The Americans with Disabilities Act of 1990 was comprehensive federal legislation that prevented discrimination against persons with disabilities. The ADA included discrimination in the employment context and places of public accommodation, which extend to any place open to the public for business. If a person has a qualifying disability under the ADA, the defendant must make reasonable accommodations for that person’s disability. Reasonable accommodations include a variety of different measures to enable the person with the disability to perform his or her job or enjoy the services or benefits of the provider.
When the ADA was passed, the statute made clear that nothing in the ADA should be “construed to preclude the prohibition of, or the imposition of restrictions on, smoking” (28 C.F.R. § 36.210, 2002). The reason for this is that the ADA was not meant to cover smoking as a disability. If smoking were considered a disability, then smokers would be able to claim reasonable accommodations for their “disability.” As the deleterious health consequences of smoking have rendered smoking more and more unpopular, persons were concerned that the ADA would prevent public accommodations from prohibiting smoking. The language in the ADA effectively precludes smoking as a disability, and thus employers or businesses do not need to make reasonable accommodations to permit smoking. As nicotine in cigarettes is considered a drug, the government is free to prohibit drug use and preclude drug use from such coverage under the ADA.
Medical marijuana has recently become legal in a number of states. It remains illegal at the federal level. Under the doctrine of preemption, federal law trumps state law. Therefore, while medical marijuana may be legal on the state level, it is illegal under federal law and for federal purposes. An interesting issue arises then whether medical marijuana use is protected by the ADA and the users of medical marijuana are considered to have a “disability” within the meaning of the ADA. The case James v. City of Costa Mesa sheds some light on this question.
The plaintiffs in James v. City of Costa Mesa were users of medical marijuana for various disabilities and health impairments (James v. City of Costa Mesa, 2012, p. 396). While medical marijuana is legal under California state law, the federal Controlled Substances Act prohibits medical marijuana and makes no health exception (James v. City of Costa Mesa, 2012, p. 396). The plaintiffs then brought a claim under the ADA, arguing that their disability of using medical marijuana is protected under the ADA (James v. City of Costa Mesa, 2012, p. 396).
The court found that because federal law prohibited medical marijuana, medical marijuana was not a disability covered under the ADA (James v. City of Costa Mesa, 2012, p. 396). The language of the ADA defines such “illegal drug use” with reference to the Controlled Substances Act rather than California law. Because the Controlled Substances Act makes medical marijuana illegal unless it falls under a narrow exception, medical marijuana was an “illegal drug use” and outside the scope of ADA protection.
Given that the ADA does not protect medical marijuana users under the penumbra of disability, and the ADA does not preclude businesses from prohibiting smoking, it is unlikely that medical marijuana users would be able to smoke in non smoking rooms. First, ordinary smoking is not protected under the ADA and nothing in the ADA prevents a business from regulating smoking or prohibiting smoking within the establishment. Second, the James case held that medical marijuana is not covered under the ADA because federal law renders medical marijuana an illegal drug. Since the ADA does not protect smoking or medical marijuana use, it would not protect the smoking of medical marijuana in a non smoking room.
References
James v. City of Costa Mesa, 700 F.3d 394 (9th Cir. 2012).
