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A New Challenge to the ADA – Medical Marijuana

2018-03-20

Court to determine if the use of medical marijuana could be considered a reasonable accommodation

James Terry worked for United Parcel Service (UPS) for 32 years with a clean record but was fired for failing a drug test despite having a medical-marijuana card.  Terry tested positive for marijuana and amphetamines but was able to show that he held a medical-marijuana card and had a doctor’s prescription for Adderall to treat his attention deficit disorder.   According to his complaint, Terry “suffers from nearly constant and extreme hip pain for which he has had numerous surgeries and engages in weekly physical therapy.”  Terry alleges that he is a disabled individual within the meaning of the ADA and that UPS failed to offer him any reasonable accommodation for his disabilities.

Alternatively, UPS claimed that his firing met both their internal policy and the law.  Failing to accept their rationale, Terry filed a lawsuit in federal district court in Arizona alleging that an employee’s use of medical marijuana may be permissible under the Americans with Disabilities Act (ADA).   His suit is challenging the longstanding view that the ADA does not support such a claim, based on the underlying reasons for his use of medications, and for “unlawful discrimination in violation of the Arizona Medical Marijuana Act (AMMA).  The AMMA of 2010 prohibits discrimination against registered medicinal cannabis users by employers, except in the case of “safety sensitive” jobs. 

Terry, African-American and 53 years old, was the Director of Sales for the Desert Mountain District based in Phoenix.  He is also suing for sex, race, and age discrimination since UPS replaced him with a young white woman.   Lastly, he is suing for alleged defamation in response to UPS’ accusation that he was impaired on the job.

In October 2017, Terry filed a discrimination charge with the EEOC, alleging race and gender bias.  He received a notice of right-to-sue in November.    Currently, the EEOC has no official position on the issue of medical marijuana, according to the EEOC regional attorney in Phoenix, Mary Jo O’Neill.   O’Neill referenced the 2012 California case, James v. the City of Costa Mesa where the Ninth Circuit ruled that the ADA does not protect an “illegal use of drugs,” and even medicinal marijuana isn’t legal under federal law.  However, the same court stated the following year, “We do not hold, as the dissent states, that ‘medical marijuana users are not protected by the ADA in any circumstance.’ We hold instead that the ADA does not protect medical marijuana users who claim to face discrimination on the basis of their marijuana use.”   EEOC sued The Pines of Clarkston Inc. urging the Michigan federal court to reject the company’s argument that it let an epileptic would-be worker go for using medical marijuana as a smokescreen.   EEOC’s press release does not mention the use of medical marijuana and only references the $42,500 settlement and four-year consent decree for resolving the termination case. 

The foregoing has been prepared for the general information of clients and friends of Workplace Dynamics LLC and is not being represented as being all-inclusive or complete. It has been abridged from legislation, administrative ruling, agency directives, and other information provided by the government. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel.