Americans with Disabilities Act

Almost a majority of the states allow medical marijuana, so a common question is how does the use of medical marijuana affect the rights under other laws, and in particular, the Family Medical Leave Act (“FMLA”) and the Americans With Disabilities Act (“ADA”)?

The FMLA allows employees who have been employed for at least one year with their employer, and worked 1250 hours in the last year for that employer, to take up to 12 weeks of unpaid leave, provided they work at a location where there are at least 50 employees within 75 miles of the location. The 12 weeks can be for family leave – birth or adoption of a child, or medical leave – if the employee is sick or they need to care for certain sick family members.  The ADA prohibits employers from discriminating against those who are disabled, and those associated with a disabled person.  In addition, the ADA requires employers to provide reasonable accommodations to the disabled employee so the employee can perform the essential duties of their job. While these two laws give employees certain rights, one must also remember that marijuana use is illegal throughout the United States under federal law, even in those states where its use is legal under state law.
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With 24 states and the District of Columbia currently having legalized medical and/or recreational use of marijuana, there are now tens of thousands of card-carrying marijuana users in the workforce. While these new marijuana legalization laws come as a welcome relief to those seeking to benefit from the drug’s therapeutic benefits, they also have the

More and more cities and states are legalizing the use of marijuana for medical and recreational use.  The good news is that means in those jurisdictions the local and state police will not arrest you if your use conforms to the local/state law-medical use states require a prescription and recreational use laws usually limit the amount of marijuana one can possess.  In addition, federal prosecutors, at least under the current administration, will not prosecute you for use which is legal under state and local laws.

Now the bad news.  Marijuana use is still illegal under federal law, 21 U.S.C. § 801 et seq., since it is listed as a schedule 1 controlled substance.  That means its use is not protected by the Americans With Disabilities Act, 42 U.S.C. § 12101 et seq., (“ADA”) because the ADA does not protect the current use of an illegal drug.  Moreover, most employees are at-will employees, so they can be fired for good cause, bad cause, or no cause.  Thus, if an employer wants to fire employees who use marijuana away from work, it is likely that the employer can legally do so.
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