An Employee Using Marijuana Is Not Protected Under the ADA

Although many states have legalized the use of medical and/or recreational marijuana, it still remains an illegal drug under federal law – and the U.S. Court of Appeals for the Sixth Circuit recently held that a marijuana user was therefore not protected by the Americans with Disabilities Act.

In Maxson v. Baldwin, an employee with a back injury was admittedly addicted to prescription medications and alcohol, and also used marijuana to reduce the pain. Shortly after showing up for work with withdrawal symptoms that interfered with his ability to do his job, he was terminated for a positive marijuana test, as well as an arrest and misdemeanor guilty plea for attempting to obtain dangerous drugs. He sued, arguing that the true reason for his termination was his addiction to prescription drugs and alcohol.

Under the ADA, alcoholism is considered to be a disability (although employers may still hold alcoholic employees accountable for meeting performance and conduct standards). However, as the Sixth Circuit noted, the ADA provides that an employee who is “currently engaging in the illegal use of drugs” is not entitled to the protections of the law. According to EEOC guidance, drug use is current if it “occurred recently enough to justify an employer’s reasonable belief that involvement with drugs is an on-going problem.” Here, the Sixth Circuit found sufficient evidence of current drug use in the employee’s admitted use of marijuana, the positive marijuana test, and the withdrawal symptoms. Accordingly, the employee was excluded from coverage under the ADA.

Employers should be aware, however, that even though the ADA will not protect medical marijuana users, the EEOC may still require them to engage in an interactive process with the employee to ascertain if other accommodations may be available based on the employee’s underlying disability. In addition, there may be employment protections for medical (and even recreational) marijuana users under state law.