Recently, when dismissing a former employee’s claims brought under the Americans with Disabilities Act (ADA), the District of Connecticut issued two welcome reminders to employers. First, to set out an ADA disability discrimination claim, a plaintiff must allege that the employer was aware of the plaintiff’s disability. Second, and just as important, the ADA does not provide protection against discrimination based solely on medical marijuana use or require accommodation of medical marijuana use (although state laws may provide some protections).
In Eccleston v. City of Waterbury, Case 19-cv-1614 (D. Conn. Mar. 22, 2021), Plaintiff was a firefighter for the City of Waterbury. According to the Complaint, in 2017, Plaintiff was diagnosed with Post-Traumatic Stress Disorder (PTSD). Sometime thereafter, Plaintiff informed his battalion chief that he was thinking of applying for a medical marijuana card. Plaintiff was told that doing so “would not be a good idea.” Even so, Plaintiff obtained a marijuana card in January 2018. Critically, when talking to his battalion chief, Plaintiff did not mention his PTSD diagnosis, or that he sought a medical marijuana card for the purpose of treating a purported disabling condition.
The following March, Plaintiff was selected for a drug screen. He failed, testing positive for marijuana metabolites. Plaintiff was terminated not long thereafter for “use of marijuana such that it has endangered the health and wellbeing of others.” Plaintiff subsequently filed suit, alleging disability discrimination and retaliation based on the termination of his employment, as well as failure to accommodate his PTSD, as well as related state law claims. The City moved to dismiss the Complaint in its entirety. The Court held that Plaintiff’s federal claims failed, and refused to exercise supplemental jurisdiction over the state law claims.
Regarding Plaintiff’s discriminatory discharge claim, the Court held that it failed for several fundamental reasons. Foremost, because marijuana remains illegal under federal law, the ADA, which defines illegal drug use by reference to the Controlled Substances Act (CSA), does not provide protection against purported discrimination “when the covered entity acts on the basis of such use.” The court agreed with district courts in other jurisdictions which have found no ADA protection, even where the marijuana use is state-authorized and physician-supervised, stating:
I agree with the courts that have reasoned that even physician-supervised medical marijuana use does not fit within the supervised-use exception identified in the ADA. To read the statute otherwise would place it in direct tension with the clear provisions of the CSA—a statute the ADA relies upon to define the term “illegal drug use.” … Because medical marijuana does not fit within the supervised-use exception and remains illegal under federal law, an individual who uses medical marijuana cannot state a prima facie case under the ADA for discrimination on the basis of medical marijuana use. That remains true even where a plaintiff can establish that the drug use is linked to an underlying disability recognized by the ADA and taken under the supervision of a physician.
However, the court made clear that based on the text of the ADA, it is only “when the covered entity acts ‘on the basis of such use’” that a medical marijuana user does not enjoy ADA protection. In other words, while the ADA does not provide marijuana users with protections if their employer takes action against them because of their marijuana use, the ADA protects those same employees if the employer takes action against them because of their disability.
Moreover, the Complaint lacked any allegation that the City was aware of Plaintiff’s PTSD and, thus, Plaintiff failed to set out any facts giving rise to an inference of discrimination.
Plaintiff’s ADA accommodation claim failed for similar reasons. To begin, the Court held that the ADA simply does not require an employer to accommodate the use of a substance that remains illegal under federal law. In any event, the City was not on notice of Plaintiff’s purported disabling condition, and it was not obligated to engage in any interactive process.
Finally, the Court dismissed Plaintiff’s ADA retaliation claim because he did not plausibly allege that he engaged in protected conduct. While Plaintiff alleged he sought a marijuana card as an “accommodation,” that request was not related to a purported disabling condition. And as the Court had previously held, the ADA’s protections do not extend to an employee’s marijuana use.
The Court’s decision comes as welcome news for employers, and reaffirms the basic principle that an employer cannot discriminate or retaliate on the basis of a disability where it is not aware of such disability. Yet more broadly, this case joins the growing body of authority to hold that the ADA does not provide protection against discrimination solely on the basis of medical marijuana use or require accommodation of medical marijuana use. This cuts against the growing trend of state laws that provide some protections to employees for medical and (in some cases) recreational marijuana use.
While the Eccleston court found against the Plaintiff based on the facts and theories before it, the result might have been different had the Plaintiff brought a claim under the Connecticut Palliative Use of Marijuana Act. As a reminder, in Noffsinger v. SSC Niantic Operating Co. LLC (D.C. Conn. 2017), the Connecticut federal district court concluded that the ADA does not preempt state laws protecting employees from discrimination on the basis of medical marijuana use and, therefore, that states are free to provide those protections. For this reason, employers in all jurisdictions should exercise caution when dealing with applicants and employees using medical marijuana. Before taking any action against medical marijuana users, employers should review the laws of the states in which they operate and work with employment counsel to help navigate this complex and rapidly evolving area of the law.
For more information on this or any related topic, please contact the authors or your Seyfarth attorneys.