessity defense was the “currently accepted medical use” clause previously discussed.⁶³ The Court noted that Congress, not the Attorney General, specifically placed marijuana as a Schedule I drug.⁶⁴ Thus, Congress had made a determination that marijuana had no medical benefits worthy of an exception.⁶⁵

Another interesting complexity with the ramifications of medical marijuana use and the workplace involves the Americans with Disabilities Act.⁶⁶ To establish a prima facie claim of discrimination under the ADA, a discharged employee must prove (1) that he has a disability, (2) that he was qualified for the job from which he was discharged, and (3) that his discharge was the result of his disability.⁶⁷ 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.

In Zenor v. El Paso Healthcare System, Ltd., the Fifth Circuit addressed whether the ADA excludes persons who are currently using illegal drugs from its protection.⁶⁸ Zenor was an employee who was addicted to cocaine.⁶⁹ After being unable to report to work one evening because of his addiction, Zenor elected to enroll himself in the drug rehabilitation program offered through his employer, El Paso Healthcare System.⁷⁰ Because Zenor’s job required access to pharmaceutical cocaine, El Paso Healthcare terminated Zenor’s employment after he returned from drug rehab.⁷¹ Zenor sued El Paso Healthcare on a variety of claims, including violation of the ADA.⁷²

According to the Zenor court, the ADA specifically exempts current illegal drug users from being considered “qualified individuals”.⁷³ The court further held that “federal law does not proscribe an employer’s firing someone who currently uses illegal drugs, regardless of whether or not that drug use could otherwise be considered a disability.”⁷⁴ Noting that Texas law has a strong presumption in favor of at-will employment, the Fifth Circuit held that the creation of a drug rehabilitation program did not create an enforceable contract granting rights beyond that of at-will employment.⁷⁵ For contractual rights to be created, a policy must “specifically and expressly limit the employer’s ability to terminate the employee.”⁷⁶ “The policy must contain an explicit contractual term altering the at-will relationship, and must alter that relationship in a meaningful and special way.”⁷⁷

Since marijuana use is still considered illegal by both the federal government, it seems clear that marijuana users, even those registered through a state’s medical marijuana program, may be excluded from ADA protection under 42 U.S.C. § 12114(a).⁷⁸ This issue has not yet been decided by the courts, and may ultimately be decided based on a choice of competing interpretations of the ADA.

Under a “competing federal interests” theory, the federal government’s need to keep marijuana illegal in all cases would compete with the ADA’s right to provide relief for a person “handicapped” by diseases such as cancer and glaucoma. While marijuana proponents could point to federal acceptance of known pain relievers such as morphine, the federal government would likely counter by asserting that these “handicapped” individuals could properly be treated with Marinol. Given these compelling arguments on both sides, it seems likely that any court decision will be appealed and the United States Supreme Court may ultimately be asked to decide whether medical marijuana use is permitted under the ADA.

Labor lawyers have questioned whether an employee with an otherwise qualifying disability may claim the right to use marijuana under the Americans with Disabilities Act.⁷⁹ Federal case law thus far has supported an employer’s right to discharge an employee for marijuana use, even if that employee were disabled according to the ADA.⁸⁰ The ADA excludes from its protection “any employee or applicant who is currently engaging in the illegal use of drugs”.⁸¹ The ADA recognizes an employer’s right to test for drug use⁸² and to prohibit illegal drug use in the workplace.⁸³ Again, the federal government’s refusal to declassify marijuana as a Schedule I drug makes it likely that ADA protection will not be afforded to employees terminated for medical marijuana use.

National Juris University, the graduate division of National Paralegal College, offers the following programs:

Master of Science in Legal Studies
Master of Science in Compliance Law
Master of Science in Taxation

^1a a1 LL.M. 2008, Beasley School of Law, Temple University. J.D. 2001, Boyd School of Law, University of Nevada Las Vegas. B.B.A., Management Information Systems, Texas Tech University, 1982.

¹ 21 U.S.C.S. § 812(b)(1)(A)-(C), also known as the Controlled Substances Act (“CSA”). This statute provides that “(b) Placement on schedules; findings required. Except where control is required by United States obligations under an international treaty, convention, or protocol, in effect on the effective date of this part, and except in the case of an immediate precursor, a drug or other substance may not be placed in any schedule unless the findings required for such schedule are made with respect to such drug or other substance. The findings required for each of the schedules are as follows: (1) SCHEDULE I. (A) The drug or other substance has a high potential for abuse. (B) The drug or other substance has no currently accepted medical use in treatment in the United States. (C) There is a lack of accepted safety for use of the drug or other substance under medical supervision.”

⁴ Grinspoon v. Drug Enforcement Admin., 828 F.2d 881, 884 (1st Cir. 1987). (The Federal Food, Drug, and Cosmetic Act can be found at 21 U.S.C. § 355).

⁵ Id. at 887.

⁶ Id. at 892.

⁷ 21 U.S.C.S. § 812(b)(1)(A)-(C).

¹⁰ Id. (In Grinspoon v. Drug Enforcement Admin., supra note 7, the First Circuit articulated that this public safety concern related to the potential for abuse and unlawful dissemination to the public at large).

¹¹ 21 U.S.C.S. § 823(f).

¹² 21 U.S.C.S. § 829.

¹³ Allison L. Bergstrom, Medical Use of Marijuana: A Look at Federal & State Responses to California's Compassionate Use Act, 2 DEPAUL J. HEALTH CARE L., Fall, 1997, at 158.

¹⁴ Marty Bergoffen & Roger Lee Clark, Hemp as an Alternative to Wood Fiber in Oregon, 11 J. ENVTL. L. & LITIG. 119, 120 (1996) [hereinafter Bergoffen & Clark].

¹⁶ LESTER GRINSPOON, M.D. & JAMES BAKALAR, MARIJUANA, THE FORBIDDEN MEDICINE 5-6 (1993).

¹⁸ Bergoffen & Clark, supra note 14.

¹⁹ Marijuana Tax Act, 21 U.S.C. § 4741 et seq., repealed by the Controlled Substances Act of 1970, 21 U.S.C. § 801.

²⁰ Bergoffen & Clark, supra note 14.

²¹ 21 U.S.C. § 176(a), repealed by the Controlled Substances Act of 1970, 21 U.S.C. § 801.

²³ Leary v. United States, 395 U.S. 6 (1969).

²⁴ Id. at 10-11.

²⁵ Id. at 16.

²⁶ Id. at 29.

²⁷ Id. at 53.

²⁸ 21 U.S.C. §§ 801-904.

³⁰ See id. §§ 822-823, 872.

³¹ 21 U.S.C.S. § 812(b)(1)(A)-(C).

³³ 21 U.S.C.S. § 841(a)(1).

³⁴ Roger A. Hoffman, MARIJUANA AS MEDICINE 38 (1982). See also Leary v. United States, 395 U.S. 6, 16 (1969).

³⁵ Denial of Marijuana Scheduling Petition, 54 Fed. Reg. 53767, 53773 (1989).

³⁶ See National Org. for the Reform of Marijuana Laws (NORML) v. Ingersoll, 497 F.2d 654 (D.C. Cir. 1974); National Org. for Reform of Marijuana Laws (NORML) v. Drug Enforcement Admin., 559 F.2d 735 (D.C. Cir. 1977); National Org. for the Reform of Marijuana Laws v. Drug Enforcement Admin. & Dept. of Health Educ. & Welfare, No. 79-1660 (D.C. Cir. Oct. 16, 1980); Alliance for Cannabis Therapeutics v. Drug Enforcement Admin., 930 F.2d 936 (D.C. Cir. 1991); Alliance for Cannabis Therapeutics v. Drug Enforcement Admin., 15 F.3d 1131 (D.C. Cir. 1994); United States v. Oakland Cannabis Buyers' Coop. & Jeffrey Jones, 121 S. Ct. 1711 (2001).

³⁷ 15 F.3d 1131 (D.C. Cir. 1994).

³⁸ Id. at 1132-33.

³⁹ Id. at 1135. (quoting Final Order, 57 Fed. Reg. 10,499 (Mar. 26, 1992)).

⁴² 47 Fed. Reg. 10082-83 (1985).

⁴⁵ Plaintiff’s Complaint for Declaratory and Injunctive Relief, Conant v. McCaffrey, 172 F.R.D. 681 (N.D. Cal. 1997) (No. 97-0139). (This case is also noteworthy in that the court held that the government is permanently enjoined from (i) revoking a physician's DEA registration merely because the doctor recommended medical marijuana to a patient based on sincere medical judgment and (ii) from initiating any investigation solely on that ground. This injunction applied whether or not the physician anticipated that the recommendation would be used by the patient to obtain marijuana in violation of federal law.).

⁴⁶ 47 Fed. Reg. 10082-83 (1985).

⁵⁰ Justice Breyer did not participate in Oakland Cannabis Buyers because his brother, Charles Breyer, was the U.S. district court judge who issued the original decision that rejected the defendant’s, Oakland Cannabis Buyers’ Cooperative, claim that its members could rely on a defense of “medical necessity” since they alleged that marijuana provided the only source of relief for their ailments.

⁵¹ United States v. Oakland Cannabis Buyers' Coop. & Jeffrey Jones, 121 S. Ct. 1711, 1718 (2001).

⁵² Id. at 1718-19.

⁵³ 121 S. Ct. 1711 (2001).

⁵⁴ Id. at 1715.

⁵⁶ Id. at 1715-16.

⁵⁷ Id. at 1716.

⁵⁹ Id. at 1718.

⁶⁴ Id. at 1719.

⁶⁶ 42 U.S.C. § 12101 et seq.

⁶⁷ Zenor v. El Paso Healthcare System, Ltd., 176 F.3d 847 (5th Cir. 1999); See generally Robertson v. Neuromedical Ctr., 161 F.3d 292, 294 (5th Cir. 1998); Burch v. Coca-Cola Co., 119 F.3d 305, 320 (5th Cir. 1997); Robinson v. Global Marine Drilling Co., 101 F.3d 35, 36 (5th Cir. 1996).

⁶⁸ Zenor, 176 F.3d at 853.

⁶⁹ Id. at 851.

⁷¹ Id. at 852.

⁷³ Id. at 853. (citing 42 U.S.C. 12114(a)). (“For purposes of this title, the term ‘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.”)

⁷⁴ Zenor, 176 F.3d at 853.

⁷⁵ Id. at 862.

⁷⁶ Id. (citing Vida v. El Paso Employees' Fed. Credit Union, 885 S.W.2d 177, 182 (Tex. App. 1994)).

⁷⁸ 42 U.S.C. § 12114(a). (“Qualified individual with a disability. For purposes of this title, the term ‘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.”).

⁷⁹ See Marijuana Ballot in California Raises Questions Over Testing, DRUG DETECTION REPORT, Sept. 20, 1996 (considering whether a doctor’s recommendation of marijuana as a treatment regimen would serve as a legitimate medical excuse for a positive drug test).

⁸⁰ Collings v. Longview Fibre Co., 63 F.3d 828, 832-33 (9th Cir. 1995). (employer’s termination of employees who used, sold, and purchased marijuana on company property was upheld on the basis that the discharge was the result of misconduct, not the employees’ claims of disability).

⁸¹ 42 U.S.C. § 12114(a).

⁸² See id. § 12114(b), (d).

⁸³ See id. § 12114(d) (2).